Case Document 121 Filed 08l24/18 Page 1 of 15 Page ID #:1086 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CRIMINAL 8 2 iCaseiNo. I EDCR JGB Date 1 August 24, 2018 a imTitl i United States ofAmerica v. Siavco Ignjator, at at. - mam-allus- i Presiant: The Honorable i JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE MAYNOR GALVEZ Not Reported Deputy Clerk Court Reporter Attorney(s) Present for government: Attorney(s) Present for Defendant(s): None Present None Present Prodeedings: Order GRANTING Defendants? Motion to Suppress (Dkt. No. 86) (IN CHAMBERS) Before the Court is Defendants Slavco Ignjatov and Valentino I-Iristovski?s (collectively, ?Defendants?) motion to suppress evidence. Motion,? Dkt. No. 86.) On June 25, 2018 and July 9, 2018, the Court held hearings on the Motion. After considering the oral argument and paper ?led in support of, and in Opposition to, the Motion, the Court GRANTS the Motion. I. BACKGROUND fendants Ignjatov and Hristovski were charged in the ?rst superseding indictment with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. 846. (?Indictment,? Dkt. No. 53.) The Indictment alleges that Ignjatov and Hristovski, along with Djordje Karac, an unknown individual, and two unindicted individuals conspired to ?knoslvingly and intentionally distributed and possess with intent to distribute at least ?ve kilograms of a mixture and substance containing a detectable amount of cocaine. (Indict. at 1- 2.) 0 May 11, 2018, Defendants moved to suppress evidence obtained by the government after placin a Global Position System Device on their truck. (Mot. at 1.) The government oppo the Motion on May 21, 2018. (?Opposition,? Dkt. No. 87.) Defendants replied onJune 18, 20,18. (?Reply,? Dkt. No. 95.) The Court held two evidentiary hearings for the Motion. On June 25, 2018, Special Agent Hannah Monroe testi?ed, and on July 9, 2018, Special Agent Monroe and Special Agent Asatur testi?ed. The Court also heard oral argument on July 9, 2018. The parties submitted CRIMJNAL MINUTES . . Page I of 15 GENERAL In1t1als of Deputy Clerk ME I Case Document 121 Filed 08/24/18 Page 2 of 15 Page ID #11087 I supplemental brie?ng on August 9, 2018. (?Gov?t Supp. Brief,? No. 116; ?Defs. Supp. Brief,? Dkt. No. 117.) H. FACTS The Indictment alleges Karac entered the United States at Port Huron, Michigan from Canaria on March 11, 2017, driving a Bo-Mak truck. (Indict. at 3.) On March 16, 2017, in Mira Loma California, Karac met a co-conspirator who gave Karac ten du?le bags containing appro?ldmately 193.7 kilograms of a substance containing cocaine, which Karac loaded onto the Bo-Mlak truck. (LIL) On March 16, 2017, law enforcement of?cers seized the 193.7 kilograms of the substance and an Blackberry device from the Bo~Mak truck Karac drove. (Id, at 4.) On March 19, 2017, using ?coded language during a recorded telephone conversation,? Kara advised Ignjatov that a drug-detection police dog alerted to his Bo-Mak truck on March 16, 2017 the time of the seizure. Also on March 19, 2017, a co-conspirator told another indivi ual, who was a con?dential Federal Bureau of Investigations source that they needed to do a dry run using ?our or a similar substance. GEL) Oh March 21, 2017, Ignjatov picked up Karac?s Bo-Mak truck from the towing company where it was stored following the March 16, 2017 seizure. (ILL at 4-5.) Then, in April 2017 and May 2017, on several occasions, co?conspirators discussed the need to conduct dry runs and that two dry runs had been completed successfully. (Id, at 5.) On October 19, 2017 Customs and Border Patrol noti?ed Special Agent Hannah Monroe that Defendants were entering the United States from Canada through Port Huron, Michi an in a Bo-Mak semi?truck, and the trailer plate matched the one Karac used when trans orting cocaine in March. (Opp?n at 7.) Monroe and Special AgentJack Gernatt spoke abouttapplying GPS trackers to Defendants? truck, along with Los Angeles Police Department of?ce, Asatur and Special Agent Van Dyke. (June 25, 2018 Hr.) The Indictment further alleges that on October 20, 2017, Ignjatov and Hristovski entered the United States from Canada driving a Bo-Mak truck ?to conduct a dry run on the route that defendant Karac had previously used to transport cocaine.? at 6.) At the border in Port Huron, Michigan, Homeland Security Investigations Border Enforcement Security Task Force and/ or a CBP agent applied two GPS devices to the truck and trailer. (Mot. at 5; Opp?n at 8.) H81 agents also inspected the truck at the border but found nothing unusual. TI 6 government used a program called Covert Tracker to track the GPS devices. (S?june 25, 2 18 Hr.) The program permits agents to sign on from any location to verify the GPS locati data. (IQL) In addition to obtaining a nearly exact address, Covert Tracker records the speed?the vehicle. The intervals at which Covert Tracker records data from the GPS devic can be changed, and here it was set to approximately ?fteen minute intervals then increased as Defendants approached California. July 9, 2018 Hr. Tr. at 64, Dkt. No. 118-1.) CRIMINAL GENERAL Initials of Deputy Clerk ME Page of 15 i Case Document 121 Filed 08/24/18 Page 3 of 15 Page II) #:1088 Covert Tracker also keeps all historic location data, which agents can see upon signing-in, and allows agents to download the data into Excel. Investigators tracked the GPS devices until approximately 4:45 pm. on October 22, 2017, and locat and observed the truck in San Bernardino, California. (Opp?n at 8; Mot. at 5.) Ther after, the investigators maintained continuous physical surveillance of the truck. (Opp?n at 8.) agents checked the GPS location information once or twice during the night after starting physical surveillance. Only 9, 2018 Hr. Tr. at 30.) On October 23, 2017, in Mira Loma, California, a co-conspirator gave Defendants a duf?e bag containing approximately sixty pounds of sugar that Defendants loaded into the Bo-Mak truck. (Indict. at 6.) That same day, they drove to the same restaurant parking lot where Karac had previously stopped while transporting cocaine. (EL at 6-7.) Los Angeles Police Department detectives detained Defendants, and Ignjatov consented to a search of the truck. (Opp in at 9.) The detectives located the duffel bag, and found 15 four-pound packages of sugar, (Mot. at 5.) A drug-detection dog alerted to the presence of the odor of narcotics on the duf? bag. (Opp?n at 9.) Hristovski possessed an Blackberry device in his pocket, but both (ignjatov and Hristovski denied any connection to the device. at 6?7, Mot. at 5.) Defendants were not arrested the day of the search. (Mot. at 6.) Instead, on the night of October 28, 2017, as Defendants attempted to return to Canada from Port Huron, Michigan, HSI Special Agent Greg Abair arrested them for conspiracy to traf?c cocaine. (Li) The GPS trackers remained on Defendants? truck and trailer for approximately eight days, until their removal in Port Huron when Defendants were arrested. (June 25, 2018 Hr.) LEGAL STANDARD I liens inside the U[nited] S[tates] . . . are entitled to certain constitutional protections unava lable to those outside our borders.? MW, 373 F.3d 952, 971 (9th Cir. 2004). The Fourth Amendment protects the ?right of the people to be secure in their persons, houses, papers, and eHects, against unreasonable searches and seizures.? U.S. Const. amend. IV. ?Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few speci?cally established and well-delineated exceptions. Qa?omia?c?e?o, 500 U.S. 565, 580 (1991) (quoting Wm, 437 U.S. 385, 390 (1978)). What is reasonable depends on the circumstances surrounding the search and the nature of the se itself. MW, 473 U.S. 531, 537 (1985). The reaso ableness of a search is determined by balancing ?the degree to which it intrudes upon an indivil ual?s privacy and . . . the degree to which it is needed for the promotion of legitimate gove mental interests.? United States v. Knights, 534 U.S. 112, 119 (2001). The government bears he burden of providing that a warrantiess search or seizure falls Within an exception to the warrant requirement. W, 871 F.3d 852, 860 (9th Cir. 2017). CRIMINAL Page 5 of 15 GENERAL Initials of Deputy Clerk MC: .r Case Document 121 Filed 08/24l18 Page 4 of 15 Page ID #:1089 The exclusionary rule operates to exclude unlawfully seized evidence in a criminal trial. 'e 136 S. Ct. 2056, 2061 (2016). The exclusionary rule encompasses both the ?primary evidence obtained as a direct result of an illegal search or seizure and . . . evidence later disco ered and found to be derivative of an illegality. BL (internal quotations omitted). The suppr ssion of evidence retrieved from constitutional violations pursuant to the exclusionary rule to ?deter future Fourth Amendment violations. axis 2. United States, 564 U. S. 229, at 236-37 (2011). ?Where suppression fails to yield ?appreciable deterrence,? exclusion 1s clnearly unwarranted. Id at 237 (quoting United States 2, lanis, 428 U. S. 433, 454 (1976)). Thus, for exclusion to be appropriate, ?the deterrence bene?ts of suppression must outweigh heavy?- costs. Id, When the police exhibit ?deliberate, reckless, or grossly negligent? disregard for Fourth Amendment rights, the deterrent value bf exclusion tends to outweigh the resulting costs. Id, at 238. Conversely, when the police act with an ?objectively reasonable good faith belief? that their cond ?ct is lawful, or when their conduct involves ?only simple, isolated negligence,? exclusion is unwarranted. Id (internal citations omitted). IV. DISCUSSION Defendants assert the government?s warrantless application of the GPS devices and monitoring of Defendants? truck violated their Fourth Amendment rights. (Mot. at 6.) The government argues the installation and use of the GPS devices were lawful, and even if not, the evidence 18 admissible under the attenuation, inevitable discovery, and good faith exceptions to the exclusionary rule. (See Opp? n. The application of a GPS tracking device at a border appears to be in matter of ?rst impression in this Circuit. Thus, the Court considers ?rst whether the ins ation and use of the GPS devices violated Defendants? Fourth Amendment rights, and then the implications of the exclusionary rule. A. Inlstallation and Monitoring of the GPS Devices The Supreme Court has held that the government?s installation of a GPS device on a target?s vehicle, and its use of that device to monitor the vehicle?s movements, constitutes a search within the meaning of the Fourth Amendment. United States v, Ignes, 565 US. 400, 404(2012). In limes, government agents installed a GPS device on aJeep while it was parked in a public parking lot. 565 US. at 403. Over the subsequent twenty-eight days, the government used the device to track the vehicle. I based approach, until WM, 389 U. S. 347 (1967), which broadened the analysis to inclu reasonable expectations of privacy. Id at 405- 06. However, him, because the defen ant possessed the Jeep at the time of the physical mtrusion, the Court applied the trespassory test instead of the Kat; reasonable expectation of privacy test. at 409. Applying a common-law trespassory test, the Supreme Court noted the government had ?physically occupied private property for the purpose of obtaining information by af?xing the device, and ije Court ?rst explained its Fourth Amendment jurisprudence was historically a property? CRIMINAL MINUTES GENERAL Initials of Deputy Clerk Page 4 of 15 1 Case Document 121 Filed 08/24118 Page 5 of 15 Page ID #:1090 1 by ?attaching the device to theJeep, officers encroached on a protected area.? at 404, 410. Moreover, the Court noted that ?where a classic tresspasory search is not involved,? the Kate analy Iis may be relied upon in grappling with the length of searches and nature of crime being invesZigated. 15L at 412-14. The Supreme Court also explicitly did not consider the government?s argument that the use of the device was reasonable and lawful under the Fourth Ame dment because the of?cers had reasonable suspicion and probable cause because it ?was not raise before the DC. Circuit. I_d. at 413. Hhre, the government placed GPS tracking devices on Defendants? Bo-Mak truck and trailer withoirt a warrant, and monitored the devices? information for approximately a day and a half. Nevertheless, the government argues the installation of the GPS devices was permitted under the border search exception to the Fourth Amendment. (Mot. at 15-17.) 1. Border search exception rder searches form ?a narrow exception to the Fourth Amendment prohibition against warra' tless searches without probable cause. mm, 709 F.3d 952, 960 (9th it. 2013) (quoting United States v. Seljan, 547 F.3d 993, 999 (9th Cir. 2008). ?The [g]ov rnment?s interest in preventing the entry of unwanted persons and effects is at its zenith at the inlernational border.? United States v. longs-Montana, 541 U.S. 149, 152 (2004). Thus, the Feurth Amendment balance of interests leans heavily to the government at a border. WM, 473 U.S. 531, 544 (1985). Concerning searches of the person, [r]outine searches of the persons and effects of entrants are subject to any requirement of reasonable suspicion, probable cause, or warrant? at a horde Montgya?e?emandez, 473 U. S. at 538. On the other hand, some searches beyond the scopejof a routine customs search, such as alimentary canal searches, require reasonable suspi ion. id, at 541. However, the Supreme Court also noted that the reasons requiring some level suspicion for ?highly intrusive searches of the person . . . simply do not carry over to vehic 151, at 152. Still, ?some searches of property are so destructive,? or ?particularly offensive,? as to require particularized suspicion. Id, at 154 n.2, 156. The initial GPS installation on the Defendants? Bo?Mak truck and trailer occurred at an international border. Thus, the key to determining whether the search required reasonable suspidion depends on the intrusiveness of the vehicle search. Cottermam, 709 F.3d at 962. In the conte' of vehicle searches, the threshold of what constitutes an unreasonable search because of the ffensive? manner in which it is carried out remains an open question. mm, 541 at 154 n.2. The Ninth Circuit has established two factors to consider in assessing whe er a border vehicle search requires reasonable susPicion, (1) did the search damage the vehic in a manner that affected the vehicle?s safety or operability, and (2) was the search cond cted in a particularly offensive manner.? ed States 2 an-Padill 573 F.3d 865, 879 (9th Cir 2009,562 U.S. 949 (2010) (quoting Mm, 454 F.3d1038, 1042 (9th Cir. 2006)). CRIMINAL Page 5 of 15 GENERAL Initials of Deputy Clerk MG Case l5:17-cr-00222-JGB Document 121 Filed 08/24/18 Page 6 of 15 Page ID #11091 In [ores-Montana, the Supreme Court held the driver had no expectation of privacy in the contents of the vehicle?s gas tank, and then noted the disassembly and reassembly of the fuel tank did not result in serious damage or destruction of the property. 541 US. at 154. The Court conclitded the disassembling and reassembling of a vehicle?s gas tank was not an intrusive enough searc as to require reasonable suSpicion to believe the tank contained contraband. 541 US. at 155. elying on BMW, the Ninth Circuit held the suspicionless slashing of a vehicle?s spare during a border search was not so destructive as to be unreasonable. United States V. - 394 F.3d 1115, 1119 (9th Cir. 2005). The court explained that cutting the tire was dama 'ng to the tire, but did not ?affect or undermine the vehicle?s operation or safety? ?or the safety and security of the vehicle?s occupants. LL at 1120. Soon after, the Ninth Circuit considered the suspicionless drilling of a 16 inch hole in the bed of a pickup truck at a border in United States v. Chandry, 424 F.3d 1051, 1053 (9th Cir. 2005). The court found the hole drilled did not cause signi?cant damage or destruction of the vehicle, nor did it undermine or threaten the safety of the vehicle?s riders. at 1053-054. The Ninth Circuit also determined the drilling was njit carried out in an offensive manner; accordingly, the search did not require reasonable suspi ion. Id, at 1054. Similarly, the Ninth Circuit has also upheld the suspicionless prying open of a hicle?s interior door despite the resultant damage to the panel. Quezz?ijtera, 454 .3d at 1042? 043; see also W, 424 F.3d 1056, 1059 (9th Cir. 2005) (authorizing the suspicionless ?gentle removal? of vehicle?s interior door panel)). Conversely, the Ninth Circuit required reasonable suspicion for using a spike strip to de?ate a vehicle?s tires, finding ?the damage factor a10ne decisive because Appellant?s vehicle was rendered inoperable.? ginzman-Badilla, 573 F.3d at 879. Here, the placement of the GPS device on Defendant?s truck did not result in any damage to the vehicle or affect its operability. Defendants drove the truck from Michigan to California, and there is no indication their safety or security was jeopardized by the installation of the GPS devices. Thus, the government argues, the absence of damage establishes the permissiveness of this spicionless vehicle search. (Opp?n at 17.) In a case also involving a technological search tool, Ninth Circuit upheld a su3picionless border search in which of?cers used a radioactive densi meter called a ?Buster? to search the inside of a spare tire. W, 368 F13d 1182 (2004). The court found Buster searches do not cause damage to the property at which they are aimed, nor was there evidence that any of the motorists were exposed to potentially harmful levels of radiation from a Buster search. 1d, at 1185486. We and subsequent Ninth Circuit border vehicle search cases focus on whether the gdvemment?s search resulted in physical damage or destruction to the vehicle at issue. Thus, uncle these cases, the installation of the GPS systems, conducted without affecting Defendants? vehicl ?s operability or safety, could plausibly have been undertaken without requiring reasonable suspi ion. However, the border vehicle search cases all involved searches conducted and comp eted at the border, which have ?minimal or no impact beyond the search itself.? Cotterman, 790 .3d at 966. The Court doubts that an analysis dependent on the physical aspects of the search is appropriate here where the search extends beyond the initial installation of thelGPS device. CRIMINAL Page 6 of 15 GENERAL Initials of Deputy Clerk i Case Document 121 Filed 08/24718 Page 7 of 15 Page ID #:1092 I Dbfendants liken the GPS installation to the forensic laptop search in glotterman. In e'rman, border customs agents searched a laptop, then made copies of the hard drives and performed forensic evaluations on the computer in the following days. 709 F.3d at 966. The Ninth? Circuit ?rst held the subsequent forensic examination was not an extended border search, altho gh the computer had been transported and examined over 100 miles from the border, becaii-Le the laptop had never cleared customs, so its entry was never effected. IQ at 961-62. The court I lso held the initial manual search was justi?ed, but the subsequent ?exhaustive forensic searc was ?essentially a computer strip search,? and required reasonable suspicion to be underiaken due to the ?substantial intrusion upon personal privacy and dignity.? 1Q at 962, 966, 968. 1 WI ile the placement of a GPS device (in a vehicle falls short of an intrusion ?akin to reading a diary ine by line? considered in Cotterman, the Court concludes the data collection inherent in GPS onitoring exceeds the scope of the suspicionless searches authorized in the border vehicle cases. CW, 709 F.3d at 962. Surreptitious surveillance of an individual?s movements throu placement of a GPS device on a vehicle implicates far greater privacy concerns than the physical integrity of the vehicle, and extends beyond the permissible scope of a border search. The border search cases, permitting routine searches of persons and their effects without reasonable suspicion, probable cause, or a warrant, ?re?ect longstanding concern for the protection of the integrity of the border.? Montoya d; Hernandez, 473 US. at 528. Concerns such as the prevention of contraband from entering the country, 541 US. at 153, and ?national self-protection,? Carroll v. United States, 267 US. 132., 154 (1925), motivate the looser Fourth Amendment requirements at the border. The border search eirception is ?grounded in the recognized right of the sovereign to control . . . who and what may enter the countiy. United States v. Ramsey, 431 US. 606, 620 (1977). Thus, border searches have been consi cred reasonable ?by the single fact that the person or item in question had entered into our coun?iiy from the outside.? Id. at 619. I anetheless, the underlying rationale of the border search doctrine re?ects its limitations. The Supreme Court has observed that [i]mport restrictions and searches of person or packages at the inational borders rest on different considerations and different rules of constitutional law from domestic regulations.? ed tates v. - . eels 0 'lm, 413 US. 123,125 (1973). Once entity at issue is beyond the border, the concerns animating the border search doctrine, namely the integrity of the border, diminish, and the robust Fourth Amendment requirements adhere. The placement of a GPS device at the border necessarily implicates a search away from the border, once the target has gained entry into the country. As Justice Alito noted in his concurring opinion in Jones, the Court de?ned the search as encompassing both the installation and use of the S, rather than separating the procedures. Jones, 565 US. at 420 (Alito, J., concurring). Ther fore, this Court is hesitant to mechanically apply the border search doctrine where the scare stretches far beyond the conduct at the border to create a ?precise comprehensive record of a pErson?s public movements.? 1d. at 415 concurring). Ultimately, the Court cencl des the placement of a GPS device on a vehicle at the border, combined with the CRIMINAL MIN I Page 7! of 15 GENERAL Initials of Deputy Clerk M5 Case Document 121 Filed 0812418 Page 8 of 15 Page ID #:1093 I I subsehuent tracking of data over a prolonged period away from it, cannot be justi?ed by the border search exception. 2. Extended border search i 8' es the Court ?nds the border search exception does not apply to the search here, the Court[ considers how the subject search should be classi?ed. Though the government does not counter this point, Defendants argue the extended border search exception does not justify the search. (Mot. at 13.) The Court agrees the placement of the GPS device and monitoring of its data cannot be justi?ed as an extended border search. ended border searches are searches ?away from the border where entry is not apparent.? extended border searches must meet the ?dual requirements of reasonable certainty of a recent border crossing and reasonable suspicion of criminal activity.? Quzman-Eadilla, 573 F.3d at 878- 79. Moreover, an initial search at a border crossing does not preclude a subsequent search from being ian extended border search. United States Alfonso, 759 F.2d 728, 735 (9th Cir. 1985.) hile the initial placement of the GPS devices on Defendants? truck occurred at the border, the sequent monitoring of the data over the almost 48 hours constitutes a continuous search. See 565 US. at 420 concurring). The monitoring of the devices occurred for less than 48 hours, yet it is this unceasing search over that period that precludes application of the extended border search doctrine. Typically, extended border search cases feature a de?ned search that is conducted at some distance from the border. For example, in - one 378 2d 256, 258 (9th Cir. 1967), the Ninth Circuit upheld customs of?cers? search of a vehicle fiftee hours and twenty miles after it crossed the Mexican border. See also Quzmau?Eadilla, 573 F.3d It 878 (collecting extended border search cases). The search here differs signi?cantly from a typical extended border search. Over the almost 48 hours the government agents tracked Defendants? truck and trailer, the Covert Tracker program obtained Defendants? location information at regular intervals. (June 25, 2018 Hr.) Moreover, Covert Tracker permits the government agents to download all historic location info ation from the devices, which they did. (ISL) Such tracking is poles apart from the discrete searc es conducted under the extended border search doctrine. Accordingly, the Court concl des the search of Defendants truck from the placement and monitoring of the GPS device cannot be classi?ed as an extended border search. 3. Reasonableness If. search of Defendants? truck cannot be classi?ed as a border search or an extended borde search, then it is only valid if the warrantiess search was reasonable under the Fourth Ame dment. CRIMINAL Page 8 of 15 GENERAL Initials of Deputy Clerk Case Document 121 Filed 08/2418 Page 9 of 15 Page ID #:1094 I The government argues the short-term monitoring of the GPS data is reasonable and perm'ssible under m. (Opp?n at 23.) However, the government?s argument rests on the assu ption that ?there was no unlawful trespass here pursuant to the border search doctrine. he Court has already concluded the search here is not subject to the border search or extended border search doctrines, and therefore the lawfulness of the trespass cannot be based on either of these doctrine. The government argues the case is like United States v. Kn?s, 460 U.S. 76 (1983), which held that the use of an electronic device to monitor a vehicle?s move ents on public roads without a treSpass is permissible under the Fourth Amendment. (Oppin at 23.) However, the Supreme Court expressly distinguished Knolls from the facts in Jones because Emits did not involve a trespass as the beeper device was placed in a container with iis owner?s consent, prior to being placed in the tracked automobile. Jones, 565 US. at 409. As in the surreptitious installation of the GPS trackers on Defendants? truck and trailer constlituted a physical trespass and, accordingly, Knotts is inapposite. hether a search is reasonable is ?determined by assessing, on the one hand, the degree to whic it intrudes upon an individual?s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Knights, 534 US. at 118?119. GPS tracking can reveal much about a person?s life. See mm, 615 F.3d 544, 562 2010) (noting the considerable information the government can learn about a person throu GPS surveillance). As the Supreme Court recently recognized of GPS information, ?timj-stamped data provides an intimate window into a person?s life.? Carpenter v. United te Ct. --, 2018 WL 3072916, at *9 (lune 22, 2018). Moreover, as individuals not on paroldi' or probation at the time the GPS tracking device was placed on their truck, Defendants enjoyed ?absolute liberty.? Knights, 534 US. at 119. Accordingly, the Court concludes Defendants? privacy interests were signi?cant. government argues the intrusion on Defendants? privacy interests was limited because the G, devices were monitored for less than 48 hours. (Opp?n at 23.) While the surveillance in Jonestook place over four weeks, the Court cannot conclude this shorter period of monitoring was reasonable as a matter of law. The Court determines the warrantiess search at issue here was not reasonable. S_ee Mtg, --S. Ct. --, 2018 WL 3072916, at ?13 the absence of a warrant, a search is reasonable only if it falls within a speci?c exception to the warrant requiriement. B. Eitclusionary Rule The government argues the evidence obtained is admissible under the attenuation and inevitable discovery exceptions to the exclusionary rule. (Opp?n at 10-14.) Lastly, the government argues the good faith prevents the application of the exclusionary rule. (Opp 'n at 24.) 'I'he Court considers each argument in turn. CRIMINAL Page of 15 GENERAL Initials of Deputy Clerk Mg Case Document 121 Filed 0812418 Page 10 of 15 Page ID #21095 I 1. Attenuation Evidence obtained after of?cial misconduct may still be admitted if it satis?es the attenuation doctrine. United States v. Guzman, 859 F.3d 706, 718 (9th Cir. 2017). The attenuation doctrine seeks to determine whether ?the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.? Mu, ?aming-Sandoval, 872 2d 1392, 1396 (9th Cir 1989) (citation omitted). When considering whether evidence obtained from of?cial misconduct satis?es the attenuation doctrine, the court considers: (1) the temporal proximity between the unconstitutional conduct and the discovery of the evidence to determine how closely the discovery of evidence followed the unconstitutional searc (2) the presence of 1ntervening circumstances; and (3) with particular signi?cance, the purpo and ?agrancy of the of?cial misconduct. W, 136 S. Ct. 2056, 2062 (2016). In the instant case, the time elapsed between the installation of the GPS and the discovery of the dence was not long enough to create suf?cient attenuation. In United States v. Hermiz Mich. 2014), the court determined that the time lapse of approximately ?ve dEys between the installation of the GPS device and the stop and 1discovery of the evidence weighed 1n favor of suppression. Hermiz was suspected of smuggling marijuana to and from Canada from an abandoned house near the Canadian border. m. at 860. Of?cer Joyner installed a warrantiess GPS tracker on an automobile rented by Hermiz and two goo-fences that would alert liim as to when Hermiz left his residence and approached the abandoned house. E. at 862. Four days after the GPS tracker had been placed, it alerted Of?cer Joyner that Hermiz was appro ching the abandoned house. E1 Subsequently, Of?cerJoyner ordered law enforcement to set 11 surveillance around the house. Id; That evening, law enforcement witnessed an individual cross St. Clair River from Canada and exchange duffle bags with Hermiz. Id The next morni g, an individual named Korkis arrived at the abandoned house. Shortly thereafter, Korki and Hermiz left the abandoned house in separate automobiles. Id. Law enforcement cond cted the stop as Korkis and Hermiz drove away and found forty pounds of marijuana in Korki ?s automobile. EL The court reasoned that pursuant to 19%, ?both the installation and the us of the device to monitor the vehicle?s movements constitute ?the search.? at 869. Thus, the temporal proximity between the search and the stop of the vehicles was limited and weighbd against attenuation. Id, Here, three days passed between the installation of the GPS tracking device and the stop of the Bd-Mak truck and discovery of the evidence. As in Hermiz, law enforcement agents used the GPS device to monitor the location of Defendants until approximately 4:45 pm. the day before the stop. Overnight, Monroe also accessed the location data to verify the truck and trailer?s location. Therefore, not even a full day passed between the monitoring of the GPS data and the stop a search of Defendants? truck and trailer. This time period does not establish suf?cient attenliation. S, cond the Court ?nds there are no intervening circumstances to attenuate the installation of the GPS device and the discovery of the evidence. In cases where a court has determined the existe cc of intervening circumstances, independent events led to the discovery of evidence. CRIMINAL Page 1:0 of 15 GENERAL Initials of Deputy Clerk Case Document 121 Filed 08!24118 Page 11 of 15 Page ID #:1096 The Iovernment urges the Court to follow the rationale in united States v. Martin, 712 F.3d 1080 7th Cir. 2013), a case in which the Seventh Circuit considered whether the installation of a GPS evice on the defendant?s vehicle was suf?ciently attenuated from the subsequent search of his caI . (Gov?t Supp. Brief at 3.) In Mmjn, after a bank robbery, police of?cers received a tip Martha was one of the robbers and placed a GPS device on his car. 712 F.3d at 1081. The police tracked Martin into Illinois, where a local deputy stopped and searched his car and found drugs and a revolver. The court noted the GPS data ?simply aided law enforcement of?cials in trac down Martin when they decided to effect his arrest.? at 1082. Then, the court state it was a ?quite different? situation than in Jones, where the GPS data was used ?to estab 'sh a necessary link between the defendant and a cocaine stash house.? 1d, Thus, because the 0%cers had probable cause for Martin?s arrest, reasonably believed the vehicle contained evide cc of the bank robbery, and the evidence to be suppressed had ?little to do with the fact that a GPS device had been used at all, the court held it was signi?cantly attenuated from the installation of the device. The government argues other cases in which the courts have not suppressed evidence that stemmed from improper GPS devices similarly involved GPS data used _nly to locate the defendant. See, W, 2014 WL 931882, at *4 (SD. nd. Mar. 7, 2014) (denying suppression of marijuana after of?cer attached two GPS devic 's to defendant?s van without a warrant, tracked the vehicle for two weeks, and then obtai led defendant?s location and executed a traf?c stop because ?there [wa]s no connection betw en what the GPS data revealed . . . and McLayea? eventual traf?c stop other than that the second GPS device gave [the of?cer] McLayea?s location?). government also argues courts have suppressed evidence when the GPS data was used to link target to the crime, citing mm, 862 F. Supp. 2d 560 (ED. Ky. 2012). 01.1%, 2018 Hr. Tr. at 190.) Defendants, meanwhile, assert the present case is more analogous to 1 than Mania. (Reply at 4.) In Lee, Drug Enforcement Administration agents were nformed that Lee obtained marijuana in Chicago and transported it back to eastern Kentilcky in his car. 862 F. Supp. 2d at 562. A DEA agent attached a warrantiess GPS tracker to Lee? s'car that transmitted his location in real time. Id; Three days after installing the device, DEA agents noticed Lee had driven to Chicago and when his vehicle began traveling back towarizls Kentucky, they contacted local police to intercept him and told them to develop proba 16 cause before stepping Lee. 1d, The Kentucky of?cer observed Lee not wearing his seatb 1t and pulled him over. at 563. Lee consented to the of?cer searching the vehicle, and the 0 met along with another of?cer used police dogs to search the vehicle. Id, The dogs alerted to the presence of contraband, and the of?cers found approximately 150 pounds of marijuana. The cburt found insuf?cient attenuation in part because the of?cer?s ability to observe Lee ?5 seatbelt ?clearly related? to the illegal search, and without the warrantless GPS tracking, he won] not have known where or when to ?nd Lee or that he should develop probable cause to stop im. kL. at 566. The Lee court also noted that the DEA agents installed the GPS device on Lee?s car in hopes that something might turn up, and when suspicious behavior occurred, they conta ted Kentucky police, ?set[ting] in motion a chain of events that ended with Lee?s arrest. at 67. i CRIMINAL MIN Page jl of 15 GENERAL Initials of Deputy Clerk MG. I I I Case Document 121 Filed 08l24I18 Page 12 of 15 Page ID #1109? i re, the government agents relied on the GPS data to determine Defendants? location on Octo er 22, 2017 and begin physical surveillance. Defendants argue the GPS data is intertwined with physical surveillance observations and is not independent. (Defs. Supp. Brief at 4.) Altho gh the government argues the GPS data had no independent cvidentiary value, (Gov?t Supp. Brief at 3), the agents suspected Defendants were engaged in unlawful activity in part becau their route was similar to Karac?s. The similarity of the routes was established by the GPS evice. The GPS data served as corroboration for the agents? belief in their need to physi ally surveil Defendants for illegal activity, because the Defendants entered through Port Huro in a Bo-Mak truck and ended up in the same California locale as Karac. Thus, the obse ation of the duf?e bag exchange would have been nearly meaningless, considering Defe 'dants drove a delivery truck, absent the corresponding GPS data that bolstered the link betw en Defendants and Karac. Moreover, unlike in Martin, McLayea, or even Lee, there was no in ependent violation to otherwise prompt the of?cers to stop Defendants. An unlawful search is not suf?ciently attenuated if it ?tend[ed] signi?cantly to direct the investigation toward the stieci?c evidence to be suppressed.? United States Davis, 332 F. 3d 1163,1171 (9th Cir. 2003):. As discussed further below, without the GPS data, the Court doubts the 1nvestigators would have been able to establish physical surveillance of Defendants and conduct the eventual stop. Therefore, the GPS data was crucial in initiating the ?chain of events? that lead to the Los Angeles police of?cers conducting surveillance, viewing the duiile bag exchange, and stopping and searching the truck. Lastly, the Court considers the of?cial misconduct weighs against the government. At the time the GPS device was installed, government of?cials did not know that Defendants would take a route similar to the one taken in March 2017 when illegal substances were found. (I une 25, 2018 Hr.) Government of?cials purposely installed the GPS device to see if illegal activity would occur. The government claims that they had reasonable suspicion and probable cause to search Defendants, yet they did not obtain a warrant. (Opp ?n at 12.) Defendants claim that the government had advisors and supervisors to seek guidance from but chose not to. (Reply at 3.) Of?cer testi?ed that in general he understood that a warrant is necessary to install a GPS device, but he never reported to a supervisor nor an attorney the absence of a warrant here. (July 9, 2018 Hr. Tr. at 59.) The agents? decision not to seek legal guidance or obtain a warrant, coupled with the almost two~day long use of the GPS devices to verify if Defendants would take a simil route as Karac or if illegal conduct would occur, creates a scenario of signi?cant gove ment misconduct. 5mm Illinois, 422 U.S. 590, 604 (1975) (?nding of?cers act with a'n unlawful purpose when they embarked upon this expedition in the hope that something might turn In the instant case, the connection between the unconstitutional conduct and the evidence is not suf?ciently attenuated as to dissipate the taint of illegality. Thus, the Court concludes there is no exception to the suppression of evidence under the attenuation doctrine. CRIMINAL Page 12 of 15 GENERAL Initials of Deputy Clerk MG Case Document 121 Filed 08/24/18 Page 13 of 15 Page ID #:1098 2. Inevitable discovery The Government asserts the agents would have been able to locate Defendants? Bo-Mak truck 'n southern California without data from the GPS devices. (Opp ?n at 14.) The inevitable disco cry exception ?allows for the admission of evidence that would have been discovered even witho the unconstitutional source.? Utah, 136 S. Ct. at 2061. In the Ninth Circuit, the gover ment need not demonstrate the evidence could have been obtained from a previously initia ed, independent investigation. Ramirez?mdoval, 872 F.2d 1392,1399 (9th Cir. 1989). Rathe the government can meet its burden by establishing by a preponderance of the evidence that ?by following routine procedures, the police would inevitably have uncovered the evidence.? 1396, 1399. The government argues the FBI agents believed Defendants would take the same route Karao took in March 2017, based on the messages discussing dry runs after the March 2017 seizu ie. (Opp?n at 14.) Therefore, the government claims, the agents would have located Defe 'dants? Bo-Mak truck by setting up surveillance units along Karac? route, conducted physilal surveillance of the truck once located, observed the suspected drug transaction, and then searched the truck. (LL) Defendants counter that the route Defendants took was not identical to Kara ?s and the distance from Michigan to California is so large that any surveillance points the government set up would not have detected the truck. (Reply at 5-6.) Moreover, the point where Defendants? exchange occurred was approximately one mile from Karac 3 previous location, and the investigators could not have predicted that location. (Id, at 6.) In: Mix, the defendant attempted to suppress the evidence of the victim?s body. 467 US. at 448. he Supreme Court held the body of the victim would have inevitably been discovered becau there were approximately 200 volunteers searching for the body, and the record the ?search parties were approaching the actual location of the body.? at 449. government cites 554 F. App?x 402 (6th Cir. 2014), where the court considered a defendant?s motion to suppress after the warrantless application of a GPS device to the vehicle he was in. A con?dential source had informed the of?cers the defendant and others had planned to pick up cocaine the next day in two cars. Q, at 405. After tracking the GPS devices on the cars, and the location of the defendant?s phone, for which the of?cers had a warrant, the of?cers stopped the vehicles, conducted a search, and found heroin. Id, The Sixth Circuit af?rmed the district court?s denial of the motion to suppress under the inevit ble discovery doctrine, because the of?cers knew the date of the trip, the cars to be used, the fendant?s involvement without the GPS device, and they also obtained the location data from he phone. ILL at 407. Thus, the of?cers would have ?inevitably Spotted? the vehicle and been ble to conduct the stop. 1d, Here, the government has not carried its burden of establishing it would have inevitably locateii Defendants truck without use of GPS data. The government may have had information about IKarac?s route, but Defendants? route was not identical. As Special Agent Monroe testified, before placing the GPS trackers on Defendants? truck, law enforcement had no date and CRIMINAL MINUTES GENERAL Initials of Deputy Clerk MC: Page i3 of 15 1? Case Document 121 Filed Page 14 of 15 Page ID #:1099 1 time (if a drug hand-off or retrieval, and had no speci?c information from the informant regarding a speqi?c date and time. (June 25, 2018 Hr.) No independent source provided location data to the agents as in Lima?ant?lanes. A one-mile discrepancy in the exchange locations between Karaci?s handoff and Defendants? handoff is a signi?cant difference. The Court is not convinced the government agents would have detected Defendants truck on the multi-thousand-mile journey even if the agents had employed various surveillance methods along Karac?s route. The Court concludes the inevitable discovery doctrine does not apply here. I3. Good faith exception The government argues that even if the evidence is not admissible under the attenuation or inevit ble discovery doctrines, the good faith exception permits its admission. (Opp?n at 24.) Evide ce obtained during a search conducted in ?reasonable reliance on binding precedent? is not 3 ject to the exclusionary rule. Da 564 U.S. at 241. Binding appellate precedent need not onstitute a factual match with the circumstances of the search in question for the good- faith ception to apply,? but may include established legal principles. Qnited States v. Lustig, 830 F.3d 1075, 1082 (9th Cir. 2016). The government asserts that at the time the trackers were installed on Defendants? truck, there was no case law suggesting anything more than reasonable suspicion was required in the context of a border se?arch. (Opp ?n at 25.) While the government is correct that precedent permits warrantless border searches and requires reasonable suspicion for some intrusive searches, the search here does not ?t within the border search or extended border search doctrihes. Thus, binding appellate precedent concerning the discrete searches in cases such as FlmedI-Mgntano does not inform the good-faith exception analysis. issue ere. There, the Supreme Court held the placement of a GPS device on a vehicle was a ?sear within the meaning of the Fourth Amendment, which subjected such actions to the warr requirement. Moreover, the government has not identi?ed any binding precedent that analy es any carved-out exceptions to the warrant requirement for placing a GPS device. Thus, under the relevant precedent established a warrant was needed to install a GPS device. Rither, low appears to be the only binding precedent applicable to the legal principles at The government introduces evidence that the FBI agents acted on information from HSI Special Agents Gematt and Abair that border agents were ?authorized to install GPS trackers on any ve'hicle at the border without a warrant so long as the GPS monitoring did not exceed 48 hours, and that the 48-hour rule did not apply to commercial vehicles, such as semi-trucks? per HSI policy. (Monroe Decl. 14; screen Decl. 6;]une 25, 2018 Hr.) Special Agent Monroe also testi?ed that her training is to defer to H81 and CBP on border issues. (lune 25, 2018 Hr.) Monroe stated that she never checked with an Assistant United States Attorney, at Depa ent of Justice attorney, or an FBI attorney regarding the legality of policy or the applic tion of the GPS devices. (ldi) CRIMINAL Page 14 of 15 GENERAL Initials of Deputy Clerk M5 Case Document 121 Filed 08I24I18 Page 15 of 15 Page ID #:1100 Court is not persuaded the good faith exception stretches to encompass the gove ment?s reasoning for its application. There is no evidence the agents were advised by an attorney that they need not obtain a warrant. Nor has the government been able to point the Courti. to any precedent that could have served as a basis for the purported 48-hour rule or its looser application to semi-trucks. The good faith exception must be based on reasonable reliance on binding precedent, not on an agent?s understanding of the agency?s policy or what the law On these facts, the Court concludes the good-faith exception does not prevent the applic tion of the exclusionary rule to the agents placement of the GPS devices on Defendants? truck trailer. .rther, the Court determines the bene?ts of deterrence here outweigh the costs of the appli tion of the exclusionary rule. Permitting agents to apply GPS trackers to any vehicle at the horde and subsequently monitor its location without ?rst obtaining a warrant ?ies in the face of hugs 'which holds that the installation of a GPS device constitutes a search under the Fourth Ame dment. The government agents here did not seek legal advice on their decision to install the devices, and chose instead to rely on two HSI agents? understanding of the law. This choice is exactly what the Dagis Court declined to authorize by requiring a search rely on ?binding appellate precedent.? 564 US. at 249. V. CONCLUSION The installation and monitoring of the GPS trackers on Defendants? truck and trailer, without a warrant, violated Defendants? Fourth Amendment rights, and the exclusionary rule requires exclusion of evidence obtained through use of those GPS trackers. Accordingly, the Court GRANTS Defendants? motion to suppress evidence. IT IS 0 ORDERED. CRIMINAL MIN Page 1,5 of 15 GENERAL Initials of Deputy Clerk MG