Left to right, Antoine Mackey, Yusuf Bey IV, Devaughndre Broussard (CChing/CIR)

Left to right, Antoine Mackey, Yusuf Bey IV, Devaughndre Broussard (CChing/CIR)

By Thomas Peele, The Chauncey Bailey Project

Monday’s U.S. Supreme Court ruling that police need a warrant before placing tracking devices on criminal suspects’ cars is likely to boost murderer Yusuf Bey IV’s appeals, but significant hurdles remain before he would get a new trial, lawyers said.

Allowing data from a global positioning system placed on Bey IV’s car without a warrant to be used against him is likely a “harmless error” because of a wealth of other evidence that Bey IV ordered the August 2007 murder of journalist Chauncey Bailey, Golden Gate University law professor Peter Keane said. The data was not used as evidence against the 26-year-old Bey IV in his convictions of ordering two other men killed.

If the tracking data is thrown out, Keane said, it is unlikely Bey IV would get a new trial based on that alone because of other evidence, including a statement a woman gave police saying that he bragged about the killing.

But a lawyer who represented Bey IV’s co-defendant, Antoine Mackey, said Monday’s 9-0 ruling might have a “big impact” on appeals because the data substantiated the testimony of chief witness Devaughndre Broussard, whose credibility might be perceived as lacking without scientific evidence to back it up.

“The question is what is the effect,” said Mackey’s trial lawyer, Gary Sirbu. “It was important evidence in respect to Bey (IV). There is no question about that. The GPS (data) carried a lot of weight.”

Bey IV, the leader of the now-defunct Your Black Muslim Bakery, is serving three consecutive life sentences in prison without parole eligibility after being convicted last year on the murder charges. He has appealed.

Oakland police hid the GPS device on the undercarriage of Bey IV’s Dodge Charger in June 2007 as part of a separate investigation. The device transmits by cellphone to a satellite, allowing detectives to monitor where it is remotely. The GPS was still on the car when Bailey was killed six weeks later, and showed that the vehicle was outside the journalist’s apartment hours before he was killed. The device also showed that the car drove by the killing scene less than an hour after Bailey died.

Broussard, now 24, a dishwasher who was a key witness at the trial, testified that Bey IV ordered him to kill Bailey because the journalist was working on a story about the bakery’s troubled finances. He told jurors that Bey IV was with him in the car both before and after the assassination, to first help plan the hit and later to revel in its outcome.

Keane said that even if appellate justices were to throw out the tracking data after Monday’s ruling, it is likely they would not order a new trial for Bey IV because more than enough other evidence existed to convict him.

Bey IV’s appellate lawyer, Clifford Gardner, did not immediately return a phone call Monday. Neither did his trial lawyer, Gene Peretti.

Prosecutor Melissa Krum, who argued at a pretrial hearing that the tracking data was legal under state law, declined to discuss the decision’s impact, citing Bey IV’s appeal.

The appellate issue surrounding the device is different for Bey IV’s co-defendant, Mackey, because he was not the owner of vehicle, Sirbu said.

Broussard testified that Mackey was with him and Bey IV in the car and also helped him carry out the hit, for which they used a different vehicle. Mackey, 26, was convicted of killing Bailey and another man and has also appealed. He is serving two life terms without eligibility for parole.

At a pretrial hearing, Peretti and Sirbu argued that a GPS device placed without a warrant violated the Fourth Amendment’s protections against unfair police searches. But Superior Court Judge Thomas Reardon disagreed, saying he saw no real difference between police following suspects by car or on foot and using a computer to do basically the same thing.

Contact Thomas Peele at tpeele@bayareanewsgroup.com. Follow him at Twitter.com/thomas_peele.