Failure to File Motion Before Trial Dooms GPS Suppression Issue; Sufficient Evidence Supported Gun Convictions

US v. Baker, No. 12-3023 (Kan), 4/11/13 (Published). Cops were investigating a string of armed robberies of retail stores and check-cashing businesses over a two-month period. Surveillance camera footage led cops to believe that a car belonging to defendant’s girlfriend was being used, so they put a GPS tracking device on it. When that linked the car to a just-completed robbery, cops pulled the car over, arrested defendant and an accomplice, and found a loaded .40 caliber Glock and cash from the robbery. The gun had been lawfully purchased by defendant’s girlfriend, who never told defendant where she kept it (spare tire compartment in the trunk), but had told a mutual friend. Defendant did not move to suppress the evidence prior to trial, and raised for the first time the issue of illegal GPS tracking pursuant to Jones, which had been decided after trial, on appeal. Convicted on all counts of robbery, using a firearm in connection with each, and felon in possession.

Held: (1) failure to move to suppress pretrial waived the suppression issue, so there was no plain-error review. Crim Pro Rule 12(b)(3) required the issue to be timely raised before trial. Defendant failed to show good cause for not raising it, because he timely knew all about the GPS tracking. There was no good reason not to raise the issue, even though the Supreme Court had not resolved it, since raising such issues is often done, and the DC Circuit had already resolved it in defendant’s favor in Maynard; (2) evidence sufficient on the gun charges, where defendant had access to the gun at all relevant times, possessed it when arrested, and victims testified that the gun defendant used looked like the Glock.