In United States v. Barajas, No. 12-3003 (10th Cir. 2013), the Tenth Circuit refused to suppress evidence over a claim that the failure to request GPS data in a wiretap request prevented its use.
The DEA was investigating alleged drug trafficking and obtained a wiretap order for the defendant's cell phone after showing the court that other methods of surveillance had been unsuccessful. The affidavit, however, did not request GPS or cell site location data, though the actual order of the court did allow law enforcement to acquire it. At trial, the defendant filed a motion to suppress evidence that was acquired as a result of GPS pinging, but the motion was denied.
On appeal, the defendant argued "there is no probable cause for GPS pinging because the affidavits did not request GPS data." The Tenth ruled otherwise on that point, but noted that a separate probable cause determination was necessary for the GPS use as was required for the granting of the wiretap order. Ultimately on this point, the court held:
Absent an explanation of how Mr. Barajas's location would reveal information about the workings of the conspiracy—or more accurately, Mr. Barajas himself—we cannot be certain that probable cause exists.That, of course, is not the end of the analysis. In applying the Leon good faith exception, the court held that while they "would prefer" the GPS data explanation in the affidavit, they will not hold the government to the "substantial nexus" standard for failure to do so. Further, the gap in the affadavit and order "gives [the court] more pause," but it is not clear that it was intentional. Thus, good faith saved the evidence for the government.
The defendant also argued that the wiretap evidence should have been suppressed for lack of necessity, but the court found that the government had met its burden with an explanation on why traditional investigative techniques were not sufficient.
0 comments:
Post a Comment