                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0443

                                Sin Santo Bad, petitioner,
                                       Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed November 10, 2014
                                        Affirmed
                                     Stauber, Judge

                            Sherburne County District Court
                                 File No. 71CR091655

Sin Santo Bad, Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Tim Sime, Assistant County Attorney,
Elk River, Minnesota (for respondent)

       Considered and decided by Stauber, Presiding Judge; Chutich, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges a postconviction decision rejecting a claim that his burglary

conviction is invalidated by United States v. Jones, 132 S. Ct. 945, 949 (2012), which
holds that Fourth Amendment privacy interests are implicated by police installation of a

tracking device on a vehicle. Because appellant’s employer consented to the search of

the company-owned vehicle that appellant was using at the time of the offense, Jones

does not alter appellant’s conviction, and we affirm.

                                           FACTS

       Pro se appellant Sin Santo Bad was arrested during commission of a residential

burglary in September 2009. Appellant had become a suspect in several local burglaries

after a witness observed a suspicious vehicle with a license plate derived from appellant’s

distinctive name. Police contacted appellant’s employer and obtained permission to

install a global positioning satellite (GPS) tracking device on the company-owned truck

that appellant used at work. On the date of the offense, police both followed appellant

and tracked his movements with the GPS devise as he committed the burglary. He was

tried on stipulated facts and convicted of first-degree burglary after the district court

denied appellant’s pretrial motion to suppress evidence obtained during the warrantless

search.

       In appellant’s direct appeal, this court affirmed. State v. Bad, No. A11-0013, 2011

WL 7033745 (Minn. App. Jan. 17, 2012), review denied (Minn. Mar. 28, 2012). We

addressed whether placement of the GPS device on appellant’s work vehicle constituted a

violation of appellant’s Fourth Amendment privacy rights and we concluded that it did

not because appellant’s employers had the authority to consent to a search of a company

vehicle and did consent to placement of the GPS device on the vehicle appellant used. Id.

at *2-3.


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       While appellant’s petition for further review was pending before the Minnesota

Supreme Court, the United States Supreme Court decided Jones, which 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’ [under the Fourth

Amendment.]” 132 S. Ct. at 949 (footnote omitted).

       Appellant then petitioned for postconviction relief, asserting that under Jones he

was entitled to reversal of his conviction, and that his trial and appellate counsel were

ineffective. The postconviction court denied relief without holding an evidentiary

hearing, ruling that any new interpretation of Fourth Amendment rights following Jones

did not affect appellant’s conviction because appellant’s employer consented to the

search, and “[c]onsent is a well-recognized exception to the [Fourth Amendment] warrant

requirement.” The postconviction court also ruled that appellant’s claim of ineffective

assistance of trial counsel was procedurally barred under State v. Knaffla, 309 Minn. 246,

243 N.W.2d 737 (1976), and rejected his claim of ineffective assistance of appellate

counsel because appellant “failed to articulate how the performance of appellate counsel

caused prejudice to [appellant’s] case.”

       In this appeal, appellant submitted different briefs to this court and to respondent

the state; both briefs address only the claimed Fourth Amendment violation. We

therefore decline to address appellant’s ineffective assistance of counsel claims.

                                      DECISION

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is


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presumptively unreasonable under the Fourth Amendment unless it falls within a

recognized exception to the warrant requirement. State v. Milton, 821 N.W.2d 789, 798

(Minn. 2012). One recognized exception is that “police do not need a warrant if the

subject of the search consents.” State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013),

cert. denied, 134 S. Ct. 1799 (2014).

       This court previously addressed whether appellant’s employer had the authority to

consent to a search of the company truck that appellant was using at the time of the

burglary offense, stating:

              A third party has actual authority to consent to a search if that
              person has “common authority over or other sufficient
              relationship to the premises or effects sought to be inspected.”
              This principle of common authority rests on mutual use of the
              property by persons who, for most purposes, have joint access
              or control. . . .

                     The company owner and the office manager consented
              to police installing the GPS device on the truck. The truck
              was titled in the name of the company and one of the
              company’s owners, the company maintained control over the
              truck, and appellant used the truck only for work and did not
              have his own set of keys for the truck. The only information
              that police obtained from the GPS device was the truck’s
              location. Under these circumstances, the company owner and
              the office manager had authority to consent to placing the
              GPS device on the truck. Because the officers obtained their
              consent before placing the GPS device on the truck, no
              warrant was required, even if using the GPS device was a
              search.

Bad, 2011 WL 7033745 at *2-3 (citations omitted). On these facts, this court concluded

that the consent exception to the warrant requirement applied and did not further analyze




                                             4
whether the use of a GPS device constituted a search under the Fourth Amendment. Id.

at *2.

         Although Jones was released while appellant’s direct appeal was pending in the

Minnesota Supreme Court, the holding of Jones is limited: “The Government’s

attachment of [a] GPS device to [a] vehicle, and its use of that device to monitor the

vehicle’s movements, constitutes a search under the Fourth Amendment.” Jones, 132 S.

Ct. at 946 (quoting syllabus). Jones does not alter the well-established exception that a

party may consent to a search that would otherwise violate the Fourth Amendment. See

Brooks, 838 N.W.2d at 568. As such, Jones did not affect this court’s decision in

appellant’s direct appeal that appellant’s employer’s consent to the use of a GPS device

to track appellant’s truck did not implicate appellant’s Fourth Amendment privacy rights.

Because Jones is not controlling under the facts of this case and because this court

previously decided that appellant’s employer could and did voluntarily consent to the

search, appellant is barred from raising the same issue in this appeal. See Knaffla, 309

Minn. at 252, 243 N.W.2d at 741 (stating that “where direct appeal has once been taken,

all matters raised therein . . . will not be considered upon a subsequent petition for

postconviction relief”).

         Affirmed.




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