United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This matter comes before the Court on Defendant's Motion To Suppress Evidence (Doc. #48) filed November 7, 2013, which the Court referred to Magistrate Judge David J. Waxse for a report and recommendation. On January 15, 2014, Judge Waxse recommended that the Court deny the motion. See Report And Recommendation (Doc. #71). On January 23, 2014, defendant filed an objection to the report and recommendation. See Defendant's Objection To The Report And Recommendation Filed By The Magistrate ("Defendant's Objection") (Doc. #77). For reasons stated below, the Court overrules defendant's objection, adopts the report and recommendation and overrules defendant's motion to suppress.
The Court reviews de novo any part of the magistrate judge findings or recommendations to which an objection is made. See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3). The Court may accept, reject or modify in whole or in part the findings or recommendations made by the magistrate judge. Id . Also, the Court may receive further evidence or return the matter to the magistrate judge with instructions. Id.
On May 8, 2013, a grand jury charged defendant with conspiring to distribute and possess with intent to distribute more than 280 grams of a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and 21 U.S.C. § 846 (Count 1); distributing a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2 and 3); and using a telephone in committing, causing and facilitating the conspiracy set forth in Count 1, in violation of 21 U.S.C. § 843(b) (Counts 4 and 5). See Indictment (Doc. #1) filed May 8, 2013.
On November 7, 2013, defendant filed a motion to suppress evidence, asserting that police officers unlawfully attached a Global Positioning Satellite ("GPS") electronic tracking device to his vehicle without a search warrant. See Defendant's Motion To Suppress Evidence (Doc. #48). On November 26, 2013, the Court referred the motion to Magistrate Judge David J. Waxse for a report and recommendation.
On December 23, 2013, Judge Waxse held an evidentiary hearing at which seven witnesses testified on behalf of the government. See Witness List attached to Minute Entry (Doc. #64). No witnesses testified on behalf of defendant. Id . After considering the evidence, Judge Waxse found that at the time police officers attached the GPS device to defendant's vehicle, they had probable cause to believe that defendant was using the vehicle to transport illegal drugs from Kansas City, Kansas to Lawrence, Kansas. See Report And Recommendation (Doc. #71) at 5. Judge Waxse found that even if the police were required to obtain a warrant before attaching the GPS device, the good faith exception to the exclusionary rule applied. Id. at 5-7. Specifically, Judge Waxse found that at the time the police attached the GPS device, although the Tenth Circuit had not decided the issue, the majority of federal circuit courts of appeal had held that attaching a GPS device to a vehicle did not constitute a search under the Fourth Amendment and thus did not require a warrant. See id. at 6. Judge Waxse concluded that under the circumstances, it was objectively reasonable for police officers to believe that a warrant was not necessary. See id. at 6-7.
Defendant objects to the magistrate judge ruling, asserting that (1) police officers did not have probable cause to attach the GPS device to defendant's vehicle; (2) even if officers had probable cause, they were required to obtain a warrant before attaching the GPS device; and (3) under the circumstances, the good faith exception to the exclusionary rule should not apply. See Defendant's Objection (Doc. #77) at 2-4.
I. Whether Officers Had Probable Cause To Believe That Defendant Was Using His Vehicle To Transport Illegal Drugs
As noted, Judge Waxse found that at the time police officers attached the GPS device to defendant's vehicle, they had probable cause to believe that he was using the vehicle to transport illegal drugs from Kansas City, Kansas to Lawrence, Kansas. See Report And Recommendation (Doc. #71) at 5. Defendant asserts that the evidence does not support this conclusion. See Defendant's Objection (Doc. #77) at 2.
At the suppression hearing, government witnesses testified to the following facts: On September 9, 2011, after being arrested on drug charges, the CI stated that he planned to deliver the cocaine in his possession to defendant, who had already paid for it. See Transcript Of Motion To Suppress Hearing Before The Honorable David Waxse, United States Magistrate Judge ("Transcript") (Doc. #85) filed February 13, 2014 at 55:8-20. From jail, the CI made a telephone call to defendant to establish that defendant would still conduct transactions with the CI. Id. at 56:5-16. The CI and defendant talked in code indicating that they were "still good." Id. at 58:17-19. The conversation indicated that the CI did in fact have a relationship with defendant, and the officers arranged to have the CI set up controlled buys with defendant. Id. at 59:12-24. On September 20, 2011, at the officers' direction, the CI called defendant to arrange a buy to occur that night in the parking lot of a CVS store in Lawrence. Id. at 60:2-61:12. Defendant did not show up, but the CI was able to contact him by telephone. Id. at 61:24-62:9. Defendant stated that he would meet the CI at another location in Lawrence and sell him drugs there. Id. at 62:9-13. The CI had an undercover police officer in the car with him, and defendant seemed nervous about meeting new people. Id. at 101:6-17. Over a body wire which was attached to the CI, officers heard conversations in which the CI told defendant that he was "trying to grab two, " which in common drug lingo referred to two eight-balls of crack cocaine. Id. at 90:17-91:6; 91:18-21; 105:6-8. Also, the CI referred to whether he had enough "bread, " i.e. money to pay for the drugs. Id. at 92:15-25.
When the CI went to the new location with undercover officers, defendant was not there. Id. at 63:11-12. The CI called defendant and defendant stated that he had been stopped by a uniformed police officer and that the encounter had spooked him so he left the area. Id. at 63:12-22; 106:14-19. Defendant stated that it was too late to do the buy that night, because he had to work the next day and would need to drive to Kansas City to pick up the drugs. Id. at 63:25-64:5; 106:20-23. Defendant agreed to do it the next day, but the CI had prior plans so they did not make arrangements to meet the next night. Id. at 64:6-18. Later that evening, police officers located defendant's vehicle in Lawrence and attached a GPS ...