[Cite as State v. White, 2011-Ohio-4526.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO

                         Plaintiff-Appellee

-vs-

DAVID WHITE

                     Defendant-Appellant
       JUDGES:
:      Hon. W. Scott Gwin, P.J.
:      Hon. William B. Hoffman, J.
:      Hon. John W. Wise, J.
:
:
:      Case No. 2010-CA-60
:
:
:      OPINION




CHARACTER OF PROCEEDING:                       Criminal appeal from the Fairfield County
                                               Court of Common Pleas, Case No.
                                               2010CR488

JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         September 1, 2011

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GREGG MARX                                     AARON R. CONRAD
Assistant Prosecutor                           120 ½ E. Main Street
239 W. Main Street, Ste. 101                   Lancaster, OH 43130
Lancaster, OH 43130
Gwin, P.J.

        {¶1}    Appellant David L. White appeals the July 19, 2010 Judgment Entry of the

Fairfield County Court of Common Pleas overruling his motion to suppress. Plaintiff-

appellee is the State of Ohio.

                              STATEMENT OF THE FACTS AND CASE1

        {¶2}    In January 2010 law enforcement officers from Franklin County, Ohio were

investigating a series of home break-ins in the area. Detectives learned that all of the

home invasion robberies had similarities. Each robbery involved firearms and some

with the discharge of the firearms. Each robbery was a home invasion. Each robbery

occurred in a suburban or rural area. The robberies occurred in a relatively short time

span. Although the robberies occurred in three counties, the counties are contiguous

and the robberies occurred in the same region. Victims and/or witnesses described the

persons committing the robberies as two African-American males in a white car.

        {¶3}    The American Automobile Association (AAA) was called to service a

disabled white Honda Civic. AAA furnished the make, model and year of the white

vehicle. The tow truck driver believed that he was going to service a white Honda

Accord; however, when the tow truck driver arrived he found a stolen green Toyota

Camry with the engine running crashed into another vehicle. The AAA tow truck

driver alerted law enforcement. Upon investigation it was discovered that the car had

been stolen in a home invasion robbery and the AAA card that had been used to

make the service call had been stolen in a different home invasion robbery. Law


        1
           A Statement of the Facts underlying Appellant’s original conviction is unnecessary to our
disposition of this appeal. Any facts needed to clarify the issues addressed in Appellant’s assignment of
error shall be contained therein.
enforcement then used LEADS and motor vehicle registration data to discover that

the white Honda Civic was registered to appellant’s co-defendant Montie E.Sullivan.

       {¶4}      Corporal Richard Minerd of the Franklin County Sherriff’s Office used a

data base of "associates" and determined that Montie E. Sullivan had used an address,

2399 Hudson Bay Way, Columbus, Franklin County. Corporal Minerd further learned

through the use of the data base of "associates" that the appellant was also associated

with the Hudson Bay Way address. Corporal Minerd also knew that appellant had

received a traffic citation while operating the white Honda Civic in December 2009 or

January 2010.

       {¶5}      Corporal Minerd set up surveillance on the Hudson Bay Way address and

the white Honda Civic which was located at that address. Beginning January 11, 2010,

detectives monitored and followed the vehicle when it was driven by appellant and/or

co-defendant Montie E. Sullivan, who is a relative of appellant2. Detectives continued

to monitor the vehicle for three days, and no criminal activity was observed. Monitoring

and tracking the vehicle was a difficult task due to the mobility of the vehicle.

       {¶6} On January 14, 2010, Corporal Minerd sought the assistance of the Franklin

County Sheriff's Department's undercover unit to employ electronics as a surveillance

tool. Corporal Minerd and an undercover officer went to an address of an associate of

appellant where they observed the white Honda Civic parked in the parking lot of an

apartment complex. Corporal Minerd and the undercover officer drove up to the white

Honda Civic, and the undercover officer went to the white Honda Civic and placed a

GPS unit under a bumper of the white Honda Civic. The GPS unit attached to the white


       2
           Montie E. Sullivan has filed a separate appeal in Fairfield App. No. 2010 CA 52.
Honda Civic sent information which permitted Corporal Minerd to track the movement of

the vehicle. Corporal Minerd was able to use a laptop computer to call up a map of the

area where the white Honda Civic was located. The computer would indicate the block

of any given road or street where the vehicle was located, its speed and direction of

travel, and the date and time. Corporal Minerd was able to monitor the white Honda

Civic movement in "real time". Corporal Minerd did not seek a search warrant before

placement of a GPS tracking unit under the bumper of appellant’s white Honda Civic.

      {¶7} In the early afternoon of January 23, 2010, Corporal Minerd was at home

when he decided to observe the location and movement of the white Honda Civic with

the laptop computer. While following these movements, Corporal Minerd consulted with

the Fairfield County Sheriff’s Department and he learned that a home invasion robbery

burglary had been committed on Bickel Church Road which was in the vicinity where

the appellant’s car had been tracked. Appellant’s car was subsequently tracked until it

arrived back at his Hudson Bay Way home. When law enforcement arrived, appellant

and co-defendant Monite E. Sullivan ran out the back door. The property taken during

the Bickel Church Road home invasion robbery was recovered

      {¶8} Appellant was subsequently arrested and then indicted on one count of

Improperly Discharging Firearm at or into Habitation, in violation of R.C. 2923.161(A)(1)

with two firearm specifications to the count in violation of R.C. 2941.145; one count of

Aggravated Burglary, in violation of R.C. 2911.11(A)(2) with two firearm specifications

to the count in violation of R.C. 2941.145, one count of Aggravated Robbery, in violation

of R.C. 2911.01(A)(1) with two firearm specifications in violation of R.C.2941.145, and
one count of Grand Theft, in violation of R.C. 2913.02 with one firearm specification to

the count in violation of R.C. 2941.145.

         {¶9}   Subsequently, appellant filed a Motion to Suppress arguing, among other

things, that the placement of a GPS device without a warrant on the vehicle that

appellant was driving and/or was a passenger constituted a search and/or seizure and

is per se unreasonable and is a violation of appellant's constitutional protections, and

any and all evidence obtained from the GPS monitoring device amounts to an unlawful

search and seizure.

         {¶10} On April 23, 2010, an oral hearing was held on appellant's Motion to

Suppress. After the presentation of the evidence, the trial court requested post hearing

briefs to address the suppression issues. On July 19, 2010, the Court filed its Journal

Entry overruling appellant's motion to suppress.

         {¶11} On November 22, 2010 appellant changed his plea from "not guilty" to "no

contest" to counts 1, 2, and 3 of the indictment in Case number 2010 CR 488. On that

same day, appellant was sentenced by the trial court.

         {¶12} It is from the trial court’s July 19, 2010 Judgment Entry overruling his

motion to suppress that appellant has timely appealed raising as his sole Assignment of

Error:

         {¶13} “I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S

MOTION TO SUPPRESS.”

                                   STANDARD OF REVIEW

         {¶14} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 2003-
Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d

988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111

Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts

as true, it must independently determine as a matter of law whether the trial court met

the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997),

124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002),

534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct.

1657. That is, the application of the law to the trial court's findings of fact is subject to a

de novo standard of review. Ornelas, supra. Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

                                                  I.

       {¶15} Appellant’s sole Assignment of Error relates to the propriety of the trial

court’s overruling of his motion to suppress. Specifically appellant maintains that it was

unlawful for law enforcement officers to attach a GPS tracking device to the exterior of

his car in the absence of exigent circumstances without first obtaining a warrant.
Appellant further contends that subsequent tracking of the GPS device’s signal violated

his legitimate expectation of privacy.3

                                            A. BACKGROUND

       {¶16} We begin our analysis by reviewing the decision which has been accepted

for review by the Ohio Supreme Court. In State v. Johnson, 190 Ohio App.3d 750, 944

N.E.2d 270, 2010-Ohio-5808, appeal allowed 128 Ohio St.3d 1425, 943 N.E.2d 572,

2011-Ohio-1049 (Table) over a number of months law enforcement had received

information Johnson might be involved in the trafficking of cocaine. The person told

police he believed Johnson would acquire more cocaine in the future. Without a warrant,

Hackney surreptitiously placed a GPS tracking device underneath the van. 190 Ohio

App.3d at 753, 944 N.E.2d at 272, 2010-Ohio-5808 at ¶ 2-3.

       {¶17} Six days after placing the device on Johnson's van, police discovered from

GPS records the van had traveled from Ohio to Illinois. Id. at ¶5. While the van was in

Chicago officers conducted visual surveillance in addition to monitoring its location with

the tracking device. Id. at ¶ 6-7.

       {¶18} The van was followed from a shopping center to a private residence in

suburban Chicago. Johnson and another man, Otis Kelly, were observed leaving the

private residence in the van and in a car respectively. The agent followed Johnson and

Kelly from the private residence in suburban Chicago into Ohio.




       3
          We note that these issues are presently before the Ohio Supreme Court in the case of State v.
Johnson, 190 Ohio App.3d 750, 944 N.E.2d 270, 2010-Ohio-5808, appeal allowed 128 Ohio St.3d 1425,
943 N.E.2d 572, 2011-Ohio-1049(Table No. 2011-0033). We further note that the United States Supreme
Court has granted certiorari to review the Fourth Amendment implications in the attachment and
monitoring of a GPS tracking device. See, U.S. v. Maynard( D.C.Cir.2010), 615 F.3d 544, cert granted
U.S. v. Jones, --- S.Ct. ----, 2011 WL 1456728, 79 USLW 3610, 79 USLW 3718, 79 USLW 3727 (U.S. Jun
27, 2011) (NO. 10-1259, 10A760).
       {¶19} Police first waited at the state border for the van and car to come into

Ohio. However, near Harrison, Indiana the van exited the expressway while the car

continued into Ohio where it continued to be followed. Police were able to maintain

monitoring of the van through use of the GPS device placed on it even though they had

lost visual surveillance. With the assistance of the GPS, Butler County Sheriffs were

able to recover visual surveillance as the van reentered the expressway.

       {¶20} The investigating officers ordered a patrol car to conduct a "probable

cause" stop of the van driven by Johnson. Following the order, a patrol car pulled in

behind Johnson and in short time conducted a stop of the van. The basis for the stop

was reportedly for an "improper change of course." The van was physically searched.

The van was then driven to a second location. Johnson was placed in the back seat of a

police car and eventually moved from the "traffic stop" location to a new location for

additional investigation. No contraband was ever located in the van.

       {¶21} Otis Kelly was driving the car traveling from Illinois to Ohio. He was the

subject of a “traffic stop" at another location. Johnson was taken from the place where

he "committed the traffic violation" to where Kelly and the police were located. It was

then the police searched Kelly's car and found cocaine hidden in a secret location in

Kelly's car.

       {¶22} However, during the search, Johnson made incriminating statement to the

officers while seated in the back seat of the police car. Id. at ¶13. After being

transported to the station and re-Mirandized Johnson again confessed his involvement

in the cocaine trafficking scheme. He was subsequently indicted on single counts of

trafficking in cocaine, possession of cocaine, and having weapons while under disability.
        {¶23} Johnson filed a Motion to Suppress the information obtained from the use

of the GPS device and any additional information and evidence which was obtained as

a result of police action based on information obtained from the GPS tracking device.

Following a hearing, the trial court overruled the motion. Johnson entered a No Contest

plea.

        {¶24} On appeal Johnson first argued that the trial court erred by not granting

his motion to suppress regarding the placement of the GPS device without first

obtaining a warrant. The Court of Appeals rejected this argument finding that placing the

GPS on the van and monitoring its movement did not constitute a search or seizure

under either the federal or Ohio constitutions. The court based this ruling upon finding

no reasonable expectation of privacy in the exterior of a car. The court found Johnson

did not produce any evidence that demonstrated his intention to guard the

undercarriage of his van from inspection or manipulation by others. 190 Ohio App.3d at

757, 944 N.E.2d at 274, 2010-Ohio-5808 at ¶25.

        {¶25} Johnson next argued a search and seizure also occurred because law

enforcement was able to track the van's movement and collect information regarding

where Johnson traveled and where his van was located on any given occasion. Id. at

¶27. The court rejected this argument in part because more importantly, the information

gathered from the GPS device shows no more information than what detectives could

have obtained by visual surveillance. Id. at ¶34. The court rejected Johnson’s

arguments that other courts have found the surveillance to be a search which requires a

warrant prior to initiation by finding “each relied on a state constitution that differed from
or offered greater protections that those guaranteed by the Fourth Amendment. Ohio's

constitution, however, does neither.” Id. at ¶44.

       {¶26} Next we begin our analysis of the case at bar by first observing, a “search”

occurs when an expectation of privacy that society is prepared to consider reasonable is

infringed. A “seizure” of property occurs when there is some meaningful interference

with an individual's possessory interests in that property. United States v. Jacobsen

(1984), 466 U.S. 109, 113, 104 S.Ct. 1652, 1656. In assessing when a search is not a

search, the Court has adapted a principle first enunciated in Katz v. United States, 389

U.S. 347, 361, 88 S.Ct. 507, A “search” does not occur—even when its object is a

house explicitly protected by the Fourth Amendment—unless the individual manifested

a subjective expectation of privacy in the searched object, and society is willing to

recognize that expectation as reasonable. Kyllo v. United States (2001), 533 U.S. 27,

32-33, 121 S.Ct. 2038, 2042. (Citing Katz v. United States (1967), 389 U.S. 347, 88

S.Ct. 507. (Harlan, Justice concurring).

       {¶27} The central issue of this appeal is thus whether, absent exigent

circumstances, a warrant issued with judicial approval is required before governmental

agents may attach to a privately owned vehicle, without consent of one entitled to give

it, a GPS or electronic tracking device.

       {¶28} To resolve this conundrum, “[t]wo main questions need to be asked: (1)

Did the Government violate the defendant's legitimate expectation of privacy when it

installed the [GPS tracking device]? (2) Did monitoring the [GPS tracking device] violate

the defendant's legitimate expectation of privacy?” United States v. Bailey (6th Cir 1980),

628 F.2d 938, 941. (Citations omitted).
      {¶29} We respectfully disagree with our brethren in the Twelfth Appellate

District. We find for the reasons which follow that under the facts of this case a warrant

was required before placing the GPS tracking unit on the suspect vehicle and to

continuously monitor the tracking signal.4

      {¶30} B. ATTACHMENT OF THE GPS TRACKING DEVICE TO THE

EXTERIOR OF THE SUSPECT VEHICLE.

      {¶31} In the case at bar, a single police officer after conducting visual

surveillance for approximately three days and observing no suspicious activity

unilaterally decided to attach a GPS tracking device to a suspect’s vehicle. The purpose

of installing this device was to catch the suspect in the act of committing a home

invasion type burglary. The officer candidly testified that his department does not have a

written protocol governing the attachment of wireless tracking devices to a suspect’s

motor vehicle. (T. April 23, 2010 at 30). Rather, he had been informed by members of

the undercover drug team that because the device is not hardwired to the suspect’s

vehicle he was not required to justify his decision by presenting facts sufficient to show

probable cause to a neutral and detached magistrate. (Id. at 30-31; T. May 27, 2010 at

53). The officer conceded during his testimony that he did not request a warrant before

placing the device on the suspect’s vehicle because he did not believe he had probable

cause sufficient to obtain a search warrant.               He further admitted that no exigent

circumstances were present that would prevent him from obtaining a warrant. (T. April

23, 2010 at 76).




      4
          Of course, established and well-delineated exceptions to the warrant requirement would apply.
       {¶32} The device attached to appellant’s vehicle was approximately two inches

by four inches and one inch thick. (T. April 23, 2010 at 26). The device is attached to the

vehicle by means of six small magnets. (Id.) The device is self-powered by attaching a

battery pack. (Id.). The battery pack gives the unit a longer functioning life-span. (Id.)

The device comes with software which is loaded on a laptop computer. The officer logs

onto the computer which then displays a mapping system containing the area, including

street names. The suspect vehicle is depicted as a black dot. (Id. at 28). The software

also displays the date, time and the speed at which the suspect vehicle is traveling.

(Id.). The software permits the officer to view the events in “real-time”. The device does

not display exact addresses; rather it will display the block in which the vehicle is

traveling. (Id. at 35). The officer can download the data to create a historical record of

the suspect vehicle’s travel. (Id. at 77-78).   The GPS unit used in the case at bar did

not have a range limitation. (Id. at 78).

       {¶33} The Fourth Amendment protects the “right of the people to be secure in

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

seizures.” This fundamental right is preserved by a requirement that searches be

conducted pursuant to a warrant issued by an independent judicial officer.

       {¶34} The United States Court of Appeals for the Sixth Circuit has cogently

summarized the cases dealing with the warrantless installation and tracking of a GPS-

type device by law enforcement officers. United States v. Bailey (6th Cir 1980), 628

F.2d 938.

       {¶35} In the first group are cases where the courts have upheld the installation

of a tracking device on the exteriors of cars and airplanes parked in areas lawfully
accessible to Government agents. 628 F.2d at 942. (Citations omitted). The court found

these cases were explainable on the ground that a defendant who knowingly leaves his

property in a place lawfully accessible to the public has exhibited no subjective

expectation of privacy5. The second group consists of cases where the defendant

subjectively expected the property to which the Government attached a tracking device

to be private, but where society does not recognize that expectation as legally justified.

Cases where tracking devices have been installed in contraband fall into this category.

Id. at 942. (Citations omitted).

       {¶36} We find the case at bar does not so neatly fall into either one of the

categories identified by the Bailey court. This is because we find, unlike the court in

State v. Johnson, supra that the initial placement of the device onto the underside

bumper of the suspect vehicle was more than simply a momentary trespass which one

could expect from any member of the public.

       {¶37} “The effect of the 4th Amendment is to put the courts of the United States

* * * under limitations and restraints as to the exercise of such power * * * and to forever

secure the people * * * against all unreasonable searches and seizures under the guise

of law. This protection reaches all alike, whether accused of crime or not, and the duty

of giving to it force and effect is obligatory upon all * * *. The tendency of those who

execute the criminal laws of the country to obtain conviction by means of unlawful

seizures * * * should find no sanction in the judgments of the courts, which are charged

at all times with the support of the Constitution, and to which people of all conditions

have a right to appeal for the maintenance of such fundamental rights.” Weeks v. United


       5
           State v. Johnson, supra would fall into this category.
States(1914), 232 U.S. 383, 391-392, 34 S.Ct. 341, 344, overruled on other grounds,

Mapp v. Ohio(1961), 367 U.S. 643, 81 S.Ct. 1684.

        {¶38} “The basic purpose of this Amendment, as recognized in countless

decisions of this Court, is to safeguard the privacy and security of individuals against

arbitrary invasions by governmental officials.” Camara v. Municipal Court (1967), 387

U.S. 523, 528, 87 S.Ct. 1727, 17306. The security of one's privacy against arbitrary

intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free

society. Wolf v. People of State of Colorado (1949), 338 U.S. 25, 27, 69 S.Ct. 1359,

1361.

        {¶39} In Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, the Court

recognized that the privacy interests in an automobile are constitutionally protected;

however, it held that the ready mobility of the automobile justifies a lesser degree of

protection of those interests. See also, California v. Carney (1985), 471 U.S. 386, 390,

105 S.Ct. 2066, 2068. The reasons for the vehicle exception are twofold. South Dakota

v. Opperman (1976), 428 U.S. 364, 367, 96 S.Ct. 3092, 3096. “Besides the element of

mobility, less rigorous warrant requirements govern because the expectation of privacy

with respect to one's automobile is significantly less than that relating to one's home or

office.” Id.; California v. Carney, supra at 391, 105 S.Ct. at 2069. However, a lesser

expectation of privacy does not mean that a citizen has no expectation of privacy in his

or her vehicle.

        {¶40} There is a right of privacy guaranteed to the citizens of this nation.

Griswold v. Connecticut (1965), 381 U.S. 479, 484, 85 S.Ct. 1678; Stanley v. Georgia

        6
          The “Fourth Amendment's right of privacy has been declared enforceable against the States
through the Due Process Clause of the Fourteenth [Amendment]…” Mapp v. Ohio (1961), 367 U.S. 643,
655, 81 S.Ct. 1684, 1691.
(1969), 394 U.S. 557, 89 S.Ct. 1243; and Eisenstadt v. Baird (1972), 405 U.S. 438, 92

S.Ct. 1029. “The Court said in full about this right of privacy: ‘The principles laid down in

this opinion (by Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1029) affect the

very essence of constitutional liberty and security. They reach further than the concrete

form of the case then before the court, with its adventitious circumstances; they apply to

all invasions on the part of the government and its employees of the sanctity of a man's

home and the privacies of life. It is not the breaking of his doors, and the rummaging of

his drawers, that constitutes the essence of the offense; but it is the invasion of his

indefeasible right of personal security, personal liberty and private property, where that

right has never been forfeited by his conviction of some public offense,-it is the invasion

of this sacred right which underlies and constitutes the essence of Lord Camden's

judgment. Breaking into a house and opening boxes and drawers are circumstances of

aggravation; but any forcible and compulsory extortion of a man's own testimony, or of

his private papers to be used as evidence to convict him of crime, or to forfeit his goods,

is within the condemnation of that judgment. In this regard the fourth and fifth

amendments run almost into each other.’ 116 U.S., at 630, 6 S.Ct. at 532.” Griswold v.

Connecticut, supra, n. *.

       {¶41} Over forty years ago the court cautioned against whittling away the privacy

of the citizenry in favor of more technologically efficient police investigation techniques,

“We are rapidly entering the age of no privacy, where everyone is open to surveillance

at all times; where there are no secrets from government. The aggressive breaches of

privacy by the government increase by geometric proportions. Wiretapping and

‘bugging’ run rampant, without effective judicial or legislative control.
       {¶42} “Secret observation booths in government offices and closed television

circuits in industry, extending even to rest rooms, are common. Offices, conference

rooms, hotel rooms, and even bedrooms (see Irvine v. People of State of California, 347

U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561) are ‘bugged’ for the convenience of government.

Peepholes in men's rooms are there to catch homosexuals. See Smayda v. United

States, 9 Cir. 352 F.2d 251. Personality tests seek to ferret out a man's innermost

thoughts on family life, religion, racial attitudes, national origin, politics, atheism,

ideology, sex, and the like. Federal agents are often ‘wired’ so that their conversations

are either recorded on their persons (Lopez v. United States, 373 U.S. 427, 83 S.Ct.

1381, 10 L.Ed.2d 462) or transmitted to tape recorders some blocks away. The Food

and Drug Administration recently put a spy in a church organization. Revenue agents

have gone in the disguise of Coast Guard officers. They have broken and entered

homes to obtain evidence.

       {¶43} “Polygraph tests of government employees and of employees in industry

are rampant. The dossiers on all citizens mount in number and increase in size. Now

they are being put on computers so that by pressing one button all the miserable, the

sick, the suspect, the unpopular, the offbeat people of the Nation can be instantly

identified.

       {¶44} “These examples and many others demonstrate an alarming trend

whereby the privacy and dignity of our citizens is being whittled away by sometimes

imperceptible steps. Taken individually, each step may be of little consequence. But

when viewed as a whole, there begins to emerge a society quite unlike any we have

seen in society in which government may intrude into the secret regions of man's life at
will.” Osborn v. United States (1966), 385 U.S. 323, 341-343, 87 S.Ct. 439-440.

[Footnotes Omitted].

       {¶45} The initial placement of the GPS tracking device but also its attachment

during the entire period of its use implicates Fourth Amendment interests of the privacy

rights of persons.

       {¶46} When a person parks his car on a public way, he does not thereby give up

all expectations of privacy in his vehicle. There is no way to lock a door or place the car

under a protective cloak as a signal to the police that one considers the car private.

United States v. Holmes (5th Cir. 1975), 521 F.2d 859, 865.              Checking vehicle

identification numbers, taking paint scrapings or observing objects in plain view of the

car are minimal and momentary intrusions which can be distinguished from the

installation of the GPS tracking device in the case at bar. In addition, the attachment of

the GPS tracking device in the case at bar was accomplished by an actual trespass.

       {¶47} Upon observing a stranger underneath one’s automobile, it is reasonable

to believe that most citizens would sound an alarm. A response to the effect of, “Well,

you have no reasonable expectation of privacy in the undercarriage of your car so any

stranger can crawl under there and attach a GPS tracking device” would be met with

righteous anger and disbelief. A citizen would justifiably feel that his or her property has

been defiled; her privacy breached and his personal security compromised.

       {¶48} We are unwilling to hold that every citizen runs the risk that the

government will plant a GPS tracking device in his car in order to track his movements,

merely because he drives his car in areas accessible to the public. A person has a right

to expect that when he drives his car into the street, the police will not attach a GPS
tracking device to his car in order to track him without first obtaining a warrant

authorizing the placement of the tracking device.

        {¶49} The placement of the GPS tracking device makes possible the continuous

and indefinite tracing of the individual's movements, wherever he goes. It permits

surveillance far beyond any ordinary powers of observation about which citizens may

reasonably know, as the government inferentially admits when it contends that

placement of the device was necessary in order to effectuate continuous surveillance.

United States v. Michael (5th Cir 1980), 622 F.2d 744, 752,7 rehearing United States v.

Michael (1981), 645 F.2d 252, 257 (5th Cir.)(En banc), cert. denied, 454 U.S. 950, 102

S.Ct. 489, 70 L.Ed.2d 257. The argument that the device only augments that which can

admittedly be done by visual surveillance is feckless. “If this be true, and the facts

contradict the position, then there is no need for the device in the first place. Its value

lies in its ability to convey information not otherwise available to the government.”

United States v. Holmes, supra at n. 13. The warrantless and unauthorized installation

of GPS tracking device intensifies the degree of surveillance following the vehicle

indefinitely and even indiscriminately into closed precincts (e. g., a garage, a fenced

estate) not visually observable which may have Fourth Amendment protection against

governmental intrusion to such an extent that it constitutes a violation of Fourth

Amendment rights of privacy. United States v. Michael supra 622 F.2d 744, 752.


        7
           Without reaching the issue of whether the installation of the device was a search or seizure
under the Fourth Amendment, the Court of Appeals, en banc, in a 16-to-8 decision, concluded that the
installation was permissible even if it were assumed to constitute a search. 645 F.2d 252 (1981). It held
that reasonable suspicion is adequate to support warrantless installation of a beeper because of the
limited expectation of privacy in an automobile, because the intrusion occasioned by the placement of the
beeper is minimal, and because the important Government interest in eliminating illegal drug manufacture
outweighs the slight infringement of any expectation of privacy. See, cert. denied United States v. Michael
454 U.S. 950, 102 S.Ct. 489 (White, J. dissenting).
Further, without judicial oversight by means of a warrant the GPS tracking device could

remain in place indefinitely. We note there is no evidence in the record of this case as

to the battery life of the particular GPS unit attached to the vehicle. However, if a

warrant is not required to attach the device in the first instance, nothing prevents law

enforcement agents from approaching the vehicle numerous times to install fresh

battery packs. Further, if police are not required to obtain a warrant before attaching a

GPS device to a citizen's vehicle, then there is no limitation on the State's use of these

devices on any person's vehicle, whether criminal activity is expected or not. Nor is

there any restraint upon the length of time that the police may target a citizen’s vehicle.

       {¶50} We find that the GPS tracking device, remaining constantly in place,

performs a search of much more substantial and therefore unreasonable duration and

scope. The installation of the device without consent upon private property is a “search”

subject to Fourth Amendment warrant requirements, in the sense that it is an

unreasonable governmental intrusion upon the individual's constitutionally guaranteed

right of personal security, personal liberty, and private property. Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S.

616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

       {¶51} C. WHETHER THE GOVERNMENT VIOLATED THE APPELLANT’S

LEGITIMATE PRIVACY EXPECTATIONS BY MONITORING THE GPS TRACKING

DEVICE’S SIGNAL AFTER THE DEVICE WAS ATTACHED TO THE SUSPECT

VEHICLE.
        {¶52} The United State Supreme Court held in United States v. Knotts (1983),

460 U.S. 276, 281, 103 S.Ct. 1081 that “[a] person traveling in an automobile on public

thoroughfares has no reasonable expectation of privacy in his movements from one

place to another.” However, the Knotts court specifically limited its holding to the facts

at issue, which involved the placement of a transmitter on a container which was

thereafter taken into a vehicle driven to a cabin. The authorities tracked the container as

it moved from one place to another. The police followed the vehicle to the cabin and

used the transmitter to maintain and regain visual surveillance. The court reserved the

question of whether “twenty-four hour surveillance of any citizen of this country ...

without judicial knowledge or supervision” would require a different result. The court

further noted that the defendant in Knotts did not challenge the warrantless installation

of the beeper. Id. at n. **. As Justice Brenan observed “I think this would have been a

much more difficult case if respondent had challenged, not merely certain aspects of the

monitoring of the beeper installed in the chloroform container purchased by

respondent's compatriot, but also its original installation.” Id. at 286-287, 103S.Ct. at

1087.

        {¶53} In U.S. v. Maynard, the D.C. Circuit Court of Appeals addressed the issue

reserved by Knotts and considered whether 24 hour a day tracking of the whole

movements of a person who is suspected of being part of a drug distribution ring over

28 days was constitutional. The Maynard court found that the likelihood that someone

would observe “the whole” of another person's movements over a month is “not just

remote, it is essentially nil”; that there is a reasonable expectation of privacy in

movements over the course of a month; and that the automobile exception to the
warrant requirement was not applicable to prolonged GPS surveillance. In Maynard, the

court reversed the conviction of a defendant where the only evidence presented was

that obtained from the GPS device-no drugs were found on the defendant whose

conviction was reversed. See, State v. Holden (Del.Super Dec. 14, 2010), 2010 WL

5140744. (Unpublished).

       {¶54} In United States v. Bailey, supra the court found that the cases concerning

the monitoring of a GPS-like device’s signal fall into two broad categories. 628 F.2d at

942. With respect to the question whether monitoring the beeper constitutes a search,

courts have held that defendants exhibited no subjective expectation of privacy in

information, such as a vehicle's course through public air space or over public roads,

which is inherently public8. The court in Bailey pointed out that several other courts have

recognized a defendant has a reduced expectation of privacy in the location of a vehicle

he is operating, but have found it unnecessary to decide whether the tracking device

surveillance in those cases constituted a search because probable cause and exigent

circumstances justified the warrantless monitoring. Id. (Citations omitted).

       {¶55} A second group consists of cases in which the defendants exhibited

subjective privacy expectations that the government violated by monitoring the beepers,

but in which the courts found no fourth amendment violations because those subjective

privacy expectations were not legally justified. The contraband cases fall into this

category. 628 F.2d at 942-43. (Footnotes and citations omitted).

       {¶56} “GPS technology is growing increasingly more sophisticated, concealable,

inexpensive and pervasive. Law enforcement can use GPS far more widely than they

were ever able to use visual surveillance, thereby significantly increasing the number of
       8
           This is essentially the holding relied upon by the court in State v. Johnson, supra.
vehicles exposed to the 24/7 monitoring facilitated by this technology.” State v. Holden,

supra. (Footnotes omitted).

       {¶57} Courts have distinguished the monitoring of a single trip as far different

from constant prolonged surveillance. “GPS and wireless telephone tracking systems

allow authorities to surreptitiously monitor and record people's movements in a

systematic and detailed manner over an indefinite period of time.” State v. Holden,

supra. (Quoting Blitz, Video Surveillance and the Constitution of Public Space: Fitting

the Fourth Amendment to a World that Tracks Image and Identity, at 1377 (2004)). See

also, People v. Weaver (2004), 12 N.Y. 3d 433, 882 N.Y.S. 2d 357, 909 N.E. 2d 1195,

1201. (Construing right to privacy under the New York State Constitution); State v.

Jackson (2003), 150 Wash.2d 251, 76 P.3d 217, 224. (Construing right to privacy under

Washington State Constitution). States have also enacted legislation prohibiting the

private use of GPS tracking devices and requiring exclusion of evidence obtained as a

result of GPS tracking without a warrant. See Holden, supra at 10. (Citing Legislation in

California, Pennsylvania, Oklahoma, Hawaii, Minnesota and Utah).

       {¶58} The tremendous scientific and technological developments that have

taken place in the last century have made possible today the widespread use and

abuse of electronic surveillance techniques. GPS provides law enforcement with access

to areas it could not get into otherwise without a warrant.

       {¶59} "The primary reason for the warrant requirement is to interpose a ‘neutral

and detached magistrate' between the citizen and `the officer engaged in the often

competitive enterprise of ferreting out crime."' United States v. Karo (1984), 468 U.S.

705, 717, 104 S.Ct. 3296, 3304-3305 (quoting Johnson v. United States, (1948) 333
U.S. 10, 14 68 S.Ct. 367, 369). However, the procedure employed in the case at bar

allows a single government agent without judicial or legislative authorization to decide

which citizens will be tracked, for how long the tracking will continue and to whom to

divulge the results of the citizen’s movements. See, United States v. Michael (1981),

645 F.2d 252, 257 (5th Cir. En banc), cert. denied, 454 U.S. 950, 102 S.Ct. 489, 70

L.Ed.2d 257. (Tate, J. dissenting).

      {¶60} The GPS tracking device employed in the case at bar permits the

continuous and indefinite tracing of the individual's movements, wherever he goes. It

permits surveillance far beyond any ordinary powers of observation about which citizens

may reasonably know, as the government inferentially admits when it contends that

placement of the device was necessary in order to effectuate continuous surveillance.

      {¶61} The GPS tracking device and its associated technology intensifies the

degree of surveillance following the vehicle indefinitely and even indiscriminately into

closed precincts (e. g., a garage, a fenced estate) not visually observable which may

have Fourth Amendment protection against governmental intrusion to such an extent

that it constitutes a violation of Fourth Amendment rights of privacy. United States v.

Michael, supra 622 F.2d at 752.

      {¶62} In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040

(1967), the Supreme Court invalidated the New York wiretap statute because the

statute, among other things, authorized a two-month surveillance period based on a

single showing of probable cause; permitted extensions of two months of the initial

surveillance without requiring a new showing of probable cause; and placed no

termination date on the eavesdrop once the conversation sought had been seized. 388
U.S. at 59-60, 87 S.Ct. at 1883-1884. These procedures were held to offend the fourth

amendment because they authorized “the equivalent of a series of intrusions, searches,

and seizures pursuant to a single showing of probable cause.” 388 U.S. at 59, 87 S.Ct.

at 1883. Berger indicates the fourth amendment requires a showing not only of probable

cause, but of present probable cause. See 388 U.S. at 59-60, 87 S.Ct. at 1883-1884.

       {¶63} The indiscriminate use of GPS tracking devices by law enforcement is of

great concern,

       {¶64} “I also share the opinion of Mr. Justice BRENNAN that the fantastic

advances in the field of electronic communication constitute a great danger to the

privacy of the individual; that indiscriminate use of such devices in law enforcement

raises grave constitutional questions under the Fourth and Fifth Amendments; and that

these considerations impose a heavier responsibility on this Court in its supervision of

the fairness of procedures in the federal court system...” Lopez v. United States (1963)

373 U.S. 427, 441, 83 S.Ct. 1381, 1389. (Concurring opinion of The Chief Justice). See

also, Osborn v. United States (1966), 385 U.S. 323, 329, 87 S.Ct. 429, 432-433.

       {¶65} In the present case there was never any showing of probable cause

required. Accordingly in the case at bar there is no time limitation upon the ability of law

enforcement to track the suspect vehicle. There is no assurance that the Government

will not continue to monitor the device's signals long after its justification for initially

placing the device upon the vehicle has ceased to exist. Indeed, nothing other than

technological problems would prevent the GPS tracking device from revealing its

location forever.
        {¶66} The permissibility of using such a device should be allowed under the

most precise and discriminate circumstances, circumstances which fully met the

“requirement of particularity” as mandated by the Fourth Amendment. We believe that

the citizens of this and every other state reasonably expect to be free from prolonged

24-hour a day surveillance. Use of GPS technology without adequate judicial

supervision infringes upon the reasonable expectation of privacy. “We downgrade the

Fourth Amendment when we forgive noncompliance with its mandate and allow these

easier methods of the police to thrive.” Osborn, 385 U.S. at 364, 87 S.Ct. at 442.

        {¶67} Because        the    procedure      employed      permitted      surveillance     of   the

movements of the appellant constantly for an indefinite period of time without any

exigent circumstances or showing of probable cause, it authorized an unreasonable

search, and, therefore, was invalid.9

        {¶68} Accordingly, for all the foregoing reasons appellant’s First Assignment of

Error is sustained.




        9
          Nor does the fact that the surveillance lasted nine days rather than many months render
tracking permissible. The statute and warrant in Berger authorizing unrestricted interception up to sixty
days were invalid even though the wiretap was terminated after thirteen days. 388 U.S. at 100, 87 S.Ct. at
1904 (Harlan, J., dissenting).
      {¶69} For the forgoing reasons the judgment of the Fairfield County Court of

Common Pleas, Fairfield County, Ohio is reversed and this matter is remanded for

proceedings in accordance with our opinion and the law.

By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., dissents




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. WILLIAM B. HOFFMAN

                                           _________________________________
                                           HON. JOHN W. WISE



WSG:clw 0812
Hoffman, J., dissenting

        {¶70} I respectfully dissent for the reasons set forth in my dissent in State v.

Sullivan, Fairfield App. No. 10-52, 2011-Ohio-_____.




                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
            IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
                       Plaintiff-Appellee   :
                                            :
                                            :
-vs-                                        :      JUDGMENT ENTRY
                                            :
DAVID WHITE                                 :
                                            :
                                            :
                    Defendant-Appellant     :      CASE NO. 2010-CA-60




       For the reasons stated in our accompanying Memorandum-Opinion, For the

forgoing reasons the judgment of the Fairfield County Court of Common Pleas,

Fairfield County, Ohio is reversed and this matter is remanded for proceedings in

accordance with our opinion and the law. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. WILLIAM B. HOFFMAN

_________________________________
HON. JOHN W. WISE
