There's no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.
The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.
The stop wasn't random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.
The passenger, Naarl Richard, who was returning from a trip to New Jersey, was convicted at trial on heroin charges. While awaiting sentencing, the U.S. Supreme Court ruled in U.S. v. Jones that the warrantless installation of a GPS tracking device amounted to a "search" under the Fourth Amendment. (Defendant Antoine Jones’s conviction and life sentence were thrown out.)
Richard won a new trial based on the Supreme Court decision. The second time around, in the summer of 2012, prosecutors weren't allowed to use the GPS data to explain how the police ended up finding him—and the drugs. He was convicted anyway. Richard is serving a 21-year prison sentence.
The legal fight is now playing out on appeal. A lawyer for Richard on May 17 asked the U.S. Court of Appeals for the Fourth Circuit to overturn the judgment, arguing that the trial judge should have suppressed the drug evidence because it flowed from the illegal use of the GPS device. The audio from the court hearing is here.
The case is important because, for prosecutors and federal agents, there isn't much guidance among appellate courts on how to handle challenges of warrantless GPS tracking.
Federal trial judges are divided over when the "good faith" exception to the exclusionary rule—concerning when evidence of an unlawful search can be thrown out—should be in play.
One big issue for the appellate court: Did the traffic stop constitute a new and distinct crime such that it, as Richard's lawyer said, "purged the taint of the government's illegal use of a GPS tracking device?"
Richard's lawyer, G. Wells Dickson Jr. of Charleston, S.C., urged the appeals court to set aside the verdict and grant Richard a new trial—with the drug evidence, 1,000 glassine bags of heroin, excluded. (The authorities found the drugs in a false compartment under the center console of the car in which Richard was a passenger.)
"It was a legal stop, with the driver giving consent to search—none of which would have happened if we hadn’t had the GPS," Dickson said in the Fourth Circuit. "They wouldn’t have been there."
In court papers in the appeal, Dickson wrote: "If the government’s logic is accepted, then law enforcement could use any illegal method of their choosing to develop leads on the location of a suspect and then follow that suspect until the individual made some minor mistake such as failing to use a turn signal or failing to yield to a yellow light. This would effectively render our Fourth Amendment protections meaningless."
Nathan Williams, an assistant U.S. attorney in Charleston, told the appellate panel that the police acted in good faith when they installed and monitored the GPS device. The Grand Prix had been stationary for weeks, save for one trip to a laundry.
"The GPS tracker was applied to do what the officers would ordinarily do—without that technology—to determine when the vehicle was going to leave the area to connect with its source," Williams said in court.
When investigators saw the car leave the state and reach New Jersey—the source of drugs, according to an informant—they moved into position to make a traffic stop. The stop was a pretext. Investigators didn't know whether they'd find anything illegal in the car, which was driven by Richard's girlfriend.
After car returned to South Carolina, the authorities followed it. They pulled it over after the driver failed to signal upon entering an exit lane. "Fairly marginal traffic offense," Williams said in the appeals court.
Williams argued that the panel judges should find the heroin evidence admissible—despite the illegal search—because the police were not acting outside the scope of their authority.
"They were doing what we would want law enforcement to do," Williams said. "There was certainly no flagrant misconduct." Officers were following the rules they best they could, he said.
Williams wrote in court papers: "Detectives acted with an objective, good faith belief that their conduct was lawful."
The Supreme Court's decision in Jones last year has sweeping consequences for law enforcement investigators. Williams said that, in cases he was handling, GPS devices were shut down after the high court's ruling.
Williams didn't specify the number of cases. "Across the country," he said, "reliance on the use of GPS… was in good faith."
The appellate court judges didn't immediately rule after the hearing.