No. 1-13-0145 September 22, 2015

SECOND DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) Of Cook County. Plaintiff-Appellant, ) ) v. ) No. 11 CR 12947 ) JUAN BRAVO, ) The Honorable ) Mary M. Brosnahan, Defendant-Appellee. ) Judge Presiding.

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Simon concurred in the judgment and opinion. Justice Liu specially concurred, with opinion.

OPINION

¶1 The State appeals from an order granting Juan Bravo's motion to quash his arrest and

suppress the evidence collected at the time of the arrest. The trial court found that the State

failed to meet its burden of showing that police acted in good faith when they installed a GPS

device on Bravo's car without judicial authorization. We affirm. No. 1-13-0145

¶2 BACKGROUND

¶3 On April 5, 2011, Mike McClarence, a special agent working for the Drug Enforcement

Agency (DEA), watched Bravo get out of a Toyota and into a Jeep driven by Juan Soto. Soto

drove the Jeep to a parking lot. Rodrigo Martinez Figueroa drove up in a sedan. Martinez

got into the Jeep, carrying a diaper bag, and half a minute later, he returned to the sedan, still

holding the diaper bag. Martinez and Soto started to drive off in different directions.

¶4 Following McClarence's instructions, Keith Bakewell, also a DEA agent, activated his

siren and directed Soto to stop the Jeep. Bakewell saw several bundles wrapped in

cellophane in the Jeep's back seat. Bakewell arrested Bravo. Prosecutors charged Bravo

with possessing marijuana with intent to deliver.

¶5 Bravo moved to quash the arrest and suppress the evidence seized at the time of his

arrest. He alleged that on or before March 3, 2011, DEA agents, acting without judicial

authorization, installed on Bravo's Toyota a GPS tracking device. In response, the State

argued only that the agents acted in good faith when they installed the device.

¶6 At the hearing on the motion both McClarence and Bakewell guessed that they first

installed a GPS device on Bravo's Toyota about a month before the arrest. Because of the

limited lives of their batteries, they needed to install new GPS devices on Bravo's Toyota

several times during the period of surveillance. McClarence made the decision to install the

GPS device. He did not consult any attorney about the installation, and he did not seek

judicial authorization for the installation.

2 No. 1-13-0145

¶7 McClarence testified that while he was following Bravo on April 5, 2011, he used the

GPS device to locate Bravo each time McClarence lost track of him. McClarence agreed that

he "relied on data that was disseminated from the tracking device in order to find Mr. Bravo

on April the 5th." McClarence testified that he told Bakewell to stop Soto because

McClarence believed Martinez and Bravo had just completed a narcotics transaction in the

parking lot. McClarence explained, "we actually were told that [Bravo] was a cocaine

trafficker." Neither the prosecutor nor defense counsel asked McClarence to elaborate on the

source of the information. McClarence and Bakewell both admitted that during the period of

surveillance they had not seen any evidence that Bravo engaged in other narcotics

transactions.

¶8 The prosecutor argued that the agents acted in accord with applicable case law. The

prosecutor added, "there was enough evidence that was elicited during the hearing to give the

agents reasonable cause to place the tracker on the defendant's vehicle. And the officer

testified that they did have information that the defendant was involved in narcotics

activities."

¶9 The judge said,

"[There] was not enough information presented to me that would cause me to

be able to say that when the GPS tracker went on, really any one of those ***

times prior to the date of the arrest, that there was a reasonable suspicion that

[Bravo] was engaged in criminal activity. I just have one conclusion in the

3 No. 1-13-0145

record ***, which is we were told that he was a cocaine trafficker, period, with

no other backdrop to that statement.

So based upon that, I cannot find that the time they put the tracker on *** that

they did, in fact, have that reasonable suspicion that was necessary."

¶ 10 The judge granted the motion to quash the arrest and suppress the evidence.

¶ 11 The prosecutor filed a motion to reconsider the decision to suppress the evidence. At the

oral argument on the motion, the prosecutor introduced a new argument. He said, "there still

were multiple intervening factors that attenuated anything that happened," and that the agents

would have discovered the marijuana without use of the GPS device. The court denied the

motion for reconsideration. The prosecutor filed a certificate of substantial impairment and a

notice of appeal.

¶ 12 ANALYSIS

¶ 13 The State argues on appeal that the agents acted in good faith when they installed the

GPS devices, and that the trial court should have granted the motion for reconsideration

because the agents did not derive the suppressed evidence from the use of the GPS device.

¶ 14 Good Faith

¶ 15 On appeal from a ruling on a motion to suppress evidence, "Factual findings made by the

circuit court will be upheld on review unless such findings are against the manifest weight of

the evidence. *** If we accept the findings of fact made by the circuit court, we then review

de novo whether suppression is warranted under those facts." People v. Gherna,

(2003). The State admits that the agents committed an illegal search when they attached

4 No. 1-13-0145

a GPS device to Bravo's car. See United States v. Jones,

,

(2012). To justify the search, the State claims that the agents acted in accord with United

States v. Garcia,

(7th Cir. 2007).

¶ 16 In Garcia, a known user of methamphetamine reported to police in Polk County,

Wisconsin, that Garcia had brought the user meth and told her he wanted to start making

meth again. Police found that a store's security cameras captured images of Garcia buying

ingredients manufacturers can use to make meth. Garcia had previously served time for meth

offenses. Police decided to attach a GPS device to Garcia's car. Using the device, police

soon found Garcia with equipment and materials used to make meth. Garcia moved to

suppress the evidence. The Garcia court found that the use of the GPS device under the

circumstances of that case did not violate the fourth amendment. Garcia,

-

98.

¶ 17 The United States Supreme Court rejected the reasoning of Garcia. Jones, 565 U.S. at

___, 132 S. Ct. at 949. The Jones Court held that the installation of a GPS device without a

warrant constitutes a search in violation of the subject's fourth amendment rights. Jones, 565

U.S. at ___, 132 S. Ct. at 949. However, the Illinois Supreme Court subsequently held that

courts need not always suppress the evidence discovered through the warrantless use of GPS

device, if the officers acted in good faith when they attached the device. People v. LeFlore,

.

¶ 18 In LeFlore, Aurora police received a tip over the Crime Stoppers hotline that LeFlore had

committed several burglaries and brought the proceeds to the apartment complex where he

5 No. 1-13-0145

lived. The police found that LeFlore, on mandatory supervised release from prison, had

recently fled from police officers. After the publication of Garcia, and before Jones, police

placed a GPS device on the car LeFlore had driven. The device helped them link LeFlore to

a robbery of a gas station within a day after police installed the device. The LeFlore court

found that, for Aurora police, Garcia was "a case directly on point" with the situation in

LeFlore, and Aurora police followed the Garcia decision "to the letter." LeFlore,

. Because police did not have the guidance of Jones, they relied in good faith on

Garcia when they attached the GPS device to LeFlore's car, and therefore the trial court

correctly denied the motion to suppress the evidence collected with the help of the GPS

device. LeFlore,

.

¶ 19 Thus, in Garcia and LeFlore, police installed GPS devices and tracked the defendants

very briefly, and, in both cases, prosecutors showed the court that before installation of the

devices, police had reasonable grounds to suspect the defendants of criminal conduct. The

Garcia court expressly limited its holding, noting that it did not decide whether tracking cars

for more than a few days would violate the constitution. Garcia,

. The

Garcia court also expressly distinguished the case from cases where the State lacked grounds

for suspecting the defendant of criminal acts when police attached the GPS device to the

defendant's car. Garcia,

. No fair reading of Garcia can stretch the

reasoning to permit the installation of a GPS device and the use of the device to track a target

for a month, without grounds for suspecting the target of criminal activity.

6 No. 1-13-0145

¶ 20 Here, the prosecutor argued that the agents acted in good faith because they "were told

that [Bravo] was a cocaine trafficker." The prosecutor did not present evidence which could

form the basis for an informed assessment of the reliability of the information on which the

agents acted. See People v. Corral,

(1986). The prosecutor did not

present any evidence that would excuse the use of the GPS device for a month, based on

Garcia. Because the agents, who did not ask any attorney for advice on the meaning of

Garcia or its application to Bravo's case, installed a GPS device and used it for a month,

without any showing of grounds to suspect Bravo of criminal activity, the court found that

the State failed to meet its burden of proving that the agents acted in good faith in reliance on

Garcia. See People v. Ortiz,

(2000). We hold that the trial court's

findings were not against the manifest weight of the evidence and the findings do not require

a reversal of the trial court's order suppressing the evidence.

¶ 21 Motion for Reconsideration

¶ 22 Next, the State argues that the court should have granted its motion to reconsider the

ruling on the motion to suppress. The State argues that it would have obtained the evidence

without the use of the GPS device. We will reverse the trial court's ruling on a motion to

reconsider only if the court abused its discretion. People v. Fulton,

(1997).

¶ 23 "The purpose of a motion to reconsider is to bring to the court's attention changes in the

law, errors in the court's previous application of existing law, and newly discovered evidence

that was not available at the time of the hearing." In re Ashley F.,

, 426

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(1994). The State did not seek reconsideration on any of the permissible grounds. See

Delgatto v. Brandon Associates, Ltd.,

(1989). Instead, the State sought

reconsideration so it could raise a new argument based on law that predated the initial

hearing, and based on evidence available before the initial hearing. We note that McClarence

testified that he "relied on data that was disseminated from the tracking device in order to

find Mr. Bravo on April the 5th." The trial court did not abuse its discretion when it denied

the State's motion for reconsideration based on law and evidence available before the initial

hearing. See Ashley F.,

; Kaiser v. MEPC American Properties, Inc.,

(1987).

¶ 24 CONCLUSION

¶ 25 The reasoning of Garcia cannot excuse the agents' use of GPS devices on Bravo's car for

several weeks, especially because the prosecutor presented no adequate grounds to suspect

that Bravo had engaged in criminal activity. Thus, the trial court's findings were not

manifestly erroneous and it correctly ruled that the State failed to meet its burden of proving

a justification for the violation of Bravo's fourth amendment rights. The trial court also

correctly denied the motion for reconsideration of the ruling, where the State sought to use

the motion improperly to make a new argument based on law and evidence available before

the initial hearing on the motion to suppress. Accordingly, we affirm the trial court's

judgment.

¶ 26 Affirmed.

¶ 27 JUSTICE LIU, specially concurring.

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¶ 28 I join the majority in affirming the trial court's order granting defendant's motion to

quash and suppress. I disagree, however, with a part of the majority’s analysis and would

affirm for a different reason. See Leonardi v. Loyola University of Chicago,

(1995) (holding that a reviewing court may affirm on any grounds in the record, regardless of

whether the trial court relied on the same grounds or whether its reasoning was correct).

¶ 29 The majority correctly notes that we need not suppress evidence recovered through the

warrantless use of a GPS device if the evidence demonstrates that the government “acted in

good faith when [it] attached the device.” Supra ¶ 17. In People v. LeFlore, our supreme

court specifically recognized that under the good-faith exception, “ ‘[vehicle] searches

conducted in objectively reasonable reliance on binding appellate precedent are not subject to

the exclusionary rule. ’ ” LeFlore,

, ¶ 27 (quoting Davis v. United States,

, ___,

, 2423-24 (2011)). The majority concludes that suppression is

warranted in this case because the DEA agents failed to show that they acted in good faith

reliance based on United States v. Garcia,

(7th Cir. 2007), when they used a

GPS device to monitor defendant's vehicle for a month "without any showing of grounds to

suspect [defendant] of criminal activity." Supra ¶ 20. I disagree with the majority's rationale.

In my opinion, the applicability of the good-faith exception is not predicated on evidence that

the agents had reasonable suspicion of criminal activity when they installed a "slap-on" GPS

tracking device to defendant's vehicle and intermittently removed and reattached the device

while using it to monitor the vehicle's movements. This was neither the holding of Garcia nor

the reading of that case by our own supreme court in LeFlore.

9 No. 1-13-0145

¶ 30 In Garcia, the Seventh Circuit held that the government’s warrantless installation of a

GPS device on a defendant’s vehicle and subsequent use of the device to track the vehicle’s

movement did not constitute a search under the fourth amendment. Garcia,

("But GPS tracking is on the same side of the divide with the surveillance cameras and the

satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is

GPS tracking."); see also LeFlore,

(noting that Garcia held that

attachment of a GPS device to a vehicle was not a search). Because such conduct did not

amount to a search, reasonable suspicion was not required prior to the government's

installation and use of a GPS tracking device. The State, therefore, was not required to show

that the DEA agents had reasonable suspicion of any criminal activity by defendant when

they attached the GPS device to defendant's vehicle and subsequently used the device to

track defendant's whereabouts.

¶ 31 While I disagree with the majority that Garcia imposed a reasonable suspicion

requirement on the government, I agree that suppression of the evidence is warranted because

the State failed to show that the DEA agents reasonably relied on the Garcia decision as

binding authority when they engaged in the installation and monitoring activity during their

month-long surveillance of defendant. There was no consistent evidence presented by the

State to show that either of the DEA agents involved in the GPS placement and monitoring

activities consulted with a state or federal prosecutor about the applicability of Garcia or

about any other federal or state decisions related to the installment and use of a GPS tracking

device.

10 No. 1-13-0145

¶ 32 During the hearing on defendant's motion to suppress, Agent McClarence testified that he

did not place the GPS device on defendant's vehicle. He admitted that he had no

conversations with any prosecutors regarding the attachment and use of the device without a

warrant. Agent McClarence merely testified that prior to the attachment of the device, he had

relied on his "training," from which he understood that agents could legally attach a GPS

device to a suspect's vehicle when the vehicle was on public property.

¶ 33 Agent Bakewell testified that he personally attached the GPS device to defendant's

vehicle on a few occasions. He explained that he and other officers removed and reattached

the device a couple of times in order to "charge it" or to "swap the battery." None of this

activity, however, was documented and Agent Bakewell's testimony regarding his

understanding of the law at the time the device was attached was, at best, vague. During his

direct examination, Bakewell testified as follows:

"Q. And prior to attaching the device on Mr. Bravo's vehicle, had you discussed

the use of that device with any attorney from the prosecutor's office?

A. Yes, sir, we did.

Q. And who did you discuss it with?

A. It wasn't me myself that discussed it, but I believe it was Special Agent

McClarence and I'm guessing, I'm assuming it would be ASA –

Q. Had you at any time sought judicial approval to use the tracking device?

A. No, sir."

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During cross-examination, the State asked Agent Bakewell about the instructions and

procedures that he relied on "as good law" when he placed the device on defendant's vehicle.

Bakewell testified that he was aware they could attach the device to the vehicle only when

the vehicle was on public property. Later, on redirect examination, Bakewell stated that he

believed Agent McClarence had talked to a prosecutor about the requirement that the vehicle

be in a public area when the device was attached.

¶ 34 Despite both agents' testimony about where the defendant's vehicle was required to be,

i.e., on public property, at the time when the tracking device was attached, neither of them

testified about conduct that suggested there was a reasonable reliance on any binding

precedent related to the warrantless attachment of a GPS device to a suspect's automobile. A

police officer's reliance on binding authority is “objectively reasonable” when his conduct “

‘clearly falls well within rationale espoused in binding appellate precedent.’ ” LeFlore,

, ¶ 47 (quoting United States v. Katzin,

(3d Cir. 2014)). Here,

we have no evidence to support a finding that the DEA agents' activities in this case fell

within the contemplated scope of Garcia. Garcia simply did not reach, let alone settle, the

question of whether the government's long-term employment of a GPS device on a suspect's

vehicle over a 30-day period with no documentation of the tracking activity and the

government's intermittent removal and reattachment of the device onto defendant's vehicle—

would result in a search under the fourth amendment. Garcia,

. If anything,

the Seventh Circuit suggested that its treatment of the GPS tracking activity under the facts in

12 No. 1-13-0145

that case did not foreclose the possibility that other situations involving the government's use

of a GPS device could result in a search:

"Whether and what kind of restrictions should, in the name of the Constitution, be

placed on such surveillance when used in routine criminal enforcement are

momentous issues that fortunately we need not try to resolve in this case. So far as

appears, the police of Polk County (a rural county in northwestern Wisconsin),

where the events of this case unfolded, are not engaged in mass surveillance. They

do GPS tracking only when they have a suspect in their sights. They had, of course,

abundant grounds for suspecting the defendant. Should government someday

decide to institute programs of mass surveillance of vehicular movements, it will be

time enough to decide whether the Fourth Amendment should be interpreted to

treat such surveillance as a search. [Citation.]"

¶ 35 Because Garcia did not directly address the question of whether prolonged attachment

and undocumented use of a GPS device for a month could be treated as a search, the State

could not have shown objectively reasonable reliance on Garcia as controlling precedent for

its GPS activity in this case. Consequently, the good-faith exception to the exclusionary rule

does not apply here. For these reasons, I would affirm the circuit court's finding that

suppression of the evidence was warranted.

13