                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                              EMILIO JEAN,
                               Appellant.

                          No. CR-16-0283-PR
                          Filed January 3, 2018

          Appeal from the Superior Court in Coconino County
            The Honorable Cathleen Brown Nichols, Judge
                          No. CR2012-00246
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                       239 Ariz. 495 (App. 2016)
                         VACATED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Terry
M. Crist, III (argued), Assistant Attorney General, Phoenix, Attorneys for
State of Arizona

Sandra Diehl, Coconino County Public Defender, Brad Bransky (argued),
Deputy Public Defender, Flagstaff, Attorneys for Emilio Jean

Stefan M. Palys, Stinson Leonard Street, LLP, Phoenix, and Kathleen E.
Brody, American Civil Liberties Union Foundation of Arizona, Phoenix,
Attorneys for Amicus Curiae American Civil Liberties Union of Arizona

David J. Euchner (argued), Slade E. Smith, Rule 38(d) Certified Law
Student, Arizona Attorneys for Criminal Justice, Tucson, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice
                              STATE V. JEAN
                            Opinion of the Court


CHIEF JUSTICE BALES authored the opinion of the Court with respect to
Parts I, II(A), (B), (C), and (D), in which JUSTICES BRUTINEL, TIMMER,
and BOLICK joined. VICE CHIEF JUSTICE PELANDER authored the
opinion of the Court with respect to Parts II(E) and III, in which JUSTICES
BRUTINEL, TIMMER, and GOULD and JUDGE ESPINOSA joined.
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, filed an opinion
dissenting in part and dissenting in the judgment. VICE CHIEF JUSTICE
PELANDER, joined by JUSTICE GOULD and JUDGE ESPINOSA, filed an
opinion dissenting in part. JUSTICE BOLICK filed an opinion concurring
in part and dissenting in part.


BALES, C.J., opinion of the Court with respect to Parts I, II(A), (B), (C), and
(D); and PELANDER, V.C.J., opinion of the Court with respect to Parts II(E)
and III:

¶1            We consider whether the Fourth Amendment rights of
defendant Emilio Jean, a passenger of a truck that he sometimes drove
while accompanied by its owner, were violated when police officers
collected information over several days from a Global Positioning System
(“GPS”) tracking device they had placed on the truck without obtaining a
warrant. GPS tracking may constitute a search for Fourth Amendment
purposes if its use involves a common law trespass, United States v. Jones,
565 U.S. 400 (2012), or invades a person’s reasonable expectation of privacy,
Katz v. United States, 389 U.S. 347 (1967). Although we conclude Jean was
subjected to a warrantless search that violated his reasonable expectation of
privacy and thus his Fourth Amendment rights, the evidence obtained need
not be suppressed because the good-faith exception to the exclusionary rule
applies.


                                      I.


¶2            In reviewing a trial court’s denial of a motion to suppress, we

 Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Philip G.
Espinosa, Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
                                      2
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                           Opinion of the Court

consider only the evidence adduced at the suppression hearing and view
the facts and reasonable inferences therefrom in the light most favorable to
sustaining the court’s ruling. State v. Valenzuela, 239 Ariz. 299, 301 ¶ 3
(2016). In February 2010, Jean and David Velez-Colon shared the driving
of a commercial tractor-trailer from Georgia to Arizona. While the vehicle
was in Phoenix, Department of Public Safety (“DPS”) officers became
suspicious and ran a license plate search, revealing that the trailer, marked
“Swift,” was reported stolen and that the truck was registered to “Swiff”
with Velez-Colon as the company owner. Suspecting that the vehicle was
being used to transport drugs, DPS officers installed a GPS tracking device
on the truck without obtaining a warrant. Although the officers knew
Velez-Colon owned the truck, they did not know Jean was traveling with
him.


¶3             Federal Drug Enforcement Agency officers followed the
vehicle to Tucson where they witnessed Velez-Colon engage in a suspicious
hand-to-hand exchange. The federal agents continued their surveillance of
the truck as it returned to Phoenix without dropping off a load. After the
truck left Phoenix at 9:30 pm on February 17, 2010, and then as it traveled
to California, law enforcement officers monitored it exclusively through
GPS, tracking the vehicle to a truck stop, to a warehouse, and then back to
a truck stop in Ontario, California, before it returned to Arizona. Velez-
Colon and Jean took turns driving. Overall, the officers monitored the
truck’s movements with GPS for about thirty-one hours over three days.


¶4            Assisted by the GPS location data, a DPS officer stopped the
vehicle around 4:00 am on February 19 after it reentered Arizona. When
the officer approached the truck, Velez-Colon was in the driver’s seat and
Jean was lying, apparently asleep, in the truck cabin’s sleeping bunk. The
officer asked Jean, as the co-driver, to present his driver’s license and
logbook and asked about their journey. Jean said he was paid to drive by
Velez-Colon. The officer separately asked both Velez-Colon and Jean for
permission to search the truck; they each refused. After a drug-detection
dog alerted to the trailer, officers searched it and found 2140 pounds of
marijuana.


¶5           The State charged Jean with conspiracy, illegally conducting
an enterprise, money laundering, and transportation of marijuana in an

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                              STATE V. JEAN
                            Opinion of the Court

amount over two pounds. Jean moved to suppress the evidence, arguing
that the discovery of the marijuana in the trailer was the result of an illegal
search because the officers lacked a warrant when they placed the GPS
tracking device on the truck. Jean argued that the GPS tracking violated his
possessory and privacy rights under the Fourth and Fourteenth
Amendments to the U.S. Constitution and article 2, section 8 of the Arizona
Constitution. The trial court held an evidentiary hearing on Jean’s motions;
he did not testify at the hearing. (Jean also unsuccessfully moved to
suppress the evidence based on the officer’s allegedly illegal stop of the
vehicle, but he abandoned that argument and therefore issues relating to
the stop are not before us.)


¶6             The trial court denied Jean’s motion to suppress, reasoning
that Jean, as a passenger, did not have standing to object to the State’s use
of the GPS tracking device on the truck owned by Velez-Colon. Jean was
subsequently found guilty as charged and sentenced to two concurrent
prison terms of ten years, followed by two concurrent probation terms of
five years.


¶7            The court of appeals affirmed. State v. Jean, 239 Ariz. 495
(App. 2016). It reasoned that Jean could not claim his Fourth Amendment
rights were violated based on a trespass theory because he was not a bailee
and did not otherwise have a possessory interest in the vehicle. Id. at 500
¶¶ 18-19. The court also held that Jean had “no reasonable expectation of
privacy in his movements as a passenger or driver of the truck” because “a
person travelling in a vehicle on public roads has no reasonable expectation
of privacy in the person’s movements from one place to another,” id. ¶ 20
(citing United States v. Knotts, 460 U.S. 276, 281 (1983)), “particularly where
the government’s monitoring is short-term,” id. (quoting State v. Estrella, 230
Ariz. 401, 404 ¶ 12 (App. 2012)).


¶8           We granted review to determine whether the warrantless GPS
tracking constituted a search and violated Jean’s rights under the Fourth
Amendment, and if so, whether the evidence gathered therefrom should be
excluded. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.




                                      4
                              STATE V. JEAN
                            Opinion of the Court

                                     II.


                                     A.


¶9            “We review for abuse of discretion the trial court’s factual
findings on the motion to suppress, but review de novo the trial court’s
ultimate legal determination that the search complied with the Fourth
Amendment.” State v. Gilstrap, 235 Ariz. 296, 297 ¶ 6 (2014). The Fourth
Amendment provides 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.” U.S. Const. amend. IV. A vehicle is an
“effect” under the Fourth Amendment, and the installation and use of a
GPS tracking device may constitute a search. Jones, 565 U.S. at 404.


¶10            Although our courts, including the trial court in this case,
have sometimes referred to a person’s ability to challenge a search “as
‘standing’ for the sake of brevity,” State v. Peoples, 240 Ariz. 244, 247 ¶ 8
(2016), the key inquiry is whether the search “has infringed an interest of
the defendant which the Fourth Amendment was designed to protect,”
Rakas v. Illinois, 439 U.S. 128, 140 (1978). “Fourth Amendment rights are
personal rights which . . . may not be vicariously asserted.” Id. at 133-34
(quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). Thus, whether
Jean can challenge the government’s use of GPS tracking turns on whether
the search violated his own Fourth Amendment rights. See id. at 140.


                                     B.


¶11            Jean argues that the warrantless GPS tracking violated his
Fourth Amendment rights because it involved a trespass. The State
counters that Jean cannot challenge the GPS tracking on a trespass theory
because he did not own or possess the truck and concededly “was not the
target of the investigation.” The State acknowledges that, under Jones, the
GPS tracking did amount to a trespass, and thus a search, with respect to
Velez-Colon, the truck’s owner. But the State correctly observes that Jean
cannot complain about the search by arguing that it invades another
person’s constitutional rights. Cf. Rakas, 439 U.S. at 137 (refusing to “grant
standing to a criminal defendant to assert a violation, not of his own

                                      5
                              STATE V. JEAN
                            Opinion of the Court

constitutional rights but of someone else’s”).


¶12           In Jones, the United States Supreme Court held that
governmental “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.’”
565 U.S. at 404 (footnote omitted). The Court explained that “[t]he Katz
reasonable-expectation-of-privacy test has been added to, not substituted for,
the common-law trespassory test.” Id. at 409. Thus, a “search” occurs when
the government physically trespasses on “persons, houses, papers and
effects” to obtain information, irrespective of the Katz test. Id. at 406-08
(noting that “Jones’s Fourth Amendment rights do not rise or fall with the
Katz formulation”).


¶13            Although Jones recognized that a government trespass may
constitute a search, the opinion did not alter the settled principle that a
person can only challenge a search if it invades his or her own Fourth
Amendment rights. 565 U.S. at 404-06; see Rakas, 439 U.S. at 137; Lyall v. City
of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015) (noting that because Fourth
Amendment rights are personal rights that cannot be asserted vicariously,
“when police trespass on property to carry out a search, a defendant has
standing to raise the Fourth Amendment only if it was his person, house,
paper, or effect searched”). In Jones, the vehicle was registered to Jones’s
wife, but Jones was the exclusive driver. 565 U.S. at 404 n.2. The Court
observed that “[i]f Jones was not the owner, he had at least the property
rights of a bailee,” yet it declined to address “the Fourth Amendment
significance of Jones’s status” because the government had not challenged
his “ability to make a Fourth Amendment objection.” Id.


¶14            Jean cannot challenge the GPS monitoring as a “search” under
the trespass theory unless the use of the device constituted a common law
trespass as to him. See id. at 409-10 (noting that Jones possessed the vehicle
when the government “trespassorily inserted” the GPS device); see also id.
at 419 (Alito, J., concurring in the judgment) (“[T]he law enforcement
officers in this case engaged in conduct that might have provided grounds
in 1791 for a suit for trespass to chattels. And for this reason, the Court
concludes, the installation and use of the GPS device constituted a search.”
(footnote omitted)). Jean did not own the truck or, as far as the record
reflects, ever possess the truck outside the owner’s presence.

                                      6
                               STATE V. JEAN
                             Opinion of the Court

¶15           We agree with Jean’s contention that a bailee of a vehicle
could challenge a search under Jones because a bailee would be able to
challenge a trespass occurring while the bailee possessed the chattel. See
State v. Mitchell, 234 Ariz. 410, 415 ¶ 19 (App. 2014) (finding lawful
possession “sufficient to confer standing under Jones” when defendant
driver “had the rights of a bailee”); Restatement (Second) of Torts § 217
(Am. Law Inst. 1967) (“Restatement”). But Jean was not a bailee - the record
does not reflect that Velez-Colon, the owner, ever ceded possession of the
truck to Jean, who instead merely traveled in it, sometimes driving, along
with the owner. See Nava v. Truly Nolen Exterminating of Hous., Inc., 140
Ariz. 497, 500 (App. 1984) (stating that a bailment is created “[w]here
personal property is delivered to one party by another in trust for a specific
purpose, with the . . . agreement that the property will be returned . . . when
the purpose is accomplished”); Webb v. Aero Int’l, 130 Ariz. 51, 52-53 (App.
1981) (discussing requirement that bailor deliver custody and control of
item to bailee).


¶16           Jean argues that a person who is neither an owner nor a bailee
may nonetheless have a possessory interest in property sufficient to
challenge a search under the trespass test. Cf. Mitchell, 234 Ariz. at 417 ¶ 25
(concluding 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”). Even if we accept this general proposition, it does not avail Jean
here. In applying the trespass test, the United States Supreme Court has
not clarified whether 18th-century common law or instead more recent
precedent determines whether government conduct involves a trespass.
Compare Jones, 565 U.S. at 404-05 (observing that the government’s physical
intrusion onto property would have been regarded as a trespass, and thus
a search, “within the meaning of the Fourth Amendment when it was
adopted”), with Florida v. Jardines, 569 U.S. 1, 10-12 (2013) (applying the Jones
trespass test and holding that a dog’s sniff from the doorstep of a home
constituted a search); id. 16-22 (Alito, J., dissenting) (observing that “[t]he
Court’s decision . . . is based on a putative rule of trespass law that is
nowhere to be found in the annals of Anglo-American jurisprudence,” and
noting that common law generally recognized a license for people to walk
to the front door of a residence); see also United States v. Sweeney, 821 F.3d
893, 899-900 (7th Cir. 2016) (remarking that “[n]either Jones nor the common
law provides sharp boundaries for the meaning of trespass”).

                                       7
                               STATE V. JEAN
                             Opinion of the Court

¶17             Whether we look to common law or more recent precedent,
Jean did not have a possessory interest that would allow him to challenge
the GPS installation or monitoring as a trespass. The older common law
would not allow someone paid to drive another’s vehicle to complain about
a trespass to the vehicle. See Restatement § 216 cmt. b (noting “older
common law” rule that “a servant entrusted with the chattel by his master
was not permitted to recover from a third person for trespass to the
chattel”). “One who has possession of a chattel for another, and not for
himself, cannot maintain an action. . . . So one who is driving the wagon of
another is not in possession for himself, but as the servant of the other. His
possession is that of the man who hired him to take charge of the wagon.”
Scott v. Elliot, 61 N.C. 104, 106 (1867); see also Ludden v. Leavitt, 9 Mass. 104
(1812).


¶18            Although more recent cases recognize that servants, and
others who are not owners of a chattel, may have a possessory interest
sufficient to maintain an action for trespass, see Restatement §§ 216, 217
(citing cases and describing trespass to a chattel, respectively), Jean has not
shown that he had such an interest here. When - as the record suggests - a
vehicle’s owner pays another to drive in the owner’s company, the law
protects the owner’s “right to immediate physical control of it as against all
others” by “attributing possession to the one who thus has the right to it.”
Id. § 216 cmt. d.; see also id. illus. 3 (“A’s chauffeur drives him to his office,
and remains in the car to wait for A. During A’s absence from the car, A is
regarded in possession of it.”).


¶19           In addition, unlike Velez-Colon, Jean - on the record before us
- did not have the right to exclude others from the truck. That right is “one
of the most essential sticks in the bundle of rights that are commonly
characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176
(1979); accord Rakas, 439 U.S. at 143 n.12. Accordingly, courts routinely
emphasize the importance of the right to exclude in analyzing Fourth
Amendment issues. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105 (1980)
(rejecting a defendant’s Fourth Amendment claim when he had no “right
to exclude other persons from access” to a friend’s purse into which he had
placed drugs); Rakas, 439 U.S. at 148-49 (denying Fourth Amendment
protection to defendants who “asserted neither a property nor a possessory
interest in [an] automobile” and had no right to exclude others from the
areas searched); Lyall, 807 F.3d at 1188, 1189 & n.10 (in evaluating

                                        8
                               STATE V. JEAN
                             Opinion of the Court

warrantless search of warehouse and whether various occupants had
protectible Fourth Amendment interests under trespass theory, court
differentiated those who had no “right to exclude others from any portion
of the warehouse” from those who did); United States v. Thomas, 447 F.3d
1191, 1199 (9th Cir. 2006) (stating that “indicia of ownership - including the
right to exclude others - coupled with possession and the permission of the
rightful owner, are sufficient grounds upon which to find standing”).


¶20            Thus, while Velez-Colon as the owner could challenge the
GPS monitoring because it violated his possessory interest (the right to
exclude others), Jean cannot because by merely traveling in the vehicle with
the owner and sometimes driving, he did not have a right to exclude others.
Cf. Jones, 565 U.S. at 409-10 (distinguishing Jones’s ability to challenge GPS
monitoring with device installed while he possessed vehicle from situation
where owner consented to installation of tracking device in container before
it was acquired by defendant). This conclusion comports with Arizona
cases recognizing that a driver who is a “permissive user alone in the car”
has Fourth Amendment protection, but a driver of a vehicle “in which the
owner was an accompanying passenger” does not. State v. Orendain, 185
Ariz. 348, 351 (App. 1996) (“[Courts] expressly distinguish[] [between]
cases in which the permissive driver is alone in the car from those in which
the owner was present [and] . . . ‘constantly in a position to assert his
possessory interest to the extent that he desired to do so . . . .’” (quoting
United States v. Jefferson, 925 F.2d 1242, 1250 (10th Cir. 1991))), vacated in part
on other grounds, 188 Ariz. 54 (1997).


¶21              Our conclusion may appear inconsistent with decisions by
our court of appeals and several federal circuit courts holding that a non-
owner driver may consent to a vehicle search even if the owner is present.
See, e.g., State v. Flores, 195 Ariz. 199, 204 ¶ 14 (App. 1999) (citing numerous
federal cases). The issues, however, are different. To challenge a
governmental intrusion as a search under the Jones test, a person must show
that it constitutes a trespass as to him or her, not someone else. The third-
party-consent cases, in contrast, turn on whether a driver, although not an
owner, had sufficient actual or apparent authority to validly consent to a
vehicle search. This is not at issue here. See id. at 204 ¶ 17.


¶22            That Jean has no viable Fourth Amendment claim based on a

                                        9
                               STATE V. JEAN
                             Opinion of the Court

trespass theory, however, does not end the inquiry. As Jones noted, even
absent a trespass, “the Katz reasonable-expectation-of-privacy test” may
apply, and thus “[s]ituations involving merely the transmission of
electronic signals without trespass . . . remain subject to the Katz analysis.”
565 U.S. at 409-11 (emphasis omitted).


                                       C.


¶23           Even in the absence of a trespass, “a Fourth Amendment
search occurs when the government violates a subjective expectation of
privacy that society recognizes as reasonable.” Kyllo v. United States, 533
U.S. 27, 33 (2001). Jean contends the warrantless GPS tracking of his
movements over a few days constituted a search under the Katz reasonable-
expectation-of-privacy test. The State counters that the Supreme Court’s
decisions in Rakas and Knotts establish, respectively, that Jean, as a
passenger, had no reasonable expectation of privacy with respect to the
truck or its movements over public roadways. The State has never argued
that Jean lacked a subjective expectation of privacy with respect to GPS
monitoring, and we accordingly do not address that issue, but instead deem
it waived by the State. Cf. Jones, 565 U.S. at 413 (characterizing as “forfeited”
government’s alternative argument that warrantless GPS monitoring, if a
search, was reasonable because not raised in lower courts).


¶24           Here we must consider whether a passenger who travels in a
vehicle with its owner has a reasonable expectation that the vehicle’s
movements will not be tracked by non-consensual, surreptitious GPS
monitoring by the government. Thus, we have no occasion to consider the
effect of an owner’s consent to GPS tracking. Moreover, although this case
involves a commercial truck, and commercial trucking is a closely regulated
industry, see United States v. Delgado, 545 F.3d 1195, 1202 (9th Cir. 2008), the
State has not argued that this fact is significant in determining whether the
GPS monitoring constituted a search as to Jean. Thus, we have no occasion
to address whether the regulated status of a commercial truck may affect
the legality of investigatory GPS monitoring by law enforcement. Cf.
Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 840 F.3d 879,
886-88 (7th Cir. 2016) (discussing 2015 federal regulations regarding on-
board electronic data collection for commercial trucks).


                                       10
                                STATE V. JEAN
                              Opinion of the Court

¶25            To be objectively reasonable, an expectation of privacy must
have “a source outside of the Fourth Amendment, either by reference to
concepts of real or personal property law or to understandings that are
recognized and permitted by society.” Minnesota v. Carter, 525 U.S. 83, 88
(1998) (quoting Rakas, 439 U.S. at 143 n.12); see also Katz, 389 U.S. at 361-62
(Harlan, J., concurring). The reasonableness of an expectation of privacy
depends in part on whether it relates to information that has been
“expose[d] to the public.” Katz, 389 U.S. at 351. That the public might
conceivably obtain information, however, does not necessarily mean that it
has been “exposed to the public.” Instead, “[i]n considering whether
something is ‘exposed’ to the public as that term is used in Katz we ask not
what another person can physically and may lawfully do but rather what a
reasonable person expects another might actually do.” United States v.
Maynard, 615 F.3d 544, 559 (D.C. Cir. 2010), aff’d on other grounds sub nom.
United States v. Jones, 565 U.S. 400 (2012); see also Kyllo, 533 U.S. at 40 (holding
that surveillance of home from street with thermal imaging device “not in
general public use” constituted a search).


¶26            Because the State contends that Rakas and Knotts establish that
Jean did not have any reasonable expectation of privacy and thus are
dispositive, we first consider those cases. In Rakas, the Supreme Court held
that passengers in a car driven by its owner did not have a reasonable
expectation of privacy in the car’s interior, and thus their Fourth
Amendment rights were not violated when police conducted a warrantless
search of the glove compartment and under the seat. 439 U.S. at 148-49.
Although Rakas suggests that Jean cannot complain that the State’s
attachment of the GPS device to the truck constituted a “search” because he
had some expectation of privacy in the vehicle’s exterior, that observation
does not resolve the issue presented here: whether the continual GPS
monitoring of a vehicle’s movements invaded a reasonable expectation of
privacy. Stated differently, whether a passenger reasonably expects to not
be subjected to surreptitious government GPS tracking does not depend on
whether a passenger has an expectation of privacy in the vehicle’s interior
or exterior. (Indeed, such tracking conceivably could be conducted by use
of devices that are not physically attached to the vehicle.) Cf. Katz, 389 U.S.
at 351 (noting “the Fourth Amendment protects people, not places”).


¶27          We also reject the State’s argument that Knotts precludes Jean
from challenging the GPS tracking. In Knotts, the government placed a

                                        11
                              STATE V. JEAN
                            Opinion of the Court

beeper inside a metal drum. 460 U.S. at 277. The beeper emitted periodic
signals detectable by a radio receiver. Id. Police monitored the drum as it
was transported by vehicle over public roads to a private residence. Id. at
278. The United States Supreme Court held the government monitoring of
the beeper signals did not amount to a search. Id. at 285. The Court
reasoned that “[a] person travelling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his movements
from one place to another” because “he voluntarily convey[s] to anyone
who want[s] to look the fact that he [is] traveling over particular roads in a
particular direction, the fact of whatever stops he [makes], and the fact of
his final destination.” Id. at 281-82.


¶28            As Jones acknowledged, however, “Knotts noted the ‘limited
use which the government made of the signals from this particular beeper,’
and reserved the question whether ‘different constitutional principles may
be applicable’ to ‘dragnet-type law enforcement practices’ of the type that
GPS tracking made possible here.” 565 U.S. at 409 n.6 (citation omitted)
(quoting Knotts, 460 U.S. at 284). Furthermore, five Justices in Jones declined
to adopt the Knotts reasoning regarding public roads when applying the
reasonable-expectation-of-privacy test to GPS tracking. See id. at 430 (Alito,
J., concurring in the judgment) (finding that longer-term tracking, even on
public roads, intrudes upon a reasonable expectation of privacy); id. at 414-
15, 417 n.* (Sotomayor, J., concurring) (noting that Knotts “does not
foreclose the conclusion that GPS monitoring, in the absence of a physical
intrusion, is a Fourth Amendment search”). Even before Jones, other courts
had similarly recognized that Knotts was not dispositive as to GPS
monitoring. See People v. Weaver, 909 N.E.2d 1195, 1199, 1200 (N.Y. 2009)
(noting that Knotts involved a “single trip” and the Court “pointedly
acknowledged and reserved for another day the question of whether a
Fourth Amendment issue would be posed if ‘twenty-four hour surveillance
of any citizen of this country [were] possible, without judicial knowledge
or supervision’” (quoting Knotts, 460 U.S. at 283)).


¶29          GPS monitoring involves materially different technology than
did the “very primitive” radio technology used decades ago in Knotts.
Weaver, 909 N.E.2d at 1199. As the New York State Court of Appeals has
noted:



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                              STATE V. JEAN
                            Opinion of the Court

       GPS is not a mere enhancement of human sensory capacity, it
       facilitates a new technological perception of the world in
       which the situation of any object may be followed and
       exhaustively recorded over, in most cases, a practically
       unlimited period. The potential for a similar capture of
       information or “seeing” by law enforcement would require,
       at a minimum, millions of additional police officers and
       cameras on every street lamp.

Id.

¶30            Such technology allows the government to continually
gather, store, and mine vast amounts of information at relatively little cost.
See Jones, 565 U.S. at 415-16 (Sotomayor, J., concurring) (noting the wealth
of detail GPS monitoring collects and that “[t]he [g]overnment can store
such records and efficiently mine them for information years into the
future. And because GPS monitoring is cheap in comparison to
conventional surveillance techniques and, by design, proceeds
surreptitiously, it evades the ordinary checks that constrain abusive law
enforcement practices: ‘limited police resources and community hostility.’”
(citation omitted) (quoting Illinois v. Lidster, 540 U.S. 419, 426 (2004)));
Maynard, 615 F.3d at 565 (finding GPS to be a special kind of intrusion
because practical considerations prevent visual surveillance from lasting
very long and GPS has such a low marginal cost); see also State v. Jackson, 76
P.3d 217, 223 (Wash. 2003) (“In this age, vehicles are used to take people to
a vast number of places that can reveal preferences, alignments,
associations, personal ails and foibles. The GPS tracking devices record all
of these travels, and thus can provide a detailed picture of one’s life.”); cf.
United States v. Carpenter, 819 F.3d 880, 889 (6th Cir. 2016) (distinguishing
Jones because GPS is much more accurate than cell-site data and can tell a
much more detailed story of an individual’s life), cert. granted sub nom.
Carpenter v. United States, 137 S. Ct. 2211 (2017). Moreover, GPS devices do
not distinguish between private property and public thoroughfares,
continuing to generate data even from locations where police themselves
would have no right to be. Cf. United States v. Karo, 468 U.S. 705, 714-15
(1984) (distinguishing Knotts and holding that monitoring of beeper in
private residence violated a reasonable expectation of privacy).


¶31           Courts in other contexts have recognized the need to consider
the impact of evolving technology when applying the Fourth Amendment.
                                      13
                              STATE V. JEAN
                            Opinion of the Court

Illustrative is the United States Supreme Court’s decision in Riley v.
California, 134 S. Ct. 2473 (2014), which held that police may not search a cell
phone incident to arrest without a warrant, id. at 2485. The Riley Court
reasoned that cell phones can “reveal an individual’s private interests or
concerns” and “[d]ata on a cell phone can also reveal where a person has
been,” thus “reconstruct[ing] someone’s specific movements down to the
minute, not only around town but also within a particular building.” Id. at
2489, 2490 (citing Jones, 565 U.S. at 415 (Sotomayor, J., concurring)); see also
Kyllo, 533 U.S. at 40 (holding that use of thermal imaging device “to explore
details of the home that would previously have been unknowable without
physical intrusion” constituted a search).


¶32            We conclude that passengers traveling with the owner in a
private vehicle generally have a reasonable expectation of privacy that is
invaded by the government’s continually tracking the vehicle through a
surreptitious GPS tracking device. In addition to the reasons noted above,
we note that since Jones, at least one other state supreme court has found
the government’s warrantless electronic monitoring of an individual’s
movements to be a violation of the Fourth Amendment under the Katz
reasonable-expectation-of-privacy test. See Tracey v. State, 152 So. 3d 504,
526 (Fla. 2014) (“[W]e conclude that such a subjective expectation of privacy
of location as signaled by one’s cell phone―even on public roads―is an
expectation of privacy that society is now prepared to recognize as
objectively reasonable under the Katz ‘reasonable expectation of privacy’
test.”). And other courts have found that warrantless GPS tracking violates
an individual’s right to privacy based on their own state constitutions. See
State v. Holden, 54 A.3d 1123, 1132-33 (Del. Super. Ct. 2010) (finding
warrantless GPS tracking violated state constitution on privacy grounds
and noting GPS “represents more than a mere alternative to conventional
physical surveillance” by enabling “24/7” surveillance); Commonwealth v.
Rousseau, 990 N.E.2d 543, 553 (Mass. 2013) (finding thirty-day GPS tracking
of passenger in vehicle violated state constitution because “a person may
reasonably expect not to be subjected to extended GPS electronic
surveillance by the government”); Jackson, 76 P.3d at 224 (holding, prior to
Jones, that warrantless GPS tracking of vehicles violates state constitutional
privacy provision).


¶33         Other states have also enacted laws that impose civil and
criminal penalties for using electronic tracking devices and require

                                      14
                               STATE V. JEAN
                             Opinion of the Court

evidence obtained by such devices to be excluded unless the government
obtains the evidence through a warrant. See Maynard, 615 F.3d at 564 (citing
Fla. Stat. §§ 934.06, 934.42; Haw. Rev. Stat. §§ 803-42, 803-44.7; Minn. Stat.
§§ 626A.37, 626A.35; Okla. Stat., tit. 13 §§ 176.6, 177.6; 18 Pa. Cons. Stat.
§ 5761; S.C. Code Ann. § 17-30-140; Utah Code Ann. §§ 77-23a-4, 77-23a-7,
77-23a-15.5). Such case law and legislation further reflect that society deems
reasonable an expectation of privacy in one’s movements as concerns GPS
monitoring.

¶34            We also reject the State’s contention that the GPS monitoring
here did not constitute a search because it lasted for only a few days and
the truck stayed on public roadways throughout the surveillance.
Although Justice Alito’s concurrence in Jones distinguished between
“relatively short-term monitoring of a person’s movements on public
streets” and “longer term GPS monitoring,” 565 U.S. at 430 (Alito, J.,
concurring in the judgment), we conclude that the duration of the
government’s GPS monitoring should not determine whether it constitutes
a search. As Justice Sotomayor observed, the unique attributes of GPS
monitoring in terms of the government’s ability to collect information apply
even in cases involving short-term monitoring. Id. at 415 (Sotomayor, J.,
concurring). Not only is there no analytical basis to distinguish between
longer and shorter-term GPS monitoring for purposes of determining if a
search has occurred, but such a distinction would also fail to provide clear
guidance to law enforcement for when a warrant is required. See Estrella,
230 Ariz. at 409-410 ¶ 33 (Eckerstrom, J., dissenting); cf. Jones, 565 U.S. at 412
(noting that concurrence had not explained “why a 4-week investigation is
‘surely’ too long” (quoting id. at 430 (Alito, J., concurring in the judgment))).


¶35             We similarly are not persuaded by the dissent’s contention
that even if longer term GPS monitoring may constitute a search, Jean
cannot complain about the GPS tracking here because it lasted only days
and was “reasonable” under the circumstances. Infra ¶¶ 76, 80. Such an ad
hoc approach to determining whether GPS tracking constitutes a search
would ill serve the interests protected by the Fourth Amendment. The
United States Supreme Court “repeatedly has acknowledged the
difficulties created for courts, police, and citizens by an ad hoc, case-by-case
definition of Fourth Amendment standards to be applied in differing
factual circumstances,” with the main difficulty being “a danger that
constitutional rights will be arbitrarily and inequitably enforced.” Oliver v.

                                       15
                               STATE V. JEAN
                             Opinion of the Court

United States, 466 U.S. 170, 181-82 (1984); see also Riley, 134 S. Ct. at 2491-92
(noting that “[i]f police are to have workable rules, the balancing of the
competing interests . . . ‘must in large part be done on a categorical
basis―not in an ad hoc, case-by-case fashion by individual police officers’”
(quoting Michigan v. Summers, 452 U.S. 692, 705 n.19 (1981))).


¶36           Equally unconvincing is the dissent’s assertion that our
decision, as a practical matter, requires “probable cause and a warrant for
any governmental installation and use of a GPS device on vehicles.” Infra
¶ 87. Jones establishes that GPS surveillance of a vehicle is a search, and
thus subject to the general requirement of a warrant supported by probable
cause, with respect to the vehicle owner and others lawfully possessing the
vehicle. Our decision recognizes, consistent with societal understandings,
that a passenger traveling with a vehicle’s owner reasonably does not
expect his or her travels to be subject to warrantless, non-consensual,
surreptitious GPS monitoring by the government. To instead hold, as the
dissent suggests, that whether the GPS monitoring constituted a search as
to Jean depends on whether Velez-Colon entrusted the truck to Jean to
drive in his absence rather than allowing him to drive and travel in it with
Velez-Colon would not serve any interests protected by the Fourth
Amendment. Instead, it would ignore the Supreme Court’s nearly sixty-
year-old admonition that distinctions “often only of gossamer strength,
ought not to be determinative in fashioning procedures ultimately referable
to constitutional safeguards.” Jones v. United States, 362 U.S. 257, 266 (1960),
overruled in part on other grounds by United States v. Salvucci, 448 U.S. 83
(1980).


¶37            By holding that Jean, like the owner Velez-Colon, can
challenge the GPS monitoring as a search, we reaffirm the protections
embodied in the Fourth Amendment against warrantless government
surveillance. Requiring such searches generally to be supported by a
warrant based on probable cause does not unduly burden the government’s
interests, particularly because this requirement already applies with respect
to the person who owns or lawfully possesses the vehicle. Treating such
surveillance as a search as to passengers protects the privacy interests of
both those who own or possess the vehicle and those who travel with them.
Cf. United States v. U.S. District Court (Keith), 407 U.S. 297, 314-15, 321 (1972)
(balancing governmental and privacy interests in concluding, categorically,
that surveillance for domestic security purposes should be subject to “the

                                       16
                               STATE V. JEAN
                             Opinion of the Court

customary Fourth Amendment requirement of judicial approval prior to
initiation of a search or surveillance”). Moreover, we have no occasion here
to consider, and therefore do not address, how the many well-established
exceptions to the warrant requirement, such as exigent circumstances, may
apply to GPS monitoring of vehicular travel.


¶38           GPS tracking is qualitatively different from visual
surveillance, even on public roadways, because it can monitor “[t]he whole
of a person’s progress through the world.” Weaver, 909 N.E.2d at 1199. For
the reasons noted, we conclude that Rakas and Knotts are not controlling
and that Jean’s expectation of privacy from the warrantless GPS monitoring
of his movements is one that “society is prepared to recognize as
reasonable.” Hudson v. Palmer, 468 U.S. 517, 525 n.7 (internal quotation
marks omitted) (quoting Katz, 389 U.S. at 360, 361 (Harlan, J., concurring)).


                                       D.


¶39           Jean also argues that the GPS monitoring violated article 2,
section 8 of the Arizona Constitution. That provision states that “[n]o
person shall be disturbed in his private affairs, or his home invaded,
without authority of law.” Jean, however, waived this argument before the
court of appeals by raising it for the first time in his reply brief. See State v.
Edmisten, 220 Ariz. 517, 522 ¶ 10 n.2 (App. 2009). Even so, he has not
addressed why or how our constitution should afford greater protection
than the Fourth Amendment in this context. Merely referring to the
Arizona Constitution without developing an argument is insufficient to
preserve a claim that it offers greater protection than the Fourth
Amendment. See State v. Fisher, 226 Ariz. 563, 565 ¶ 7 n.3 (2011); State v.
Dean, 206 Ariz. 158, 161 ¶ 8 n.1 (2003). For these reasons, we do not address
whether the police conduct violated the Arizona Constitution.


                                       E.


¶40           The State argues that if we find that the GPS monitoring
amounted to a search and violated the Fourth Amendment, we should not
apply the exclusionary rule to suppress the evidence. Under Davis v. United
States, “searches conducted in objectively reasonable reliance on binding

                                       17
                              STATE V. JEAN
                            Opinion of the Court

appellate precedent are not subject to the exclusionary rule.” 564 U.S. 229,
232 (2011). The State contends that Knotts was clearly binding precedent
and correctly notes that almost all federal circuit courts have concluded,
based on Davis, that the exclusionary rule should not apply to pre-Jones GPS
tracking. See, e.g., United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014)
(observing that “all of the extant appellate precedent is on the side of
applying Davis” to pre-Jones GPS tracking).


¶41            We agree with the many courts that have concluded that the
good-faith exception applies based on Knotts. See United States v. Katzin, 769
F.3d 163, 173–75, 182-83 (3d Cir. 2014) (holding officers’ reliance on binding
appellate precedent of Knotts and United States v. Karo, 468 U.S. 705 (1984),
was objectively reasonable); United States v. Aguiar, 737 F.3d 251, 261–62 (2d
Cir. 2013) (same); United States v. Sparks, 711 F.3d 58, 67 (5th Cir. 2013)
(holding that agents’ GPS placement on vehicle and monitoring was
reasonable under Knotts and in-circuit beeper case). As one court has
stated, “[w]ithout the benefit of hindsight . . . and with no contrary guidance
from the Supreme Court or this Court . . . a reasonably well-trained officer
in this [jurisdiction] could have relied on Knotts as permitting the type of
warrantless GPS usage in this case.” United States v. Stephens, 764 F.3d 327,
338 (4th Cir. 2014).


¶42            Other state supreme courts have considered the issue and
have likewise found the good faith exception applicable to pre-Jones GPS
monitoring. See, e.g., People v. LeFlore, 32 N.E.3d 1043, 1051–53 (Ill. 2015)
(finding Knotts and Karo binding appellate precedent that officer could have
reasonably relied upon when installing and using GPS device and that
Illinois state officer reasonably relied on Seventh Circuit precedent he
considered binding); Kelly v. State, 82 A.3d 205, 214 (Md. 2013) (finding
Knotts sufficiently binding appellate precedent to authorize GPS tracking at
the time officers installed the device on defendant’s vehicle); State v.
Johnson, 22 N.E.3d 1061, 1072 (Ohio 2014) (holding that before Jones, “Knotts
and Karo provided binding appellate precedent in this state to support the
objectively reasonable conclusion that placing a GPS tracking device on a
suspect’s vehicle did not implicate any protections of the Fourth
Amendment”).


¶43           The Chief Justice’s partial dissent on this issue is

                                      18
                               STATE V. JEAN
                             Opinion of the Court

unpersuasive. Asserting that “Knotts was not clearly binding precedent on
the issue of whether warrantless GPS installation and monitoring
constituted an illegal search,” and that “neither the United States Supreme
Court nor our Court had addressed the propriety of GPS monitoring” as of
early 2010, he contends the good-faith exception is inapplicable and
therefore the exclusionary rule applies. Infra ¶¶ 51, 54. We agree, however,
with other courts that have soundly rejected such reasoning.


¶44             In Katzin, for example, the Third Circuit held that the
warrantless GPS tracking of the defendant’s vehicle for two days in late
2010 was supported by the officers’ “objectively reasonable” belief in its
constitutionality, “in large part, because it fell squarely within Knotts and
Karo’s well-accepted rationale.” 769 F.3d at 179, 182. As had other federal
circuits, the Katzin court concluded that for “purposes of the good faith
inquiry . . . the technological distinctions between the beepers of yesteryear
and the GPS device used herein are irrelevant.” Id. at 176 (citing Aguiar, 737
F.3d at 255, 261; Sparks, 711 F.3d at 66; United States v. Fisher, 745 F.3d 200,
205 (6th Cir. 2014); United States v. Andres, 703 F.3d 828, 835 (5th Cir. 2013));
accord Sparks, 711 F.3d at 66 (concluding that officers’ pre-Jones use for
eleven days of “a GPS tracker rather than a beeper,” despite their different
technologies, did not render inapplicable “Knotts’s apparent bright-line rule
that the Fourth Amendment is unconcerned with police surveillance of
public automotive movements”).


¶45             Significantly, Katzin expressly rejected the following
proposition advanced by the Chief Justice here: to qualify as “binding
appellate precedent under Davis,” a case “must specifically authorize the
precise conduct under consideration.” 769 F.3d at 176; see also id. at 173–74
(“Although the underlying facts in the cases differed—which will nearly
always be true—the rationale underpinning . . . Knotts and Karo clearly
authorized” the officers’ GPS monitoring). Although the Chief Justice
asserts that we read “Davis and Knotts too broadly and Jones too narrowly,”
infra ¶ 49, it is he who reads Davis and Knotts too narrowly and Jones too
broadly. The good-faith exception does not require officers to anticipate
that Jones would “fundamentally alter[] [the] legal landscape,” Katzin, 769
F.3d at 181, by “unexpectedly depart[ing] from the framework established
by Katz,” on which Knotts rested. Johnson, 22 N.E.3d at 1071. Davis requires
good faith and reasonableness, not a crystal ball.


                                       19
                              STATE V. JEAN
                            Opinion of the Court

¶46            “The exclusionary rule . . . is a prudential doctrine invoked to
deter future violations of constitutional rights.” State v. Valenzuela, 239
Ariz. 299, 308–09 ¶ 31 (2016) (citing Davis, 564 U.S. at 236). “To trigger the
exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.” Herring v. United
States, 555 U.S. 135, 144 (2009). Thus, “exclusion is appropriate only where
law enforcement conduct is both ‘sufficiently deliberate’ that deterrence is
effective and ‘sufficiently culpable’ that deterrence outweighs the costs of
suppression.” Katzin, 769 F.3d at 171 (quoting Herring, 555 U.S. at 144).
Neither factor is present here — there is no allegation, let alone evidence,
that the DPS officers’ conduct was “deliberate, reckless, or grossly
negligent,” or involved “recurring or systemic negligence,” situations in
which “deterrence holds greater value and often outweighs the associated
costs.” Id. (internal quotation marks omitted) (quoting Davis, 564 U.S. at
237–39); cf. State v. Havatone, 241 Ariz. 506, 511 ¶ 21 (2017) (rejecting the
good-faith exception based on a finding of “recurring or systemic
negligence”).


¶47            Because the search in this case was conducted in objectively
reasonable reliance on Knotts and Karo, which constituted binding appellate
precedent under Davis and the Supremacy Clause, U.S. Const. art. VI; Ariz.
Const. art. 2, § 3, we decline to apply the exclusionary rule. See Valenzuela,
239 Ariz. at 309 ¶ 31 (quoting Davis, 564 U.S. at 238) (“[W]hen law
enforcement officers ‘act with an objectively reasonable good-faith belief
that their conduct is lawful,’ deterrence is unnecessary and the exclusionary
rule does not apply.”). Accordingly, we uphold the trial court’s denial of
Jean’s motion to suppress the evidence obtained from the warrantless GPS
installation and monitoring in this case.


                                     III.


¶48           We vacate paragraphs 11–20 of the court of appeals’ opinion,
affirm the denial of Jean’s motion to suppress, and affirm Jean’s convictions
and sentences.




                                      20
                              STATE V. JEAN
           CHIEF JUSTICE BALES, joined by JUSTICE BOLICK,
           Dissenting in Part and Dissenting from the Judgment

BALES, C. J., joined by BOLICK, J., dissenting in part and dissenting from
the judgment.

¶49          I respectfully dissent from Part II(E) of the Court’s opinion
because applying the good-faith exception to the exclusionary rule here, in
my view, reads Davis and Knotts too broadly and Jones too narrowly.


¶50            Davis, as the majority notes, supra ¶ 40, held that “searches
conducted in objectively reasonable reliance on binding appellate
precedent are not subject to the exclusionary rule.” 564 U.S. at 232. Thus,
critical to applying the good-faith exception in this context is determining
whether “binding appellate precedent” exists with regard to the challenged
search. See id. at 247 (differentiating the defendant in Davis from
“defendants in jurisdictions in which the question remains open”); id. at 250
(Sotomayor, J., concurring in the judgment) (noting Davis “does not present
the markedly different question whether the exclusionary rule applies
when the law governing the constitutionality of a particular search is
unsettled”).


¶51           The State argues that the good-faith exception should apply
because “Knotts was clearly binding precedent officers followed in good
faith.” However, Knotts was not clearly binding precedent on the issue of
whether warrantless GPS installation and monitoring constituted an illegal
search. In Jones, the district court ruled that the GPS device installation and
monitoring was not a search under Knotts. See United States v. Jones, 451 F.
Supp. 2d 71, 88 (D.D.C. 2006), aff’d in part, rev’d in part sub nom. United States
v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d in part on other grounds sub
nom. United States v. Jones, 565 U.S. 400 (2012).


¶52           In Jones, contrary to the district court’s ruling in that case - and
the State’s argument here - the United States Supreme Court recognized
that Knotts did not resolve the issue of the placement and use of a GPS
tracking device. See Jones, 565 U.S. at 408-09, 409 n.6 (stating that Knotts
“reserved the question whether different constitutional principles may be
applicable to dragnet-type law enforcement practices of the type that GPS
tracking made possible here” (quoting Knotts, 460 U.S. at 284) (internal
quotation marks omitted)); see also id. at 417 n.* (Sotomayor, J., concurring)

                                       21
                              STATE V. JEAN
           CHIEF JUSTICE BALES, joined by JUSTICE BOLICK,
           Dissenting in Part and Dissenting from the Judgment

(noting same); Knotts, 460 U.S. at 284.


¶53           For the good-faith exception to apply, it is insufficient that law
enforcement might have reasonably interpreted precedent as supporting
the challenged conduct. Instead, “Davis instructs that law enforcement acts
in good faith if ‘binding appellate precedent specifically authorizes a
particular police practice.’” Havatone, 241 Ariz. at 512 ¶ 24 (quoting Davis,
564 U.S. at 241); cf. United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (9th
Cir. 2012) (reviewing, for purposes of applying Davis, whether binding
Ninth Circuit precedent existed at time of 2007 GPS search).


¶54          If Knotts had authorized GPS tracking, the Court in Jones
would have had to overrule rather than distinguish Knotts. Because neither
the United States Supreme Court nor our Court had addressed the
propriety of GPS monitoring, no binding appellate precedent specifically
authorized the monitoring here, and the State therefore cannot rely on the
good-faith exception to admit the evidence. See Mitchell, 234 Ariz. at 419
¶ 32 (concluding that Knotts was “not sufficiently apposite on the trespass
question and, therefore, cannot trigger application of the good-faith
exception” under Davis); State v. Adams, 763 S.E.2d 341, 346-47 (S.C. 2014)
(applying the exclusionary rule and concluding that “Knotts and Karo did
not constitute binding precedent that authorized law enforcement’s
warrantless” installation and monitoring of a GPS vehicle tracker).


¶55           In applying the exclusionary rule, the majority does not
identify binding appellate precedent (i.e., a decision by the United States
Supreme Court or this Court) that specifically authorized the warrantless
installation and use of a GPS vehicle tracker within Arizona. The majority
instead opines that because “the search in this case was conducted in
objectively reasonable reliance on Knotts and Karo, which constituted
binding appellate precedent,” the good-faith exception applies under Davis.
Supra ¶ 47.


¶56          At bottom, the majority applies the good-faith exception
because law enforcement officers might have reasonably interpreted Knotts
and Karo as allowing warrantless GPS surveillance of vehicle travel. That
approach misapprehends Davis, see Katzin, 769 F.3d at 187-97 (Greenway, J.,
                                      22
                              STATE V. JEAN
           CHIEF JUSTICE BALES, joined by JUSTICE BOLICK,
           Dissenting in Part and Dissenting from the Judgment

dissenting); Stephens, 764 F.3d at 341-42 (Thacker, J., dissenting), and
conflicts with our own caselaw, see Havatone, 241 Ariz. at 512-13 ¶¶ 29-30
(refusing to apply good-faith exception in absence of binding precedent
specifically authorizing particular practice).


¶57           When caselaw is unsettled regarding the legality of a
warrantless search, applying the exclusionary rule desirably prompts law
enforcement to err on the side of obtaining a warrant, see id. at 512-13 ¶ 29,
and thus better protects the rights of privacy enshrined in the Fourth
Amendment and our state constitution. Consistent with Davis and
Havatone, I believe we should follow that approach here.




                                     23
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

PELANDER, V.C.J., joined by GOULD, J. and ESPINOSA, J., dissenting in
part.


¶58           I fully join the Court’s opinion in Parts I, II(A), (B), (D), and
III. Although I also join in Part II(E) regarding the good-faith exception to
the exclusionary rule, I find that discussion unnecessary inasmuch as Jean’s
Fourth Amendment rights were not violated in this case. I therefore
respectfully dissent from Part II(C) of the Court’s opinion because it is
supported by neither the law nor the extremely thin record here.


¶59           The majority finds a Fourth Amendment violation under the
Katz reasonable-expectation-of-privacy rubric, reasoning that “Rakas and
Knotts are not controlling and that Jean’s expectation of privacy from the
warrantless GPS monitoring of his movements is one that ‘society is
prepared to recognize as reasonable.’” Supra ¶ 38 (citation omitted). But
DPS used the GPS device to simply monitor the movement of Velez-Colon’s
truck for a short period and only on public thoroughfares, where the truck
was plainly visible to anyone; and no evidence in the record suggests that
the device was used, or even usable, for more than that. (In addition, Jean
was unknown to DPS and not a target of its investigative surveillance.)
Thus, the majority’s concerns about Orwellian invasions of privacy are
unfounded here.


¶60           In Katz, Justice Harlan (in a concurring opinion that has since
been adopted as binding) declared that a defendant seeking to invoke the
Fourth Amendment’s protection bears the burden of proving that he or she
has “exhibited an actual (subjective) expectation of privacy . . . that society
is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347,
361 (1967) (Harlan, J., concurring); accord State v. Jeffers, 135 Ariz. 404, 413
(1983) (“The application of the fourth amendment depends on whether the
person invoking its protection can claim a justifiable, reasonable, legitimate
expectation of privacy that has been invaded by the challenged government
action.”). And for a half-century, courts nationwide have applied this
two-pronged Katz test.


¶61           The Katz analysis “normally embraces two discrete
questions”: (1) “whether the individual, by his conduct, has ‘exhibited an
                                      24
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

actual (subjective) expectation of privacy,’” that is, whether “the individual
has shown that ‘he seeks to preserve [something] as private’”; and (2)
“whether the individual’s subjective expectation of privacy is ‘one that
society is prepared to recognize as reasonable,’” that is, whether “the
individual’s expectation, viewed objectively, is ‘justifiable’ under the
circumstances.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (quoting Katz,
389 U.S. at 351, 353, 361); see also Kyllo v. United States, 533 U.S. 27, 33 (2001)
(“[A] Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as reasonable.”).
Jean meets neither of those two prerequisites.


                                        A.

¶62             The Supreme Court has made clear that the first, subjective
prong of the Katz test requires that a defendant take “normal precautions to
maintain his privacy.” Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). Indeed,
what a person does — or fails to do — directly affects that person’s Fourth
Amendment protections. See Rakas v. Illinois, 439 U.S. 128, 149 (1978). This
first aspect of the Katz test requires courts to conduct a fact-intensive
inquiry that varies from case to case. Compare United States v. Chadwick, 433
U.S. 1, 11 (1977) (stating that “placing personal effects inside a
double-locked footlocker . . . manifested an expectation” of privacy),
abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991), and
Katz, 389 U.S. at 352 (“One who occupies [a telephone booth] [and] shuts
the door behind him . . . is entitled to assume that the words he utters . . .
will not be broadcast to the world.”), with United States v. Knotts, 460 U.S.
276, 281–82 (1983) (“When [a motorist] travel[s] over the public streets he
voluntarily convey[s] [the details of his travels] to anyone who want[s] to
look . . . .”).


¶63           A defendant’s failure to present evidence in a suppression
hearing about his or her expectation of privacy militates against finding that
the first Katz prong is satisfied and can thus undermine a Fourth
Amendment claim. See People v. Bryant, 334 P.3d 573, 612 (Cal. 2014)
(affirming denial of motion to suppress evidence seized in warrantless
search of house when defendant “presented no competent evidence
showing he had an expectation of privacy” in the residence). That is
particularly so when, as here, a “deficient record” provides no information

                                        25
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

at all on whether the defendant had or exhibited a subjective expectation of
privacy. Id.


¶64              In Bryant, the California Supreme Court found a defendant’s
failure to testify at the suppression hearing particularly problematic:
“[G]iven the subjective portion of the expectation of privacy analysis, it is
questionable whether a defendant could carry his burden without
presenting his own testimony.” Id. Other courts are in accord. See, e.g.,
United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006) (quoting United
States v. Ruth, 65 F.3d 599, 605 (7th Cir. 1995) (“[W]ithout an affidavit or
testimony from the defendant, it is almost impossible to find a privacy
interest . . . .” (internal quotation marks omitted))); United States v. Erwin,
875 F.2d 268, 271 (10th Cir. 1989) (concluding that a “defendant, who did
not testify at the suppression hearing, failed to introduce any evidence
to . . . establish a legitimate expectation of privacy in the particular area
searched”).


¶65             This approach is quite sensible because finding a subjective
expectation of privacy hinges largely — if not entirely — on what the
defendant personally intended or expected regarding his privacy interests.
See Minnesota v. Carter, 525 U.S. 83, 88 (1998) (explaining that the aggrieved
party “must demonstrate that he personally has an expectation of privacy in
the place searched, and that his expectation is reasonable” (emphasis
added)). And requiring some showing that the defendant subjectively
expected privacy in a particular situation does not prejudice or otherwise
disadvantage him because the defendant’s testimony in a pretrial
suppression hearing generally cannot be used against him at trial. Simmons
v. United States, 390 U.S. 377, 394 (1968); see also Ariz. R. Crim. P. 16.2(A)(4).
If no evidence were needed to establish a particular defendant’s subjective
expectation of privacy, or if that element no longer exists or is automatically
presumed in every case involving a warrantless search that reveals
contraband, then one would expect the Supreme Court to say so. But it has
not. See, e.g., Bond v. United States, 529 U.S. 334, 338 (2000) (reaffirming that
the “Fourth Amendment analysis embraces two questions”).


¶66          Like the defendant in Bryant, Jean did not testify at the
suppression hearing, and the record here contains no evidence regarding

                                       26
                          STATE V. JEAN
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                 JUDGE ESPINOSA, Dissenting in Part

his subjective expectation of privacy in his location while on public roads.
Absent any such evidence or showing on that point, and based on the
limited record in this case, Jean’s Fourth Amendment claim necessarily
fails.1 Cf. Peoples, 240 Ariz. at 247 ¶ 5, 248–49 ¶¶ 11–16 (upholding trial
court’s order, entered after suppression hearing at which defendant
testified, suppressing evidence derived from defendant’s cell phone, in
which he showed a legitimate expectation of privacy based on his actions
and testimony). Therefore, the trial court did not abuse its discretion in
denying Jean’s motion to suppress based on his failure to satisfy the
requisite first prong under Katz.


                                       B.

¶67           Even assuming that Jean somehow exhibited an actual,
subjective expectation of privacy in his whereabouts while travelling on
public roadways as a passenger in a commercial truck, this is not a case in
which any such expectation is one that “society is prepared to recognize as
‘reasonable.’” See Katz, 389 U.S. at 361. It is well established that “[a] person
travelling in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another.” Knotts,
460 U.S. at 281; see also Oliver v. United States, 466 U.S. 170, 186 n.2 (1984)
(“Our cases establish . . . that car owners’ diminished expectations that their
cars will remain free from prying eyes warrants a corresponding reduction
in the constitutional protection accorded cars.”); State v. Estrella, 230 Ariz.
401, 404–05 ¶ 12 (App. 2012) (same); cf. State v. Ditren, 126 A.3d 414, 419 (R.I.
2015) (noting that a mere passenger does not have a reasonable expectation
of privacy in the vehicle in which he or she is riding); Sidener v. State, 55
N.E.3d 380, 384 (Ind. App. 2016) (same). (My conclusion that Jean lacked a
reasonable expectation of privacy rests on this fundamental principle—
“[w]hat a person knowingly exposes to the public . . . is not a subject of


1 According to the majority, the State waived any assertion “that Jean
lacked a subjective expectation of privacy” by not specifically raising that
point. Supra ¶ 23. But the State expressly argued that Jean “lacked a
reasonable expectation of privacy in his movements on public roads” and
specifically referred to Katz’s requirement of “a subjective expectation of
privacy,” a showing only the defendant can and must make. See Smith,
442 U.S. at 740; Bryant, 334 P.3d at 612.
                                       27
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

Fourth Amendment protection,” Katz, 389 U.S. at 351 — not, as the majority
suggests, on whether Velez-Colon entrusted the truck to Jean to drive by
himself. Supra ¶ 36.)


¶68            Neither Knotts nor Rakas has been modified, let alone
overruled, by the Supreme Court. And, more importantly, “[n]othing in
the Fourth Amendment prohibit[s] the police from augmenting the sensory
faculties bestowed upon them at birth with such enhancement as science
and technology afford[] them.” Knotts, 460 U.S. at 282. Nonetheless, the
majority finds those cases inapplicable to the “materially different
technology” of GPS tracking and therefore “not controlling” in a world of
“evolving technology.” Supra ¶¶ 29, 31, 38. Contra United States v. Sparks,
711 F.3d 58, 66 (1st Cir. 2013) (“[T]he fact that the device was a GPS tracker
rather than a beeper does not render Knotts inapplicable.”); United States v.
Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (finding “the beeper technology used
in Knotts sufficiently similar to . . . GPS technology”). But is the state’s GPS
monitoring of a suspicious commercial vehicle’s location on public
roadways for less than thirty-one hours any more intrusive, or more
violative of a passenger’s expectation of privacy, than a warrantless search
of the vehicle’s interior, including the glove compartment and under the
passenger’s seat? See Rakas, 439 U.S. at 148–49 (“[T]he glove compartment
or area under the seat of a car . . . are areas in which a passenger . . . simply
would not normally have a legitimate expectation of privacy.”).


¶69            The majority also contends that “five Justices in Jones declined
to adopt the Knotts reasoning regarding public roads when applying the
reasonable-expectation-of-privacy test to GPS tracking.” Supra ¶ 28. But
my colleagues read too much into Jones, as the Court expressly declined to
address whether Jones had a reasonable expectation of privacy “in the
locations of [his] Jeep on the public roads, which were visible to all,” and
reaffirmed Knotts’s holding that “[a] person traveling in an automobile on
public thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.” Jones, 565 U.S. at 406, 412
(alteration in original) (internal quotation marks omitted) (quoting Knotts,
460 U.S. at 281).


¶70           In his concurring opinion, Justice Alito likewise noted that the

                                       28
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

Court “accept[ed]” Knotts’s holding “that the use of a surreptitiously
planted electronic device to monitor a vehicle’s movements on public roads
did not amount to a search.” Id. at 420 (Alito, J., concurring in the
judgment). Rather than questioning Knotts, he acknowledged its continued
validity in permitting “relatively short-term monitoring of a person’s
movements on public streets.” Id. at 430. Although Justice Sotomayor in
her separate, sole concurrence opined on GPS technology and reasonable-
expectation-of-privacy issues, she too agreed that the majority’s trespassory
test “suffice[d] to decide [the] case” as a “narrower basis for decision,” and
thus found resolution of the “difficult questions” concerning the other
issues “unnecessary.”        Id. at 414, 418 (Sotomayor, J., concurring).
Accordingly, although our colleagues valiantly attempt to bootstrap Jones
as support for their Katz-based holding, nothing in Jones renders the public
thoroughfares doctrine inapplicable to this case — it is still good law.
United States v. Sparks, 711 F.3d 58, 66 (1st Cir. 2013) (stating that “Knotts
clearly authorized the . . . use [of] a GPS-based tracking device in the place
of a beeper”).


¶71            As such, Jean’s alleged expectation of privacy must arise from
some other source. That source, Jean urges, is the duration and extent of
the GPS tracking. He further contends that “[n]o citizen would possibly
envision having their every movement tracked” during a two-day,
interstate journey. But Jean confuses the relevant standard. The issue is not
one of foreseeability, but whether society is prepared to recognize as
reasonable Jean’s expectation of privacy in his location on public
thoroughfares in a commercial vehicle for less than thirty-one hours. See
Estrella, 230 Ariz. at 404 ¶¶ 10–11.


¶72           On that issue, “nothing is better established in Fourth
Amendment jurisprudence than the distinction between one’s expectation
of privacy in an automobile and one’s expectation of privacy when in other
locations.” Rakas, 439 U.S. at 153–54; see also Knotts, 460 U.S. at 281
(discussing the diminished expectation of privacy in vehicles). A
diminished expectation of privacy in automobiles is largely due to the
highly visible nature of vehicular travel, see, e.g., Cardwell v. Lewis, 417 U.S.
583, 591 (1974), and the “range of police regulation[s]” to which licensed



                                       29
                          STATE V. JEAN
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                 JUDGE ESPINOSA, Dissenting in Part

motor vehicles are subject, California v. Carney, 471 U.S. 386, 393 (1985).2


¶73          Jean argues that DPS’s monitoring was unreasonable because
it was more than “fleeting[] observ[ation] by the public,” and the majority

2 These considerations now apply with even greater force to commercial
vehicles, which are subject to far more regulations than private vehicles.
Currently, extensive federal and state regulations govern commercial
tractor-trailers as part of a “pervasively regulated industry.” See United
States v. Delgado, 545 F.3d 1195, 1202 (9th Cir. 2008). For example, federal
laws subject drivers of commercial vehicles to “hours of service”
limitations, see 49 U.S.C. § 31137, and require them to install on their
vehicles an “electronic logging device” that records, among other things,
the hours when and locations where the driver operates the commercial
vehicle. 49 U.S.C. § 31137(b)(1); 49 C.F.R. §§ 395.8(a)(1), 395.26(b) (2016).
Significantly, these laws “allow law enforcement to access the data
contained in the[se] device[s] during a roadside inspection.” Id. 49 U.S.C.
§ 31137(b)(1)(B); accord 49 C.F.R. § 395.15(b)(2) (2016). And operators of
commercial vehicles must now constantly record much more information
than the vehicle’s location alone, and disclose seven days’ worth of this
information upon the warrantless demand of a government official. See 49
C.F.R. § 395.15(b)(2).


In addition, many states, including Arizona, have laws that require
commercial vehicles to report for weigh-ins at ports of entry. See A.R.S.
§§ 28-369, -5432. The majority does not address these recently-amended
laws because they were not argued and do not directly impact this
particular case. Supra ¶ 24. But given its broad holding, see supra ¶ 32, such
laws clearly should affect the analysis of future cases involving Fourth
Amendment reasonable-expectation-of-privacy claims arising from
warrantless searches of commercial vehicles covered by the regulations. See
Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 840 F.3d 879, 893
(7th Cir. 2016) (“In these industries, reasonable expectations of privacy are
diminished because an individual who ‘embarks upon such a business . . .
has voluntarily chosen to subject himself to a full arsenal of governmental
regulation.’” (quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978))).



                                      30
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

apparently agrees. But this also confuses the relevant inquiry. For
purposes of the Katz test, it matters what the police are surveilling, and the
locations they are observing. That new technology allows police to surveil
more effectively public locations and activities does not change the public
nature of the location or constitute a violation of one’s reasonable
expectation of privacy. See Knotts, 460 U.S. at 284 (dismissing concerns over
technologically enhanced police efficiency as “simply ha[ving] no
constitutional foundation”). The Supreme Court cases addressing the
government’s use of new technologies do not focus on what members of
the public likely observe, but whether the surveillance will reveal
information that is legitimately considered private or outside public view.
Compare Knotts, 460 U.S. at 281–82 (stating that a person has no expectation
of privacy in information he voluntarily conveys to the public), with Karo,
468 U.S. at 716 (stating that electronic monitoring within a residence, or
“[i]ndiscriminate monitoring of property that has been withdrawn from
public view . . . present[s] far too serious a threat to privacy interests in the
home” to escape Fourth Amendment scrutiny).


¶74           When viewed through that proper lens, this case is much
closer to Knotts than to cases such as Karo, 468 U.S. at 716, Kyllo, 533 U.S. at
34, 36 (involving thermal-imaging-device “search of the interior of homes”
and “observations of the intimate details of a home”), or Katz, 389 U.S. at
353 (involving governmental monitoring of a person’s confidential
conversation in a closed telephone booth, a private setting in which the
caller reasonably and justifiably relied on privacy). Nor does this case
involve a search of an area that, without technology, police would have to
physically intrude to obtain the information sought. In Kyllo, for example,
thermal imaging allowed the police to penetrate the interior of a home,
something mere police surveillance from a public location could not do.
533 U.S. at 40. In contrast, Knotts simply allowed the police to follow a car
on a public road — something they could accomplish without a beeper or
GPS. 460 U.S. at 284. This distinction is critical.


¶75           One who, like Jean, exposes to the public his movements or
those of a vehicle in which he rides generally assumes the risk that police
may collect information regarding those movements and use it for
investigative and law enforcement purposes. See Smith, 442 U.S. at 744. The
principles underlying this well-established proposition are so robust that

                                       31
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

the Supreme Court extended their application to aerial surveillance of the
curtilage surrounding one’s home. See Florida v. Riley, 488 U.S. 445 (1986);
California v. Ciraolo, 476 U.S. 207 (1986). (The majority apparently questions
such well-accepted means of surveillance as aircraft detection of speeding
motorists because unconstitutional monitoring may “be conducted by use
of devices that are not physically attached to the vehicle.” Supra ¶ 26.) Yet,
under the majority’s holding, an individual’s expectation of privacy in a
satellite-assisted reporting of his public vehicular movements is somehow
stronger than his expectation to remain free from real-time visual
surveillance of his curtilage — “the area to which extends the intimate
activity associated with the ‘sanctity of a man’s home and the privacies of
life.’” Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630
(1886)).


¶76             Circumstances certainly may arise where the government’s
surveillance of a person or a vehicle — even on public thoroughfares — is
so pervasive that it violates the Fourth Amendment. See Jones, 565 U.S. at
431 (Alito, J., concurring in the judgment). But this is not such a case.
Unlike the targeted and nearly month-long GPS monitoring in Jones, 565
U.S. at 403, and Mitchell, 234 Ariz. at 412 ¶ 4, the GPS device was situated
on Velez-Colon’s truck for less than three days and monitored for
approximately thirty-one hours total. Thus, this case does not involve “the
use of longer term GPS monitoring” that prompted Justice Alito’s concerns
in Jones, but rather involves “relatively short-term monitoring of a
[vehicle’s] movements on public streets,” which “accords with expectations
of privacy that our society has recognized as reasonable.” Jones, 565 U.S. at
420 (Alito, J., concurring in the judgment).


¶77            Although it might be difficult to draw the line between
permissible and impermissible GPS monitoring based on its duration alone,
this case requires no such line-drawing — it simply does not approach any
reasonable line that might be drawn. See Estrella, 230 Ariz. at 405 ¶ 14
(“Because . . . the use of the GPS device . . . did not constitute a search . . .,
we need not determine whether the warrantless but minimally-intrusive
use of GPS tracking for the period of time involved here is reasonable and
permissible . . . .”). No evidence in the record suggests that the state’s
limited use of the GPS tracking in this case constituted the “dragnet-type
law enforcement practice[]” to which Jones referred. 565 U.S. at 408 n.6

                                       32
                          STATE V. JEAN
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                 JUDGE ESPINOSA, Dissenting in Part

(quoting Knotts, 460 U.S. at 284), and my colleagues envision, supra ¶ 28.


¶78            In addition, even if line-drawing were required, “[a]
legislative body is well situated to gauge changing public attitudes, to draw
detailed lines, and to balance privacy and public safety in a comprehensive
way.” Jones, 565 U.S. at 429–30 (Alito, J., concurring in the judgment).3 That
some state legislatures have done so, as the majority observes, supra ¶ 33,
does not mean that all warrantless installations and use of GPS devices on
vehicles, regardless of circumstances or duration, are unconstitutional.
(Neither Congress nor the Arizona Legislature has enacted laws relating to
the government’s use of GPS, thus refuting the majority’s suggestion of any
national or state consensus “that society deems reasonable an expectation
of privacy in one’s movements as concerns GPS monitoring.” Supra ¶ 33).
Again, the relevant question is “whether the use of GPS tracking in a
particular case involved a degree of intrusion that a reasonable person
would not have anticipated,” Jones, 565 U.S. at 430 (Alito, J., concurring in
the judgment), and the answer with respect to Jean is “no.” See Sparks,
711 F.3d at 67 (“[N]o such expectation attaches to information that is, like
one’s public movements, ‘voluntarily conveyed to anyone who wanted to
look.’” (quoting Knotts, 460 U.S. at 281)); Estrella, 230 Ariz. at 404 ¶ 11
(stating that “the remote electronic monitoring of a vehicle’s movement on


3 Legislative solutions in this area might well be influenced by current
realities.    In this age of pervasive and perpetually-connected
“smartphones” and tablets, most of the populace is constantly tracked and
physically located by a multitude of “apps” and interests that are routinely
granted permission to do so. See Andrew G. Ferguson, The Internet of
Things and the Fourth Amendment of Effects, 104 Cal. L. Rev. 805, 818–23
(2016). In a similar vein, the public understands that video cameras are
ubiquitous, both in cities and on the highways. Thus, the electronic
tracking of people’s location, both digital and visual, at the very least in
public areas, arguably has gained widespread acceptance and cannot be
deemed something society would nevertheless reasonably expect to be
private. See Derek M. Alphran, Changing Tides: A Lesser Expectation of
Privacy in a Post 9/11 World, 13 Rich. J.L. & Pub. Int. 89, 129, 135 (2010)
(advocating for increased privacy protections and observing that “mass
video surveillance” and other forms of digital surveillance in public
“reduce objective expectations of privacy”).
                                     33
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

a public road is considerably less intrusive than” other types of searches).


¶79           The majority expresses grave concerns about the potential
“wealth of detail GPS monitoring collects,” including locational
information that “can reveal preferences, alignments, associations, personal
ails and foibles” and “a detailed picture of one’s life.” Supra ¶ 30. The
majority also asserts that GPS inexpensively and indiscriminately
“generate[s]data even from locations where police themselves would have
no right to be,” id., echoing concerns voiced by Justice Sotomayor in an
opinion no other justice joined, see Jones, 565 U.S. at 415 (Sotomayor, J.,
concurring) (bemoaning that GPS may allow the government to intrusively
obtain intimate details about one’s personal life, including his or her
“familial, political, professional, religious, and sexual associations”).
Although admittedly “gather[ing] a wealth of highly-detailed information
about an individual’s life over an extended period of time” clearly raises
Fourth Amendment concerns, see State v. Zahn, 812 N.W.2d 490, 498
(S.D. 2012), no such concerns are warranted on the limited facts before us.


¶80            The record contains no evidence whatsoever regarding the
capabilities of the GPS device used in this case; the nature and extent of data
collected, or even collectable, by the device; or what use DPS made (or could
have made) of the GPS data, other than monitoring the movements and
whereabouts of Velez-Colon’s truck on public roadways. The record
merely reflects that the state tracked the location of that truck over a couple
days, but it does not otherwise show that the GPS device was used (or even
potentially usable) for any of the types of obvious invasions of privacy (for
example, surveilling private activities within a residence or other structure,
or within the vehicle itself) that cause the majority such consternation. (The
relatively brief GPS tracking in this case is a far cry from the “massive
invasion of privacy” that resulted from the government’s 65-day-long
monitoring in People v. Weaver, 909 N.E.2d 1195, 1201 (N.Y. 2009). See supra
¶¶ 29, 38.)


¶81           The majority cites Riley v. California, 134 S. Ct. 2473 (2014), to
support its position, supra ¶ 31, but that case is inapposite because it did not




                                      34
                          STATE V. JEAN
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                 JUDGE ESPINOSA, Dissenting in Part

address surveillance of any sort.4 At issue in Riley was a warrantless search
of the data contained on the defendant’s cell phone, which the police seized
during a search incident to an arrest. 134 S. Ct. at 2480–81. In finding the
search unconstitutional, the Court reasoned that search of a smartphone, “a
[technology] . . . unheard of ten years ago,” is so invasive that it “would
typically expose to the government far more than the most exhaustive
search of a house.” Id. at 2484, 2491.


¶82           Again, this case does not involve the government’s scouring
of a newly invented vault of private information, the invasiveness of which
eclipses even the most exhaustive search of a home. Rather, this case
involves the government’s collection of information that individuals have
knowingly exposed to the public, a permissible practice ever since the
Fourth Amendment was adopted. See Katz, 389 U.S. at 351; see also Knotts,
460 U.S. at 283. That DPS used a GPS device to aid in collecting the
information does not infringe Jean’s Fourth Amendment rights, inasmuch
as the Supreme Court “ha[s] never equated police efficiency with
unconstitutionality.” Id. at 284.


¶83           A different Riley case is more instructive here than the
Supreme Court’s Riley cellphone-search case. In Riley v. Illinois, 858 F.3d
1012 (6th Cir. 2017) (per curiam), petition for cert. filed, __ U.S.L.W. __ (U.S.
Sept. 12, 2017) (No. 17-5943), the Sixth Circuit held that law enforcement’s
warrantless tracking of a defendant using “real-time GPS location data for

4 The majority also cites Tracey v. State, 152 So. 3d 504 (Fla. 2014), for
support, supra ¶ 32, but that case is also inapplicable to the facts before us.
In Tracey, the Florida Supreme Court concluded that one has a reasonable
expectation of privacy in cell site location data. 152 So. 3d at 526. But the
court noted “perhaps most important[]” to its holding was the fact that a
cell phone is an “‘effect[]’ as that term is used in the Fourth Amendment.”
Id. at 524. Moreover, the court’s holding was based, in part, on the
“inexorable and significant fact” that because of cell phones’ size and their
pervasive use, “cell phone tracking can easily invade the right to privacy in
one’s home or other private areas.” Id. Neither of these factors is implicated
here. As discussed above, the vehicle was not an effect as to Jean, and
nothing in the record indicates that the GPS monitoring revealed any
confidential details of Jean’s private life, personal habits, or the like.
                                       35
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

approximately seven hours preceding his arrest, did not amount to a Fourth
Amendment search.” Id. at 1013. The police used the GPS data to follow
the defendant to the hotel where he was hiding. Id. at 1014. After learning
which room was his, the police arrested him. Id. at 1014–15. Central to the
court’s analysis was “[t]he fact that the defendant’s movements . . . were
visible from public vantage points,” id. at 1017, such that the GPS tracking
did not “reveal movements within the . . . hotel room,” id. at 1018 (emphasis
omitted). The court also noted that both Knotts and Karo teach that
electronically assisted tracking does not violate the Fourth Amendment as
long as the tracking “does not cross the sacred threshold of the home.” Id.
The same reasoning and result should obtain here.


¶84             “The touchstone of the Fourth Amendment is reasonableness,
and the reasonableness of a search is determined ‘by assessing, on the one
hand, the degree to which it intrudes upon an individual’s privacy and, on
the other, the degree to which it is needed for the promotion of legitimate
governmental interests.’” United States v. Knights, 534 U.S. 112, 118–19
(2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)); see also
Maryland v. King, 569 U.S. 435, 447 (2013) (quoting Vernonia School Dist. 47J
v. Acton, 515 U.S. 646, 652 (1995)) (“[T]he ultimate measure of the
constitutionality of a governmental search is reasonableness.” (citation and
internal quotation marks omitted)); cf. State v. Adair, 241 Ariz. 58, 59 ¶ 1
(2016) (warrantless search of probationer’s residence “complies with the
Fourth Amendment if it is reasonable under the totality of the
circumstances”). The installation and short-term use of the GPS device in
this case to track and stop Velez-Colon’s truck and then apprehend its
occupants, though undertaken without a warrant, were reasonable, as those
actions clearly were supported by ample and well-supported suspicion of
illegal activity. These factors militate against finding a Fourth Amendment
violation here based on any alleged reasonable expectation of privacy.


¶85            Rejecting what it characterizes as an “ad hoc approach,” supra
¶ 35, the majority instead adopts a categorical bright-line rule that
automatically prohibits warrantless GPS monitoring regardless of the
duration or circumstances. Supra ¶¶ 32, 36. But the Supreme Court’s
jurisprudence is replete with cases that embrace case-specific and fact
intensive examinations of Fourth Amendment challenges, a framework
Justice Alito found appropriate in this very context. See Jones, 565 U.S. at

                                     36
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

430 (Alito, J., concurring in the judgment) (noting that Fourth Amendment
challenges to GPS tracking must be decided in the “particular case”); see also
Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015) (“The reasonableness of
a search depends on the totality of the circumstances, including the nature
and purpose of the search and the extent to which the search intrudes upon
reasonable privacy expectations.”).


¶86           The majority cites no authority for the proposition that a
non-owner/intermittent driver of a vehicle, who has no right to exclude
others from it, nevertheless has an objectively reasonable expectation that
the movements of the vehicle will not be monitored via GPS for less than
two days. Yet, the majority broadly holds that “passengers traveling with
the owner in a private vehicle generally have a reasonable expectation of
privacy that is invaded by the government’s continually tracking the
vehicle through a surreptitious GPS tracking device,” supra ¶ 32, and that
“Jean’s expectation of privacy from the warrantless GPS monitoring of his
movements is one that ‘society is prepared to recognize as reasonable,’”
supra ¶ 38.


¶87           At bottom, the majority’s holding means this: any
non-owner/passenger who, with permission and in the presence of the
owner, sometimes drives the vehicle has a reasonable expectation of
privacy regarding the vehicle such that the warrantless installation of a GPS
device on the vehicle’s exterior violates that person’s Fourth Amendment
rights and precludes the government’s use of any information or evidence
derived from the GPS. In other words, the majority requires probable cause
and a warrant for any governmental installation and use of a GPS device
on vehicles, even for short-term use for an hour or so and even though
reasonable suspicion of illegal activity is evident. The law does not yet
compel that result, and the limited facts before us certainly do not warrant
it. Therefore, I respectfully dissent from Part II(C) of the Court’s opinion.


¶88           One final note: the United States Supreme Court recently held
oral argument in Carpenter v. United States, No. 16-402 (U.S. filed Sept. 16,
2016), involving the continued viability of the “third-party doctrine” in the
digital age. At issue is whether police may, without a warrant, obtain
cellphone location information that is routinely collected and stored by

                                     37
                         STATE V. JEAN
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                JUDGE ESPINOSA, Dissenting in Part

wireless providers, as the Sixth Circuit held. See United States v. Carpenter,
819 F.3d 880, 890 (6th Cir. 2016) (distinguishing Jones and Riley and holding
“that the government’s collection of business records containing cell-site
data was not a search under the Fourth Amendment”). The Supreme Court
also recently granted certiorari and scheduled oral argument in Byrd v.
United States, No. 16-1371 (U.S. filed May 11, 2017), which involves whether
a driver has a reasonable expectation of privacy in a rental car when he has
the renter’s permission to drive the car but is not listed as an authorized
driver on the rental agreement, see United States v. Byrd, 679 Fed. Appx. 146
(3d Cir. 2017) (holding that sole occupant of a rental vehicle has no Fourth
Amendment expectation of privacy and therefore no standing to challenge
search of the vehicle when occupant is not named in the rental agreement).
See also United States v. Kennedy, 638 F.3d 159, 165–67 (3d Cir. 2011) (noting
split among the federal circuit courts and collecting cases).


¶89            Whether Carpenter, Byrd, or some other Supreme Court case
will eventually resolve, clarify, or shed light on the GPS issue before us is
now unknown. But given the current state of the law, this Court should
follow Rakas and Knotts unless and until those decisions are held to be
inapplicable or overruled in the GPS context. See Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court
has direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of overruling
its own decisions.”); accord State v. Ring, 204 Ariz. 534, 557 ¶ 61 (2003) (“We
cannot ignore a Supreme Court decision interpreting federal law unless the
Court expressly overrules or casts cognizable doubt on that decision.”); see
also Sparks, 711 F.3d at 66 (finding nothing about GPS monitoring, “except
for the duration of its use, . . . that could meaningfully distinguish it from
the beeper in Knotts”). For all of these reasons, I would affirm the trial
court’s denial of Jean’s motion to suppress (without the need for invoking
the good-faith exception to the exclusionary rule) and affirm the court of
appeals’ opinion.




                                      38
                         STATE V. JEAN
       JUSTICE BOLICK, Concurring in Part and Dissenting in Part

BOLICK, J., concurring in part and dissenting in part.



¶90          The Court today honors our forebears by holding that the
state must obtain approval from a disinterested magistrate before it may
engage in GPS surveillance under the circumstances presented. Although
in many instances this will merely impose inconvenience on the authorities,
the warrant requirement marks the dividing line between the rule of law
and tyranny. Were the Court to hold otherwise, the state could subject
countless individuals and their movements to pervasive and continuous
GPS surveillance without meaningful limits. The founders could not have
imagined the technology that makes such invasive surveillance possible,
but they more than imagined the threat.


¶91           I join fully the Chief Justice’s majority and dissenting
opinions. I write additionally to express the view that had Jean adequately
developed the argument, we might have more easily and appropriately
decided this case under the Arizona Constitution.


¶92           Americans enjoy the protections of not one constitution but
fifty-one. Our federalist system allows us to interpret our state constitution
differently than the U.S. Supreme Court interprets the national
Constitution, so long as we do not diminish federal constitutional
protections or transgress federal laws enacted pursuant to the U.S.
Constitution. In doing so, we frequently may find that our constitution
provides greater protections of individual liberty and constraints on
government power because of provisions that do not exist in its national
counterpart, see, e.g., Turken v. Gordon, 223 Ariz. 342, 345–49 ¶¶ 10–22 (2010)
(analyzing the “Gift Clause” under article 9, section 7 of the Arizona
Constitution which forbids corporate subsides), or because we more strictly
construe such protections that exist in both constitutions. Compare Kelo v.
City of New London, 545 U.S. 469, 488–89 (2005) (holding that the Fifth
Amendment’s “public use” provision requires only a public benefit), with
Bailey v. Myers, 206 Ariz. 224, 229–30 ¶¶ 21–26 (App. 2003) (vigorously
enforcing the public use requirement under article 2, section 17 of the
Arizona Constitution).


¶93           On the issue presented here, our constitution may lend itself
                                      39
                         STATE V. JEAN
       JUSTICE BOLICK, Concurring in Part and Dissenting in Part

to greater clarity than its federal counterpart. The Fourth Amendment
provides: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated,” and it specifies a warrant procedure for such searches and
seizures. U.S. Const. amend. IV. By contrast, article 2, section 8, of the
Arizona Constitution provides, “No person shall be disturbed in his private
affairs, or his home invaded, without authority of law.”


¶94            On its face, article 2, section 8 provides a categorical bar
against the state disturbing individuals in their private affairs without
authority of law. In law, the definition of “disturb” is “[t]o interfere with in
the lawful enjoyment of a right.” Disturb, Webster’s New International
Dictionary 757 (2d ed. 1944). The right to travel is recognized as a
fundamental constitutional right. See, e.g., Crandall v. Nevada, 73 U.S. 35, 44
(1868). Applying article 2, section 8 could extricate the Court from the
Fourth Amendment jurisprudential thicket outlined in the preceding pages
in which the Court must determine whether a police-installed GPS device
is a “search,” whether a vehicle is “an effect,” and whether a co-driver has
a possessory interest in the vehicle or a reasonable expectation of privacy.
It also could provide greater certainty and predictability to defendants and
law-enforcement alike than hitching our jurisprudence to often amorphous
and constantly evolving U.S. Supreme Court decisions.5


¶95          Other state courts have relied on their own constitutions to
determine the propriety of electronic surveillance. See, e.g., Weaver, 909
N.E.2d. at 1200–02 (N.Y. 2009) (requiring warrant for GPS surveillance
because “the alternative would be to countenance an enormous

5  For instance, we are admonished to determine whether a particular
expectation of privacy is “one that society is prepared to recognize as
‘reasonable.’” Katz, 389 U.S. at 361 (Harlan, J., concurring). While I accept
that as a standard we must apply under Fourth Amendment jurisprudence,
it is not immediately evident how a court is equipped to determine what
society is “prepared to recognize.” Nor am I persuaded that constitutional
meaning should hinge on what “society” is “prepared to recognize” at any
given point. As we develop our state constitutional jurisprudence, we
should rely to the greatest possible extent on the text’s plain meaning,
rather than concoct hopelessly subjective tests that evolve the text’s
meaning without the benefit of constitutional amendment.
                                      40
                         STATE V. JEAN
       JUSTICE BOLICK, Concurring in Part and Dissenting in Part

unsupervised intrusion by the police agencies of government upon
personal privacy” and “the consequent marginalization of the State
Constitution”); State v. Campbell, 759 P.2d 1040, 1044 (Or. 1988) (rejecting the
reasonable expectation of privacy analysis under the Oregon Constitution).


¶96            Most salient are cases from Washington State, whose
pertinent constitutional provision is identical to ours. See, e.g., Kotterman v.
Killian, 193 Ariz. 273, 291 ¶ 68 (1999) (concluding that we may find useful
guidance in Washington State jurisprudence as much of our constitution
was derived from theirs). In State v. Jackson, the Washington Supreme Court
observed that “vehicles are used to take people to a vast number of places
that can reveal preferences, alignments, associations, personal ails and
foibles. The GPS tracking devices record all of these travels, and thus can
provide a detailed picture of one’s life.” 76 P.3d at 223. The court thus held
that the warrantless placement of a GPS device on a suspect’s vehicle was
precisely the “trespass into private affairs” that the constitution prohibits.
Id. at 224; see also State v. Samalia, 375 P.3d 1082, 1086–87 (Wash. 2016)
(applying the same analysis to cellphone searches).


¶97           Unfortunately, we cannot resolve this case under the Arizona
Constitution because the issue was not fully developed and argued. The
vitality of our state constitution requires not only judicial vigilance but
adversarial diligence. I hope that future cases will present an opportunity
to determine whether our Constitution provides greater limits on
government discretion in this context.




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