Passenger lacked standing to object to GPS device on car; Rosemond aiding-and-abetting argument rejected

U.S. v. Davis, 2014 WL 1797834 (5/7/14) (Kan.) (Published) - Mr. Davis did not have standing to contest the placement of a GPS device on his co-defendant's car, even though the GPS evidence led to stopping the car in which Mr. Davis was an occupant. The alleged 4th Amendment violation did not invade Mr. Davis's expectation of privacy. "Because the poisonous tree was planted in someone else's orchard, Mr. Davis lacked standing to challenge its fruits," the 10th sums up. Inauspiciously, in the course of its discussion on the matter, the 10th footnotes that all the circuits deciding the issue so far have held the good faith exception applies to GPS searches conducted before Jones (which held attaching a GPS to a car is a search governed by the 4th Amendment).

The 10th also applied the recent Supreme Court aiding-and-abetting decision in Rosemond v. U.S., 134 S. Ct. 1240 (2014). The 10th refused to accept the government's concession of error in the instructions. First, the 10th rejected Mr. Davis's contention that his actions had to facilitate the entire § 924(c) offense, including the carrying of the gun. Rosemond made clear a defendant need only facilitate an element of the offense. Second, the instructions were good enough with respect to Rosemond's requirement of advance knowledge of use of the gun. "We do not require jury instructions to be perfect, merely adequate," the 10th assures us. Here, unlike in the Rosemond case where the instructions allowed a conviction if the defendant found out later that the co-defendant had used the gun, here the instructions required Mr. Davis to share his co-defendant's knowledge about the § 924(c) violation, which meant, according to the 10th, the jury implicitly found Mr. Davis had advance knowledge of the firearm.

Judge Hartz concurred in the result on this issue. He felt Mr. Davis's claim should have been denied on the grounds that Mr. Davis had not met the third prejudice prong of the plain error test. Mr. Davis admitted he saw the gun before he drove the getaway car away, escape is part of the robbery and the co-defendant made no threatening gesture that would make Mr. Davis believe he couldn't withdraw from the robbery once he saw the gun. Troublingly, Judge Hartz does not think a jury has to be instructed that the defendant discovered the gun was being used when he had a realistic opportunity to quit the crime. All the jury need be told is that the defendant knew all the elements before he participated in the offense as in something he wished to bring about.