United States Court of Appeals
For the First Circuit
No. 13-1332
UNITED STATES OF AMERICA,
Appellee,
v.
ABDULFATAH OLADOSU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.
George J. West for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
February 28, 2014
STAHL, Circuit Judge. Because this case is largely
controlled by another that we have decided today, United States v.
Baez, No. 13-1025, ___ F.3d ___ (1st Cir. Feb. 28, 2014), we will
keep our opinion brief.
As part of an investigation into a heroin-smuggling
organization, Officer Robert DiFilippo of the Rhode Island State
Police High Intensity Drug Trafficking Area (HIDTA) task force
placed a global positioning system (GPS) device on defendant-
appellant Abdulfatah Oladosu's car and used that device to track
Oladosu's movements for forty-seven days, from February 12, 2010
until March 30, 2010.1 The GPS monitoring helped uncover
information that allowed the task force to arrange a controlled
delivery of heroin to Oladosu and a co-defendant, which in turn led
to Oladosu's arrest. Oladosu was charged with, and eventually pled
guilty to, possessing and conspiring to possess one hundred grams
or more of heroin with the intent to distribute it.
After Oladosu moved to suppress the evidence obtained as
a result of the warrantless GPS monitoring, but before the district
court ruled on the motion, the Supreme Court decided, in United
States v. Jones, 132 S. Ct. 945 (2012), that the installation and
1
The device was in "sleep mode," and thus inactive, for
eighteen of those days, while Oladosu was out of the country. The
government therefore argues that the monitoring period should be
viewed as having lasted for just twenty-nine days. Because we find
the distinction immaterial for purposes of the good-faith exception
in this case, we will use Oladosu's number.
-2-
use of a GPS tracker on a car constitutes a Fourth Amendment
search. The district court nonetheless denied Oladosu's motion to
suppress, concluding that the officers had relied in good faith on
pre-Jones legal precedent and that, under Davis v. United States,
131 S. Ct. 2419 (2011), the exclusionary rule should not apply.
United States v. Oladosu, 887 F. Supp. 2d 437 (D.R.I. 2012).
Before the parties briefed the case on appeal, we decided
United States v. Sparks, 711 F.3d 58 (1st Cir. 2013), in which we
upheld eleven days of pre-Jones warrantless GPS tracking under the
good-faith exception to the exclusionary rule. We concluded that,
at the time of the surveillance at issue in Sparks, settled,
binding precedent in the form of United States v. Knotts, 460 U.S.
276 (1983), and United States v. Moore, 562 F.2d 106 (1st Cir.
1977), authorized the agents' conduct. Sparks, 711 F.3d at 67.
Our review here is de novo. See Baez, slip op. at 7. We
begin with an argument to which Oladosu has devoted much of his
brief but to which we need not devote much of our opinion: that
Sparks was wrongly decided.2 As Oladosu acknowledges, "prior panel
decisions are binding upon newly constituted panels in the absence
of supervening authority sufficient to warrant disregard of
established precedent," United States v. Wogan, 938 F.2d 1446, 1449
2
Shortly after Oladosu filed his opening brief in this case,
the Supreme Court denied the respondent's petition for a writ of
certiorari in Sparks. See Sparks v. United States, 134 S. Ct. 204
(2013).
-3-
(1st Cir. 1991), and he has not made that showing. See also
Sanchez v. United States, 740 F.3d 47, 56 (1st Cir. 2014)
(describing the rare instances in which we will depart from circuit
precedent).
Oladosu also attempts to distinguish his case from Sparks
based on the nature of the GPS monitoring to which he was
subjected. That monitoring was, he claims, "prolonged and
intrusive," and it amounted to a "dragnet" within the meaning of
Knotts. See 460 U.S. at 283-84; see also Baez, slip op. at 9-10
(discussing the Knotts "dragnet" passage). As in Baez, we need not
decide here "what type of law enforcement conduct, if any, might
have implicated the Knotts 'dragnet' passage in the pre-Jones era,"
Baez, slip op. at 13, because Oladosu has given us no reason to
believe that the GPS surveillance to which he was subjected was
qualitatively different from the surveillance in Sparks. The only
distinction Oladosu has made between his case and Sparks is that
the device remained on his car for forty-seven days, rather than
eleven, and we see no reason why that fact alone should take this
case outside the scope of Sparks and the good-faith exception. See
id. (upholding 347 days of GPS monitoring under the good-faith
exception to the exclusionary rule). While Sparks does not stand
for the proposition that the duration of GPS monitoring conducted
in the pre-Jones era can never be relevant for Fourth Amendment
purposes, see id. at 10-11, Oladosu has not demonstrated that the
-4-
surveillance here was "so extensive or indiscriminate that the
officers who conducted it could not fairly be said to have been
complying with Knotts." Id. at 11.3
Finally, Oladosu suggests that this case differs from
Sparks because, about two weeks after the initial installation of
the GPS device (which occurred while Oladosu's car was parked on a
public street), Detective DiFilippo walked ten to twelve feet up
Oladosu's driveway to change the tracker's batteries, which
required removal and reinstallation of the device. It is true
that, in Sparks, the GPS device was installed while Sparks's car
was parked not in a driveway but in a private parking lot shared by
tenants of two residential buildings. United States v. Sparks, 750
F. Supp. 2d 384, 387 (D. Mass. 2010). The Sparks district court
had concluded that the parking lot was not a constitutionally
protected area, id. at 388-89, a finding that we were not asked to
review on appeal.
3
Oladosu's brief implies that the HIDTA task force planted
the GPS device on his car and then sat back and "wait[ed] for
anything illegal to occur," but the record belies that claim. Like
the law enforcement agents in Baez, the HIDTA task force had good
reason to attach the device and conduct the monitoring. See Baez,
slip op. at 11-12. Before attaching the device, the task force
corroborated Oladosu's role in the heroin-smuggling operation
through information from cooperating witnesses, physical
surveillance, a pole camera, and pen registers on Oladosu's cell
phones. See Oladosu, 887 F. Supp. 2d at 438-39. A review of the
record also indicates that, during the time the GPS device was on
Oladosu's car, the task force uncovered evidence of Oladosu's
ongoing participation in the smuggling ring from sources other than
the GPS.
-5-
Yet Oladosu has failed to explain the legal significance
of that factual distinction between his case and Sparks. It is not
evident whether his argument is that the reinstallation of the
device in his driveway renders Knotts and Moore inapplicable and
thus places this case outside the scope of the good-faith
exception, or that the reinstallation constituted an independent
Fourth Amendment violation that we should analyze separately. If
Oladosu wished to argue that the driveway formed part of the
"curtilage" of his home, he should have made some attempt to place
his case within the parameters of the relevant case law. See,
e.g., United States v. Dunn, 480 U.S. 294, 301 (1987) (outlining
four criteria to guide the "curtilage" analysis); United States v.
Brown, 510 F.3d 57, 65 (1st Cir. 2007) (discussing some of the
factors we have considered in determining whether a driveway is
part of the "curtilage"). Because the argument is undeveloped, it
is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
Thus, for the reasons we articulated in Baez and Sparks,
we conclude that the agents here were acting in objectively
reasonable reliance on then-binding precedent when they installed
the GPS device on Oladosu's car and engaged in the subsequent
monitoring. See Baez, slip op. at 13; Sparks, 711 F.3d at 67. We
therefore find that the good-faith exception to the exclusionary
-6-
rule applies, see Davis, 131 S. Ct. at 2423-24, and we affirm the
district court's denial of Oladosu's motion to suppress.
-7-