APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Douglas P. Woodlock, U.S. District Judge.
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.
Before Lynch, Chief Judge, Stahl and Lipez, Circuit Judges.
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, 181 L.Ed.2d 911 (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. 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 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 ...