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Kelly v. State

Court of Appeals of Maryland

December 23, 2013


Argued 11/1/13

Circuit Court for Anne Arundel County Case No. 02-K-10-000928 Circuit Court for Howard County Case No. 13-K-10-050346

Barbera, C.J., Harrell Battaglia Greene Adkins McDonald Raker, Irma S. (Retired, Specially Assigned), JJ.


Barbera, C.J.

For eleven days in April 2010, police conducted tracking of Petitioner Wesley Torrance Kelly's vehicle, using a global positioning system ("GPS") device attached to the vehicle's exterior. As a result of that GPS tracking, officers made observations and collected information they used to obtain warrants to search Petitioner's home, a separate residence in downtown Baltimore, Petitioner's vehicle, and three pawn shops. The State sought to use evidence obtained during execution of the warrants in separate prosecutions of Petitioner for charges arising out of burglaries that occurred in Howard County and Anne Arundel County.

Petitioner filed pretrial motions in both the Howard County and the Anne Arundel County Circuit Courts to suppress all evidence obtained as the result of what the officers learned through their tracking of his vehicle, including evidence obtained pursuant to the execution of the search warrants. Petitioner argued that the tracking of his vehicle's movements, as well as the initial placement of the tracking device, violated the Fourth Amendment, thereby requiring suppression of all evidence resulting directly, or derived, from the tracking. In both cases, the motions were denied. Petitioner was convicted of various charges arising out of the two cases. He appealed both judgments of conviction.

During the pendency of the appeal of those convictions in the Court of Special Appeals, the Supreme Court of the United States decided the case of United States v. Jones. 132 S.Ct. 945 (2012). In a decision that many believed to be a break from the longstanding test for determining when police conduct is deemed a "search" for Fourth Amendment purposes, [1] the Supreme Court held in Jones that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment. 132 S.Ct. at 949.

The Court of Special Appeals consolidated the appeals and, in a reported opinion, Kelly v. State, 208 Md.App. 218 (2012), affirmed both judgments of conviction. The Court recognized that the GPS tracking of Petitioner's vehicle fell within the purview of the new law announced in Jones and, pursuant to the holding of that case, was a search conducted in violation of the Fourth Amendment. Kelly, 208 Md.App. at 243. The Court of Special Appeals reasoned that then-applicable law in Maryland, namely United States v. Knotts, 460 U.S. 276 (1983), permitted the tracking of a vehicle on the public streets.[2] Kelly, 208 Md.App. at 248. From that legal premise, the Court of Special Appeals further reasoned that, under Davis v. United States, 131 S.Ct. 2419, 2423-24 (2011), in which the Supreme Court held that "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule, " Petitioner was not entitled to suppression of the evidence obtained as the result of that unlawful search. Kelly, 208 Md.App. at 248.

For the reasons that follow, we affirm the judgment of the Court of Special Appeals.


The following facts were adduced at the separate suppression hearings held in the Howard County and Anne Arundel County cases.[3]

Suspecting Petitioner's involvement in a series of commercial burglaries, officers of the Howard County Police Department Property Crimes Section requested that officers of the Repeat Offender Proactive Enforcement ("ROPE") Section assist in conducting surveillance of Petitioner. In response to this request, the ROPE Section began conducting covert visual surveillance of Petitioner. Additionally, on April 2, 2010, Sergeant Duane Pierce attached a GPS tracking device to Petitioner's Chevrolet Trailblazer, which at the time was parked down the road from Petitioner's home at 1118 Harwall Road, a public street in Baltimore County.

Sergeant Pierce explained the mechanics of the GPS tracking device the ROPE Section used. He described the GPS tracker as

an electronic device that is much like an everyday cell phone, it has a cell phone component and it also has a GPS component in it, and those two devices communicate with both satellites and the cellular portion to determine where that unit is and it will give you a latitude and longitude [of] . . . where that unit is currently at.

Sergeant Pierce referred to the device as "self-contained, " meaning that it is powered by a battery and does not in any way interfere with the operation of the vehicle. The device is attached to the frame of a vehicle by magnets. It is activated prior to installation and, once activated, stores location data to its own internal memory.

Officers may access this historical data and may also activate what Sergeant Pierce referred to as "live-tracking, " which displays the tracker's location in real time.[4] As "live-tracking" drains the device's battery more rapidly than regular operation, Sergeant Pierce testified that he only activated this mode when officers needed Petitioner's close-to-present location. The tracking device may be programmed to send alerts to a designated cell phone. Sergeant Pierce explained that he initially programmed the device to send an alert to his cell phone whenever Petitioner's vehicle approached Howard County.[5] Later, he re-programmed the device to send an alert to his cell phone whenever Petitioner's vehicle went into motion. From the time of its installation on April 2 until April 5, 2010, the tracking device recorded to its internal memory the locations of Petitioner's vehicle. During that period, detectives did not access that historical data nor did they engage in "live-tracking."

On April 5, 2010, at approximately 4:00 a.m., the GPS tracking device notified Sergeant Pierce that Petitioner's vehicle had entered Howard County. Sergeant Pierce dispatched the ROPE detectives to the approximate location of Petitioner's vehicle and activated "live-tracking" to update them on the vehicle's movements. Advised that the vehicle was in the area of Riverwood Drive and Old Columbia Road, Detective James Laffin was the first officer to catch sight of the vehicle. Detective Laffin did not follow the vehicle; instead, he stopped to check the businesses in the area for signs of burglary. The other responding officers followed Petitioner's vehicle until it entered Montgomery County. Detective Darshan Luckey observed that a man matching Petitioner's description was driving the vehicle.

At the site of Advanced Programs, Inc. ("API"), 7125 Riverwood Road in Columbia, Detective Laffin noted that the building's entrance appeared to be "unsecured, " with pry marks and damage to the door. He called for officers to respond and investigate the apparent burglary. Detective Matthew Mergenthaler met with an employee of API and obtained a list, with serial numbers, of all inventory that was missing from the building. That list included two Hewlett Packard ...

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