No. 11-­--1565 UNITED STATES OF AMERICA v. Henry R. Brown

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11-­‐‑1565
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
HENRY R. BROWN,
Defendant-­‐‑Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06-­‐‑CR-­‐‑327 — C.N. Clevert, Jr., Judge.
____________________
ARGUED NOVEMBER 4, 2013 — DECIDED MARCH 4, 2014
____________________
Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.
EASTERBROOK, Circuit Judge. A jury convicted Henry
Brown of conspiring to distribute more than five kilograms
of cocaine. Brown’s recidivism led the judge to sentence him
to life imprisonment. His principal contention on appeal is
that the court should have prevented the prosecutor from
introducing evidence traceable to information gleaned from
a GPS (Global Positioning System) monitor that investigators
attached to a car in 2006. The Supreme Court held in 2012

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that the intrusion on the property interest of a car’s owner is
a “search,” valid only if reasonable. United States v. Jones, 132
S. Ct. 945 (2012). Brown maintains that employing GPS loca-­‐‑
tion services is reasonable only with the support of a war-­‐‑
rant issued on probable cause.
Jones did not hold—though five Justices suggested in
concurring opinions—that monitoring a car’s location for an
extended time is a search even if the car’s owner consents to
installation of the GPS unit, so that no property rights have
been invaded. 132 S. Ct. at 954–57 (Sotomayor, J., concur-­‐‑
ring), 957–64 (Alito, J., concurring, joined by Ginsburg, Brey-­‐‑
er & Kagan, JJ.). An extension of Jones along the concurring
opinions’ lines is essential to Brown’s position, since this
GPS unit was installed without a trespass. A Jeep’s owner
decided to cooperate with the police in their investigation of
his confederates and authorized the attachment of a tracker.
The police thought that this step is as permissible as asking
their informant to wear a concealed recording or broadcast-­‐‑
ing device; Brown, by contrast, maintains that monitoring a
GPS locator requires probable cause and a warrant even if
monitoring an informant’s wire does not. We bypass that
question, as well as other issues such as whether a person
using someone else’s car (or that person’s co-­‐‑conspirator)
can protest the use of evidence derived from a device that
shows no more than the car’s location. No matter how these
substantive issues come out, it would be inappropriate to
use the exclusionary rule to suppress evidence derived from
this GPS locator before the Supreme Court’s decision in
Jones. Until then, precedent would have led reasonable offic-­‐‑
ers to believe that using GPS to track a car’s location was not
a search.

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No. 11-­‐‑1565 3
The exclusionary rule is designed to deter violations of
the fourth amendment. The Supreme Court has concluded
that the slight deterrent benefit of excluding evidence de-­‐‑
rived from searches that were proper when conducted—but
held to be invalid in light of later precedent—does not justify
the injury to the public weal when criminals go unpunished.
Davis v. United States, 131 S. Ct. 2419, 2423–24 (2011), an-­‐‑
nounced this rule: “searches conducted in objectively rea-­‐‑
sonable reliance on binding appellate precedent are not sub-­‐‑
ject to the exclusionary rule” even if that precedent is later
held to be incorrect. Before Jones, “binding appellate prece-­‐‑
dent” in this circuit had established that installation of a GPS
device, and the use of the location data it produces, are not
within the scope of the fourth amendment. See United States
v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Cuevas-­‐‑
Perez, 640 F.3d 272 (7th Cir. 2011). It appears to follow that
the exclusionary rule does not apply to the acquisition of
GPS location data, within the Seventh Circuit, before Jones.
That proposition would be straightforward if the evi-­‐‑
dence had been derived from a GPS device after February 2,
2007, when Garcia created the “binding precedent” for this
circuit. See, e.g., United States v. Sparks, 711 F.3d 58 (1st Cir.
2013); United States v. Andres, 703 F.3d 828 (5th Cir. 2013);
United States v. Pineda-­‐‑Moreno, 688 F.3d 1087 (9th Cir. 2012);
United States v. Ransfer, 2014 U.S. App. LEXIS 1669 (11th Cir.
Jan. 28, 2014). All of these decisions conclude that Davis fore-­‐‑
closes the use of the exclusionary rule for pre-­‐‑Jones monitor-­‐‑
ing that had the blessing of circuit-­‐‑level precedent.
But the GPS data that led to the evidence at Brown’s trial
was acquired in 2006. He contends that there was no “bind-­‐‑
ing appellate precedent” in 2006 and that the exclusionary

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4 No. 11-­‐‑1565
rule therefore is available. He relies on United States v. Mar-­‐‑
tin, 712 F.3d 1080 (7th Cir. 2013), which doubted whether
Davis applies to pre-­‐‑Jones GPS data within the states of the
Eighth Circuit, which lacked any decisions comparable to
Garcia and Cuevas-­‐‑Perez. A panel of the Third Circuit lent
support to Brown’s position by holding that Davis is irrele-­‐‑
vant to pre-­‐‑Jones GPS data within the Third Circuit’s territo-­‐‑
ry, precisely because it had not held (before Jones) that using
GPS to reveal a car’s location was not a search. United States
v. Katzin, 732 F.3d 187 (3d Cir. 2013).
Martin ruminated about the effect of Davis but did not
produce a holding on that score because the panel found
that the GPS unit was only remotely related to the contested
evidence. Katzin has been vacated on the grant of rehearing
en banc. 2013 U.S. App. LEXIS 24722 (3d Cir. Dec. 12, 2013).
And United States v. Aguiar, 737 F.3d 251 (2d Cir. 2013), disa-­‐‑
greeing with the Third Circuit’s panel, squarely holds that
Davis covers pre-­‐‑Jones GPS monitoring in a jurisdiction that,
like the Third and Eighth Circuits, did not have local prece-­‐‑
dents. Aguiar concludes that for the purpose of Davis the
“binding appellate precedent” is supplied by United States v.
Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S.
705 (1984), both of which long predate the monitoring to
which Brown objects.
Knotts holds that monitoring a signal from a “beeper”—a
radio that transmits a signal whose location may be derived
via triangulation—is not a search. A GPS unit used in law
enforcement transmits or stores its own location; triangula-­‐‑
tion by the police is not required; but the information the po-­‐‑
lice obtain is the same no matter which technology they use.
Karo adds that the installation of a beeper is not a search, or

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No. 11-­‐‑1565 5
at least does not require probable cause or a warrant, if the
owner of the property into which the beeper is placed con-­‐‑
sents, even if the beeper then is used to monitor the location
of someone who did not consent. We concluded in Garcia
and Cuevas-­‐‑Perez that Knotts and Karo jointly show that
tracking a car’s location by GPS is not a search no matter
how long tracking lasts. We earlier held in Garcia, relying on
those two decisions, that installation of the GPS locator does
not come within the fourth amendment because it does not
interfere with the vehicle’s use in transportation. Jones rejects
that understanding but states that the holding of Karo con-­‐‑
cerning devices installed with consent “is perfectly con-­‐‑
sistent with the one we reach here.” 132 S. Ct. at 952.
Because the GPS unit that played a role in the gathering
of evidence against Brown was installed with the consent of
the Jeep’s owner, Knotts and Karo are “binding appellate
precedent” for the purpose of Davis. It may well be that five
Justices (those who joined the two concurring opinions in
Jones) are prepared to hold that long-­‐‑term monitoring of a
GPS tracker is a search, even if installation has the imprima-­‐‑
tur of the vehicle’s owner, but Jones did not reach that con-­‐‑
clusion, and as of 2006 Karo supported the device’s installa-­‐‑
tion, while Knotts meant that the monitoring was not within
the fourth amendment’s scope. If those conclusions are
wrong, the Supreme Court has yet to hold so, so Knotts and
Karo provided solid ground for objectively reasonable reli-­‐‑
ance by the police.
That conclusion makes it unnecessary to decide whether
this circuit will follow Aguiar in holding that Davis governs
all pre-­‐‑Jones GPS tracking. How Davis applies to non-­‐‑
consensual installation before February 2, 2007, when Garcia

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6 No. 11-­‐‑1565
was released, remains an open question here. But with the
panel decision in Katzin having been vacated, all of the ex-­‐‑
tant appellate precedent is on the side of applying Davis.
There is legitimate debate about whether precedent from
Circuit A could be deemed “binding” (for the purpose of
Davis) when the search occurs in Circuit B, where the issue
remains unresolved. Still, police and the FBI (or the lawyers
advising them) often rely on precedent from one circuit
when another has yet to address a question. One can doubt
that much deterrence is to be had from telling the police that
they are not entitled to rely on decisions issued by several
circuits, just because the circuit covering the state in which
an investigation is ongoing lacks its own precedent. If the
question were whether police who installed a GPS locator, in
reliance on Circuit A’s precedent, could be ordered to pay
damages when, years later, Circuit B disagreed with Circuit
A, the answer would be no. It’s hard to see why the exclu-­‐‑
sionary rule should be handled differently. But that’s a ques-­‐‑
tion for another day.
Brown makes three other arguments, none of which re-­‐‑
quires extended discussion.
Kevin Arms owned the Jeep in which the GPS unit had
been installed. He alerted police one day that Troy Lewis
was driving the Jeep to Milwaukee with 10 kilograms of co-­‐‑
caine for Arms and his confederates (including Brown). A
GPS device does not reveal a vehicle’s contents, but it may
have been used to locate the Jeep, which was stopped in Ra-­‐‑
cine. Police found 10 kilograms of cocaine, just as Arms said
they would. And Lewis, like Arms, flipped after being
caught; he testified against Brown at trial. Brown proposed
to cross-­‐‑examine Lewis about a 1995 conviction; the district

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No. 11-­‐‑1565 7
judge curtailed this cross-­‐‑examination under Fed. R. Evid.
403, ruling that it would take the trial too far afield. That was
not an abuse of discretion. The right to cross-­‐‑examine wit-­‐‑
nesses is not unlimited; it suffices if the judge allows the ac-­‐‑
cused to explore a witness’s background and potential bias.
The judge allowed the defense that latitude and acted rea-­‐‑
sonably in concluding that diverting the trial into an investi-­‐‑
gation of a mid-­‐‑1990s drug enterprise, operating eight years
before the outset of the conspiracy with which Brown was
charged, could confuse the jury. That’s an adequate basis for
invoking Rule 403. See, e.g., United States v. Smith, 454 F.3d
707, 714 (7th Cir. 2006).
The second dispute concerns evidence that Brown fled
from the police when they tried to arrest him. (The flight
was a high-­‐‑speed car chase, but details do not matter.) The
district judge allowed the jury to infer, from that flight,
Brown’s consciousness of his own guilt. He maintains that
he did not know that he was under investigation; if so, it
would be inappropriate to infer from the flight any mental
state other than unwillingness to be in custody. See United
States v. Russell, 662 F.3d 831, 850 (7th Cir. 2011). But the
prosecution introduced evidence that a search warrant had
been executed at the residence of Brown’s brother Randye
the week before, and that during the search the officers said
that they were looking for Brown, for whom an arrest war-­‐‑
rant had been issued, as part of an investigation into the dis-­‐‑
tribution of cocaine. The jury was entitled to conclude that
Brown and his brother were in contact; Brown fled in
Randye’s car.
Finally, Brown contends that the district judge should
not have admitted an affidavit from attorney Jack Rimland

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attesting that a receipt for $10,000 found in a search of
Brown’s residence was a business record—in other words,
that Rimland had issued the receipt to Brown as payment for
legal services. He allows that if the receipt was a business
record it was admissible under Fed. R. Evid. 803(6) and
902(11), and was relevant to the prosecution’s case, but
maintains that the affidavit was hearsay and, since Rimland
did not testify, violated the confrontation clause of the sixth
amendment. (The receipt, by contrast, is not testimonial and
is outside the scope of the confrontation clause. On the defi-­‐‑
nition of “testimonial” materials, see Michigan v. Bryant, 131
S. Ct. 1143 (2011). The affidavit likewise was not testimonial,
see United States v. Ellis, 460 F.3d 920, 923–24 (7th Cir. 2006).)
The district judge should not have allowed the jury to see
Rimland’s affidavit, which in addition to being hearsay was
not relevant to any issue in the prosecution. Its only function
was to get the receipt into evidence. The prosecutor, the de-­‐‑
fense attorney, and the judge all appear to have assumed
that the jury needed the affidavit in order to decide whether
the receipt is a business record. Yet judges, not juries, decide
whether evidence is admissible, and for the purpose of that
decision the hearsay rule does not apply. See Fed. R. Evid.
104(a). The judge should have decided for himself whether
the receipt is a business record (which it is) and, having
made that decision, allowed only the receipt into the trial
record.
Although the affidavit should not have been admitted,
the error was harmless precisely because it served only to
pin down the status of the receipt. If the judge had followed
Rule 104(a) and used the affidavit outside the jury’s pres-­‐‑
ence, the receipt still would have been admitted, for whatev-­‐‑

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No. 11-­‐‑1565 9
er value it had. The affidavit did not make matters worse for
Brown and so does not entitle him to a new trial.
AFFIRMED

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