Huge GPS Win! Must Have Warrant to Track with GPS!

United States v. Jones, No. 10-1259 (Jan. 23, 2012).  Justice Scalia wrote the opinion.  Chief Justice Roberts joined him, as did Justices Kennedy, Thomas, and Sotomayor.  Justice Sotomayor also filed a concurring opinion.  Justice Alito filed a separate opinion concurring in the judgment, and was joined by Justices Ginsburg, Breyer, and Kagan.

The Supreme Court has concluded that tracking a vehicle by attaching a GPS device to it is a search. 

I know we've been seeing more and more of these cases in the district, especially in the Northern Division.

Authorities actually got a warrant to track the vehicle, but they installed the device after expiration of the warrant and outside of the authorized jurisdiction.  Over the course of four weeks, the tracker relayed more than 2,000 pages of data. 

Ultimately, gov charged defendant with cocaine offenses.  Defense filed motion to suppress based on use of the GPS.  Dist ct suppressed data obtained while the car was parked in the defendant's garage.  Ct admitted rest of data b/c from public thoroughfares.  A jury convicted the defendant and he received a sentence of life imprisonment. 

The Court of Appeals for the District of Columbia Circuit reversed, finding that warrantless use of the GPS violated the Fourth Amendment. 

Supreme Court held "that the Government's installation of a GPS devise on a target's vehicle, and its use of that devise to monitor the vehicle's movements, constitutes a 'search.'"  The government here "physically occupied private property for the purpose of obtaining information." 

The Court goes back to eighteenth- and nineteenth-century cases to discuss the original understanding of the Fourth Amendment.  Fourth Amendment jurisprudence was tied to common-law trespass, at least until the later part of the last century.  More recent cases have deviated from the exclusively property-based approach.  Court cited Katz v. United States, 389 U.S. 347 (1967). 

The Court concluded that "Fourth Amendment rights do not rise or fall with the Katz formulation" (the reasonable-expectation-of-privacy formulation).  Rather, the Court must assure preservation of the degree of privacy that existed when the Fourth Amendment was adopted.  For most of the country's history, the Fourth Amendment was understood to be concerned with government trespass upon the enumerated areas: persons, houses, papers, effects. 

The Court discussed the "beeper cases," the cases that had posed problems in the GPS context b/c they had rejected Fourth Amendment challenges to using a beeper to track items: Knotts and Karo.  The Court distinguished Knotts and Karo b/c the beeper was placed in the container with the consent of the owner at the time and prior to the container coming into the defendant's possession.  Here, the defendant possessed the vehicle at the time the authorities installed the GPS. 

Justice Sotomayor concurred:
* Found a search occurred.
* The reasonable-expectation-of-privacy test "augmented, but did not displace or diminish, the common-law trespassory test." 
* Found that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.  The reaffirmation of that principle suffices to decide this case." 
 * Considered the issue of tracking that does not require trespass (e.g., factory-installed GPS devices tracked by the government).
* Cited Chief Judge Kozinski's (Ninth Cir.) opinion in Pineda-Moreno and acknowledged that "Awareness that the Government may be watching chills associational and expressive freedoms."  The justice would take these factors into account when considering the existence of a reasonable societal expectation of privacy in one's movements. 

Justice Alito also filed a separate concurrence:
* Believes the majority opinion "strains the language of the Fourth Amendment," is not supported by case law, and "is highly artificial." 
* Would use the reasonable-expectation-of-privacy test. 
* Finds that the majority disregards the potential impact of the GPS and potential use of the information, and attaches too much importance to the placement of the unit on the car.  Explores some of the issues with property rights. 
* Concedes there are problems with the reasonable-expectation-of-privacy test. 
* Finds that short-term monitoring on public streets might be OK, but long-term monitoring would not be. 
* Legislation, rather than case law, may be the best means for addressing the issues. 

Tapia and Supervised Release

Supreme Court granted cert, vacated, and remanded to the Fifth Circuit in Breland v. United States, No. 11-6912 (Jan. 17, 2012). 

Gov conceded that Tapia applies in supervised-release context.  Can't lengthen prison time for purposes of rehab.

Mand Mins and Substantial Assistance

United States v. Hawn, No. 10–2098 (6^th Cir. Jan. 11, 2012) (not for publication).

Panel of Judges Daughtrey, Cole, and Rogers.

United States v. Traxler, No. 10-1792 (6^th Cir. Jan. 18, 2012) (not for publication).

Panel of Judges Kennedy, Martin, and Stranch.

Government appealed in both cases. Both defendants qualified for the ACCA 15-year mand min. Gov had released both defendants’ mand mins b/c of substantial assistance under 18 USC 3553(e).

Hawn got a year and a day. Traxler got five years.

The district court in Hawn disagreed with the government’s contention that any downward departure had to be based only on substantial assistance. The district court found it could vary based on the 3553(a) factors.

The Hawn Court found that:

* The district court should have started its analysis of a potential downward departure from the mand min, not the otherwise applicable GL range (here, the applicable range was less than the mand min, so the mand min should have become the range).

* The district court should not have departed based on the 3553(a) factors " without mentioning whether or how these factors related to or gave context to [the] substantial assistance."

* The district court had "the limited authority to impose a sentence below the minimum to reflect [the defendant’s] substantial assistance." The Court cited United States v. Bullard, 390 F.3d 413 (6^th Cir. 2004), and United States v. Grant, 636 F.3d 803 (6^th Cir. 2011). The Court found that Grant applies in the 3553(e) context as well.

The Court vacated the sentence.

The Court also made some notes for resentencing:

* The district court has only the authority to impose a sentence below the mandatory minimum based on the defendant’s substantial assistance.

* BUT the district court has "broad discretion" to consider a number of "contextual factors" to evaluate the value of the defendant’s assistance, the extent of the downward departure.

* The district court is not bound by the government’s recommendation of a two-level downward departure. Can give a greater or lesser departure. But the value of the assistance is the "governing principle." Any reduction should not exceed the value of the assistance.

The Traxler Court found that:

* The gov had not objected at sentencing, so plain-error review applied.

* Bullard applied.

* Interplay between the government’s downward-departure motion and the defense’s motion for a variance was confusing and the district court did not address how it reached its sentence, so remand was justified.

As in Hawn, the Court vacated the sentence.

Judge Stranch dissented:

* Found the sentence resulted from two separate motions: the gov’s motion for a downward departure and the defense’s motion for a downward variance.

* The district court adequately explained the sentence and the sentence should stand.

Restricted-Access Filing

New Local Rule 32 takes effect Tuesday.  Restricted-access electronic filing for PSRs and objections. 

Check out:

http://www.miwd.uscourts.gov/RULES%20OPINIONS/Admin%20Order%2011-123.pdf

Bad News on the CP Front

It was my week to post on the 6th Cir. blog, so here's a link to my discussion of United States v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (for publication).

Congressional involvement in the GLs and political (rather than empirical) motivation for GLs not valid reasons to reject GLs.

www.circuit6.blogspot.com.

More Crime-of-Violence News

United States v. Meeks, No. 10-5336 (6th Cir. Jan. 5, 2012) (to be published).

Panel of Judges Rogers, Cook, and McKeague. 

Defendant sentenced as career offender based, in part, on prior conviction for Kentucky first-degree wanton endangerment.

Defendant went to trial.  Convicted of being a felon in possession and of possessing, with the intent to distribute, oxycodone.  Two prior convictions for first-degree wanton endangerment; one prior for first-degree complicity to traffic in a controlled substance.  Sentenced as a career offender. 

Is first-degree wanton endangerment a crime of violence?

Under Kentucky law, a person is guilty of this offense when he or she, under circumstances manifesting an extreme indifference to human life, wantonly engages in conduct creating a substantial danger of death/serious physical injury to another.  One acts wantonly when one is aware of and yet consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist.  The risk must be such that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation.  A person creating such a risk who is unaware of it solely b/c of voluntary intoxication also acts wantonly.  (The statute at issue was Kentucky Revised Statute 501.020(3).)

* Court notes the offense does not include force as an element.

* It is not an enumerated offense.

* Wanton endangerment involves conduct that creates a serious substantial risk of violence akin to the risk associated with the enumerated offenses. 

* Not based on strict liability, negligence, or recklessness.  Wantonness involves criminal intent.  So Sykes suggests that the Court need not "engage in Begay's 'purposeful, violent, and aggressive conduct' inquiry." 

Discussion of Sykes that does not break new ground, but cites the case and its treatment of Begay.  Begay's "purposeful, violent, and aggressive" test may be limited to strict-liability, negligent, and reckless offenses b/c this inquiry is not based on statutory language and may be redundant.  Level of risk may divide the offenses that qualify as crimes of violence and those that do not.

Wanton endangerment is categorically a crime of violence. 

The offense was so classified pre-Begay and the Court stands by that conclusion. 

Even if the Court were to use the Begay purposeful/violent/aggressive inquiry, the offense would still qualify.  Such an inquiry would require use of the modified-categorical approach (Shepard documents).  Charging docs revealed defendant was charged with operating a motor vehicle under the influence of alcohol, causing a collision.   

The conviction necessarily involved an admission that the defendant was aware of and consciously disregarded the substantial risk that his conduct created a substantial danger of death. 

Sentence affirmed.