U.S. v. Jones: Decision Declaring Use of GPS Tracking a Search Leaves Some Unanswered Questions

On January 23, 2012, the United States Supreme Court unanimously held that the attachment of a Global Positioning System (GPS) device to a vehicle utilized to monitor a vehicle’s movements on public streets and obtain data for investigative purposes constitutes a “search” under the Fourth Amendment of the United States Constitution.  Justice Scalia delivered the opinion of the Court, stating that in this case, “the government physically occupied private property for the purposes of obtaining information.” 

In this case, the government (joint investigation conducted by FBI and Metropolitan Police Department) obtained a search warrant to install a GPS tracking device on the car Jones drove, but was registered to his wife.  Eleven days after the warrant expired, the government actually attached the GPS tracker to Jones' vehicle in the state of Maryland, and not the District of Columbia where the warrant was obtained.  The government tracked the vehicle for twenty-eight days and produced over two thousand pages of data.  Jones was subsequently indicted for drug trafficking conspiracy charges.  In a motion to suppress the evidence obtained from the surveillance, the District Court suppressed the GPS data obtained while the vehicle was parked at Jones’ residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when Jones drove the vehicle on public streets.  Jones was convicted and the D.C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.   

               

Justice Scalia opined, the Fourth Amendment was tied to common law trespass until the middle of the twentieth century when the Court declared in Katz v. U.S. that the Fourth Amendment protected “people, not places.”  To determine whether a search within the meaning of the Fourth Amendment occurs, the Court has applied the test articulated in Justice Harlan’s concurrence Katz, which states.  According to this test, the governmental activity must offend an individual’s manifestation of a privacy interest, and the privacy interest invaded must be one that society is prepared to accept as reasonable or legitimate.

The government in U.S. v. Jones, argued that under Katz, no search of the vehicle occurred since Jones had no reasonable expectation of privacy in the area of the underbody of the vehicle accessed by the government agents nor the public roads of which the vehicle traveled on which were visible to all.  The Court decided to not entertain the government’s contentions, explaining that Jones’ Fourth Amendment rights “did not rise or fall with the Katz formulation.”  Instead, the Court found it necessary to look at the case historically and what the Fourth Amendment first set out to protect – “persons, houses, papers and effects” – with a deeply rooted concern of the government’s trespass upon those areas.  The Court expressed that Katz did not narrow the Fourth Amendment scope; rather, it elaborated in circumstances where a physical trespass had not occurred. 

Justice Sotomayor concurred and agreed with the majority that a violation of the Fourth Amendment occurred.  She explained that Katz enlarged the scope of the Fourth Amendment, but did not diminish the trespasser analysis.  Justice Sotomayor further stated that in a future case, it might be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. 

Justice Alito concurred, along with Justice Ginsburg, Justice Breyer, and Justice Kagan, but disagreed with the majority’s analysis of the issue, and expressed that the majority was ironically analyzing a twenty-first century surveillance technique using eighteenth-century tort law.  Justice Alito proposed that the analysis focus on whether Jones’ reasonable expectation of privacy was violated by the long-term monitoring of the movements of his vehicle.  Justice Alito’s question of how the majority’s approach would protect individuals if the federal government required or persuaded auto manufacturers to include a GPS tracking device in every car shows the Court’s split in reasoning. 

It seems the majority’s ruling leaves unanswered questions in the minds of citizens and law enforcement officials alike.  The majority’s focus of trespass leads one to question what happens when the government’s intrusion to access information involves no physical trespass.  A large amount of surveillance techniques utilized by government agents encompass no physical contact.  There are multiple issues which are not discussed in the opinion, that are likely to arise as a result.  First is the issue regarding exigent circumstances.  Should an exigent circumstance arise, will the government have to obtain a search warrant to track the movements of the suspect?  Time constraints in an exigent circumstance do not always allow for a warrant to be issued thus placing law enforcement behind in resolving a critical situation.   A second issue will likely arise when a government agent obtains a search warrant for the use of a GPS tracking device on a vehicle through a State.  Will the monitoring have to cease if the vehicle leaves the state in which the warrant was obtained?  Typically, search warrants obtained at a state level involve activity within that specific jurisdiction.  Lastly, since this ruling applies retroactively, what happens to all the criminal defendants convicted with the use of a warrantless GPS tracking?  If such criminal defendants’ defense attorneys did not raise the issue at trial, the issue is not appealable.  It seems this decision will bring much litigation, with new precedent to be set.  Meanwhile it leaves the government in a guessing game of what to do in cases of exigency where technology is the only way to track the movements of the suspect.

Diana Cobo

Blogger, Criminal Law Brief

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U.S. In Iraq: Marine’s Sentence Reduced from 152 Years to a Pay Cut

Concluding a six-year investigation into the killings of two dozen Iraqi civilians in Haditha, Iraq, on Tuesday, January 24, 2012 United States Marine Corps Staff Sergeant, Frank Wuterich, plead guilty to one count of negligent dereliction of duty.  He was sentenced to ninety days imprisonment, but agreed to a plea deal that allowed him to avoid jail time.  While seemingly arbitrary and unjust to some, the plea is a reminder of the difficult and split-second decisions servicemen and women face on a day-to-day basis while in combat overseas.

On November 19, 2005, Wuterich, squad leader assigned to third Battalion, first Marine Regiment, first Marine Division, was moving his patrol unit through Haditha, an insurgent stronghold where armed resistance fighters hid among the general population.  An improvised explosive device exploded under a vehicle, killing one Marine and injuring two others.  Wuterich and his team stormed the houses nearby, under orders to “shoot first and ask questions later.”  After a forty-five minute ordeal, twenty-four civilians, including ten women and children, were killed.

Wuterich originally faced 152 years in prison on nine counts of involuntary manslaughter, two counts of assault with a deadly weapon and three counts of dereliction of duty.  Prosecution in the case accused Wuterich of seeking revenge, while Defense attorney, Neal Puckett, argued that Wuterich only meant to protect his fellow Marines in an “honorable and noble” act.

As the investigation progressed, it became clear that the prosecution had holes in their case.  The prosecution encountered conflicting evidence and testimony, and some hypothesized that Wuterich was taking the fall for higher-ranking officers and officials, as this was his first time in combat.  Charges were reduced, and Wuterich eventually pled guilty for one count of dereliction of duty.  The military judge, Lieutenant Colonel David Jones, recommended the maximum sentence of three months imprisonment;  however, after reviewing the contents of the plea deal between Wuterich and the prosecution, he instead demoted Wuterich to the rank of private.  Charges against six other Marines involved in the incident were dropped and another was acquitted.  

Khalid Salman, head of the Haditha local council, hoped that the soldiers would “receive fair punishment” but is “now convinced that the judicial system in America is unjust.”  He stated that they will pursue legal action against the soldiers through the international courts.  On his Facebook account, Kurdish lawmaker, Mahmoud Othman, pled to “the human right organizations and (nongovernmental organizations) in America and all over the world to strongly condemn this verdict.  Iraqi blood isn’t so cheap.”

Wuterich issued a statement apologizing to the families of the victims and emphasized that “it was never my intention to harm you or your families.  I know that you are the real victims of Nov. 19, 2005.”  Although he pled guilty on one count, Wuterich stressed that the purpose of the squad’s actions were to secure the area, not harm civilians and that his plea should not be considered a concession of erroneous actions on behalf of the platoon.

It is difficult to validate the death of twenty-four innocent men, women, children and elderly.  However, it is also crucial to keep in mind the circumstances under which the incident occurred. Wuterich and his men were in hostile territory immediately after a car bomb detonated and killed a member of his team.  Although Marines are trained to handle stressful and emergency situations, Wuterich was forced to make a split second decision aimed at securing the safety of his men.  He made the decision he thought was necessary, and while the lives of one group of people cannot be held at a greater value than those of another, Wuterich took action he thought was best.

Elena Gekker

Blogger, Criminal Law Brief

Beyond Psychological Trauma to Murder

Last week, Joran Van der Sloot confessed to the murder of Peruvian, Stephany Flores.  He was the prime suspect of the 2005 disappearance of American teenager Natalee Holloway while she was vacationing in Aruba.  He fled to Lima, Peru after being investigated for the Holloway disappearance and he met Flores at a casino. He murdered Flores exactly five years after Holloway’s disappearance once he found her reading on the internet about Holloway’s investigations he was involved with. Flores was found strangled on May 31, 2010 in Van der Sloot’s hotel room.

On January 11, 2012, Van der Sloot claimed he was “truly sorry” and that he had “wanted from the first moment to confess sincerely” for the murder, yet it is the first time he did after over a year and a half.  He hoped that his sincere apology would allow the court to give him leniency and not give him the thirty year maximum sentence.  In fact, on January 13, the Peruvian court only reduced the maximum sentence by two years awarding him twenty-eight years to be served.  Due to his time served his sentence will last until June 10, 2038, when Van der Sloot is fifty years old.  It is reported that he was in disbelief of the sentence, as if his “sincere apology” would help resolve the brutal murder of Flores.

Van der Sloot’s lawyer even stated to the court that Van der Sloot murdered Flores because of “extreme psychological trauma” he endured because he was a prime suspect in the Holloway case.  It is impressive how Holloway’s murder investigations could traumatize Van der Sloot when his acts murdered a woman who was curious about learning of the investigations.  It seems like quite the stretch to express that extreme psychological trauma would cause one to murder an innocent victim especially when he repeatedly gave conflicting stories to law enforcement about his involvement with Holloway.

Prior to sentencing Van der Sloot was held in the Castro Castro prison where it is reported that he had access to Internet, television, and cell phone usage.  Luckily, he will no longer be receiving these luxuries at high-security Piedras Gordas penitentiary in northern Lima where he has recently been transferred.  Psychological trauma or whatever he may choose to claim, he murdered Flores and will serve his sentence accordingly in Peru.

Monica Trigoso

Editor-in-Chief, Criminal Law Brief

A Hidden Crimmigration Lesson Courtesy of Judulang v. Holder

The recent Supreme Court decision in Judulang v. Holder was a narrow but welcome victory among immigration advocates.  It unanimously rejected the Board of Immigration Appeals (BIA) approach to determining whether to grant discretionary relief from deportation.

More to the point, Judulang is instructive because it sheds more light on the complexity of the intersection of criminal law and immigration, also known as crimmigration.  The immigration consequences of criminal violations have become increasingly important after Padilla v. Kentucky.  There, the Supreme Court held that criminal defense attorneys have an affirmative duty to warn non-citizen defendants about deportation consequences.  This duty cannot be taken lightly when non-citizens constitute 47.5 percent of offenders in the federal system and almost 97 percent of all federal convictions result from guilty pleas.  Among non-citizens, the guilty plea rate is even higher (99.2%).

The Judulang Court took a different path than Padilla, but the morals of the stories are essentially the same: the most effective representation of non-citizen criminal defendants should involve early consultation with immigration attorneys.  A brief overview of Judulang helps illustrate the point.  After living in this country as a lawful permanent resident for approximately fifteen years, Mr. Judulang was involved in a fight in which someone else shot and killed the victim.  Mr. Judulang pleaded guilty and was convicted as an accessory to voluntary manslaughter in 1988.  Seventeen years later in 2005, Mr. Judulang pleaded guilty to a second crime involving theft.  The later incident triggered an investigation by the Department of Homeland Security (DHS), which had the option of charging Mr. Judulang with deportability based on the older 1988 conviction, which is is exactly what DHS did.  Consequently, Mr. Judulang was then designated as an aggravated felon, a distinction making deportation nearly inevitable. 

Mr. Judulang argued on the grounds that drastic amendments to immigration law since the time of his conviction had not only changed the applicable rules, but also the relief available to him.  Although he was not wrong, an immigration judge issued a deportation order which was affirmed by the BIA using the “comparable grounds approach” ultimately rejected in this case.

The dangers of plea bargaining are well-known within the criminal justice system, and the issue deserves no less attention in the immigration context.  In Judulang, there was a clear incentive to plead guilty for the first offense.  Mr. Judulang’s six-year sentence was suspended and he was immediately released.  Yet, had the Supreme Court upheld the BIA’s approach as most circuits had, Mr. Judulang would have been deported as an aggravated felon unable to ever lawfully re-enter the United States.  With facts like this, it is entirely possible that a defendant would prefer to serve a finite period of incarceration rather than spend the rest of life unable to return to the U.S. 

Judulang also illustrates a problem with the majority opinion in Padilla.  As Justice Alito noted in his concurrence, it is problematic to try to draw a distinction between when deportation is a definite consequence and when it is merely a possible consequence.  Looking at Judulang, it is not hard to see that such a distinction is easily lost in the labyrinth of immigration laws.  It is uncertain how criminal attorneys could be expected to properly advise non-citizen clients without the benefit of consulting experts in immigration.  It would not be surprising to see more litigation to this effect.

Ashley Lam

Line Editor, Criminal Law Brief


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May it “Pleas” the Court?

Before Defendants reach the trial stage, most prosecutors will offer a plea agreement.  A plea agreement is a bargain between the prosecution and the Defendant to have a lowered sentence in exchange for a guilty verdict.  Depending on the crime and the Defendant’s criminal background, different factors influence the agreement offered.  When the odds are stacked against a Defendant, wouldn’t taking a suspended sentence and probation make much more sense than “a day in court” and risking years in jail?  This topic has caused much controversy and tension on both ends of the spectrum.  For some Defendants the most important outcome is a non-guilty verdict, while for others it may be the ability to start working or having the ability to move on with their life, which jail time or certain convictions could prevent. 

In offering pleas, the ordinary rules of evidence do not apply.  The court has been generally hands off when dealing with plea negotiations.  Some people consider this to be a positive; however, it is truly up to the defense attorney to explain to their client what the plea means and what consequences guilty verdict holds.   With almost 90% of convictions being settled with pleas, the impact this has on minorities is of interest since the prison system is mainly populated with minorities.  Pleas are a great way to move the docket and to guarantee a “speedy trial” but should this be at the expense of a possible non-guilty verdict?  Once the Defendant has agreed to the plea, the conviction remains on their record as if they went to trial and they have “pleaded” their omission of guilt. 

With the upcoming election year, if someone pleas to one felony to have the prosecution drop the other counts, that person will still not be eligible to vote.  Currently, 25% of African American men do not have the right to vote; given this information, maybe pleas are not worth the possible lightened sentence in certain situations. 

On the other hand, the State should probably investigate certain Defendant’s backgrounds more thoroughly before offering pleas.  The question arises, if the judge sees something in the Defendant’s background that the prosecution does not see, should the court be so removed as to not disclose this information before the Defendant accepts the plea?  For instance, assume the prosecutor does not see a history of money laundering within the Defendant’s record because it is not available in the state.  However, the Court has those records; if the person is taking a plea for the same activity, should the court have some input if the plea is based on the prosecution’s belief that the Defendant has a clean record?  Generally in this case, the court will not be involved, no matter how egregious.

With so much flexibility regarding pleas, some less concrete factors are going to be analyzed in the offer.  But should race ever play a role?  It is easy to say no, but statistics have demonstrated otherwise.  Forty-four percent of African Americans are incarcerated which begs the question of who is committing the most crimes.  However, once statistics illustrate African American men are twenty-seven times more likely to be incarcerated for drugs, where the only difference is color, what is the solution? 

A more critical look at pleas is necessary.  If there is a noticeable difference in the types of pleas given to African Americans, is the system fair?  How will African Americans ever get the best compromise if color creates the disadvantage?  The solutions to pleas are uncertain as negotiation and bargaining dates back in legal history for centuries.  However, the implications are stark and could cause a disparate impact for African Americans than trials.  This is not to say trials are the best method for every conviction, but training or ways to allow officers and attorneys to be aware of these statistics could be a good start.  Pleas are necessary to allow the legal system to run smoothly, but race and some “soft factors” must be analyzed critically when deprivation of people’s freedom and disenfranchisement is at an all time high.

Abre’ Conner

Associate Publications Editor, Criminal Law Brief

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