                               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.



                                     2
                          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.



                                    3
                           STATE v. MITCHELL
                           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.



                                      4
                           STATE v. MITCHELL
                           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.



                                     5
                           STATE v. MITCHELL
                           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).



                                      6
                           STATE v. MITCHELL
                           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.



                                      7
                           STATE v. MITCHELL
                           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.



                                      8
                           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



                                      9
                           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.



                                     10
                           STATE v. MITCHELL
                           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.



                                     11
                           STATE v. MITCHELL
                           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.



                                     12
                          STATE v. MITCHELL
                          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.



                                    13
                           STATE v. MITCHELL
                           Opinion of the Court

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




                                      16
