State v. Mitchell

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

THOMAS KELLER MITCHELL, Appellant.

No. 1 CA-CR 13-0339

FILED 4-21-2014

Appeal from the Superior Court in Yavapai County

No. P1300CR201000627

The Honorable Tina R. Ainley, Judge

REVERSED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

David Goldberg, Attorney at Law, Fort Collins, Colorado

By David Goldberg

Counsel for Appellant

STATE v. MITCHELL

Opinion of the Court

OPINION

Presiding Judge Donn Kessler delivered the opinion of the Court, in which

Judge Patricia K. Norris and Judge Maurice Portley joined.

K E S S L E R, Presiding Judge:

¶1 Appellant Thomas Keller Mitchell (“Mitchell”) appeals from

his convictions for transportation of dangerous drugs for sale, possession

of marijuana, and possession of drug paraphernalia. Mitchell argues that

the trial court erred by not suppressing evidence acquired during a

vehicle search—which he asserts was the fruit of unconstitutional,

warrantless global positioning system (“GPS”) surveillance—and that he

was subject to a duplicitous indictment. We reverse Mitchell’s convictions

because the installation, continued presence, and use of the GPS device to

monitor Mitchell’s movements constituted an unlawful search under the

Fourth Amendment to the United States Constitution.1 See United States v.

Jones, 132 S.Ct. 945 (2012).

FACTUAL AND PROCEDURAL HISTORY

¶2 Mitchell became the target of a drug investigation in early

2010 after a material informant (“Informant 1”) told a Yavapai County

Sheriff’s deputy (“the Deputy”) that he had purchased methamphetamine

through a third party from Mitchell at a residence in Humboldt, Arizona.

Informant 1 claimed to have purchased methamphetamine from Mitchell

on two separate occasions between March 23 and March 31, 2010.

Additionally, Informant 1 said that Mitchell would travel to Phoenix to

collect money, including from someone named “Fat Jack” who lived in

Humboldt. The Deputy knew Fat Jack to be associated with drug activity.

The third party through whom Informant 1 purchased methamphetamine

later became a second material informant (“Informant 2”). Informant 2

explained that Mitchell made drug runs to Phoenix several times a week.

1 Mitchell does not argue that the GPS tracking violated the Arizona

constitution. Accordingly, we do not consider whether such investigative

methods receive greater scrutiny under state constitutional provisions.

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STATE v. MITCHELL

Opinion of the Court

¶3 Based on visual surveillance, the Deputy learned that

Mitchell owned several vehicles, including a Ford pickup. The Deputy

also learned that Mitchell used other people’s vehicles to make drug runs.

Prior to May 5, the Deputy observed Mitchell driving a Kia Sportage,

which he later determined belonged to another person, C.W., who had

given Mitchell permission to use the vehicle. The Deputy decided that the

Kia was worth monitoring because it was the only vehicle belonging to

another person that he had observed Mitchell driving.

¶4 On the night of May 5, acting without a warrant, the Deputy

surreptitiously attached a GPS device to the undercarriage of the Kia

without C.W.’s consent while it was parked in her driveway. The device

remained on the Kia through May 30.2 During this twenty-five-day

period, the Deputy received constant updates from the GPS device. The

GPS device tracked the Kia’s speed and location and collected data about

its whereabouts. The device was programmed to send text message alerts

to the Deputy’s cell phone whenever the Kia crossed certain “wave-

points,” one of which was the Phoenix city limits. Thereafter, the Deputy

relied on the GPS data to locate the Kia in lieu of traditional visual

surveillance.

¶5 On May 30, the Deputy received a GPS alert that the Kia was

traveling towards Phoenix. The Deputy drove to C.W.’s residence and

saw that the Kia was gone but that Mitchell’s Ford pickup was in the

driveway. He began tracking the Kia’s location using the GPS data.

When the GPS device indicated that the Kia was en route back to

Humboldt, the Deputy parked his vehicle along Highway 69 at the

entrance to Spring Valley to visually verify the GPS information. Within

minutes, the Deputy saw Mitchell drive by in the Kia.

¶6 The Deputy followed the Kia into Humboldt and then took a

quicker route to the Humboldt residence to intercept the Kia there. He

arrived first and pulled in behind Mitchell’s Ford pickup. Seconds later,

Mitchell pulled into the driveway behind the Deputy, followed by a

second deputy who had been called as backup.

¶7 The Deputy asked Mitchell where he was coming from, to

which Mitchell replied that he had been visiting a friend in Mayer. As this

2The Deputy removed the device for a brief period sometime between

May 19 and May 21 to recharge its battery, but surreptitiously replaced it

by May 24, again at night, without a warrant, and without C.W.’s consent.

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Opinion of the Court

contradicted the Deputy’s visual and electronic surveillance, he asked

Mitchell to step out of the car and requested permission to conduct a

vehicle search. Mitchell said that he did not believe he had permission to

consent to the search because he did not own the vehicle. C.W. also

refused consent. Consequently, the Deputy arranged for a drug dog to

sniff the vehicle for contraband. When the dog alerted to the vehicle, the

Deputy searched the Kia and located a black bag containing four and one

half grams of methamphetamine, several pounds of marijuana, and bags

of methamphetamine.

¶8 Mitchell was indicted on several drug-related charges.

Mitchell moved to suppress the evidence obtained from the vehicle

search, arguing that the installation and use of the GPS device to monitor

his movements constituted an unlawful search under the Fourth

Amendment. The trial court denied Mitchell’s motion, explaining that

Mitchell lacked standing to challenge the installation of the GPS device

because “[t]he placement occurred on [C.W.’s] private property and not

on property that belonged to [Mitchell].” The trial court also found that

under United States v. Knotts, 460 U.S. 276 (1983), the use of the GPS device

to monitor Mitchell’s movements on public streets did not constitute a

search under the Fourth Amendment.

¶9 Before the start of trial, the United States Supreme Court

decided Jones, which addressed the Fourth Amendment implications of

GPS placement and tracking. Mitchell moved for reconsideration of his

motion to suppress in light of Jones, but the trial court summarily denied

his motion. Mitchell again pressed his motion on the first day of trial, but

the trial court denied it again, explaining its decision “was based on

[Mitchell’s] lack of standing.”

¶10 Ultimately, a jury convicted Mitchell on one count of

transportation of dangerous drugs for sale, one count of possession of

marijuana, and two counts of possession of drug paraphernalia. Mitchell

timely appealed. We have jurisdiction pursuant to Arizona Revised

Statutes (“A.R.S.”) section 12-120.21(A)(1) (2003).

STANDARD OF REVIEW

¶11 We review the denial of a motion to suppress evidence for

an abuse of discretion. State v. Peterson, 228 Ariz. 405, 407, ¶ 6, 267 P.3d

1197, 1199 (App. 2011). In doing so, we consider only the evidence

presented at the suppression hearing and view that evidence in the light

most favorable to sustaining the trial court’s ruling. State v. Gay, 214 Ariz.

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Opinion of the Court

214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007). Although we defer to the trial

court’s factual determinations, we review its legal conclusions de novo.

State v. Olm, 223 Ariz. 429, 432, ¶ 7, 224 P.3d 245, 248 (App. 2010).

DISCUSSION

¶12 Relying on Jones, Mitchell argues that the warrantless

installation and use of the GPS device to track his movements while

driving the Kia was an unlawful search.3 The State does not dispute that a

trespass occurred but argues that Mitchell lacks standing to challenge the

installation of the device because he was not in possession of the vehicle at

the time the device was installed, he was not the owner of the vehicle, nor

was he the exclusive driver, as was Jones. Further, the State asserts that

even if the GPS tracking was unlawful, the good-faith exception precludes

application of the exclusionary rule because Jones was decided after the

events here, and the Deputy relied in good faith on binding appellate

precedent when he attached the GPS device without a warrant. For the

following reasons, we conclude that Mitchell has standing to challenge the

warrantless GPS tracking, that such tracking violated his Fourth

Amendment rights under Jones, and that the exclusionary rule applies to

all evidence seized as a fruit of the unconstitutional GPS surveillance.

I. Standing

¶13 The Fourth Amendment to the United States Constitution

provides, in relevant part, that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated.” In Jones, the Supreme Court

concluded that the installation of a GPS device on a target suspect’s

vehicle and its subsequent use to track the target’s movements was a

search under the Fourth Amendment. 132 S.Ct. at 949. There, law

enforcement agents installed a GPS device on the undercarriage of a

3 Mitchell also argues that the GPS tracking was unlawful under the Katz

reasonable-expectation-of-privacy analysis relied on by Justice Alito in his

Jones concurrence. 132 S.Ct. at 962-64 (Alito, J., concurring); see Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

Independent of the GPS tracking, Mitchell argues that his detention and

the dog sniff violated the Fourth Amendment, and that he was subject to a

duplicitous indictment. Because resolution of the Fourth Amendment

issue under Jones is dispositive, we do not address Mitchell’s alternative

arguments.

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Opinion of the Court

vehicle driven exclusively by Jones, but registered to his wife, while it was

parked in a public parking lot. Id. at 947, 949 n.2. Instead of determining

whether Jones had a reasonable expectation of privacy in his public

movements under Katz v. United States, 389 U.S. 347 (1967),4 the Jones

majority relied on a trespass theory. The Court clarified that “the Katz

reasonable-expectation-of-privacy test has been added to, not substituted for,

the common-law trespassory test.” Jones, 132 S.Ct. at 952. Thus, the Court

reasoned that an automobile is undisputedly an “effect” for purposes of

the Fourth Amendment, and that the government’s physical occupation of

private property with the purpose of obtaining information undoubtedly

“would have been considered a ‘search’ within the meaning of the Fourth

Amendment when it was adopted.” Id. at 949. Because Jones involved a

trespass onto a private effect, the Court’s majority declined to decide

whether similar tracking accomplished without a physical intrusion

would constitute a search under the Katz test.5 Id. at 954.

¶14 Further, the Court explicitly declined to consider the Fourth

Amendment significance of Jones’ status vis-à-vis the vehicle because the

government conceded Jones had standing. Id. at 949 n.2. The Court

noted, however, that Jones had at least the property rights of a bailee. Id.

Implicit in the Court’s statement is that the person challenging a search

based upon a trespass onto a constitutionally protected area must have an

interest in the property sufficient to contest the intrusion. That is, the

person must have standing.

¶15 The issue presented here is whether a defendant has

standing to challenge GPS surveillance conducted without the vehicle

owner’s knowledge or consent when the defendant does not own the

vehicle but: (1) Drives it sporadically with the knowledge of the police and

permission of the owner; (2) Lawfully possessed the vehicle before the

initial trespassory act occurred and comes into lawful possession while the

device is still in place; and (3) Is the target of the GPS surveillance.

Although Jones did not decide the standing question, other courts have

determined when a defendant has standing to challenge GPS tracking

4 Under Katz, the relevant inquiry is whether the government impinged on

a person’s reasonable expectation of privacy: that is, whether the person

exhibited a subjective expectation of privacy that society recognizes as

reasonable. 389 U.S. at 361 (Harlan, J., concurring).

5 This issue was the subject of two concurring opinions in Jones. See 132

S.Ct. at 954-57 (Sotomayor, J., concurring); id. at 957-64 (Alito, J.,

concurring).

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Opinion of the Court

based on a trespass. As we explain, although the facts of each case vary,

the common denominator across jurisdictions is that lawful possession of

the vehicle at the time of the physical intrusion is sufficient to confer

standing. See People v. LeFlore, 996 N.E.2d 678, 686-87 (Ill. App. 2013)

(synthesizing various GPS standing cases), review granted, 3 N.E.3d 799

(Ill., Jan. 29, 2014). The standing inquiry is best understood, then, as a

combination of two factors: property interest and timing.

A. Lawful Possession

¶16 Jones demonstrates that ownership of the vehicle is not

required under the trespass test. Jones was not the registered owner of the

vehicle. 132 S.Ct. at 949 n.2. Instead, he was the exclusive driver, he was

in possession of the vehicle at the time that the GPS device was installed,

and he was the target of the investigation. Id. Other courts have analyzed

the standing question under a variety of factual scenarios. Most of these

cases turn on whether the defendant had lawful possession of the vehicle

when the device was installed or was the target of the surveillance. See,

e.g., United States v. Gibson, 708 F.3d 1256, 1277 (11th Cir. 2013) (holding

that the defendant had standing to challenge the installation and use of

the GPS device while he was in possession of the vehicle with the owner’s

consent, drove it often, and was borrowing the car at the time of

installation); United States v. Hernandez, 647 F.3d 216, 219 (5th Cir. 2011)

(holding the defendant lacked standing to challenge the installation and

use of a GPS device on a car owned by his brother, explaining that the

defendant was not a regular driver, the car was parked outside his

brother’s house when it was installed, nothing suggested that he had a

possessory interest in the house where the car was parked, and he was not

the target of the investigation);6 United States v. Lopez, 895 F. Supp. 2d 592,

600-01 (D. Del. 2012) (finding that defendant’s possession of vehicles at

time GPS devices were installed was sufficient to satisfy trespass standing

requirement under Jones); Commonwealth v. Arthur, 62 A.3d 424, 430 (Pa.

Super. Ct. 2013) (concluding that defendant lacked standing because she

did not own or have possessory interest in car, never drove it, nor was she

a passenger at the time of GPS installation).

¶17 In People v. LeFlore, the Illinois Court of Appeals noted

several factors that might be relevant to determining whether a defendant

6 Although Hernandez was decided pre-Jones, it analyzed the

circumstances under which a defendant has standing to challenge the

installation of a GPS device, an issue Jones left unresolved.

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Opinion of the Court

has standing, including the person’s ownership or possessory interest in

the property, prior use of the property, the ability to control or exclude

others’ use of the property, and the person’s subjective expectation of

privacy in the property. 996 N.E.2d at 683. The court then synthesized

various standing decisions from other jurisdictions and determined that

the common denominator under Jones’ progeny is that lawful possession

at the time of the trespass is sufficient to confer standing. 996 N.E. at 686.

“Thus, if the defendant borrows a vehicle with the owner’s consent and is

in lawful possession of the vehicle when the GPS device is installed, the

defendant has standing . . . to challenge the installation.” Id. We agree

that lawful possession at the time of the physical intrusion is sufficient to

confer upon a defendant standing to challenge GPS tracking under the

Jones trespass test.

¶18 The lawful possession standard is consistent with basic

principles of tort law regarding trespasses. At common law, a trespass

action could be maintained by either a bailor or a bailee of chattel.

Restatement (Second) of Torts § 219 cmt. b (1965) (hereinafter

“Restatement”).7 Black’s Law Dictionary defines a “bailee” as “[a] person

who receives personal property from another, and has possession of but

not title to the property.”8 161 (9th ed. 2009). For purposes of a common

law trespass action, “[i]t is normally immaterial that the person in

possession is not entitled to retain possession as against some third person

. . . .” Restatement § 218 cmt. b; see also Restatement § 895 cmt. j (1979)

(“[W]hen one person has been in possession of . . . chattel and another has

been entitled to immediate possession, as in the case of a bailment at will .

. . a tortfeasor who harms or interferes with . . . the chattel may be

subjected to actions brought by both parties.”).

¶19 Thus, lawful possession of the vehicle during the trespass is

sufficient to confer standing under Jones. Here, Mitchell was not in lawful

possession of the vehicle at the time the GPS device was installed and,

therefore, does not fall squarely within the scope of this general rule.

However, he was in lawful possession before installation and sporadically

thereafter, the police knew he was using the vehicle, he was the target of

the surveillance, and it is undisputed that Mitchell lawfully possessed the

7 Arizona courts follow the Restatement in the absence of contrary

authority. Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 330, 762 P.2d 609,

617 (App. 1988).

8 The Jones majority used this common-law doctrine to characterize Jones’

interest in the tracked vehicle. Jones, 132 S.Ct. at 949 n.2.

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STATE v. MITCHELL

Opinion of the Court

vehicle on the day of his arrest. Therefore, on those occasions Mitchell

had the rights of a bailee. As we explain below, we conclude that Mitchell

has standing to challenge the GPS surveillance based on a continuing

trespass.

B. Continuing Trespass

¶20 The State argues that Mitchell lacks standing to contest the

trespass because he was not in possession of the car at the time the GPS

device was installed. We understand the State’s argument to be that

Mitchell lacks standing because he did not have a property interest in the

car at the time the initial trespassory act occurred. The State’s argument

reflects lower court holdings that have divided standing into two parts—

distinguishing between when a defendant has standing to challenge the

installation of the device and when he has standing to challenge its use,

suggesting the former is subject to the Jones trespass analysis and the latter

to the Katz reasonable-expectation-of-privacy test. See, e.g., Gibson, 708

F.3d at 1277-78 (concluding that defendant had property interest in vehicle

sufficient to challenge GPS installation, but lacked standing to challenge

use of device when vehicle was out of his possession); Hernandez, 647 F.3d

at 219-20 (concluding that defendant lacked standing to challenge

installation of device because not in possession at time of installation, but

had standing to challenge use). This line of thinking limits the trespass to

the actual installation of the device and not its continued presence and

use. Thus, these courts have concluded that a defendant has standing

under Jones only if he was in lawful possession of the vehicle at the time

the GPS device was installed.

¶21 The State’s argument and the decisions upon which it relies,

however, fail to appreciate the continuing nature of the trespass, which

includes having the GPS device installed and maintained on the vehicle

without the consent of a person having property rights to the vehicle.

Black’s Law Dictionary defines a “continuing trespass” as “[a] trespass in

the nature of a permanent invasion of another’s rights, such as a sign that

overhangs another’s property.” 1541 (8th ed. 2004). In the context of real

property, the Restatement explains that the “failure to remove . . . [a] thing

which . . . [has been] tortiously . . . placed . . . constitutes a continuing

trespass for the entire time during which the thing is wrongfully

[present].” § 161 cmt. b. If possessory interest in the property is

transferred subsequent to the trespassory placement, the transferee may

object to its continued presence. Id. at cmt. e. Furthermore, the

Restatement recognizes continued trespasses to chattel. See § 217 cmt. f

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STATE v. MITCHELL

Opinion of the Court

(“[A]n intermeddling unprivileged by . . . consent . . . may be a continuous

one . . . .”).

¶22 That the ongoing presence of the GPS device constitutes a

continuing trespass is demonstrated by Justice Alito’s “tiny constable”

analogy in Jones. 132 S.Ct. at 958 n.3 (Alito, J., concurring). Justice Alito

reasoned that the closest analog to GPS technology at the time the Fourth

Amendment was adopted would have been a constable—albeit a tiny

one—hiding in a target’s coach. Id. It would be absurd, however, to assert

that the constable’s trespass ends after he finds a comfortable hiding place

and plants himself there. Instead, the constable continues to trespass as

long as he remains in the coach without permission. If GPS is the

government’s modern-day constable surrogate, then there is no principled

reason why courts should narrowly construe the trespass to the singular

moment of affixing the device to a vehicle. Instead, the trespass continues

so long as the device remains in physical contact with the vehicle without

the consent of the owner or the borrower, just as the trespass would

continue during the entire time the tiny constable was hidden in the

coach.

¶23 As explained in LeFlore, standing to assert a Fourth

Amendment violation should continue as long as the trespass continues,

which means, in this context, so long as the GPS device remains on the

vehicle without proper permission and the government is mining the

device for information. 996 N.E.2d at 687 (“[T]he State’s continued, and

conceivably neverending, use of the GPS device to monitor the vehicle

constituted a continuing trespass.”). Thus, although lawful possession at

the time of installation might be sufficient to confer standing,9 it is not

necessary. If a defendant later comes into lawful possession of a vehicle

upon which a GPS device was installed without permission, then that

defendant is in lawful possession during an ongoing trespass, thereby

placing him within the ambit of Jones. See id. at 686-87 (“[I]f the defendant

is not in possession of the vehicle when the GPS device is installed, but he

later comes into lawful possession by borrowing the vehicle with the

owner’s consent and while the government’s trespassory act remains in

place, the defendant has standing to challenge the use of the GPS device.”).

This result is reinforced by the fact that Mitchell, the person having lawful

possession of the vehicle during the continuing trespass, was the target of

9 This was the case in Jones, but nothing in the Court’s opinion indicates

that its reasoning was limited to the facts of that case.

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Opinion of the Court

the surveillance—that is, the raison d’être for the GPS tracking in the first

place.

¶24 Relying on United States v. Karo, 468 U.S. 705 (1984), the State

argues there is a meaningful difference between one who possesses a

vehicle at the time the government installs the GPS device and one who

comes into possession only after the device has been installed. In Karo, the

government installed a beeper in a container of ether with the permission of

the owner, which was thereafter acquired by the defendant and used to

track his movements. 468 U.S. at 708-09. Karo asserted that the

installation of the beeper violated his Fourth Amendment rights, but the

Supreme Court disagreed, noting that the barrel into which the beeper

had been placed belonged to law enforcement at the time of placement

and therefore the installation was consensual.10 Id. at 711. The Supreme

Court emphasized the consensual nature of the Karo installation when it

distinguished that case from the facts in Jones. 132 S.Ct. at 952; see also

Andrew McNichol, Privacy in the Age of Smartphones: A Better Standard for

GPS Tracking, 45 Ariz. St. L.J. 1277, 1283 (2013) (“The prior owners of the

property in Knotts and Karo consented to the installation of the device;

Jones obviously did not give any such consent.”). In Karo there simply

was no initial trespass to challenge. Further, when the Court turned to the

issue of the monitoring of the beeper, it did not address whether its

continued presence constituted a search. Rather, the Court characterized

the continued presence of the beeper as going toward whether there was a

seizure, noting that for purposes of a seizure even if the beeper’s presence

was a technical trespass it did not impact the use of the barrel in any

meaningful way. Karo, 468 U.S. at 712-13. Whether a particular action

constitutes an unlawful seizure is a separate inquiry from whether that

same action constitutes an unlawful search.11 See id. Karo, then, does not

stand for the unqualified proposition that one who comes into possession

of an object or vehicle only after a tracking device is installed lacks

standing to object to its presence and use as an unlawful search. Rather,

10 The beeper placement in Knotts, likewise, was consensual. 460 U.S. at

278. There, however, the Supreme Court did not address the trespass

issue because no party challenged the beeper’s placement. Id. at 286

(Brennan, J., concurring).

11 Unlike the seizure analysis, the usefulness of the GPS device to law

enforcement in the context of a search depends on the device not

interfering with the use of the vehicle in any meaningful way. Indeed, the

GPS device is only useful so long as the target is unaware of its presence

and continues to use the vehicle normally.

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Opinion of the Court

that case merely stands for the proposition that a defendant cannot assert

a Fourth Amendment violation based on a trespass in the absence of a

trespassory installation, and that the continued presence of the monitoring

device is not a seizure. See LeFlore, 996 N.E.2d at 688 (“[O]ur reading of

Jones reflects that the Supreme Court merely rejected the government’s

reliance on . . . Karo by noting that [Karo did not] involve a trespass.”). As

Jones made clear, though, the nonconsensual presence of the tracker has a

place in our analysis of the search issue.

¶25 Accordingly, we conclude that one who comes into lawful

possession of a vehicle upon which law enforcement has installed a GPS

device without permission may assert a Fourth Amendment violation

under Jones based on a continuing trespass. Here, it is undisputed that on

May 30, 2010 the GPS device remained on the vehicle without C.W.’s or

Mitchell’s knowledge or permission. Thus, as of May 30 the trespass was

ongoing. Mitchell was in lawful possession on May 30 while the GPS

device was used to track and record his movements. Because Mitchell, on

May 30, was in lawful possession of the vehicle during the trespass, he has

standing to challenge the warrantless use of the device under Jones.12

Therefore, the trial court erred in finding that Mitchell lacked standing to

object to the GPS tracking based on the trespass.

II. Warrantless Placement and Use of the GPS Device

¶26 Here, law enforcement physically intruded without

permission onto a private vehicle in which Mitchell had a possessory

interest and used that intrusion to obtain information. Under Jones, the

State’s trespassory placement and use of the GPS device to monitor

Mitchell’s movements constituted a search under the Fourth Amendment.

Law enforcement did not obtain a search warrant authorizing the GPS

placement. Instead, the Deputy testified at the suppression hearing that

he had the opportunity to ask a magistrate for a search warrant, but chose

not to do so. “[S]earches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions.” Katz, 389 U.S. at 357. The State has not

12Our conclusion is not inconsistent with State v. Estrella, 230 Ariz. 401,

286 P.3d 150 (App. 2012). There, we declined to address the trespass

because the defendant failed to assert the theory in the trial court or to

show fundamental error on appeal. 230 Ariz. at 403-04, ¶ 9, 286 P.3d 152-

53.

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Opinion of the Court

argued that any exception to the warrant requirement applies to GPS

tracking. We conclude, then, that the warrantless placement of the GPS

device and its subsequent use to track Mitchell’s movements violated the

Fourth Amendment.

III. Application of the Exclusionary Rule

¶27 The State argues that, if the GPS tracking was an unlawful

search, the exclusionary rule should not apply under the good-faith

exception announced in Davis v. United States, 131 S.Ct. 2419 (2011). In

Davis, the Supreme Court held that “[e]vidence obtained during a search

conducted in reasonable reliance on binding precedent is not subject to the

exclusionary rule.” Davis, 131 S.Ct. at 2429. We disagree that law

enforcement’s conduct falls within the Davis rule.

¶28 To support its argument, the State relies upon United States

v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) (holding that DEA agents’

installation of GPS devices on defendant’s vehicle and use to monitor

movements did not violate defendant’s reasonable expectation of privacy),

cert. granted, judgment vacated, 132 S.Ct. 1533 (2012).13 When applying the

Davis good-faith exception, courts generally agree that the authority must

be binding in the jurisdiction where the police conduct occurred, and that

reliance on the prevailing view among other jurisdictions falls outside the

scope of Davis. See United States v. Barraza-Maldonado, 732 F.3d 865, 867

(8th Cir. 2013) (“For the good faith exception to apply, officers performing

a particular investigatory action . . . must strictly comply with binding

appellate precedent governing the jurisdiction in which they are acting.”);

United States v. Martin, 712 F.3d 1080, 1082 (7th Cir. 2013) (rejecting

argument that police could rely on weight of authority around the country

rather than on binding precedent in their jurisdiction); State v. Allen, 997

N.E.2d 621, 626-27 (Ohio App. 2013) (applying Davis test strictly and

13 The Supreme Court vacated and remanded Pineda-Moreno in light of

Jones. Pineda-Moreno v. United States, 132 S.Ct. 1533 (2012). On remand,

the Ninth Circuit concluded that the good-faith exception precluded

application of the exclusionary rule because then-binding Ninth Circuit

precedent authorized federal agents to installation GPS devices without a

warrant. United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (2012). But

Ninth Circuit decisions are not binding on Arizona courts and, therefore,

the court’s decision on remand does not control our analysis in this case.

See infra ¶ 29.

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refusing to apply good-faith exception because no binding Ohio precedent

governed attachment of GPS).

¶29 The State’s reliance on Pineda-Moreno is misplaced for two

reasons. First, the court in Pineda-Moreno analyzed GPS tracking under

Katz, not under the trespass test. 591 F.3d at 1215-16. Second, decisions of

the Ninth Circuit, although persuasive, are not binding on Arizona courts.

See Planning Group v. Lake Mathews Mineral, 226 Ariz. 262, 267, ¶ 22, 246

P.3d 343, 348 (2011); State v. Montano, 206 Ariz. 296, 297 n.1, ¶ 1, 77 P.3d

1246, 1247 n.1 (2003). “When a law enforcement official conducts a search

based on a nonbinding judicial decision, that official is guessing at what

the law might be, rather than relying on what a binding legal authority

tells him it is.” LeFlore, 996 N.E.2d at 692 (internal quotations omitted).

¶30 The State also argues that law enforcement’s reliance upon

State v. Cramer, 174 Ariz. 522, 525, 851 P.2d 147, 150 (App. 1992) (holding

that the use of an infrared heat measuring device does not constitute a

search) and Knotts meets the Davis test. But neither Cramer nor Knotts

addressed the use of GPS technology, nor did Knotts address the trespass

issue. Jurisdictions are divided on how apposite the authority must be in

order for the good-faith exception to apply. In Kelly v. State, for example,

the Maryland Court of Appeals concluded that Knotts was apposite

authority for purposes of the good-faith exception in a case involving the

installation of a GPS device. 82 A.3d 205, 215-16 (Md. 2013); see also United

States. v. Aguiar, 737 F.3d 251, 261-62 (2d Cir. 2013) (concluding that

Knotts’ de minimis treatment of the beeper’s installation made the case

sufficiently apposite on the trespass issue). On the other hand, in United

States v. Sparks, although the First Circuit applied the good-faith exception

to GPS installation and tracking, it did not consider Knotts sufficiently

apposite on the installation issue. 711 F.3d 58, 63, 65 (1st Cir. 2013).

Instead, the court relied upon an earlier First Circuit case that concluded

beeper installation was of little consequence to the search analysis. Id.; see

also LeFlore, 996 N.E.2d at 692 (concluding good-faith exception was

inapplicable because no binding authority addressed GPS technology).

¶31 Several considerations weigh against applying the good-

faith exception here. First, no binding Arizona or Supreme Court

authority explicitly authorized law enforcement to trespass onto private

property to obtain information. Indeed, many pre-Katz Supreme Court

cases were decided on a trespass theory. See, e.g., Silverman v. United

States, 365 U.S. 505, 511-12 (1961) (finding Fourth Amendment violation

where “spike mike” used to listen in on a defendant’s conversations

penetrated wall and made physical contact with heating duct, and

14

STATE v. MITCHELL

Opinion of the Court

distinguishing cases in which no unauthorized physical intrusion

occurred). Further, the Supreme Court did not address the significance of

the beeper installation in Knotts, and notably the installations in both

Knotts and Karo were consensual rather than trespassory.14 The State

points to no binding authority condoning the trespassory installation of a

tracking device. Second, as the law regarding trespassory device

placement was, at the very least, unsettled, application of the exclusionary

rule would provide meaningful deterrence because, as Justice Sotomayor

emphasized in her Davis concurrence, it incentivizes law enforcement to

err on the side of constitutional behavior. 131 S.Ct. at 2435 (Sotomayor, J.,

concurring). Finally, as Justice Scalia made clear in Jones, Katz

supplemented rather than replaced the Fourth Amendment trespass test.

132 S.Ct. at 951. Jones did not overrule prior Supreme Court precedent or

announce a new legal standard, but instead simply applied existing—

albeit dormant—Fourth Amendment principles. Thus, we do not suggest

that law enforcement is expected to anticipate new developments in the

law. It is clear, however, that a reasonable reading of the relevant binding

case law should have alerted law enforcement that, before attaching a

tracking device to private property, it must obtain either a warrant or the

property owner’s permission to install the device.

¶32 We conclude, then, that Cramer and Knotts are not

sufficiently apposite on the trespass question and, therefore, cannot

trigger application of the good-faith exception. The State points to no

controlling Arizona or United States Supreme Court decisions authorizing

the type of warrantless GPS tracking engaged in here, or that authorized

law enforcement agents to attach a tracking device to private property

without permission from the property’s owner, nor do we find any.

Consequently, we conclude that the good-faith exception to the warrant

requirement is inapplicable and that the evidence should have been

excluded.

¶33 The Deputy admitted in the superior court that, absent the

GPS tracking data, he would have had no way of knowing when the Kia

left C.W.’s driveway or where the Kia would go. Without the illegally

obtained GPS data, the Deputy would not have known that the Kia had

driven to Phoenix on the night of May 30, nor would he have known

14Indeed, Justice Brennan’s concurrence in Knotts cautioned that the case

might have been much more difficult had the defendant challenged not

just the use of the beeper, but also its initial installation. 460 U.S. at 286

(Brennan, J., concurring).

15

STATE v. MITCHELL

Opinion of the Court

when or where to intercept it. His encounter with Mitchell after returning

to Humboldt, the resulting dog sniff and alert, and the subsequent search

of the vehicle never would have occurred that evening had it not been for

the GPS tracking. Accordingly, we conclude that all evidence obtained

from the search of the Kia was the fruit of an illegal search and should

have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-85

(1963) (“[E]vidence seized during an unlawful search [cannot] constitute

proof against the victim of the search. The exclusionary prohibition

extends as well to the indirect as the direct products of such invasions.”

(internal citations omitted)); see also State v. Hackman, 189 Ariz. 505, 508,

943 P.2d 865, 868 (App. 1997) (“The exclusionary rule requires

suppression at trial of evidence gained directly or indirectly as a result of a

government violation of the Fourth . . . Amendment[].”).

CONCLUSION

¶34 The placement, continued presence, and subsequent use of

the GPS device to monitor Mitchell’s movements was an unlawful search

under Jones to which no exception to the exclusionary rule applies.

Accordingly, all evidence obtained as a fruit of the unlawful GPS

surveillance should have been excluded, and we reverse Mitchell’s

convictions.

:MJT

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