                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-4799


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

BRIAN D . TERRY,

                    Defendant - Appellant.


Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Joseph R. Goodwin, District Judge (2:16-cr-00175-1)


Argued: October 10, 2018                                 Decided: November 30, 2018


Before GREGORY, Chief Judge, MOTZ, and DIAZ, Circuit Judges


Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Motz and Judge Diaz joined.


ARGUED: Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Meredith George Thomas, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF:
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Michael B. Stuart, United States Attorney, Charleston, West
Virginia, W. Clinton Carte, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Huntington, West Virginia, for Appellee.
GREGORY, Chief Judge:

      Brian D. Terry appeals his conviction for possession of methamphetamine with the

intent to distribute. See 21 U.S.C. § 841(a)(1). Terry challenges the district court’s

denial of his motion to suppress evidence seized during a traffic stop. Drug task force

agents effectuated the stop through the illegal use of a global positioning system (“GPS”)

search. The district court found the agents committed a flagrant constitutional violation

but ultimately denied Terry’s motion to suppress for lack of standing. For the reasons

below, we conclude that Terry had standing and that the discovery of the evidence seized

during the traffic stop was not sufficiently attenuated from the unlawful GPS search to

purge the taint of the unlawful search. We therefore reverse the district court’s order

denying Terry’s motion to suppress, vacate Terry’s conviction, and remand for further

proceedings consistent with this opinion.



                                            I.

                                            A.

      The parties do not dispute the facts underlying Terry’s motion to suppress. The

Metropolitan Drug Enforcement Network Team (“MDENT”), a drug task force operating

in Charleston, West Virginia, started investigating Terry when an officer found remnants

of drugs in trash placed outside of a residence associated with Terry. From this evidence

and other information, an MDENT agent acquired a search warrant for Terry’s residence.

On April 18, 2016, agents saw Terry leave his residence driving a gold Kia Optima and

followed him to a local store.       Once Terry had parked, Corporal D.C. Johnson

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approached the Kia and smelled marijuana. After speaking with Corporal Johnson, Terry

turned over a small amount of marijuana and Corporal Johnson searched the car.

Nothing further of interest was found, and Corporal Johnson wrote Terry a misdemeanor

citation for the marijuana Terry had turned over.      While Terry was speaking with

Corporal Johnson, another MDENT agent surreptitiously placed a GPS tracker onto the

Kia even though none of the agents had obtained a warrant to do so.

      Following the interaction with the MDENT agents in the parking lot, Terry went

with the agents back to his residence and allowed them to search there, but no contraband

or other incriminating evidence was found. Afterwards, Corporal Johnson obtained a

warrant from a local magistrate to “ping” Terry’s cellphone and to place the GPS tracker

on the Kia—the same car on which the agents had placed a GPS tracker earlier that day.

Corporal Johnson did not inform the issuing magistrate that MDENT agents had already

placed the GPS tracker on the vehicle.

      On April 20, 2016, two days after the warrantless GPS search began, the agents

relied solely on the GPS data to track the car to Columbus, Ohio, where they suspected

Terry traveled to obtain drugs. By that time, the police were no longer obtaining “ping”

data from Terry’s cellphone, suggesting that the phone was turned off or disconnected.

After the car returned to West Virginia, the officers began to follow the Kia and

determined through “pacing” that the car was speeding at five miles above the posted

speed limit of 45 miles per hour. After confirming through GPS data that the car was in

fact speeding, the officers pulled the Kia over. Tamara Moore, the owner of the Kia, was


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driving at the time, and Terry was a passenger. Corporal Johnson wrote Moore a warning

citation while another officer spoke with Terry. After the officer informed Corporal

Johnson that he smelled marijuana, Corporal Johnson ordered Terry out of the car and

performed a patdown of Terry. Johnson and the assisting officer discovered 195.5 grams

of methamphetamine and 2.9 grams of marijuana on Terry’s person.

                                            B.

       Based on the drugs seized during the traffic stop, Terry was charged with

possession with intent to distribute an unspecified quantity of methamphetamine. Terry

filed a motion to suppress the methamphetamine and any other evidence derived from the

traffic stop, arguing that the placement of the GPS tracker without a warrant violated the

Fourth Amendment. At the suppression hearing, Corporal Johnson testified that he knew

a warrant was required to place the GPS tracking device on the Kia. He further admitted

that MDENT had affixed GPS trackers to cars without first obtaining a warrant in other

instances as well. Corporal Johnson confirmed that he had no way of following the Kia

on April 20, 2016, other than through use of the GPS tracker.

       Although the district court found that MDENT’s conduct constituted a flagrant

constitutional violation, it nevertheless denied Terry’s motion to suppress on the basis of

standing. The district court reasoned that Terry had a possessory interest in the Kia when

the MDENT agent attached the GPS tracker to the car, because he was driving the Kia at

that time. However, because Terry had relinquished control over the Kia on the day of

the traffic stop, the district court concluded that Terry lacked standing to challenge the


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GPS search of the Kia on that day. Terry filed a motion to reconsider the district court’s

ruling and submitted evidence that Terry regularly used the Kia and kept the Kia at his

residence. The district court denied Terry’s motion to reconsider.

       Following the denial of the motion to suppress but before the district court ruled

on Terry’s motion for reconsideration, a federal grand jury returned a superseding

indictment charging Terry with possession with intent to distribute 50 grams or more of

methamphetamine. Terry filed a motion to dismiss the superseding indictment, which the

district court denied. After trial, a jury convicted Terry of the offense charged in the

superseding indictment. The district court sentenced Terry to a term of 156 months in

prison, followed by a 5-year term of supervised release.          Terry timely appeals his

conviction.



                                             II.

       In considering the denial of a motion to suppress, we review a district court’s legal

conclusions de novo and its factual findings for clear error. United States v. Perkins, 363

F.3d 317, 320 (4th Cir. 2004). We construe the evidence in the light most favorable to

the Government. Id.



                                             III.

       As an initial matter, Terry argues that the district court erred in finding that he did

not have standing to challenge the MDENT agents’ GPS search of the Kia.                  The

Government concedes error on this point, and we agree. Terry has standing to move for

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suppression of the evidence that resulted from the illegal GPS search, because he was the

driver of the Kia when officers surreptitiously placed the GPS device on the vehicle on

April 18, 2016. See United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992) (holding

that defendant, though not the owner of a vehicle, had standing to challenge the search of

the vehicle where he was the driver and no evidence in the record tended to show that he

was illegitimately in possession of the vehicle).

       The district court’s holding that Terry did not have standing to move for

suppression of the evidence seized during the traffic stop on April 20, 2016, ignores the

basic principle underlying the “fruit of the poisonous tree” doctrine: defendants may

seek to suppress not only evidence obtained as a direct result of an illegal search but also

evidence later discovered as a result of that search. See Utah v. Strieff, 136 S. Ct. 2056,

2061 (2016); United States v. Oscar-Torres, 507 F.3d 224, 227 (4th Cir. 2007). Having

found that Terry has standing to challenge the warrantless GPS search, we now turn to

the question of whether the evidence later discovered as a result of that search should

have been suppressed as fruit of the poisonous tree.

       In general, evidence discovered as a result of a Fourth Amendment violation is

subject to suppression under the exclusionary rule. United States v. Andrews, 577 F.3d

231, 235 (4th Cir. 2009). However, not all such evidence is inadmissible. Oscar-Torres,

507 F.3d at 227. Evidence derived from an illegal search may be admissible depending

upon “whether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of that illegality or instead by


                                             6
means sufficiently distinguishable to be purged of the primary taint.” Id. (citing Wong

Sun v. United States, 371 U.S. 471, 488 (1963)).         “Thus, where there is sufficient

attenuation between the unlawful search and the acquisition of evidence, the ‘taint’ of

that unlawful search is purged.” United States v. Gaines, 668 F.3d 170, 173 (4th

Cir. 2012).

       In determining whether the taint of the illegal search is purged, we evaluate the

three factors articulated in Brown v. Illinois, 422 U.S. 590, 603-04 (1975). First, we look

to the “temporal proximity” between the unconstitutional conduct and the discovery of

the evidence to determine how closely the discovery of the evidence followed the

unconstitutional search. Id. at 603. Second, we consider the presence of intervening

circumstances. Id. at 603–04. Third and “particularly” significant, we examine “the

purpose and flagrancy of the official misconduct.” Id. at 604; see also Strieff, 136 S. Ct.

at 2062; Gaines, 668 F.3d at 173. “Evidence is admissible when the connection between

unconstitutional police conduct and the evidence is remote or has been interrupted by

some intervening circumstance, so that the interest protected by the constitutional

guarantee that has been violated would not be served by suppression of the evidence

obtained.” Strieff, 136 S. Ct. at 2061 (internal citation and quotation marks omitted).

       In this case, we must determine whether there is sufficient attenuation between the

unlawful GPS search and the discovery of the drugs. The government argues that the

intervening act of speeding purged the taint of the warrantless GPS search. Terry, by

contrast, argues that the taint of the warrantless search was not purged, especially given


                                             7
the flagrancy of the constitutional violation, and that the evidence should be suppressed.

We agree with Terry.

       The attenuation factors set forth by the Supreme Court in Brown v. Illinois

strongly favor suppression here. First, as to temporal proximity, a mere two days passed

between the unlawful placement of the GPS tracker and the discovery of the evidence—

an insubstantial amount of time, as the Government concedes. See Strieff, 136 S. Ct. at

2062 (“Our precedents have declined to find that this factor favors attenuation unless

‘substantial time’ elapses between an unlawful act and when the evidence is obtained.”

(internal citation omitted)); accord United States v. Najjar, 300 F.3d 466, 478 (4th Cir.

2002) (finding a period of weeks to be an insubstantial amount of time in the context of

the attenuation analysis).

       Second, even if the illegal conduct in this case—driving five miles above the

speed limit—was an intervening circumstance, this would favor the Government only

slightly. The Government admits that the agents used the illegally obtained GPS data to

confirm the speed of the Kia after first “pacing” the vehicle, calling into question whether

the agents had probable cause for the traffic stop absent the unlawful GPS search. We

can assume without deciding that the agents independently had probable cause, such that

the speeding infraction constituted an intervening circumstance that was unconnected

with the GPS search. Regardless, the other attenuation factors substantially outweigh this

minor infraction.




                                             8
       Third, and “particularly” important, the constitutional violation here was flagrant.

The exclusionary rule exists to deter police misconduct, and the third attenuation factor

“reflects that rationale by favoring exclusion only when the police misconduct is most in

need of deterrence—that is, when it is purposeful or flagrant.” Strieff, 136 S. Ct. at 2063.

The undisputed evidence here amply supports the district court’s conclusion that the

agents’ misconduct was not simply the result of mistake or ignorance of the law but

instead constituted a flagrant disregard for the well-established warrant requirement set

forth by the Supreme Court in United States v. Jones. See 565 U.S. 400, 404 (2012)

(holding installation of a tracking device on vehicle to be a search under the Fourth

Amendment). Indeed, Corporal Johnson testified that he knew a warrant was required

for the tracking device when he placed it on the Kia, and despite this knowledge, he

failed to inform the magistrate that he had already placed the GPS tracker before applying

for the warrant—a practice that had occurred in other cases. The exclusionary rule exists

to deter exactly this type of official misconduct.

       The agents’ purposeful disregard for the warrant requirement in this case renders

wholly unavailing the government’s attempts to reframe the agents’ misconduct as

justified by exigency or mere mistake. The flagrancy of the official misconduct also

readily distinguishes this case from the unpublished decision cited by the Government in

support of its attenuation argument, United States v. Richard, 528 F. App’x 323 (4th Cir.

2013) (finding no flagrancy where officers conducted warrantless GPS search before the

Supreme Court’s decision in United States v. Jones and determining there was sufficient


                                              9
attenuation between the official misconduct and discovery of evidence). Because the

attenuation factors all weigh in favor of suppression here, and especially considering the

flagrancy of the official misconduct, we hold that the evidence discovered as a result of

the GPS search is fruit of the poisonous tree and should have been suppressed.

       Contrary to the government’s assertion, our holding in United States v. Sprinkle,

106 F.3d 613 (4th Cir. 1997), does not compel a different result. In Sprinkle, we held that

a defendant was not entitled to suppression of the firearm he used to shoot at police

officers, even though the officers had unlawfully stopped him without reasonable

suspicion. 106 F.3d at 619. Our decision in Sprinkle is readily distinguishable from the

case before us here.

       First, unlike the officers in Sprinkle, who happened upon the defendant in the

course of their neighborhood patrol and decided to conduct an investigative stop, see id.

at 616, the agents here sought out and followed the Kia using the illegally placed GPS

tracker. Indeed, Corporal Johnson testified that he could not have observed the traffic

violation or initiated the traffic stop but for the GPS data. Second, unlike the minor

speeding violation observed by the agents here and confirmed by the GPS tracker, the

shooting in Sprinkle was “entirely unconnected” with the illegal stop. See Strieff, 136 S.

Ct. at 2062 (finding an outstanding warrant to constitute an intervening circumstance

because it was “entirely unconnected” with the illegal stop and predated the officer’s

investigation). Here, the traffic violation was not “entirely unconnected” with the illegal

GPS search. In fact, the speeding violation was confirmed by—and intimately tied to—


                                            10
the illegal GPS search. Third, we expressed concern in Sprinkle that the defendant would

have avoided the consequences of the serious intervening criminal activity if the weapon

had been suppressed. See 106 F.3d at 619. Here, there is no indication in the record that

the consequences of the speeding infraction would have been avoided were the

methamphetamine to be suppressed. Thus, the policy concerns animating our decision in

Sprinkle simply are not present here.

      Finally, contrary to the government’s position, our decision in Sprinkle did not and

could not establish a bright-line rule that any illegal conduct by a defendant will

inevitably attenuate the taint of a Fourth Amendment violation. It is true that a suspect’s

commission of a new, distinct crime as serious as striking a law enforcement officer,

aiming a gun at police, or shooting a firearm will virtually always constitute a severe

intervening circumstance that breaks the causal chain. See id. at 619, 619 n.4. But as the

Supreme Court’s fact-intensive analysis in Strieff demonstrates, a proper attenuation

analysis requires a case-specific balancing of the circumstances in light of the objectives

of the exclusionary rule. We therefore reject the Government’s attempt to ossify Sprinkle

into an inflexible maxim.

      The attenuation exception to the exclusionary rule applies when the nexus between

the government’s illegal conduct and the evidence is so weak that the taint of the

illegality is dissipated. Segura v. United States, 468 U.S. 796, 805 (1984). Because the

nexus between the agents’ illegal conduct and the evidence is strong, and considering the

flagrancy of the constitutional violation in this case, we find that the discovery of the


                                            11
evidence seized during the traffic stop was not sufficiently attenuated from the unlawful

GPS search such that the taint of that unlawful search was purged. Thus, the evidence is

fruit of the poisonous tree and should have been suppressed. * To hold otherwise would

allow the government to disregard a constitutional requirement simply by using an illegal

GPS search long enough to observe a minor traffic violation. Such a holding would

entirely undermine the very purpose of the exclusionary rule: to deter police misconduct.



                                           IV.

      For the foregoing reasons, we reverse the district court’s denial of Terry’s

suppression motion and vacate his conviction.



                                            REVERSED, VACATED, AND REMANDED




      *
          Because we hold that the methamphetamine should have been suppressed and
vacate Terry’s conviction on this ground, we need not address his remaining arguments
as to the superseding indictment and his sentence.


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