                                                                                Jul 07 2015, 10:02 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      B. Joseph Davis                                            Gregory F. Zoeller
      Law Office of B. Joseph Davis, PC                          Attorney General of Indiana
      Muncie, Indiana
                                                                 Brian Reitz
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Wertz,                                         July 7, 2015

      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 48A04-1409-CR-427
              v.
                                                                 Appeal from the Madison Circuit
      State of Indiana,                                          Court
                                                                 Honorable Dennis Carroll, Judge
      Appellee-Plaintiff,                                        Cause No. 48C06-1112-FC-2380




      Robb, Judge.



                                 Case Summary and Issue
[1]   Christopher Wertz brings this interlocutory appeal, challenging the trial court’s

      denial of his motion to suppress. He presents one issue, which is a matter of

      first impression: whether the warrantless search of his personal Garmin Global

      Positioning System (“GPS”) device violated the Fourth Amendment to the



      Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                            Page 1 of 21
      United States Constitution.1 We conclude Wertz’s GPS device is not a

      “container” under the automobile exception and that he has a reasonable

      expectation of privacy in the device and its contents. Therefore, the warrantless

      search of the GPS device violated the Fourth Amendment. We reverse and

      remand.



                             Facts and Procedural History                                    2




[2]   On September 9, 2011, Wertz was driving in Madison County when he lost

      control of his vehicle and struck a utility pole. Wertz was severely injured, and

      his passenger, Megan Solinski, died at the scene of the accident as a result of

      injuries sustained. Law enforcement officers found a Garmin GPS device,

      which belonged to Wertz, near the wrecked vehicle.


[3]   Approximately one week after the accident, law enforcement officers visited

      Wertz at the hospital and obtained written consent to examine the content

      saved in the GPS unit. However, the GPS required a pin code to access the

      device, which Captain Rick Garrett obtained by contacting the company that

      produces the GPS device, Garmin International. Once that passcode was




      1
        Wertz’s brief also mentions Article 1, Section 11 of the Indiana Constitution. However, he provides no
      independent analysis on this point. Therefore, we consider his state constitutional argument forfeited. See
      Fair v. State, 627 N.E.2d 427, 430 n.1 (Ind. 1993) (stating failure to provide separate authority and argument
      that a search violated the Indiana Constitution forfeited that issue on appeal).
      2
        We heard oral argument in this case on April 14, 2015 at the Hammond Academy of Science and
      Technology (HAST). We commend counsel for their advocacy and thank the faculty, staff, and students at
      HAST for their participation.

      Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                             Page 2 of 21
      retrieved, an officer was able to collect information from the GPS device,

      including the route Wertz traveled and his speed at the time of the accident.


[4]   The State charged Wertz with reckless homicide, a Class C felony, and Wertz

      filed a motion to suppress evidence obtained through the warrantless search of

      his GPS device. The trial court found that Wertz’s consent to search the device

      was invalid because he was on pain medication at the time the officers received

      his consent; however, the trial court held that Wertz had no reasonable

      expectation of privacy in the GPS device and thus the information collected

      from it was admissible.


[5]   A jury trial was held in March 2014 but ended in a mistrial, and a second jury

      trial was scheduled to take place on July 29, 2014. In the interim, the United

      States Supreme Court decided Riley v. California, 134 S.Ct. 2473 (2014), which

      held that a warrant was required to search digital information on an arrestee’s

      cell phone. Wertz reacted by requesting that the trial court reconsider his

      motion to suppress in light of the Supreme Court’s recent decision in Riley. The

      trial court revisited the matter but ultimately issued an order on August 4, 2014,

      denying Wertz’s renewed motion to suppress.


[6]   On August 22, 2014, Wertz filed a motion to certify the trial court’s order for

      interlocutory appeal, which the trial court granted on August 26, 2014. On

      September 11, 2014, Wertz requested that the Court of Appeals accept

      jurisdiction of the appeal, and we accepted jurisdiction on October 9, 2014. On

      appeal, the only issue is whether the search of Wertz’s GPS device violated a


      Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015    Page 3 of 21
      reasonable expectation of privacy. The State does not challenge the trial court’s

      determination that Wertz did not provide valid consent for the search.



                                  Discussion and Decision
                                       I. Standard of Review
[7]   When reviewing a trial court’s denial of a defendant’s motion to suppress, we

      view conflicting factual evidence in the light most favorable to the ruling but we

      will also consider substantial and uncontested evidence favorable to the

      defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). That said, the

      constitutionality of a search or seizure is a question of law, which we review de

      novo. Id.


[8]   The Fourth Amendment to the United States Constitution protects “[t]he right

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

      unreasonable searches and seizures . . . .” “[T]he ultimate touchstone of the

      Fourth Amendment is ‘reasonableness[.]’” Brigham City v. Stuart, 547 U.S. 398,

      403 (2006). We approach cases involving warrantless searches with the basic

      understanding that “searches 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.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United

      States, 389 U.S. 347, 357 (1967) (footnote omitted)). Where there is no clear

      practice concerning the constitutionality of a search, the reasonableness of the

      search is judged by balancing “the degree to which it intrudes upon an
      Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015    Page 4 of 21
       individual’s privacy and . . . the degree to which it is needed for the promotion

       of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 299-

       300 (1999).


                                     II. Wertz’s GPS Device
[9]    The Garmin GPS device searched by the State was personally owned by Wertz

       and kept in his vehicle. The device includes pre-loaded street maps and the

       ability to store hundreds of waypoints and locations. The device is also

       compatible with microSD cards, which are routinely able to store 16 to 128

       gigabytes (GB) of data. In addition, Wertz’s GPS device is designed to

       automatically record and store information such as location, past routes

       traveled, and speed. It is because of that automated storage that law

       enforcement was able to discover Wertz’s route of travel and rate of speed on

       the day of his accident.


                                     III. Fourth Amendment
[10]   Wertz argues that the warrantless search of his GPS unit violated his right to be

       free from unreasonable searches. He claims that his GPS device is similar to a

       cell phone that cannot be searched without a warrant and that the location data

       stored in the GPS is private information. To support his arguments, Wertz

       relies heavily on two recent United States Supreme Court decisions: Riley v.

       California, 134 S.Ct. 2473 (2014) and United States v. Jones, 132 S.Ct. 945 (2012).

       The State, for its part, argues that a GPS device is less private than a cell phone,

       the information stored in the GPS device is entitled to less protection because it

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015     Page 5 of 21
       is information Wertz exposed to the public, and the search was allowable under

       the automobile exception to the warrant requirement.


               A. Automobile Exception to the Warrant Requirement
[11]   Warrantless searches are presumed unreasonable and may be excused only

       upon a showing of circumstances that yield a diminished expectation of

       privacy. To justify the search in this case, the State hangs it hat on the warrant

       requirement’s “automobile exception.”


[12]   The automobile exception has deep roots in Fourth Amendment jurisprudence

       and essentially provides that a vehicle—and its contents—may be searched

       without a warrant so long as law enforcement has probable cause to believe

       evidence of a crime may be found inside. See Maryland v. Dyson, 527 U.S. 465,

       466-67 (1999) (per curiam). Principles underlying the automobile exception

       include a vehicle’s mobility and subjection to government regulation, California

       v. Carney, 471 U.S. 386, 390-93 (1985), and the inability to avoid public scrutiny

       due to its exposure to “public thoroughfares where both its occupants and its

       contents are in plain view,” South Dakota v. Opperman, 428 U.S. 364, 368 (1976)

       (citation omitted).


[13]   The automobile exception allows law enforcement to search not only the

       vehicle itself but also any containers inside it that may contain evidence.

       California v. Acevedo, 500 U.S. 565, 580 (1991). The authority to search

       containers found in a vehicle extends to locked containers. See id. at 577-79

       (abrogating United States v. Chadwick, 433 U.S. 1 (1977)). The State likens the

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015     Page 6 of 21
       GPS device in this case to a locked container and directs us to lower court

       decisions comparing computers and cell phones to locked containers. See Brief

       of Appellee at 21-22. Indiana does not have a case directly on point, but lower

       courts in other jurisdictions are split on the issue of whether a computer or cell

       phone may be treated as a container and subjected to a warrantless search

       under the automobile exception. Compare United States v. Zaavedra, No. 12-CR-

       156-GFK, 2013 WL 6438981, at *3 (N.D. Okla. Dec. 9, 2013) (holding

       warrantless search of a cell phone was permissible under the automobile

       exception),3 and United States v. Garcia-Aleman, No. 1:10-CR-29, 2010 WL

       2635071, at *12 (E.D. Tex. June 9, 2010) (same), with United States v. Mayo, No.

       2:13-CR-48, 2013 WL 5945802, at *9-14 (D.Vt. Nov. 6, 2013) (holding that cell

       phones are comparable to computers and that if seized under the automobile

       exception, a warrant is required to justify the search of a cell phone); Chung v.

       State, No. 10-13-307-CR, 2014 WL 5408439, at *6 (Tex. App. Oct. 23, 2014)

       (citing Riley v. California, 134 S.Ct. 2473 (2014)) (same). It should be noted that

       the State’s persuasive authority comparing computers and cellphones to

       containers were all decided before the Supreme Court’s decision in Riley v.

       California, infra, which we believe is instructive.


[14]   In Riley v. California, the United States Supreme Court held that a warrant is

       generally required to search an arrestee’s cell phone, despite a recognized



       3
         The court’s opinion in Zaavedra contains a string cite of cases which have held that the contents of a cell
       phone may be searched under the automobile exception. See id. at *3. Those cases are all cited in the State’s
       brief. See Br. of Appellee at 22.

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                           Page 7 of 21
       exception for searches incident to a lawful arrest. 134 S.Ct. at 2485. The Court

       reached its holding for two reasons: (1) concerns justifying a search incident to

       arrest are not applicable to digital data; and (2) digital data implicates

       substantial privacy concerns far beyond those implicated by the search of

       physical items ordinarily found on an arrestee’s person. Id. at 2484-85. It is the

       latter rationale that is relevant to this case.


[15]   The Court said that “when privacy-related concerns are weighty enough a

       search may require a warrant, notwithstanding the diminished expectations of

       privacy of the arrestee.” Id. at 2488 (quoting Maryland v. King, 133 S.Ct. 1958,

       1979 (2013)) (quotation marks omitted). Such concerns were found weighty

       enough with respect to cell phones, which the Court said hold “the privacies of

       life.” Id. at 2494-95 (citation omitted). As the Court explained, cell phones are

       “minicomputers” that may easily be called “cameras, video players, rolodexes,

       calendars, tape recorders, libraries, diaries, albums, televisions, maps, or

       newspapers.” Id. at 2489. The Court reasoned that cell phones are

       quantitatively different from physical objects ordinarily found in a search

       incident to arrest because of their capacity to store enormous amounts of

       information, and that cell phones are qualitatively different from physical

       objects in that they are likely to contain private information that could not

       otherwise be gleaned from a search of one’s person.4 Id. at 2489-91. Finally,



       4
         Examples of private information that could be found on a cell phone included pictures, videos, address
       books, call logs, text messages, location data, Internet search history, and mobile application software (i.e.
       “apps”). See Riley, 134 S.Ct. at 2489.

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                               Page 8 of 21
       the Court rebuked the government’s assertion that a cell phone could be

       analogized to a “container” that could be searched incident to arrest. Id. at

       2489, 2491 (distinguishing cell phones from a cigarette package searched in

       United States v. Robinson, 414 U.S. 218 (1973)).


[16]   Of particular relevance to this case is the Court’s reference to “location

       information” when discussing one’s privacy interest in information contained in

       a cell phone. The Court said: “Data on a cell phone can also reveal where a

       person has been. Historic location information is a standard feature on many

       smart phones and can reconstruct someone’s specific movements down to the

       minute, not only around town but also within a particular building.” Id. at

       2490 (citing United States v. Jones, 132 S.Ct. 945, 955 (2012) (Sotomayor, J.,

       concurring)).


[17]   In our view, the GPS unit in this case is akin to a computer or cell phone. The

       device stores large amounts of information that could not possibly be stored in

       an ordinary physical container. For that reason, an electronic storage device

       cannot be treated as a container. Moreover, the location data it does store has

       been identified by the Supreme Court as private information. Just as the

       Supreme Court believed that treating a cell phone as a container was “a bit

       strained,” id. at 2491, we believe that treating the GPS device as a container

       under the automobile exception is inappropriate.


[18]   The State maintains that Wertz’s GPS device is not deserving of the same level

       of protection as a cell phone, because a GPS device does not contain the same


       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015       Page 9 of 21
       amount of personal information. The GPS unit does not hold pictures, Internet

       history, text messages, a calendar, or several of the other features that a smart

       phone does. No one will dispute that society considers a cell phone to be more

       private than the GPS device in this case. But that does not mean that electronic

       devices other than cell phones are not entitled to Fourth Amendment

       protections. It remains true that devices like Wertz’s GPS have an enormous

       storage capacity, and they store information that most people consider to be

       private. Any differences between the contents of a cell phone and a GPS device

       do not support treating the GPS device as a container.


[19]   The State also asserts that “Riley does not control because it says nothing of the

       automobile exception.” Br. of Appellee at 23. The State argues that unlike the

       search-incident-to-arrest exception, which is borne out of concerns for officer

       safety and preservation of evidence, the automobile exception is based on a

       diminished expectation of privacy in the vehicle itself and applies “when it is

       reasonable to believe evidence relevant to the crime of arrest might be found in

       the vehicle.” Id. at 23 (quoting Gant, 556 U.S. at 343).


[20]   The State’s proposed distinction would require us to conclude that a cell phone

       found next to a driver in the passenger seat of his vehicle could be searched

       without a warrant, regardless of the Supreme Court’s decision in Riley. But

       such an outcome is unthinkable if the Court meant what it said in Riley.

       Although the State is correct that Riley dealt only with the search-incident-to-

       arrest exception, Riley’s discussion of Fourth Amendment protections afforded

       to electronic devices that store private information transcends the search-

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015   Page 10 of 21
       incident-to-arrest exception. The analysis in Riley easily transfers to other

       circumstances where an exception to the warrant requirement would otherwise

       exist, including the automobile context. See Chung, 2014 WL 5408439, at *5-6

       (Tex. App. Feb. 11, 2015) (relying on Riley and holding that an officer’s

       warrantless search of a cell phone was not justified under the automobile

       exception to the warrant requirement); United States v. Kim, Crim. Action No.

       13-0100 (ABJ), 2015 WL 2148070, at *18-22 (D.D.C. May 8, 2015) (applying

       Riley to the search of a computer under the border exception to the warrant

       requirement).


[21]   In sum, we hold that Wertz’s GPS device is similar in nature to a computer or

       cell phone, and that such a device cannot be treated as a “container” that may

       be searched pursuant to the automobile exception to the warrant requirement.


                          B. Privacy Expectations in Location Data
[22]   In addition to arguing that Wertz’s GPS unit is effectively a locked container

       accessible under the automobile exception, the State also contends that the GPS

       device and the information contained therein is afforded a lesser degree of

       privacy.


[23]   In United States v. Knotts, the Supreme Court held that a defendant’s Fourth

       Amendment rights were not violated when law enforcement monitored his

       whereabouts with the use of a radio transmitter that was placed in the

       defendant’s vehicle. 460 U.S. 276, 285 (1983). In that case, law enforcement

       placed a transmitter in a container purchased by a co-defendant, and the

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015   Page 11 of 21
       container was placed in the co-defendant’s car. Police followed the co-

       defendant, maintaining contact using both visual surveillance and a signal from

       the transmitter. The container was transferred to a second co-defendant’s

       vehicle, and law enforcement pursued the second co-defendant until he began

       driving evasively, at which point officers were unable to maintain visual

       surveillance and also lost the signal from the transmitter. With the aid of a

       monitoring device in a police helicopter, law enforcement was able to relocate

       the transmitter signal approximately one hour later, and they were able to find

       the transmitter, which came to rest at Knotts’s residence. 5 Police executed a

       search warrant on the residence and discovered a methamphetamine

       laboratory. At trial, Knotts moved to suppress evidence based on the

       warrantless monitoring of the transmitter.


[24]   The Supreme Court held in Knotts that police monitoring of the transmitter—

       and thus, by extension, the whereabouts of the defendants—did not invade a

       legitimate expectation of privacy. Id. at 285. After referencing the warrant

       requirement’s automobile exception, the Court reasoned 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.

       According to the Court, the driver “voluntarily conveyed to anyone who

       wanted to look the fact that he was travelling over particular roads in a

       particular direction, the fact of whatever stops he made, and the fact of his final



       5
           In all, the police tracked the transmitter from Minneapolis, Minnesota to Shell Lake, Wisconsin.


       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                           Page 12 of 21
       destination . . . .” Id. at 281-82. The Court went on to say that visual

       surveillance from public places would have sufficed to gather all the

       information that was learned, and the use of a radio transmitter did not alter the

       analysis. Id. at 282. The Court left for another day Knotts’s concern that the

       holding would allow for twenty-four-hour surveillance of any citizen without

       the need for a warrant, stating that “if such dragnet type law enforcement

       practices . . . should eventually occur, there will be time enough then to

       determine whether different constitutional principles may be applicable.” Id. at

       283-84.


[25]   The State argues that the information obtained from Wertz’s GPS device—his

       location, route of travel, and speed—is of the same character as the information

       obtained by law enforcement in Knotts, and the fact that the information was

       gathered from Wertz’s GPS unit rather than visual surveillance has no

       constitutional significance. The State reasons that if Wertz has no reasonable

       expectation of privacy in the information obtained (i.e. his location and

       movements), then the search did not violate his Fourth Amendment rights. 6


[26]   Contrary to the State’s position, Knotts is not the Supreme Court’s last word on

       the issue before us. In United States v. Jones, the Supreme Court held that the




       6
         The State’s argument is reminiscent of a comment made by Justice Scalia in United States v. Jones, in which
       he mused about a possible argument that a search is not unconstitutional so long as it produces only public
       information. See 132 S.Ct. 945, 952 (2012) (“Knotts would be relevant, perhaps, if the Government were
       making the argument that what would otherwise be an unconstitutional search is not such where it produces
       only public information. The Government does not make that argument, and we know of no case that would
       support it.”).

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                         Page 13 of 21
       installation of a GPS tracking device on a vehicle and the use of that device to

       monitor the vehicle’s movements constituted a “search” under the meaning of

       the Fourth Amendment. 132 S.Ct. 945, 948 (2012). The majority based its

       holding on the fact that a physical trespass—installation of the GPS device—for

       the purpose of obtaining information is a “search” under the Fourth

       Amendment. Id. at 949-54. Of course, there was no physical trespass in

       Wertz’s case; however, two concurrences in Jones, which focus their analysis on

       reasonable expectations of privacy, are germane.


[27]   Justice Alito wrote a concurrence in the judgment joined by three Justices, in

       which he argued that law enforcement’s long-term monitoring of Jones’s

       vehicle violated reasonable expectations of privacy. Id. at 964 (Alito, J.,

       concurring). He explained that constant monitoring of Jones’s location for a

       four-week period involved a degree of intrusion that a reasonable person would

       not anticipate:

               [T]he use of 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. That said, Justice Alito did not believe that all monitoring of a person’s

       location would constitute a search under the Fourth Amendment, stating

       “relatively short-term monitoring of a person’s movements on public streets

       accords with expectations of privacy that our society has recognized as

       reasonable.” Id. (citing Knotts, 460 U.S. at 281-82).

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015      Page 14 of 21
[28]   Justice Sotomayor also filed a concurrence in which she agreed with the

       majority that a physical intrusion was sufficient to constitute a search under the

       Fourth Amendment, providing the majority with the necessary fifth vote.

       Nevertheless, the bulk of Justice Sotomayor’s concurrence was spent discussing

       her concerns with GPS monitoring under the rubric of reasonable expectations

       of privacy. She agreed with Justice Alito that “at the very least, longer term

       GPS monitoring in investigations of most offenses impinges on expectations of

       privacy.” Id. at 955 (Sotomayor, J., concurring) (quotation marks omitted).


[29]   Justice Sotomayor went on to say that “[i]n cases involving even short-term

       monitoring, some unique attributes of GPS surveillance relevant to the Katz

       analysis will require particular attention. GPS monitoring generates a precise,

       comprehensive record of a person’s public movements that reflects a wealth of

       detail about her familial, political, professional, religious, and sexual

       associations.” Id. at 955 (Sotomayor, J., concurring).7 It is also important to

       note that Justice Sotomayor’s concerns were not limited to government-

       installed GPS trackers like the one in Jones, but also with “factory- or owner-

       installed vehicle tracking devices or GPS-enabled smartphones” from which the

       government could obtain location information. Id. at 955 (emphasis added).


[30]   The gathering of detailed historical location data from a personal GPS device is

       the functional equivalent of the long-term GPS monitoring in Jones or the




       7
           This passage was cited with approval by the majority in Riley. See 134 S.Ct. at 2490.


       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                      Page 15 of 21
       twenty-four-hour dragnet-type surveillance that the Court alluded to in Knotts.

       It provides law enforcement with a simple method of reconstructing all of a

       person’s public movements over several days, months, or possibly even years.

       Although a person can expect to be seen by someone when he leaves his home

       and drives to a given destination, it does not follow that he should expect the

       government to know his whereabouts all the time. We are confident in saying that

       there is a reasonable expectation of privacy in historical location data, whether

       it be stored in a cell phone, a GPS unit, or in “the cloud.”8


[31]   The State makes three attempts to distinguish or otherwise sidestep the impact

       of Jones. First, the State argues that Jones does not bind this court to hold the

       search in this case is unconstitutional, because the majority in Jones rested its

       decision on a physical intrusion, not privacy expectations. It is true that the

       facts of Jones are different from those here and that it was technically decided by

       emphasizing a physical trespass. Still, we cannot turn a blind eye to the

       obvious significance that the Jones concurrences have in relation to the issues

       presented here. Between the two concurrences by Justice Alito and Justice

       Sotomayor, there are at least five Supreme Court Justices who believe that long-

       term monitoring of a citizen’s location violates reasonable expectations of

       privacy, despite the fact that the citizen’s location was exposed to the public.




       8
         Cloud storage is a method of storing electronic data on remote servers—in addition to or in lieu of the
       device itself. Data stored in the cloud can be accessed by an electronic device connected to the Internet.

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                            Page 16 of 21
[32]   Second, the State contends the Jones concurrences are distinguishable from the

       facts of this case because there was no “long-term monitoring” of Wertz’s

       location. As the State explains, “no monitoring, or tracking of movements,

       occurred here at all; instead, all law enforcement did was investigate after-the-

       fact where Wertz had been.” Br. of Appellee at 13.


[33]   The Fourth Amendment forbids real-time, long-term monitoring of a citizen’s

       location. See supra, ¶¶ 26-31 (discussing Jones concurrences). There is no logical

       basis for allowing the government to obtain the same information without a

       warrant by inspecting a citizen’s location information after-the-fact. In Riley,

       the Court’s references to location data were specific to “[h]istoric location

       information” stored on a cell phone, which could be used to “reconstruct

       someone’s specific movements down to the minute.” 134 S.Ct. at 2490. The

       Court regarded that information as private, understanding that the information

       would be obtained after-the-fact rather than through real-time tracking by law

       enforcement. The expectation of privacy in one’s whereabouts is not only due

       to society’s impulse to cringe at the idea of being followed day-and-night; the

       personal nature of the information itself gives rise to an expectation of privacy.

       As one court has aptly noted,

               [d]isclosed in [GPS] data . . . will be trips the indisputably private
               nature of which takes little imagination to conjure: trips to the
               psychiatrist, the plastic surgeon, the abortion clinic, the AIDS
               treatment center, the strip club, the criminal defense attorney, the by-
               the-hour motel, the union meeting, the mosque, synagogue or church,
               the gay bar and on and on.
       People v. Weaver, 909 N.E.2d 1195, 1199 (N.Y. 2009).

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015         Page 17 of 21
[34]   Finally, we are not persuaded by the State’s argument that the search was

       permissible because law enforcement only sought information about where

       Wertz was located on a particular evening. Differences between real-time

       monitoring and the inspection of historical location data make the State’s

       position untenable. The police can physically follow a suspect and maintain

       visual contact for an entire day, and there is no doubt that surveillance remains

       permissible under the Fourth Amendment—largely because the search and the

       information that may be obtained is limited. See Knotts, 460 U.S. at 281-85. By

       contrast, examination of a suspect’s historical location data necessarily gives the

       police access not only to a specific date, but to information concerning every

       day. When police accessed Wertz’s GPS unit, all of his data was available for

       inspection, not just the information from the specific timeframe for which the

       police were looking. Allowing the search of historical location data because the

       target of the search is a timeframe police could have observed would be like

       allowing warrantless entry into a residence to seize a piece of contraband if

       police could have observed it through an open window. Sure, the homeowner

       does not have a reasonable expectation of privacy in contraband exposed to the

       public through the window, but reasonable expectations of privacy in the house

       and its contents still require law enforcement to acquire a warrant before

       entering and seizing the contraband. See Justice v. State, 765 N.E.2d 161, 164-65

       (Ind. Ct. App. 2002) (discussing the open view doctrine). Similarly, the mere

       fact that an officer could have observed a citizen’s whereabouts at a given time

       does not mean it is permissible to conduct a warrantless search of the citizen’s

       location data.
       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015   Page 18 of 21
[35]   We hold that there is a reasonable expectation of privacy in detailed historical

       location data from a personal GPS device. Absent exigent circumstances, law

       enforcement must obtain a search warrant in order to access such information.


                    IV. Applicability of the Exclusionary Rule
[36]   Finally, the State argues that even if a Fourth Amendment violation occurred,

       the exclusionary rule should not be applied because the officers reasonably

       believed that their search did not require a warrant.


[37]   The exclusionary rule prevents the prosecution from introducing evidence

       obtained in violation of a defendant’s Fourth Amendment rights. It is “a

       judicially created remedy designed to safeguard Fourth Amendment rights

       generally through its deterrent effect . . . .” United States v. Leon, 468 U.S. 897,

       906 (1984) (citation omitted). The purpose of the exclusionary rule is to “deter

       future Fourth Amendment violations.” Davis v. United States, 131 S.Ct. 2419,

       2426 (2011). “[E]xclusion of evidence does not automatically follow from the

       fact that a Fourth Amendment violation occurred. The remedy is subject to

       exceptions and applies only where its purpose is effectively advanced.” Id. at

       2431 (citations and quotation marks omitted). Accordingly, “when the police

       conduct a search in objectively reasonable reliance on binding appellate

       precedent, the exclusionary rule does not apply.” Id. at 2434.


[38]   The State argues that it was reasonable for police, relying on Supreme Court

       precedent such as Knotts and Acevedo, to believe that a warrant was not



       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015     Page 19 of 21
       necessary for them to search Wertz’s GPS unit.9 Therefore, the exclusionary

       rule would not serve its purpose of deterrence in this case and should not be

       applied. We disagree.


[39]   We are not persuaded that a law enforcement officer could rely on binding

       precedent for the warrantless search of Wertz’s GPS device. As the Supreme

       Court noted in Riley, a “container” had been previously described as “any

       object capable of holding another object.” 134 S.Ct. at 2491 (quoting New York

       v. Belton, 453 U.S. 454, 460 n.4 (1981)). An electronic storage device does not

       fall under that definition. Additionally, general reliance on the automobile

       exception is not sufficient, because not all things located in a vehicle are

       necessarily subject to a warrantless search under the automobile exception. See,

       e.g., United States v. Di Re, 332 U.S. 581, 587 (1948) (holding that a person, by

       mere presence in a suspected vehicle, does not lose immunities from search of

       his person to which he would otherwise be entitled). We read Riley only as

       clarifying that electronic storage devices are not properly treated as containers,

       not as a new rule of law or as overruling any binding precedent previously

       allowing for the warrantless search of an electronic device under the automobile

       exception to the warrant requirement.


[40]   Further, although Knotts may be relevant to the extent its legal reasoning could

       be transferred to this case, the type of search conducted in that case is clearly



       9
         At oral argument, the State proclaimed there has been a “sea-change” in Fourth Amendment jurisprudence
       regarding the search of electronic devices and monitoring of citizens’ public movements.

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                     Page 20 of 21
       distinguishable from the one that occurred here. Simply put, there exists no

       binding precedent allowing for a warrantless search of an electronic device

       storing historical location data. In the absence of such authority, the general

       rule is that a warrant is required. See Gant, 556 U.S. at 338. In sum, we

       conclude that application of the exclusionary rule is appropriate in this case. 10



                                                  Conclusion
[41]   We conclude Wertz’s GPS device cannot be treated as a “container” under the

       automobile exception. We further conclude that he has a reasonable

       expectation of privacy in the device and in the historical location data that the

       device stores. Therefore, the warrantless search of the GPS device violated the

       Fourth Amendment. We reverse and remand.


[42]   Reversed and remanded.


       Riley, J., and Bailey, J., concur.




       10
           We note that the State does not argue that the exclusionary rule should not be applied due to a good faith
       attempt to obtain consent from Wertz, and the record is not sufficient to facilitate review of such a claim even
       if the State made the argument.

       Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015                            Page 21 of 21
