28 August 2014

11 February 2014



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2nd Circ. Upholds GPS Tracking Under Good-Faith Exception
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The Second Circuit on Friday upheld the convictions of three men found guilty on multiple charges in a cocaine and heroin distribution conspiracy, holding that the evidence from government's warrantless placement of a global positioning system device on a defendant's vehicle shouldn't be suppressed.

Steven Aguiar, William Murray and Corey Whitcomb each challenged their convictions in a Vermont federal court, saying the U.S. Drug Enforcement Agency's GPS placement constituted a search within the meaning of the Fourth Amendment. The three-judge appellate panel affirmed the judgments of conviction and found that the GPS placement falls within the good-faith exception set forth in Davis v. United States.

"We have examined the remainder of appellants' arguments and find them to be without merit," Circuit Judge Rosemary S. Pooler wrote in the published opinion. "As we find the government's actions in this case fall within the good-faith exception to the exclusionary rule set forth in Davis v. United States, we decline to reach the issue of whether the search was unconstitutional."

The Second Circuit's ruling comes just one day after the Third Circuit agreed to rehear a case en banc over whether law enforcement officials must obtain a warrant based on probable cause before attaching a GPS tracker on the vehicle of a suspect. Thirteen of the circuit's 24 judges were present when the majority of the court voted to rehear the suit, following an argument by a Pennsylvania U.S. attorney's office that an earlier split decision hadn't properly considered precedents set by the U.S. Supreme Court, according to court documents.

In mid- to late 2008, members of the Burlington Police Department who were investigating a cocaine and heroin distribution ring focused their attention on leads indicating that Aguiar was transporting cocaine from Massachusetts into Vermont.

Murray was suspected of being one of Aguiar's main cocaine distributors, and Whitcomb became a target of the investigation later on. Based on the information developed by the BPD, in early 2009 the DEA joined the investigation, according to court documents.

On Jan. 23, 2009, DEA agent Richard Carter installed a GPS device on Aguiar's Subaru Impreza without either a search warrant or consent. The data gathered by the GPS aided law enforcement in identifying avenues of investigation, supported applications for wiretap warrants, and led investigators to other evidence collected and introduced at trial, according to court records.

The appellants tried to suppress the evidence gathered with the GPS data in court, arguing that the GPS placement and tracking violated the Fourth Amendment. The district court denied the motions, and ruled that the warrantless use of a tracking device on public roads did not violate the Fourth Amendment.

Appellants were convicted after a jury trial, after which they appealed.

Representatives for the parties didn't immediately return requests for comment on Friday.

Circuit Judges Dennis Jacobs, Rosemary S. Pooler and Peter W. Hall joined in the decision.

Aguiar is represented by David J. Williams of Jarvis McArthur & Williams LLC.

Whitcomb is represented by Richard C. Bothfeld of Bothfeld & Volk PC.

Murray is represented by Robert S. Behrens.

The government is represented by Wendy L. Fuller, Assistant United States Attorney.

The cases are United States of America v. Stephen Aguiar et al., case numbers 11‐5262, 11-5329 and 11-5330, in the United States Court of Appeals for the Second Circuit.

--Additional reporting by Kat Greene. Editing by Rebecca Flanagan.

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