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Fourth Circuit Tosses Evidence Discovered by Illegal GPS Tracker

by Dale Chappell

A GPS tracker illegally placed on a car by a Metropolitan Drug Enforcement Network Team (“MDENT”) agent was a “flagrant” constitutional violation that requires exclusion of the evidence, the U.S. Court of Appeals for the Fourth Circuit held. 

Digging through Brian Terry’s trash, Charleston, West Virginia, MDENT agents found signs of drug activity, and they secured a search warrant for his house. Thereafter, they followed Terry to a local store and, after smelling marijuana in his car, searched his vehicle with his consent. They found nothing except a small amount of marijuana Terry turned over. While one agent was giving Terry a ticket for the marijuana, another secretly placed a GPS tracker on his car. They then went to Terry’s house where a search turned up nothing. Still, they pinged Terry’s phone and followed him with the GPS tracker. 

Two days later, the GPS tracker showed Terry in Columbus, Ohio, where they suspected he was getting some drugs. When the call returned to West Virginia, agents determined by the GPS tracker that the car was traveling 5 mph over the speed limit and stopped it. Terry, who was a passenger in the car, was searched and almost 200 grams of methamphetamine was found on him. He was charged with possession with intent to distribute methamphetamine. 

After the U.S. District Court for the Southern District of West Virginia denied his motion to suppress the evidence in light of the illegal search, he was convicted by a jury and sentenced to 13 years in prison. He appealed. 

The question for the Fourth Circuit was whether the speeding infraction was enough of an intervening act to “purge the taint” of the illegal search with the GPS tracker, allowing the evidence to still be admissible. 

The U.S. Supreme Court has held that a GPS tracker is a “search” under the Fourth Amendment. United States v. Jones, 565 U.S. 400 (2012). Even if such a search violates the Fourth Amendment, evidence can still be admissible if “there is sufficient attenuation between the unlawful search and the acquisition of evidence, the ‘taint’ of that unlawful search is purged.” United States v. Gaines, 668 F.3d 170 (4th Cir. 2012). To determine whether the taint of the illegal search is purged, courts utilize the three-factor test articulated in Brown v. Illinois, 422 U.S. 490 (1975), which considers: (1) “temporal proximity” between unconstitutional conduct and discovery of the evidence, (2) presence of intervening circumstances, and (3) “the purpose and flagrancy of the official misconduct.” The Court explained that the “attenuation exception to the exclusionary rule applies when the nexus between the government’s illegal conduct and the evidence is so weak that the taint of the illegality is dissipated.” Segura v. United States, 468 U.S. 796 (1984).   

The Court then applied the governing law to the facts of the case. As to the first factor, only two days passed between the placement of the GPS and the discovery of the evidence. The Court stated that its precedents do not support attenuation, noting that it’s “an insubstantial amount of time.” As to the second factor, driving 5 mph over the speed limit favors the Government but “only slightly,” the Court stated. Finally, the third factor weighs heavily in against attenuation because “the constitutional violation here was flagrant,” according to the Court. 

The Court noted that the agents knowingly and purposefully disregarded the warrant requirement, so the attenuation factors weigh heavily in favor of suppression. Thus, the Court held “that the evidence discovered as a result of the GPS search is fruit of the poisonous tree and should have been suppressed.” It warned that to conclude otherwise “would entirely undermine the very purpose of the exclusionary rule: to deter police misconduct.” 

Accordingly, the Court reversed the district court and vacated Terry’s conviction. See: United States v. Terry, 909 F.3d 716 (4th Cir. 2018). 

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Related legal case

United States v. Terry



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