United States District Court, D. Oregon
S. AMANDA MARSHALL, United States Attorney, JOHN C. LAING, Assistant United States Attorney, Portland, OR, Attorneys for Plaintiff.
STEVEN T. WAX, Federal Public Defender. SUSAN A. RUSSELL, Assistant Federal Public Defender. Portland, OR, Attorneys for Defendant.
FINDINGS OF FACT AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant's Motion (#35) to Suppress Evidence and Statements by which Defendant seeks to suppress, among other things, evidence seized during a search of his vehicle as part of a traffic stop made during a time that Defendant's vehicular movements were monitored pursuant to a state warrant authorizing GPS monitoring in Oregon.
On January 24, 2014, the Court conducted a hearing regarding Defendant's Motion (#26) to Compel Production at which time the Court received testimony from Detective Randy Ogle of the Oregon State Police (OSP) that is also pertinent to the Motion to Suppress.
On March 17, 2014, the Court conducted an additional evidentiary hearing, received documentary evidence, and heard testimony from Detective Adam Michael Dean of the McMinnville Police Department, Sergeant Kaipo Raiser of OSP, Sergeant Christopher Troy Ray of the Yamhill County Sheriff's Office, and Det. Ogle regarding Defendant's Motion to Suppress. In particular, the Court received into evidence cellular telephone records of calls between the officers, records of tracking information from the GPS mobile tracking device installed on Defendant's vehicle, records indicating when the officers viewed the GPS tracking information on the dates in question, and photographic and video evidence.
The Court makes the following Findings of Fact in order to better frame the legal arguments as to the Conclusions of Law that the parties contend the Court should make on the record of Defendant's Motion to Suppress.
FINDINGS OF FACT
Having weighed and evaluated all of the evidence, the Court finds the following facts by a preponderance of the evidence:
On August 6, 2012, Det. Ogle applied for and received a warrant from a Yamhill County Circuit Judge authorizing lawenforcement officers to install a GPS mobile tracking device on Defendant's automobile to monitor the movements of the vehicle. The warrant provided: "You are authorized to leave in place, monitor, and use the mobile tracking device anywhere in the State of Oregon for a time period necessary to complete the investigation, not to exceed thirty (30) days from the date of issuance." Def.'s Ex. A. On August 13, 2012, Det. Ogle installed the GPS monitoring device on Defendant's car.
A. Operation of the GPS Mobile Tracking Device
1. The GPS mobile tracking device placed on Defendant's car permitted law-enforcement officers, including Det. Dean, Det. Ogle, and Sgt. Ray, to monitor the movements of Defendant's car, and presumably Defendant. The tracking device automatically creates a record of its location at intervals determined by the officers operating the tracking software and automatically uploads this information to CovertTrack, an internet-based GPS monitoring service.
2. CovertTrack permits users like the officers to download a spreadsheet from its database listing the date, time, location, direction, and speed of travel for the GPS tracking device each time the device automatically reported its location to CovertTrack.
3. In addition to the downloadable spreadsheet of automatically recorded data, CovertTrack permits users, like the officers in this case, to track the GPS monitoring device in real time by logging into a password-protected CovertTrack website specific to the GPS tracking device. The first screen of the real-time tracking interface does not display any real-time tracking information, but instead displays a map of the United States and provides the operating officers with options for settings to be used in displaying the tracking information. By selecting a button labeled "refresh, " the officers can initiate the real-time tracking function, which then indicates the most recent location of the GPS tracking device by displaying a dot on the map. At the officers' discretion, the program can either display the most recent location of the GPS device or the most recent location with dots and arrows that indicate the device's location and direction of travel over the course of a preset number of prior locations.
4. Users of the CovertTrack website, like these officers, can also place a "GeoFence" on various locations that will notify the operating officer by text message and/or email if the GPS tracking device leaves the GeoFence area. For example, a user could place a GeoFence on a particular point on a road and receive a notification when the GPS tracking device crossed that point.
B. GPS Tracking of Defendant
1. On the afternoon and evening of August 19, 2012, Sgt. Ray and Det. Ogle followed Defendant's vehicle in an unmarked police car and began tracking the movements of the GPS tracking device in real time using a laptop computer with a wireless internet connection to CovertTrack. Det. Ogle drove the police car while Sgt. Ray operated the laptop.
2. Det. Ogle and Sgt. Ray followed Defendant through Yamhill County to a residence in St. Paul, Oregon, and then from St. Paul to Wilsonville, Oregon, where Defendant made a stop before merging onto Interstate 5 North in the direction of Portland.
3. At 8:37 p.m. on August 19, 2012, Defendant merged onto Interstate 84 East in Portland. The officers followed Defendant in Oregon as he continued east on I-84 for approximately three hours with stops in Cascade Locks and The Dalles.
4. For approximately one hour the officers lost the signal from the GPS tracking device while following Defendant through the Columbia Gorge on I-84.
5. In any event, Det. Ogle and Sgt. Ray relocated the signal from the GPS tracking device while still ...