United States v. Baez

United States Court of Appeals
For the First Circuit

No. 13-1025

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE L. BAEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.

Gordon W. Spencer for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

February 28, 2014
 STAHL, Circuit Judge. In United States v. Sparks, 711

F.3d 58 (1st Cir. 2013), we held that the warrantless installation

of a global positioning system (GPS) device on a defendant's

automobile and the use of that device to monitor his and a co-

defendant's movements for eleven days fell within the good-faith

exception to the exclusionary rule, because the monitoring had

occurred before the Supreme Court decided that the installation and

use of a GPS tracker on a car constitutes a Fourth Amendment

search. See United States v. Jones, 132 S. Ct. 945 (2012). Today,

we are faced with another instance of pre-Jones warrantless GPS

tracking, but of a significantly longer duration. We nonetheless

conclude that this case falls within the rule laid out in Sparks,

and we therefore affirm.

I. Facts & Background

Defendant-appellant Jose Baez was charged with, and

ultimately pled guilty to, four counts of arson. He challenges the

district court's denial of his motion to suppress evidence that the

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) obtained

by monitoring his black 1989 Chevrolet Caprice using a GPS device.

The GPS tracking began in August 2009 and continued for 347 days.1

1
We take this number from the district court's opinion. See
United States v. Baez, 878 F. Supp. 2d 288, 292 (D. Mass. 2012).
Baez has described the monitoring as having lasted for 346 days,
"from August 27, 2009 to August 8, 2010," but because the GPS
device was apparently still on his car on August 9, 2010 (the date
of the final fire that led to his arrest), we will use the district
court's calculation.

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The ATF decided to track Baez's car as a result of two fires that

occurred earlier that year: the first on April 29, 2009, at Jamaica

Plain Auto Body in Jamaica Plain, Massachusetts, and the second on

July 31, 2009, in a brownstone building in Boston that housed both

condominium units and a dentist's office known as Back Bay Dental.

At the scenes of both fires, surveillance cameras

captured and recorded the image of an older-model, dark-colored

Chevrolet Caprice with silver trim, a light-colored steering wheel

cover, and a silver emblem located on the driver's side C-pillar of

the car. Using the surveillance footage, ATF agents concluded that

the car had been manufactured sometime between 1986 and 1989. They

then obtained, from the Massachusetts Registry of Motor Vehicles

(RMV), a list of all of the dark-colored Chevrolet Caprices

manufactured during that time period and registered to addresses in

the Boston area. The agents located and observed each of the

thirty-eight vehicles on that list and, according to the district

court, determined "that a Chevrolet Caprice belonging to Baez,

unlike most of the other vehicles reviewed, matched the

distinguishing characteristics of the vehicle in the surveillance

tapes." United States v. Baez, 878 F. Supp. 2d 288, 290 (D. Mass.

2012).

The ATF also discovered that Baez was the only owner of

a Chevrolet Caprice on the RMV list who had been a patient at Back

Bay Dental. The office manager at Back Bay Dental reported that

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Baez had become angry in June 2009 when he had to have his veneers

re-cemented and had threatened not to pay for the procedure. In

addition, the ATF investigation revealed that Baez had been a

customer at Jamaica Plain Auto Body, had been dissatisfied with the

shop's work on a Chevrolet Impala in the summer of 2008, and had

filed an unsuccessful claim against the shop in small claims court.

Thus, on August 27, 2009, acting without a warrant, ATF

Agent Brian Oppedisano attached a GPS device to Baez's Caprice

while it was parked on a public road in front of Baez's home. The

ATF set up a "virtual perimeter" around Baez's residence and

programmed the GPS device to send a text message to Agent

Oppedisano whenever the Caprice traveled outside that perimeter;

Agent Oppedisano would then determine whether physical surveillance

of the Caprice was necessary. Agent Oppedisano testified that he

looked at the GPS location logs once every day or two, and that

agents conducted periodic physical surveillance of the Caprice

(even when it did not travel outside the perimeter) to ensure that

it was actually located where the GPS device said it was.

As it turned out, Baez drove the Caprice relatively

infrequently; he appears to have used another car (an Acura MDX) as

his primary vehicle.2 During the nearly year-long monitoring

2
Agent Oppedisano also installed a GPS device on the Acura in
January 2010 but removed that device in April 2010 after concluding
that Baez was not using the car "to scout out locations for
arsons." Baez, 878 F. Supp. 2d at 291 n.3.

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period, the Caprice traveled outside the perimeter on just twenty-

six days, six of which were during the week before the final fire

that led to Baez's arrest.

That fire occurred on August 9, 2010, at 11 Firth Road in

Roslindale, Massachusetts. At 3:21 a.m. that day, Agent Oppedisano

received a text message alerting him that the Caprice had left the

perimeter. From a website available to him, Agent Oppedisano

determined that the car was stopped near 5 Bexley Road in

Roslindale, which runs parallel to Firth Road. Because this was an

unusual travel pattern for Baez, and given that the April 2009 and

July 2009 fires had occurred at a similar time of day, Agent

Oppedisano alerted law enforcement and directed officers to the

area. At around the same time, a fire was reported at 11 Firth

Road, a multi-unit home. After being shown a photo array, two of

the residents of 11 Firth Road identified Baez as a man who had

sold them Dominican lottery tickets.

Shortly after the fire was reported, an officer from the

Boston Police Department located Baez in his vehicle in front of

his residence and arrested him. Footage from surveillance cameras

near Baez's home confirmed his travel in the direction of Firth

Road that night, and searches of his person, his car, his

residence, and two garages that he had rented revealed various

materials associated with arson. The searches of Baez's residence

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and one of the garages also tied him to a December 2008 fire at a

Whole Foods grocery store in Cambridge, Massachusetts.

In September 2011, following his indictment, Baez moved

to suppress all of the evidence obtained as a result of the GPS

monitoring of his vehicle. With the consent of both parties, the

district court decided to hold the motion until the Supreme Court

reached its decision in Jones. In January 2012, the Court

announced 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'" for Fourth Amendment

purposes. Jones, 132 S. Ct. at 949 (footnote omitted). The

district court convened a motion hearing and ordered supplemental

briefing. In July 2012, the district court denied Baez's motion to

suppress, concluding that, under Davis v. United States, 131 S. Ct.

2419 (2011), suppression would not serve the purposes of the

exclusionary rule, because, when he installed the GPS device and

engaged in the monitoring, Agent Oppedisano had "a good faith basis

to rely upon a substantial consensus among precedential courts."

Baez, 878 F. Supp. 2d at 289.

After Baez filed his notice of appeal but before the

parties briefed the case, we decided Sparks, in which federal

agents had tracked a defendant's car for eleven days using a GPS

device, without a warrant and before Jones was decided. 711 F.3d

at 60-61. We concluded that the good-faith exception to the

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exclusionary rule applied because, at the time that the GPS

surveillance occurred, 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. The question before us today is

whether those same cases authorized the use of the GPS device on

Baez's car.

II. Analysis

Because Baez challenges the district court's legal

conclusion that suppression was not warranted under the

exclusionary rule, our review is de novo. See United States v.

Ryan, 731 F.3d 66, 68 (1st Cir. 2013). We begin by briefly

sketching the relevant legal landscape; for a more detailed

exposition of the case law, we refer the reader to Sparks. See 711

F.3d at 65-67.

"The purpose of the exclusionary rule 'is to deter future

Fourth Amendment violations.'" Id. at 63 (quoting Davis, 131 S.

Ct. at 2426); see also United States v. Thomas, 736 F.3d 54, 60

(1st Cir. 2013) (noting that, under Herring v. United States, 555

U.S. 135 (2009), the exclusionary rule is only available "where the

benefits of deterring the police misconduct that produced the

[Fourth Amendment] violation outweigh the costs of excluding

relevant evidence"). When the police engage in conduct that

complies with existing precedent, and the law later changes, "there

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is nothing to deter; the police cannot modify their conduct to

accord with cases not yet decided." Sparks, 711 F.3d at 63. Thus,

in Davis, the Supreme Court held that "searches conducted in

objectively reasonable reliance on binding appellate precedent are

not subject to the exclusionary rule." 131 S. Ct. at 2423-24.

In Sparks, we interpreted that language as requiring

"precedent that is 'clear and well-settled.'" 711 F.3d at 64

(quoting United States v. Davis, 598 F.3d 1259, 1266 (11th Cir.

2010), aff'd, 131 S. Ct. 2419). We went on to examine whether

clear and well-settled precedent authorized the GPS monitoring at

issue in Sparks. That monitoring occurred a little over two years

before the Supreme Court decided, in Jones, that installing a GPS

device on a vehicle and using that device to track the vehicle

constitutes a Fourth Amendment search. We concluded that, before

Jones was decided, two cases governed the installation and use of

a GPS device on a vehicle in this circuit: Knotts, 460 U.S. 276,

and Moore, 562 F.2d 106. Moore addressed the initial "trespass

involved in installing a tracking device on a car," concluding that

it "was, by itself, immaterial for Fourth Amendment purposes."

Sparks, 711 F.3d at 67. As for the subsequent monitoring, we found

that Knotts laid out an "apparent bright-line rule that the Fourth

Amendment is unconcerned with police surveillance of public

automotive movements." Id.

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 We paused to address the fact that the monitoring in

Sparks had gone on for eleven days, whereas Knotts involved less

than a day of monitoring. "Knotts did note that abusive 'dragnet

type' surveillance might be governed by 'different constitutional

principles,'" id. (quoting Knotts, 460 U.S. at 284), but we

concluded that "there was no suggestion in the Knotts opinion that

this rather brusque dismissal of the defendant's Orwellian warnings

imposed a concrete temporal limitation on the case's apparently

unqualified holding." Id.

Today, we are asked to reexamine the Knotts "dragnet"

language. The crux of Baez's claim is that the GPS monitoring to

which he was subjected was the very kind of abusive surveillance

anticipated in Knotts, rendering that case inapplicable and placing

the ATF's conduct outside the protection of the good-faith

exception. As he describes it, Agent Oppedisano put the GPS device

on Baez's car "indefinitely, or until further notice, to see if he

could get lucky," without any evidence of an ongoing crime or a

reasonable basis to believe that Baez might engage in further

arson. That, he claims, sets his case apart from Sparks, in which

the monitoring period was much shorter and there was reason to

think that the defendant might commit additional robberies.

Baez relies upon the following passage from Knotts:

Respondent . . . expresses the
generalized view that the result of the
holding sought by the government would be that
"twenty-four hour surveillance of any citizen

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 of this country will be possible, without
judicial knowledge or supervision." Br. for
Resp., at 9 (footnote omitted). But the fact
is that the "reality hardly suggests abuse,"
Zurcher v. Stanford Daily, 436 U.S. 547, 566
(1978); if such dragnet type law enforcement
practices as respondent envisions should
eventually occur, there will be time enough
then to determine whether different
constitutional principles may be applicable.

460 U.S. at 283-84. At the time of the GPS installation and

monitoring at issue here, the Supreme Court had not provided any

further explanation of that language, and lower courts had offered

varying assessments of its meaning. See, e.g., United States v.

Maynard, 615 F.3d 544, 556-57 (D.C. Cir. 2010) (interpreting Knotts

as having reserved the issue of prolonged surveillance), aff'd sub

nom. Jones, 132 S. Ct. 945;3 United States v. Garcia, 474 F.3d 994,

998 (7th Cir. 2007) (suggesting that Knotts reserved the issue of

mass surveillance).

In the government's view, Sparks's conclusion that the

Supreme Court imposed no "concrete temporal limitation" on its

"apparently unqualified holding" in Knotts forecloses a pre-Jones

Fourth Amendment claim based on the duration of the GPS tracking.

Sparks, 711 F.3d at 67. It is true that Sparks found "scant reason

to think that the duration of the tracking" in Knotts (less than a

3
The D.C. Circuit decided Maynard just three days before the
ATF removed the GPS device from Baez's car. Baez, 878 F. Supp. 2d
at 293. We mention the opinion here not because we believe that it
should necessarily have informed the ATF's conduct, but simply to
point out that the meaning of Knotts's "dragnet" passage was
unclear.

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day) "was material to the Court's reasoning." Id. Sparks also

concluded that the length of the monitoring in that case (eleven

days) was not enough to render Knotts inapplicable for purposes of

the good-faith exception. Id. But Sparks did not say that the

duration of the GPS surveillance could never be relevant for Fourth

Amendment purposes. Nor did Sparks rule out the possibility that

tracking conducted in the pre-Jones era could otherwise be so

abusive in nature as to fall outside the scope of Knotts.4 After

all, Davis requires that a particular police practice be clearly

authorized by judicial precedent, Sparks, 711 F.3d at 64, and

perhaps one could imagine a warrantless GPS investigation so

extensive or indiscriminate that the officers who conducted it

could not fairly be said to have been complying with Knotts. See,

e.g., Garcia, 474 F.3d at 998 (describing the possibility of a

program of "wholesale" or "mass" surveillance).

This, however, is not that case. Contrary to Baez's

claims, Agent Oppedisano was not taking a shot in the dark when he

installed the GPS device on Baez's Chevrolet Caprice; the ATF had

ample reason to suspect that Baez had set the 2009 fires at Jamaica

Plain Auto Body and Back Bay Dental. Specifically, the ATF knew

that: (1) Baez had been a customer at, and had had disputes with,

4
But cf. United States v. Cuevas-Perez, 640 F.3d 272, 279
(7th Cir. 2011) (Flaum, J., concurring) ("Regardless of the precise
contours of Knotts's reservation, . . . I do not believe it invests
lower courts with the authority to depart from the case's
holding."), vacated and remanded, 132 S. Ct. 1534 (2012).

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both businesses; (2) he owned a Caprice with the same

distinguishing features as the one seen on the surveillance tapes

at the scenes of both fires; and (3) he was the only individual the

ATF had identified who fit both of those characteristics. The ATF

also had reason to believe that Baez might engage in further arson.

Given his altercations with both Jamaica Plain Auto Body and Back

Bay Dental in the time period before the fires, Baez exhibited some

of the traits of a serial arsonist, defined (according to an expert

affidavit that is part of the record in this case) as a person who

commits "three or more arsons at separate locations, with a

cooling-off period in between," to relieve stress or exact revenge.

Though the tracking went on for nearly a year, apparently without

any evidence of criminal activity on Baez's part, the record in

this case also establishes that it is not uncommon for a

significant amount of time (often months, but sometimes years) to

pass between a serial arsonist's fires. The particularly lethal

nature of Baez's July 2009 fire provided further cause for concern:

that fire was set in the front vestibule of a residential building

in the middle of the night. In short, as in Knotts, the reality

here "hardly suggests abuse." 460 U.S. at 283 (quoting Zurcher,

436 U.S. at 566).

We need not decide whether the ATF had probable cause, or

reasonable suspicion, to track Baez's car, or whether the existence

of either would excuse Agent Oppedisano's failure to obtain a

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warrant.5 See Jones, 132 S. Ct. at 954 (leaving that question

open). Nor need we determine what type of law enforcement conduct,

if any, might have implicated the Knotts "dragnet" passage in the

pre-Jones era. It is enough for us to say that what occurred in

this case was not the indiscriminate monitoring that Baez

describes. This was relatively targeted (if lengthy) surveillance

of a person suspected, with good reason, of being a serial

arsonist.

Under these circumstances, it was objectively reasonable

for the ATF to believe that its conduct fell within the rule laid

out in Knotts that "[a] person travelling in an automobile on

public thoroughfares has no reasonable expectation of privacy in

his movements from one place to another." 460 U.S. at 281. We

therefore conclude that the good-faith exception applies. See

Davis, 131 S. Ct. at 2423-24.

There is, of course, a postscript: after Baez was

monitored and arrested, Jones came along and taught us that the

majority of circuit courts had misunderstood Knotts and that GPS

tracking does in fact constitute a Fourth Amendment search. See

132 S. Ct. 945.6 Jones also shed some new light on the Supreme

5
Baez argues that probable cause was required under Moore,
but as we clearly stated in Sparks, Knotts abrogated Moore's
probable-cause requirement. Sparks, 711 F.3d at 65.
6
It remains to be seen, at least in this circuit, whether a
warrant is required for such tracking. See Sparks, 711 F.3d at 62.

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Court's understanding of a "dragnet," suggesting that the twenty-

eight days of GPS monitoring at issue in that case, which generated

more than 2,000 pages of data about the defendant's movements, id.

at 948, constituted a "dragnet" within the meaning of Knotts. See

id. at 952 n.6 (describing Knotts as having "reserved the question

whether 'different constitutional principles may be applicable' to

'dragnet-type law enforcement practices' of the type that GPS

tracking made possible here"); see also id. at 956 n.* (Sotomayor,

J., concurring) ("Knotts reserved the question whether 'different

constitutional principles may be applicable' to invasive law

enforcement practices such as GPS tracking."). But Agent

Oppedisano, who placed the GPS device on Baez's car in August 2009,

did not have the benefit of Jones, which was decided almost two and

a half years later.

III. Conclusion

Our conclusion today certainly should not be read as an

endorsement of prolonged warrantless electronic surveillance. We

share the concerns that the respondent articulated in Knotts and

that the Supreme Court later acted upon in Jones. Moving forward,

new rules will apply, and perhaps congressional action will follow.

See Jones, 132 S. Ct. at 962-63 (Alito, J., concurring in the

judgment). But in this case, as in Sparks, the agents were acting

in objectively reasonable reliance on then-binding precedent. We

therefore find that the good-faith exception to the exclusionary

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rule applies, and we affirm the district court's denial of Baez's

motion to suppress.

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