I just noticed this remarkable GPS-tracking-related federal court opinion dated May 1. It arose from a federal drug case case that the DEA filed against two brothers, Angel and Javier Amaya.

The remarkable thing is not that Judge Mark Bennett ruled that DEA agent David Jensen had acted "in bad faith" by concealing the fact that he used GPS monitoring to track nine vehicles, although that was the ruling. The remarkable thing is that Agent Jensen testified that concealing that information in official reports was official DEA policy -- "specifically instructed all agents not to mention GPS devices in their reports" -- and then Judge Bennett reversed his earlier decision and let the DEA off the hook. Agent Jensen works in the DEA's Sioux City, Iowa office.

You can read an excerpt from Judge Bennett's opinion for yourself, below.

On April 10, 2012, I entered a Memorandum Opinion And Order Regarding
Defendant Angel Amaya's Motion To Suppress GPS System (docket no. 350),
in which I denied the motion to suppress, but found that Special Agent
Jensen had acted in bad faith in failing to disclose the use of GPS
monitoring in his reports regarding surveillance of Amaya. I set a
hearing on sanctions for the prosecution's discovery violation for April
20, 2012, and requested briefing on the issue of what sanctions I may
and should impose. Subsequently, the prosecution, on April 18, 2012,
filed a Motion To Reconsider (docket no. 362) my finding that the agent
acted in bad faith, and included in this briefing its arguments
regarding what sanctions, if any, should be imposed. I moved the hearing
on sanctions to April 30, 2012, [**2] and ordered that Amaya file any
response to the prosecution's Motion To Reconsider by April 26, 2012. On
April 19, 2012, Amaya filed his brief (docket no. 365) responding to my
request for briefing on what sanctions should be imposed. The
prosecution filed a response (docket no. 368) to Amaya's brief on April
24, 2012, and Amaya filed his resistance (docket no. 374) to the
prosecution's Motion To Reconsider on April 26, 2012.

On April 30, 2012, I held a hearing on sanctions and the prosecution's
Motion To Reconsider. Special Agent David Jensen testified, and both
parties presented argument. I orally withdrew my finding that Special
Agent Jensen acted in bad faith but indicated that a written order would
follow, explaining my reasoning. After hearing Special Agent Jensen's
testimony, [*837] I am convinced that, although he did not refer to
the use of GPS devices in his reports, he did so in order to comply with
the directives he had received from his DEA supervisors. Special Agent
Jensen testified that, several years ago, after a few incidents in which
agents referred to GPS devices in their reports, his supervisor
specifically instructed all agents not to mention GPS devices in their
reports. [**3] Special Agent Jensen has written his reports in
compliance with that order ever since. Also, I find that the DEA policy
I reviewed is, itself, somewhat confusing, in that it, on the one hand,
directs agents to reveal what information they observed, but not how;
yet, on the other hand, provides that agents should not create a
situation in which defense counsel could suggest they are hiding
evidence. Thus, any mistake on Special Agent Jensen's part in reading
the policy was an honest one due to the wording of the policy, rather
than bad faith. In its Motion To Reconsider, the prosecution also
included excerpts from Special Agent Jensen's testimony at the
preliminary detention hearing (which had not previously been provided to
me), in which Special Agent Jensen indicated that he had used electronic
surveillance of Amaya, which lends further credence to the prosecution's
argument that Special Agent Jensen did not intend to hide evidence from
Amaya. I am persuaded that Special Agent Jensen, when he did not refer
to GPS devices in his reports, acted to comply with DEA directives, not
in bad faith to hide evidence from the defense. Therefore, the
prosecution's Motion To Reconsider my finding [**4] of bad faith
(docket no. 362) is granted. I withdraw that portion of my opinion
(docket no. 350 at 23-24), in which I found that Special Agent Jensen
acted in bad faith.
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