#25584-rev & rem-GAS

2012 S.D. 19

                             IN THE SUPREME COURT

                                   OF THE

                         STATE OF SOUTH DAKOTA

                                    * * * *

STATE OF SOUTH DAKOTA,                        Plaintiff and Appellee,

v.

ELMER WAYNE ZAHN, JR.,                        Defendant and Appellant.

                                    * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                    BROWN COUNTY, SOUTH DAKOTA

                                    * * * *

                        HONORABLE TONY PORTRA
                                Judge

                                    * * * *
MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                          Attorneys for plaintiff
                                              and appellee.

THOMAS M. TOBIN of
Tonner, Tobin and King, LLP
Aberdeen, South Dakota                        Attorneys for defendant
                                              and appellant.

                                    * * * *
                                              ARGUED ON MARCH 23, 2011

                                              OPINION FILED 03/14/12
#25584

SEVERSON, Justice

[¶1.]        Without obtaining a search warrant, police attached a global

positioning system (GPS) device to Elmer Wayne Zahn Jr.’s vehicle. The GPS

device enabled officers to track and record the speed, time, direction, and geographic

location of Zahn’s vehicle within five to ten feet for nearly a month. Police used the

information they gathered to obtain a search warrant for two storage units that

Zahn frequently visited. Officers recovered drug paraphernalia and approximately

one pound of marijuana from a freezer in one of the storage units. Before trial, the

trial court denied Zahn’s motion to suppress the evidence that the officers

discovered during the execution of the search warrant. Zahn appeals his conviction

of several drug possession charges, arguing that the trial court erred by denying his

motion to suppress. We reverse.

                                    Background

[¶2.]        Zahn and his wife, Ranee, lived in Gettysburg, South Dakota. In June

2008, Ranee passed away while visiting her daughter, Katie Circle Eagle, in

Aberdeen. Because Ranee was not in the care of a physician when she died, police

were called to Circle Eagle’s residence to investigate the death. Zahn was present

when the officers arrived but left before they interviewed him.

[¶3.]        As part of the death investigation, the officers searched the bedroom

where Ranee died. They found a large, brown suitcase in a bedroom closet. The

suitcase contained a digital scale and approximately 120 quart-sized plastic

containers. A strong odor of raw marijuana emanated from several of the

containers. The officers also found $8,890 cash in a nylon shoulder bag in one


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corner of the bedroom. A drug dog later alerted to the cash as having the odor of

marijuana or some narcotic. Their suspicions aroused, the officers attempted to

contact Zahn, but they were unable to do so.

[¶4.]        In November 2008, Zahn was arrested for driving while intoxicated.

The arresting officers searched Zahn’s vehicle. They found a black duffel bag in the

backseat that contained an unmarked pill bottle filled with a green, leafy substance.

Tests later confirmed that the substance was marijuana. The officers also recovered

a large amount of cash from the duffel bag, from a purse in the cargo area of the

vehicle, and from Zahn’s person. In total, the officers discovered nearly $10,000

cash. Zahn was charged with and pleaded guilty to driving under the influence,

possession of two ounces or less of marijuana, and possession of drug paraphernalia.

[¶5.]        On March 3, 2009, Tanner Jondahl, a detective with the Aberdeen

Police Department, attached a GPS device to the undercarriage of Zahn’s vehicle

while it was parked in the private parking lot of an apartment complex. The GPS

device was attached to Zahn’s vehicle with a magnet and did not interfere with the

operation of his vehicle. Because the GPS device was battery-powered, it did not

draw power from Zahn’s vehicle. For twenty-six days, it continuously transmitted

the geographic location of Zahn’s vehicle, enabling officers to pinpoint his location

within five to ten feet, monitor his speed, time, and direction, and detect non-

movement. A computer at the Brown County Sheriff’s Office recorded the

movements of Zahn’s vehicle.

[¶6.]        Using the GPS device, Detective Jondahl tracked Zahn’s movements

for twenty-six days in March 2009. He observed that Zahn’s vehicle traveled to a


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storage unit at Plaza Rental five times and a storage unit at Store-It four times.

The visits to the storage units generally lasted only a few minutes. Detective

Jondahl later confirmed that a Plaza Rental storage unit was rented to Ranee and

that a Store-It storage unit was rented to Alan Zahn, Zahn’s brother. Detective

Jondahl represented that, based on his training and experience, he believed that

Zahn kept controlled substances in the storage units and was involved in drug

distribution.

[¶7.]           On March 29, 2009, Zahn traveled to Gettysburg, South Dakota.

Because Zahn was out on bond at the time, he was not permitted to leave Brown

County. Officers used the GPS device to determine that Zahn left Brown County,

and Zahn was arrested for the bond violation when he returned to Aberdeen. A

search of his person revealed approximately $2,000 cash.

[¶8.]           Later that day, Detective Jondahl submitted an affidavit in support of

a search warrant for the Plaza Rental storage unit, the Store-It storage unit, and

Zahn’s person. A judge signed the search warrant, and Detective Jondahl, along

with several other officers, executed the warrant. During the search of the Store-It

storage unit, a drug dog alerted to a freezer that was hidden from view by a wall of

empty cardboard boxes. In the freezer, the officers discovered two jars filled with

nearly one ounce of a finely-ground, green substance that emitted a strong odor of

raw marijuana. A large suitcase in the freezer contained five four-ounce plastic

bags of a green, leafy substance. Tests later confirmed that the substance in both

the jars and the plastic bags was marijuana. The freezer contained several other

items, including a glass pipe, three empty plastic bags, and several unused plastic


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containers. Various boxes and cardboard tubes bearing Zahn’s name were also

recovered from the Store-It storage unit. No evidence was recovered from the Plaza

Rental storage unit. A urine sample taken from Zahn that day tested negative for

marijuana ingestion.

[¶9.]        In April 2009, a Brown County grand jury indicted Zahn on one count

of possession with the intent to distribute one pound or more of marijuana and one

count of possession of one to ten pounds of marijuana. Additionally, Zahn was

charged with possession of drug paraphernalia. Zahn filed a motion to suppress the

evidence obtained through the use of the GPS device. The trial court denied the

motion after a hearing on the matter. The case proceeded to a court trial in

February 2010, and Zahn was convicted of all charges. Zahn appeals.

                                Standard of Review

[¶10.]       Our standard of review of motions to suppress is well settled. “A

motion to suppress based on an alleged violation of a constitutionally protected

right is a question of law reviewed de novo.” State v. Wright, 2010 S.D. 91, ¶ 8, 791

N.W.2d 791, 794 (quoting State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377).

“The trial court’s factual findings are reviewed under the clearly erroneous

standard” of review. Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).

However, “[o]nce the facts have been determined . . . the application of a legal

standard to those facts is a question of law reviewed de novo.” Id. (quoting

Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).




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                              Analysis and Decision

[¶11.]       Zahn challenges the use of the GPS device to monitor his activities for

nearly a month under the Fourth Amendment to the United States Constitution

and Article VI, § 11, of the South Dakota Constitution. The Fourth Amendment to

the United States Constitution provides:

             The right of the people to be secure in their persons, houses,
             papers, and effects, against unreasonable searches and seizures,
             shall not be violated, and no Warrants shall issue, but upon
             probable cause, supported by Oath or affirmation, and
             particularly describing the place to be searched, and the persons
             or things to be seized.

Similarly, Article VI, § 11, of the South Dakota Constitution provides:

             The right of the people to be secure in their persons, houses,
             papers and effects, against unreasonable searches and seizures
             shall not be violated, and no warrant shall issue but upon
             probable cause supported by affidavit, particularly describing
             the place to be searched and the person or thing to be seized.

[¶12.]       While Zahn challenges the use of the GPS device to monitor his

activities under Article VI, § 11, of the South Dakota Constitution, he has not

asserted a basis to distinguish the protections that the South Dakota Constitution

provides from those that the United States Constitution provides. See State v.

Kottman, 2005 S.D. 116, ¶ 13, 707 N.W.2d 114, 120 (“Counsel advocating a separate

constitutional interpretation ‘must demonstrate that the text, history, or purpose of

a South Dakota constitutional provision supports a different interpretation from the

corresponding federal provision.’” (quoting State v. Schwartz, 2004 S.D. 123, ¶ 57,

689 N.W.2d 430, 445)). We thus decide this case on federal constitutional principles

and will not address the question of whether the South Dakota Constitution affords

South Dakotans greater protection against the use of GPS devices to monitor their

                                         -5-
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activities over an extended period of time. See State v. Opperman, 247 N.W.2d 673,

675 (S.D. 1976) (recognizing that “this [C]ourt has the power to provide an

individual with greater protection under the state constitution than does the United

States Supreme Court under the federal constitution”).

Is the Use of a GPS Device a Search?

[¶13.]         In the recent case of United States v. Jones, the United States Supreme

Court addressed the issue of whether the attachment of a GPS device to an

individual’s vehicle, and the subsequent use of the device to track the vehicle’s

movements, constitutes a search under the Fourth Amendment. 565 U.S. __, 132 S.

Ct. 945, __ L. Ed. 2d __ (2012). In Jones, the Government applied for and was

granted a search warrant authorizing it to install a GPS tracking device on a

vehicle that was registered to Jones’s wife. Id. at __, 132 S. Ct. at 948. One day

after the warrant expired, the Government installed the device.1 Id. The

Government then used the device to track the vehicle’s movements for twenty-eight

days. Id.

[¶14.]         The Government later secured an indictment charging Jones and other

alleged co-conspirators with several crimes, including conspiracy to distribute and

to possess with intent to distribute cocaine and cocaine base. Id. Prior to trial,

Jones moved to suppress the evidence the Government obtained through the use of




1.       The warrant authorized the Government to install the GPS device in the
         District of Columbia within ten days of the issuance of the warrant. Id. The
         Government installed the GPS device eleven days after the warrant was
         issued. At the time the device was installed, the vehicle was located in
         Maryland. Id.

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the GPS device. Id. The District Court held that the data obtained from the GPS

device while the vehicle was on public streets was admissible because “a person

traveling in an automobile on public thoroughfares has no reasonable expectation of

privacy in his movements from one place to another.” Id. (quoting United States v.

Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006)). The United States Court of Appeals

for the District of Columbia Circuit reversed, holding that the admission of the

evidence obtained by the Government through the warrantless use of a GPS device

violated the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 568

(D.C. Cir. 2010).

[¶15.]       The United States Supreme Court granted certiorari and affirmed the

holding of the D.C. Circuit. Jones, 565 U.S. at __, 132 S. Ct. at 954. However, in

doing so, the Court did not apply the Fourth Amendment analysis first introduced

by Justice Harlan in his concurrence in Katz v. United States, 389 U.S. 347, 88 S.

Ct. 507, 19 L. Ed. 2d 576 (1967), which centers on whether an individual has a

“reasonable expectation of privacy” in the area searched. See Thunder, 2010 S.D. 3,

¶ 16, 777 N.W.2d at 378 (applying the Katz “reasonable expectation of privacy”

test). Instead, the Court applied a “physical trespass” test to determine whether

the Government’s conduct constituted a Fourth Amendment search.

[¶16.]       The Court observed that the Fourth Amendment protects “the right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” Jones, 565 U. S. at __, 132 S. Ct. at 949. The

Court went on to state, “It is beyond dispute that a vehicle is an ‘effect’ as that term

is used in the Amendment.” Id. (citing United States v. Chadwick, 433 U.S. 1, 12,


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97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977)). Thus, the Court unequivocally held

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.’” Id.

[¶17.]       In Jones, the Court acknowledged two separate tests for identifying a

Fourth Amendment search: the “physical trespass test” and the Katz “reasonable

expectation of privacy” test. Justice Scalia, writing for the majority, determined it

was unnecessary to reach the question of whether Jones had a “reasonable

expectation of privacy” in the vehicle or in the whole of his movements on public

roads. The majority explained:

             The Government contends that the Harlan standard shows that
             no search occurred here, since Jones had no “reasonable
             expectation of privacy” in the area of the Jeep accessed by
             Government agents (its underbody) and in the locations of the
             Jeep on the public roads, which were visible to all. But we need
             not address the Government’s contentions, because Jones’s
             Fourth Amendment rights do not rise or fall with the Katz
             formulation. At bottom, we must “assur[e] preservation of that
             degree of privacy against government that existed when the
             Fourth Amendment was adopted.” As explained, for most of our
             history the Fourth Amendment was understood to embody a
             particular concern for government trespass upon the areas
             (“persons, houses, papers, and effects”) it enumerates. Katz did
             not repudiate that understanding.

Id. at __, 132 S. Ct. at 950 (internal citations omitted).

[¶18.]       However, Justice Alito wrote a concurring opinion, which was joined by

Justices Ginsburg, Breyer, and Kagan. Id. at __, 132 S. Ct. at 957 (Alito, J.,

concurring). Justice Alito characterized the majority’s holding as “unwise,” stating,

“It strains the language of the Fourth Amendment; it has little if any support in

current Fourth Amendment case law; and it is highly artificial.” Id. at __, 132 S. Ct.

at 958. Justice Alito reasoned that the case should be analyzed “by asking whether

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[Jones’s] reasonable expectations of privacy were violated by the long-term

monitoring of the movements of the vehicle he drove.” Id. Without identifying the

specific point at which the surveillance became a Fourth Amendment search,

Justice Alito concluded that the continual monitoring of Jones’s movements during

a four-week period violated Jones’s reasonable expectations of privacy. Justice Alito

explained, “In this case, for four weeks, law enforcement agents tracked every

movement that [Jones] made in the vehicle he was driving. We need not identify

with precision the point at which the tracking of this vehicle became a search, for

the line was surely crossed before the 4-week mark.”2 Id. at __, 132 S. Ct. at 964.

[¶19.]         In this case, law enforcement attached a GPS device to Zahn’s vehicle.

It then monitored Zahn’s movements for twenty-six days. In accordance with the

majority’s opinion in Jones, we hold that law enforcement’s installation of a GPS

device on Zahn’s vehicle, and its use of that device to monitor the vehicle’s

movements, constitutes a Fourth Amendment search under the “physical trespass

test.”




2.       Justice Sotomayor joined the majority but wrote a separate concurring
         opinion. Id. at __, 132 S. Ct. at 954 (Sotomayor, J., concurring). She agreed
         with the majority that the Government conducted a Fourth Amendment
         search when it physically invaded Jones’s personal property to gather
         information. Id. Justice Sotomayor thus found it unnecessary to address the
         issue of whether Jones’s reasonable expectations of privacy had been violated.
         Nonetheless, Justice Sotomayor indicated that she agreed with Justice Alito’s
         conclusion that, “at the very least, ‘longer term GPS monitoring in
         investigations of most offenses impinges on expectations of privacy.’” Id. at
         __, 132 S. Ct. at 955. Thus, at least five Justices reasoned that prolonged
         GPS monitoring violates an individual’s reasonable expectation of privacy.


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[¶20.]         Law enforcement’s actions also constituted a search under the Katz

“reasonable expectation of privacy” test.3 This Court has stated, “A two-part test

determines whether an individual has a reasonable expectation of privacy” in a

particular area. Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d at 378 (citing Cordell v.

Weber, 2003 S.D. 143, ¶ 12, 673 N.W.2d 49, 53). “First, we consider whether [an

individual] exhibited an actual subjective expectation of privacy in the area

searched.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Second, we

consider whether society is prepared to recognize that expectation of privacy as

reasonable.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Whether

[an individual] has a legitimate expectation of privacy in [an area] is determined on

a ‘case-by-case basis, considering the facts of each particular situation.’”4 Id.

(quoting State v. Hess, 2004 S.D. 60, ¶ 17, 680 N.W.2d 314, 322).



3.       We find it appropriate to address this issue because, in arguing this case,
         both parties focused on the application of the Katz “reasonable expectation of
         privacy” test. At the time this case was argued, the United States Supreme
         Court had not yet decided Jones.

4.       Prior to Jones, courts that were faced with the issue of whether the use of a
         GPS device to monitor an individual’s movements was a Fourth Amendment
         search applied the Katz “reasonable expectation of privacy” test. For
         example, two federal circuit courts held that the use of a GPS device to
         monitor an individual’s activities on public roads did not amount to a Fourth
         Amendment search under the Katz “reasonable expectation of privacy” test.
         See United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011), vacated, 2012
         WL 538289; United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010),
         vacated, 2012 WL 53827. One federal appellate court reached the opposite
         conclusion. See Maynard, 615 F.3d 544, aff’d, Jones, 565 U.S. __, 132 S. Ct.
         945.

         A number of state courts held that the use of a GPS device to monitor an
         individual’s activities was not a Fourth Amendment search. See Devega v.
         State, 689 S.E.2d 293 (Ga. 2010); Stone v. State, 941 A.2d 1238 (Md. Ct. Spec.
                                                                     (continued . . .)
                                            - 10 -
#25584

[¶21.]         We first address whether Zahn had a subjective expectation of privacy

in the whole of his movements for nearly a month. Ordinarily, “[w]hat a person

knowingly exposes to the public, even in his own home or office, is not a subject of

Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S. Ct. at 511 (citing

Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 427, 17 L. Ed. 2d 312

(1966); United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 748, 71 L. Ed. 1202

(1927)). “But what he seeks to preserve as private, even in an area accessible to the

public, may be constitutionally protected.” Id. (citing Rios v. United States, 364 U.S.

253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960)) (citation omitted).

[¶22.]         In this case, the State argues that Zahn could not have had a

subjective expectation of privacy in his movements because he voluntarily exposed

his movements to the public. We disagree. While a reasonable person understands

that his movements on a single journey are conveyed to the public, he expects that

those individual movements will remain “disconnected and anonymous.” Maynard,

615 F.3d at 563 (citation omitted). Indeed, the likelihood that another person would

observe the whole of Zahn’s movements for nearly a month “is not just remote, it is


________________________
(. . . continued)
         App. 2008); Osburn v. State, 44 P.3d 523 (Nev. 2002); People v. Gant, 802
         N.Y.S.2d 839 (N.Y. Crim. Ct. 2005); State v. Johnson, 944 N.E.2d 270 (Ohio
         Ct. App. 2010), appeal docketed, No. 2011-0033 (Ohio 2011); Foltz v.
         Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), aff’d en banc, 706 S.E.2d
         914 (2011); State v. Sveum, 769 N.W.2d 53 (Wis. Ct. App. 2009).

         Three state courts held the warrantless use of a GPS device to monitor
         an individual’s movement was impermissible under their respective state
         constitutions. See People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v.
         Campbell, 759 P.2d 1040 (Or. 1988); State v. Jackson, 76 P.3d 217 (Wash.
         2003).

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#25584

essentially nil.” Id. at 560. The prolonged use of a GPS device in this case enabled

officers to determine Zahn’s speed, time, direction, and geographic location within

five to ten feet at any time. It also enabled officers to use the sum of the recorded

information to discover patterns in the whole of Zahn’s movements for twenty-six

days. The prolonged GPS surveillance of Zahn’s vehicle revealed more than just the

movements of the vehicle on public roads; it revealed an intimate picture of Zahn’s

life and habits. We thus believe that Zahn had a subjective expectation of privacy

in the whole of his movements. This subjective expectation of privacy was not

defeated because Zahn’s individual movements were exposed to the public.

[¶23.]       We next consider whether Zahn’s expectation of privacy in the whole of

his movements for nearly a month was reasonable. After all, his personal desire for

privacy alone, no matter how earnestly held, does not trigger the protections of the

Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 740-41, 99 S. Ct. 2577,

2580, 61 L. Ed. 2d 220 (1979) (citations omitted).

[¶24.]       The State argues that, under United States v. Knotts, 460 U.S. 276,

103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983), Zahn could not have possessed a reasonable

expectation of privacy in his movements on public roads. In Knotts, the United

States Supreme Court considered whether the use of a tracking device to monitor

an individual’s activities during a single journey amounted to a Fourth Amendment

search. Id. at 285, 103 S. Ct. at 1087. The Court held that “[a] person travelling in

an automobile on public thoroughfares has no reasonable expectation of privacy in

his movements from one place to another.” Id. at 281, 103 S. Ct. at 1085. The




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Court noted that police efficiency does not equate with unconstitutionality. Id. at

284, 103 S. Ct. at 1086.

[¶25.]       By today’s standards, the beeper used in Knotts was a rudimentary

tracking device. It enabled investigators to maintain visual contact with Knotts’s

vehicle on a single journey, but it could not indicate with any degree of accuracy

where Knotts’s vehicle was located. Id. at 278, 103 S. Ct. at 1083. And it certainly

could not record Knotts’s movements over an extended period of time. The Court in

Knotts expressly declined to address whether twenty-four hour surveillance over an

extended period of time is a Fourth Amendment search. The Court stated, “[I]f such

dragnet type law enforcement practices as [Knotts] envisions should eventually

occur, there will be time enough then to determine whether different constitutional

principles may be applicable.” Id. at 284, 103 S. Ct. at 1086.

[¶26.]       In Jones, the majority did not reach the question of whether the use of

a GPS device to monitor an individual’s activities for an extended period of time

violates an individual’s “reasonable expectations of privacy.” Jones, 565 U.S. at __,

132 S. Ct. at 950. But in his concurrence, Justice Alito recognized that

             longer term GPS monitoring in investigations of most offenses
             impinges on expectations of privacy. For such offenses, society’s
             expectation has been that law enforcement agents and others
             would not – and indeed, in the main, simply could not – secretly
             monitor and catalogue every single movement of an individual’s
             car for a very long period.

Id. at __, 132 S. Ct. at 964 (Alito, J., concurring). Justice Sotomayor expressly

stated in her concurrence, “I agree with Justice Alito that, at the very least, ‘longer

term GPS monitoring in investigations of most offenses impinges on expectations of

privacy.’” Id. at __, 132 S. Ct. at 955 (Sotomayor, J., concurring).

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#25584

[¶27.]         Technology has advanced exponentially since the United States

Supreme Court decided Knotts twenty-nine years ago. Current GPS technology is

uniquely intrusive in the wealth of highly-detailed information it gathers. See

Renee McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth

Amendment, 55 U.C.L.A. L. Rev. 409, 456-57 (2007). The GPS device used in this

case continuously transmitted the geographic location of Zahn’s vehicle to a

computer at the Brown County Sheriff’s Department. It enabled officers to not only

determine his speed, direction, and geographic location within five to ten feet at any

time, but to also use the recorded information to discover patterns in the whole of

his movements for nearly a month.

[¶28.]         When the use of a GPS device enables police to gather a wealth of

highly-detailed information about an individual’s life over an extended period of

time, its use violates an expectation of privacy that society is prepared to recognize

as reasonable.5 The use of a GPS device to monitor Zahn’s activities for twenty-six



5.       We do not believe that the popularity of GPS technology constitutes a
         surrender of personal privacy. Weaver, 909 N.E.2d at 1200. In his
         concurrence in Jones, Justice Alito accepted this proposition in concluding
         that the use of a GPS device to monitor of Jones’s movements during a four-
         week period violated Jones’s reasonable expectations of privacy. Jones, 565
         U.S. at __, 132 S. Ct. at 964 (Alito, J., concurring). However, Justice Alito
         indicated that future advances in technology may influence society’s
         expectation of privacy. He explained,

               the Katz test rests on the assumption that this hypothetical
               reasonable person has a well-developed and stable set of privacy
               expectations. But technology can change those expectations.
               Dramatic technological change may lead to periods in which
               popular expectations are in flux and may ultimately produce
               significant changes in popular attitudes. New technology may
               provide increased convenience or security at the expense of
                                                                   (continued . . .)
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#25584

days was therefore a Fourth Amendment search under the Katz “reasonable

expectation of privacy” test.

Does the Fourth Amendment Require a Warrant to Use a GPS Device?

[¶29.]        Detective Jondahl did not obtain a search warrant before he used the

GPS device to monitor Zahn’s activities for nearly a month. “[A] warrantless search

and seizure is per se unreasonable” unless it falls within an exception to the

warrant requirement. State v. Sweedland, 2006 S.D. 77, ¶ 14, 721 N.W.2d 409, 413

(quoting State v. Luxem, 324 N.W.2d 273, 279 (S.D. 1982)). “If a warrantless search

or seizure is conducted, it is the State’s burden to show that the entry into the

protected area was justified.” Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting

Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378).

[¶30.]        The United States Supreme Court has carved out a number of “well-

delineated exceptions” to the warrant requirement. Katz, 389 U.S. at 357, 88 S. Ct.

at 514. The Court has found that the presence of exigent circumstances excuses a

warrantless search and that a warrantless search and seizure of an individual for

the limited purpose of briefly investigating reasonably suspicious behavior is

permissible. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);

Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Consent

searches, searches conducted incident to a valid arrest, automobile searches, and

________________________
(. . . continued)
               privacy, and many people may find the tradeoff worthwhile.
               And even if the public does not welcome the diminution of
               privacy that new technology entails, they may eventually
               reconcile themselves to this development as inevitable.

Id. at 962.

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#25584

searches of items in plain view are also allowed without a warrant.6 None of these

exceptions readily applies to the use of a GPS device to monitor an individual’s

activities over an extended period of time.

[¶31.]         We thus hold that the attachment and use of a GPS device to monitor

an individual’s activities over an extended period of time requires a search warrant.

Because the unfettered use of surveillance technology could fundamentally alter the

relationship between our government and its citizens, we require oversight by a

neutral magistrate. Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting

Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378). Thus, the warrantless attachment

and use of the GPS device to monitor Zahn’s activities for nearly a month was

unlawful, and the evidence obtained through the use of the GPS device should be

suppressed.

[¶32.]         By our holding today, we do not deny police the ability to use this

valuable law enforcement tool. We recognize that police must be allowed to use

developing technology in the “often competitive enterprise of ferreting out crime.”

Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d at 415 (quoting Illinois v. Gates, 462

U.S. 213, 240, 103 S. Ct. 2317, 2333, 76 L. Ed. 2d 527 (1983)). The Fourth

Amendment “cannot sensibly be read to mean that police [should] be no more



6.       See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854
         (1973) (consent searches); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.
         2022, 29 L. Ed. 2d 564 (1971) (searches of items in plain view); Chimel v.
         California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (searches
         conducted incident to arrest); Carroll v. United States, 267 U.S. 132, 45 S. Ct.
         280, 69 L. Ed. 543 (1925) (automobile searches).



                                           - 16 -
#25584

efficient in the twenty-first century than they were in the eighteenth” century.

United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007), cert. denied, 552 U.S.

883, 128 S. Ct. 291, 169 L. Ed. 2d 140 (2007). But police must obtain a warrant

before they attach and use a GPS device to monitor an individual’s activities over an

extended period of time.

[¶33.]         Our disposition of this case makes it unnecessary to address Zahn’s

additional challenges to this conviction.

[¶34.]         Reversed and remanded for additional proceedings.

[¶35.]         GILBERTSON, Chief Justice, and MEIERHENRY, Retired Justice,

concur.

[¶36.]         KONENKAMP and ZINTER, Justices, concur with a writing.


ZINTER, Justice (concurring).

[¶37.]         The majority opinion in United States v. Jones, 565 U.S. ___, 132 S. Ct.

945, 181 L. Ed. 2d 911 (2012), resolves a virtually identical case. Therefore, I join

the Court’s opinion insofar as it holds this was an unlawful search under Jones’s

physical trespass test. See id. at ___, 132 S. Ct. at 949 (“We hold 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.’” (footnote

omitted)); see supra ¶¶ 15, 19. However, it must be pointed out that the majority7 of



7.       Justice Sotomayor, the fifth vote, did suggest that GPS monitoring would
         impinge on expectations of privacy in some cases. Jones, 565 U.S. at ___, 132
         S. Ct. at 955 (Sotomayor, J., concurring) (“I agree with Justice Alito that, at
         the very least, ‘longer term GPS monitoring in investigations of most offenses
         impinges on expectations of privacy.’”). Nonetheless, Justice Sotomayor did
                                                                     (continued . . .)
                                           - 17 -
#25584

the Supreme Court expressly declined to adopt Justice Alito’s concurrence arguing

for application of the Katz “reasonable expectation of privacy” test. In fact, the

majority pointed out a number of problems in applying the reasonable expectation

of privacy test in this context. The majority concluded that the Court would “have

to grapple with these ‘vexing problems’ in some future case where a classic

trespassory search is not involved and resort must be had to Katz analysis; but

there is no reason for rushing forward to resolve them here.” Jones, 565 U.S. at ___,

132 S. Ct. at 954.

[¶38.]          Because a majority of the Supreme Court expressly considered but

declined to apply the reasonable expectation of privacy test in Jones, I do not join

this Court’s application of the reasonable expectation of privacy test in Zahn’s case.

Because we are deciding this case under the federal Constitution, we should not

utilize a Fourth Amendment test that the majority of the Supreme Court has

expressly declined to apply.8 It is also unnecessary becauselike the Supreme


________________________
(. . . continued)
         not apply the Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516, 19
         L. Ed. 2d 576 (Harlan, J., concurring), reasonable expectation of privacy test
         in that month-long GPS monitoring case. She indicated that technological
         advances would “affect” the Katz test in future cases. Jones, 565 U.S. at ___,
         132 S. Ct. at 955 (Sotomayor, J., concurring) (“[T]he same technological
         advances that have made possible nontrespassory surveillance techniques
         will also affect the Katz test by shaping the evolution of societal privacy
         expectations.”). Ultimately, Justice Sotomayor joined the majority,
         concluding that it was unnecessary to address the reasonable expectation of
         privacy test. Id. at ___, 132 S. Ct. at 957.

8.       The Court today also uses the D.C. Circuit Court of Appeals’ view of how
         Katz’s reasonable expectation of privacy test (and in particular, the subjective
         expectation of privacy prong) invalidates prolonged use of GPS monitoring.
         See supra ¶ 22 (citing United States v. Maynard, 615 F.3d 544, 563 (D.C. Cir.
                                                                     (continued . . .)
                                           - 18 -
#25584

Courttoday’s Court finds this use of a GPS to be an unlawful search under the

physical trespass test. Concededly, this case was argued on the reasonable

expectation of privacy test. But Jones was decided after oral argument, and “[t]he

Court [should] not pass upon a constitutional question although properly presented

by the record, if there is also present some other ground upon which the case may

be disposed of.” Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed.

688 (1936) (Brandeis, J., concurring). “[W]e should . . . adhere to a basic

constitutional obligation by avoiding unnecessary decision of constitutional

questions.” Morse v. Frederick, 551 U.S. 393, 428, 127 S. Ct. 2618, 2640, 168 L. Ed.

2d 290 (2007). As Justice Sotomayor concluded in providing the fifth vote for the

majority opinion in Jones, “[r]esolution of [the] difficult questions [regarding

expectations of privacy was] . . . unnecessary . . . because the Government’s physical

intrusion . . . supplie[d] a narrower basis for decision.” Jones, 565 U.S. at ___, 132

S. Ct. at 957.

[¶39.]       KONENKAMP, Justice, joins this special writing.




________________________
(. . . continued)
         2010)). But the D.C. Circuit Court of Appeals’ decision in Maynard involved
         a joint appeal by both defendants Maynard and Jones, and the United States
         Supreme Court expressly declined to follow Maynard’s application of the
         reasonable expectation of privacy test in prolonged GPS monitoring. See
         Jones, 565 U.S. at ___, 132 S. Ct. at 954. The Supreme Court noted that
         applying the Katz reasonable expectation of privacy test “leads us needlessly
         into additional thorny problems.” Id.


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