FOR PUBLICATION
                                                                         Aug 08 2014, 9:10 am




ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:
TODD ESS                                       GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

STEPHEN GERALD GRAY                            IAN MCLEAN
Indianapolis, Indiana                          Deputy Attorney General
                                               Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

VICTOR KEEYLEN,                                )
                                               )
                                               )
       Appellant-Defendant,                    )
                                               )
           vs.                                 )      No. 49A05-1308-CR-419
                                               )
STATE OF INDIANA,                              )
                                               )
                                               )
       Appellee-Plaintiff.                     )

                    APPEAL FROM THE MARION SUPERIOR COURT,
                              CRIMINAL DIVISION 20
                         The Honorable Steven Eichholtz, Judge
                           Cause No. 49G20-1106-FA-40850


                                     August 8, 2014
                              OPINION – FOR PUBLICATION

MATHIAS, Judge
       Victor Keeylen (“Keeylen”) brings this interlocutory appeal challenging the

Marion Superior Court’s denial of his motion to suppress. On appeal, Keeylen claims

that both Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to

the United States Constitution require the suppression of evidence he claims was

discovered as a result of the police installing a GPS tracking device on his vehicles

without a warrant. Although we agree with Keeylen that the warrantless installation and

use of the GPS devices was improper, we nevertheless conclude that suppression of the

evidence discovered during the execution of a search warrant on Keeylen’s residence was

not warranted under the particular facts and circumstances of this case. Accordingly, we

affirm the trial court’s denial of Keeylen’s motion to suppress.

                             Facts and Procedural History

       Keeylen was the subject of an extended narcotics investigation by the Indianapolis

Metropolitan Police Department (“IMPD”). Detective Ryan Graber of the IMPD was the

lead officer involved in the investigation, which included numerous controlled buys using

various confidential informants.     According to Detective Graber’s probable cause

affidavit, Keeylen sold cocaine and/or heroin to the police and confidential informants on

February 3, February 11, March 6, and August 20, 2009.             On August 26, 2009, a

controlled buy was conducted at an automotive garage on East 21st Street in Indianapolis

from an individual known as “Sammie,” who indicated that Keeylen left cocaine at the

garage for others to sell.

       Also on August 26, 2009, the police filed a “Petition to Authorize Installation and

Use of Global Positioning System Tracking Unit,” in Marion Superior Court, Criminal

                                             2
Division, Room 20, in which the police sought the permission of the trial court to install a

GPS tracker onto Keeylen’s 2007 Dodge Magnum. This petition was accompanied by

the affidavits of Detective Graber and Officer Stephen Fitzpatrick (“Officer Fitzpatrick”).

Officer Fitzpatrick’s affidavit described the technical aspects of the GPS tracking unit,

and Detective Graber’s affidavit detailed the investigation of Keeylen, including the

controlled buys, that had occurred thus far. The trial court granted the petition that same

day in an order that reads in relevant part:

          COMES NOW the State of Indiana . . . and submits to the Court a
       Petition to Authorize Installation and Use of Global Positioning System
       Tracking Unit, with attached affidavit of Stephen Fitzpatrick. The Court,
       having examined the foregoing Petition . . . now FINDS that such petition
       should be granted.

           IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by
       this Court, as follows:

       1.     That law enforcement officers are hereby authorized to install a
              Global Positioning System (GPS) tracking unit upon the following
              vehicle:
                     2007 Dodge Magnum, Green/Gray in Color, Colts License
                     Plate [], VIN# [].
       2.     That law enforcement officers are further authorized to obtain, store
              and print any and all data collected and transmitted by the GPS
              tracking unit;
       3.     That such GPS tracking unit may be installed by law enforcement
              officers upon any exterior portion of the vehicle described above and
              such GPS tracking unit may be connected to the battery of such
              vehicle;
       4.     That such GPS tracking unit may be installed on (or later removed
              from) the vehicle described above while such vehicle is either in a
              public place or on private property where the general public would
              have access to such vehicle;
       5.     That the authority granted by this Order shall continue for a period
              of thirty (30) days from the date of the signing of this Order.

                                               3
       6.     That the Court shall maintain a copy of the Petition to Authorize
              Installation and Use of Global Positioning System Tracking Unit,
              with attached affidavits and shall also maintain a copy of this Order.

Ex. Vol., Defendant’s Ex. B-1, pp. 8-9.

       Following the issuance of this order, the police conducted another controlled buy

in which they purchased heroin and cocaine from Keeylen in a public place. When the

trial court’s thirty-day authorization of use of the GPS tracking unit expired, the police

petitioned the court for a thirty-day extension of the authorization, which the trial court

granted on September 25, 2009. This thirty-day extension of authorization expired on

October 25, 2009. Three days later, Detective Graber sought another thirty-day extension

of authorization to use the GPS tracking unit on Keeylen’s vehicle, which the trial court

granted on October 28, 2009. On November 3, 2009, the police petitioned the trial court

for permission to install another GPS tracking unit on Keeylen’s 2003 Chevrolet Tahoe,

and the court granted the request that same day.

       Although the record is not entirely clear on the matter, the police apparently

received another extension of authorization to use the GPS tracking units, which expired

on December 24, 2009. Due to the holiday season, Detective Graber did not file a

petition to extend the authorization until December 29, 2009, and the trial court granted

the extended authorization.      The police then sought and received extensions of

authorization from the trial court until October 29, 2010.

       During this period of 2010, the police continued their investigation of Keeylen,

including additional controlled buys. Specifically, on February 25, Keeylen sold a small

amount of heroin, stated that he had just sold a large amount of heroin, and would soon

                                             4
have more; on March 15, Keeylen sold heroin to a confidential informant after making a

quick stop at his home; on March 26, Keeylen sent an associate of his to sell heroin to a

confidential informant after indicating that he was out of town and could not conduct the

transaction himself; on April 26, Keeylen again sold heroin to a confidential informant in

a public place; on July 2, Keeylen arranged a meeting with a confidential informant and

one of Keeylen’s associates, who sold heroin to the informant; and on September 16, a

confidential informant bought heroin from another of Keeylen’s associates.

      On October 29, 2010, the police received an extension of authorization to use the

GPS tracking units until January 29, 2011. In his affidavit attached to the October 29

petition requesting the extension of time, Detective Graber stated that Keeylen had been

making repeated trips to Chicago, which Graber believed was to obtain more illicit drugs,

and also stated that “law enforcement officers have learned, by monitoring his activities

with these GPS units, that Keeylen has moved to a new residence.” Id., Defendant’s Ex.

B-10, p. 8. Detective Graber later testified at the suppression hearing that one of the

confidential informants had informed the police that Keeylen was moving to a new

residence on Narrowleaf Drive. Detective Graber also testified that, upon learning this

information, the police conducted “eyes-on” surveillance of Keeylen, during which they

saw Keeylen and other individuals load furniture and belongings onto a moving van,

drive to a house on Narrowleaf Drive, and unload the van.

      The police also learned of Keeylen’s address through a business owned by

Keeylen, Go-Reala Entertainment. Specifically, the police noted that Keeylen was listed

as the “Owner/President/CEO” of Go-Reala on the company’s website. Although Marion

                                            5
County property records indicated that Go-Reala had a business address on East 21st

Street in Indianapolis,1 Go-Reala’s website listed the Narrowleaf Drive address as the

business address. Detective Graber later averred in the probable cause affidavit that he

believed the Narrowleaf Drive address was Keeylen’s current address because

surveillance indicated that Keeylen spent the night at the address multiple times per week.

In addition, Keeylen instructed one of the confidential informants to send new customers

to the Narrowleaf Drive address.

       The trial court’s authorization for the GPS tracking unit expired on January 29,

2011, and the police did not petition the trial court for permission to continue tracking

Keeylen’s vehicles until March 8, 2011, a span of thirty-eight days.2 In his affidavit

accompanying the March 8 petition, Detective Graber stated, “Since the prior issuance of

authorization to monitor these GPS units, law enforcement has continued to monitor them

to track target Keeylen, with minimal monitoring since approximately January 29, 2011.

Due to ongoing matters, law enforcement has limited its monitoring since the lapse of the

prior authorization.” Id., Defendant’s Ex. B-11, p. 7.

       The trial court granted the petition extending authorization for an additional ninety

days, and the police continued their ongoing investigation of Keeylen. On March 21,

2011, the police conducted a search of the trash at Keeylen’s new residence on

Narrowleaf Drive and discovered mail addressed to Keeylen at the Narrowleaf Drive

1
  The address listed was that of the automotive garage where Keeylen’s associate “Sammie” sold illicit
drugs for Keeylen.
2
  On March 3, 2011, during this lapse in authorization, the police observed Keeylen exchange something
with another person in a car at the garage where “Sammie” worked, and when the police later pulled this
car over, found cocaine in the driver’s possession.
                                                  6
address, including a bank statement. And on May 25, 2011, a confidential informant was

at the garage where Sammie worked and witnessed him renew his “deal” with Keeylen,

whereby Keeylen would supply illicit drugs to the garage for Sammie and others to sell.

        On June 7, 2011, Detective Graber applied for a warrant to search Keeylen’s

residence on Narrowleaf Drive. Detective Graber’s probable cause affidavit detailed the

extensive investigation of Keeylen, including Keeylen’s frequent trips to Chicago, Illinois,

and one to Atlanta, Georgia, but omitted the fact that the police had used the GPS

tracking devices. The trial court issued the search warrant, which was executed that same

day. During the execution of the warrant, the police discovered and seized heroin, cash,

scales, drug paraphernalia, and a shotgun.

        On June 10, 2011, the State charged Keeylen with Class A felony dealing in a

narcotic drug, Class A felony possession of a narcotic drug, Class B felony unlawful

possession of a firearm by a serious violent felon, and Class C felony possession of a

narcotic drug and firearm. Keeylen filed a motion to suppress the evidence seized during

the search of his house. Keeylen supplemented his motion on September 12, 2012,

claiming that the seizure resulted from the warrantless use of GPS tracking devices. Two

days later, Keeylen filed a motion for a Franks hearing,3 claiming that Detective Graber

had deliberately omitted information regarding the use of the GPS tracking devices from


3
   In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court held that that
“where the defendant makes a substantial preliminary showing that a false statement knowingly or
intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,
and [was] necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be
held.” A hearing at which the defendant is allowed to attack the validity of a search warrant in such a
manner is referred to as a “Franks hearing.” See Haynes v. State, 411 N.E.2d 659, 661 (Ind. Ct. App.
1980).
                                                      7
his application for a search warrant. The trial court held a hearing on the matter on

November 19, 2012, and both parties submitted supplemental briefing after the hearing.

On July 25, 2013, the trial court issued an order denying Keeylen’s motions. That same

day, Keeylen filed a petition to certify the trial court’s ruling for interlocutory appeal,

which the trial court granted. Keeylen filed a request that this court accept interlocutory

jurisdiction on August 26, 2013. This court accepted jurisdiction on September 27, 2013,

and the current appeal ensued. Additional facts will be supplied as necessary.

                                    Standard of Review

         The standard of review from a trial court’s denial of a motion to suppress evidence

is similar to other sufficiency issues. Litchfield v. State, 824 N.E.2d 356, 358 (Ind. 2005).

We determine whether there was substantial evidence of probative value to support the

trial court’s ruling. Id. In so doing, we do not reweigh the evidence, and we consider

conflicting evidence most favorably to the trial court’s ruling.         Id.   Unlike other

sufficiency matters, however, we must also consider uncontested evidence that is

favorable to the defendant. Westmoreland v. State, 965 N.E.2d 163, 165 (Ind. Ct. App.

2012).

         Here, Keeylen challenges the propriety of the warrant to search his home. Both

the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the

Indiana Constitution require probable cause for the issuance of a search warrant. Rader v.

State, 932 N.E.2d 755, 758 (Ind. Ct. App. 2010). “Probable cause” is a fluid concept

incapable of precise definition and must be decided based on the facts of each case. Id.

In deciding whether to issue a search warrant, the task of the issuing magistrate is simply

                                              8
to make a practical, common-sense decision whether, given all the circumstances set

forth in the affidavit, there is a fair probability that evidence of a crime will be found in a

particular place. Id. at 758-59. “Probable cause is only a probability or substantial

chance of criminal activity, not a certainty that a crime was committed.” Suarez v. Town

of Ogden Dunes, Ind., 581 F.3d 591, 596 (7th Cir. 2009) (quoting Beauchamp v. City of

Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003)).

       The duty of a reviewing court is to determine whether the issuing magistrate had a

substantial basis for concluding that probable cause existed. Rader, 932 N.E.2d at 759.

Although we review this question de novo, we give significant deference to the issuing

magistrate’s determination. Id. We focus on whether reasonable inferences drawn from

the totality of the evidence support the finding of probable cause. Id. “‘In determining

whether an affidavit provided probable cause for the issuance of a search warrant,

doubtful cases are to be resolved in favor of upholding the warrant.’” Id. (quoting

Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008)). We consider only the

evidence presented to the issuing magistrate and not post hoc justifications for the search.

Id.

                                  Discussion and Decision

       Keeylen argues that the probable cause affidavit supporting the issuance of the

search warrant contained significant omissions that misled the issuing court. In Franks v.

Delaware, 438 U.S. 154, 155-56 (1978), the Supreme Court held that that “where the

defendant makes a substantial preliminary showing that a false statement knowingly or

intentionally, or with reckless disregard for the truth, was included by the affiant in the

                                              9
warrant affidavit, and [was] necessary to the finding of probable cause, the Fourth

Amendment requires that a hearing be held.” If an allegation of perjury or reckless

disregard is established by the defendant, and the rest of the affidavit is insufficient to

establish probable cause, “the search warrant must be voided” and any evidence obtained

from its fruits excluded. Id. at 156.

       Where the defendant’s claim involves not the inclusion of false or misleading

testimony in the affidavit, but the omission of information essential to a finding of

probable cause, the claim is sometimes referred to as a “reverse-Franks” claim. See

Smith v. Sheriff, Clay Cnty., Fla., 506 F. App’x 894, 897 (11th Cir. 2013) (citing

Kimberly J. Winbush, Annotation, Reverse–Franks Claims, Where Police Arguably Omit

Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause

with Reckless Disregard for the Truth—Underlying Homicide and Assault Offenses, 72

A.L.R.6th 437 (2012)).

       In the case of an alleged omission from the affidavit, the defendant must: (1) make

a “substantial preliminary showing” that “the government affiant engaged in ‘deliberate

falsehood’ or ‘reckless disregard for the truth’ in omitting information from the affidavit”

and (2) show that probable cause would no longer exist if such omitted information were

considered by the issuing judge. United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir.

1997); accord Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007) (adopting and

applying “reverse Franks claim” analysis of federal courts). Franks protects only against

omissions that are “designed to mislead, or that are made in reckless disregard of whether



                                            10
they would mislead, the magistrate.” United States v. Colkley, 899 F.2d 297, 301 (4th

Cir. 1990).

       Here, Keeylen claims that the use of the GPS devices to monitor the movement of

his vehicles constituted an improper search and that the police intentionally omitted the

information regarding the GPS devices from the probable cause affidavit. Therefore, he

argues that the probable cause affidavit and the search warrant based on this affidavit

were faulty. This, of course, requires us to address several issues, including: whether the

installation of the GPS devices constituted a “search,” whether a warrant was required

before such a search could be made, and whether the omission of this information from

the probable cause affidavit means that the warrant was issued without probable cause.

We address each of these issues in turn.

       A. Was the Installation of the GPS Tracking Units a “Search”

       The first issue we must address is whether the installation of the GPS tracking

devices on to Keeylen’s vehicles constituted a search for the purposes of the Fourth

Amendment.     Keeylen obviously claims that it does.        This question was squarely

addressed by the United States Supreme Court in United States v. Jones, 565 U.S. ___,

132 S. Ct. 945 (2012).

       In Jones, the FBI and law enforcement officers for the District of Columbia

attached a GPS device to the undercarriage of a vehicle being used by a suspected drug

dealer and did so without a warrant. The officers tracked the vehicle by means of the

GPS device for twenty-eight days and replaced the battery on the device once during this

period of time when the vehicle was parked in a public parking lot. Based in part on the

                                            11
data obtained from that monitoring, Jones was convicted of drug offenses. The United

States Court of Appeals for the District of Columbia reversed the conviction, concluding

that the warrantless use of the GPS device was contrary to the Fourth Amendment. Id. at

___, 132 S.Ct. at 949 (citing United States v. Maynard, 615 F.3d 544 (2010), cert.

granted sub nom. United States v. Jones, 564 U.S. ___, 131 S.Ct. 3064 (2011)).

        The Supreme Court granted certiorari and held that “the Government’s installation

of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s

movements, constitutes a ‘search.’” Id. at ___, 132 S. Ct. at 949; see also State v.

Lagrone, 985 N.E.2d 66, 72 (Ind. Ct. App. 2013) (summarizing and applying Jones

holding in concluding that attaching GPS tracking device to package containing

marijuana was not a search).

        Here, the facts of this case are not distinguishable from Jones in any significant

manner, and we therefore conclude that the actions of the police in installing GPS

tracking units on Keeylen’s vehicles constituted a search.4 See Jackson v. State, 996

N.E.2d 378, 384 (Ind. Ct. App. 2013) (assuming for purposes of discussion that


4
  We reject the State’s brief argument that Jones should not be applied retroactively. It is well settled
that:
        [a] decision of [the United States Supreme] Court construing the Fourth Amendment is to
        be applied retroactively to all convictions that were not yet final at the time the decision
        was rendered, with no exception for cases in which the new rule constitutes a “clear break”
        with the past. Final in this context refers to any case in which a judgment of conviction
        has been rendered, the availability of appeal exhausted, and the time for a petition for
        certiorari elapsed or a petition for certiorari finally denied.
United States v. Smith, 741 F.3d 1211, 1221 (11th Cir. 2013) (internal quotations omitted) (citing Griffith
v. Kentucky, 479 U.S. 314, 328 (1987); United States v. Johnson, 457 U.S. 537, 562 (1982)). The present
case is an interlocutory appeal from the trial court’s denial of Keeylen’s motion to suppress, and Keeylen
has yet to be convicted of anything. We therefore are unable to say that Jones does not apply
retroactively.
                                                    12
placement of GPS tracking device on vehicle used by defendant was an improper search

for purposes of the Fourth Amendment under Jones holding), trans. denied; United States

v. Taylor, 979 F. Supp. 2d 865, 870 (S.D. Ind. 2013) (applying Jones and concluding that

installation of GPS device on suspect’s vehicle constituted a search for purposes of the

Fourth Amendment).

          B. Probable Cause and Warrant Requirement

          Keeylen also argues that, because the installation of a GPS tracking device

constitutes a search, it therefore follows that a warrant based on probable cause is

required before the police can install such a device. Although the Supreme Court in

Jones held that the installation and use of a GPS tracking device constituted a search for

purposes of the Fourth Amendment, the Court did not directly address whether the police

were required to obtain a warrant prior to the installation of such a device. See Jones,

565 U.S. at ___, 132 S.Ct. at 954; see also Lagrone, 985 N.E.2d at 72 n.4 (noting that

Court in Jones “specifically declined to address whether that search was reasonable under

the Fourth Amendment.”).5

          Still, we readily conclude that probable cause, not reasonable suspicion, is the

standard that must be established before the police may engage in a “search” by installing
5
    As observed in United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013), cert. denied, 134 S. Ct. 204:
          Few courts . . . have grappled with the warrant question so far, largely because the
          searches at issue in recent cases occurred pre-Jones, allowing the government to argue,
          and a number of courts to find, that the good-faith exception would apply even if the
          searches were unconstitutional. Those courts that have found GPS tracking to require a
          warrant have typically reached that conclusion by rejecting the government’s attempts to
          fit GPS tracking within the Fourth Amendment’s automobile exception. Some have also
          more broadly considered the balance of privacy and governmental interests at stake,
          concluding that the scales tip in favor of requiring a warrant.
(citations omitted).
                                                      13
a GPS device on a vehicle and monitor the vehicle’s movements by means of such a

device. See United States v. Ortiz, 878 F. Supp. 2d 515, 533 (E.D. Pa. 2012) (observing

that “the intrusion on Fourth Amendment privacy interests occasioned by GPS tracker

installation and monitoring is substantial” and that there were no legitimate law

enforcement needs to use such devices beyond the normal need for law enforcement and

rejecting the government’s argument that reasonable suspicion was sufficient to support

installation and use of GPS tracking device); United States v. Katzin, 732 F.3d 187, 201

(3d Cir. 2013) (“we hold that—absent some highly specific circumstances not present in

this case—the police cannot justify a warrantless GPS search with reasonable suspicion

alone.”), reh’g en banc granted, opinion vacated;6 State v. Sullivan, 2014 WL 1347978,

2014-Ohio-1443 (Ohio Ct. App., Apr. 3, 2014) (concluding that the installation and

monitoring of a GPS device could not be justified by a showing of simple reasonable

suspicion).

          It is well-settled that warrantless searches “are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see also Rybolt v. State,

770 N.E.2d 935, 938 (Ind. Ct. App. 2002) (citing Minnesota v. Dickerson, 508 U.S. 366,

372 (1993)). Accordingly, we also conclude that, absent extraordinary circumstances, a

warrant is required before the police may conduct a “search” by placing a GPS device on

a vehicle and monitoring the vehicle’s movements by means of the GPS device. See

State v. Mitchell, 323 P.3d 69, 77 (Ariz. Ct. App. 2014) (concluding that warrantless

6
    We recognize that the opinion in Katzin was vacated, but nonetheless find its reasoning persuasive.
                                                     14
placement of a GPS device and its subsequent use to track defendant’s movements

violated the Fourth Amendment); Kelly v. State, 82 A.3d 205, 214 (Md. 2013) (holding

that warrantless tracking of defendant’s vehicle without a proper warrant violated the

Fourth Amendment); Hamlett v. State, 753 S.E.2d 118, 125 (Ga. Ct. App. 2013)

(concluding that installation and monitoring of GPS device on defendant’s vehicle

constituted a search under the Fourth Amendment that had to be authorized by a valid

warrant); State v. Zahn, 812 N.W.2d 490, 499-500 (S.D. 2012) (holding that warrantless

attachment and use of a GPS device to monitor the defendant’s movements for almost a

month was improper under the Fourth Amendment); United States v. Taylor, 979 F. Supp.

2d 865, 870 (S.D. Ind. 2013) (holding that warrantless attachment and use of GPS device

on defendant’s vehicle constituted a warrantless search in violation of the Fourth

Amendment);7 United States v. Sellers, 512 F. App’x 319, 327 (4th Cir. 2013), cert.

denied, 133 S. Ct. 2786 (holding that DEA agent’s attaching of GPS device to suspect’s

vehicle and using that device to gain information about the suspect’s whereabouts, all

without a valid warrant, was a violation of the defendant’s Fourth Amendment rights).8




7
   In Taylor, the federal District Court for the Southern District of Indiana was faced with a situation
strikingly similar to that presented here. The Taylor court held that the placement of GPS tracking
devices on the defendant’s vehicles was an improper search, and held that the police could not rely on
binding appellate precedent to justify the searches. See 979 F. Supp. 2d at 874 (“then-binding Seventh
Circuit precedent was much more nuanced, and the Government did not attempt to ‘scrupulously
adhere[ ]’ to it when utilizing the GPS Unit to track Mr. Taylor.”). The court nevertheless held that the
good-faith exception did apply because the police relied in objective good faith on the trial court’s
“authorizations” which approved of the installation of the GPS devices. See id. at 877. We note that
Keeylen’s appellate counsel represented the defendant in Taylor, but, surprisingly, neither Keeylen nor
the State cite Taylor in their briefs.
8
  Our conclusion is the same under Keeylen’s claim that the warrantless searches were unreasonable for
purposes of Article 1, Section 11 of the Indiana Constitution.
                                                   15
       C. The Trial Court’s Authorizations

       The State argues that, even if a search warrant was required, the police in the

present case substantially complied with this requirement by seeking repeated

authorizations of the use of the GPS devices from the trial court. That is, the State argues

that what happened here was not the sort of “unfettered use of surveillance technology”

that concerned the court in Zahn, 812 N.W.2d at 499, because the police did not act

without judicial oversight.

       As noted above, the police asked for, and received, repeated authorizations from

the trial court permitting the police to install and monitor the GPS devices on Keeylen’s

vehicles.   We agree with the State that it is not dispositive that the trial court’s

authorizations were not labeled “warrants.” What the Fourth Amendment requires is that

there be “written assurance that the Magistrate actually found probable cause to search

for, and to seize, every item mentioned in the affidavit.” Groh v. Ramirez, 540 U.S. 551,

560 (2004); see also United States v. Kone, 591 F. Supp. 2d 593, 608-09 (S.D.N.Y. 2008)

(“Although the Order was not labeled a ‘warrant,’ ‘nomenclature is not dispositive.’”)

(quoting Milner v. Duncklee, 460 F. Supp. 2d 360, 378 (D. Conn. 2006)).                 More

specifically:

       [T]he defining features of a judicial search warrant are that: (a) it must be
       issued by a judicial officer; (b) the judicial officer must find that there is
       probable cause to believe that evidence of contraband is present in the place
       to be searched; (c) the probable cause finding must be supported by the
       information contained in the oath or affidavit; and (d) the warrant must
       describe with particularity the places to be searched and the things to be
       seized.

Kone, 591 F. Supp. 2d at 605 (citing Groh, 540 U.S. 551).

                                             16
       We agree with Judge Scheindlin in Kone, however, that “[t]he label, nonetheless,

is significant.” Id. at 605-06. As explained in Kone:

       In a typical case, where a putative warrant is labeled a “warrant” and
       explicitly purports to issue under . . . the Fourth Amendment’s Warrant
       Clause, the omission of the term “probable cause” from the face of the
       warrant would not cast the slightest doubt on the conclusion that the
       warrant necessarily issued upon a judicial finding of probable cause. The
       reason, simply, is that a warrant, which is labeled a “warrant” and that
       purports to issue under . . . the Fourth Amendment, may issue only upon a
       judicial finding of probable cause. The Fourth Amendment requires no
       more than this implied finding.

Id. at 606.

       In a case where a “warrant” is not sought, however, things are quite different. The

State argues that there is no procedure for authorizing a search based on anything less

than a showing of probable cause. But it is also true that, at the time that the trial court

issued the authorizations, it was not clear that a warrant supported by probable cause was

required before the installation and use of a GPS tracking device. Indeed, it is telling that

the officers did not seek a “warrant.” Their failure to do so suggests that the officers, by

merely seeking an order of authorization, sought something less than a warrant, and, as is

easily inferred, on less than probable cause.       See Kone, 591 F. Supp. 2d at 609

(concluding that probation officers, in requesting an order to search probationer’s home,

sought something less than a Fourth Amendment warrant); cf. Taylor, 979 F. Supp. 2d at

877 (noting that federal government conceded that trial court’s orders authorizing

installation of GPS tracking devices was not the equivalent of a search warrant).




                                             17
      D. Good Faith Exception

      The State argues that, even if the warrantless installation and use of the GPS

tracking devices constituted an improper search, the good-faith exception to the

exclusionary rule should apply. As summarized in Taylor, supra:

          The good-faith exception provides that evidence obtained as a result of a
      Fourth Amendment violation should not be suppressed if law enforcement
      had a “reasonable good-faith belief that a search or seizure was in accord
      with the Fourth Amendment.” [United States v.] Leon, 468 U.S. [897,] 909
      [(1984)] (citations and quotation marks omitted). Exclusion of such
      evidence is unwarranted because the exclusionary “rule’s sole purpose . . .
      is to deter future Fourth Amendment violations,” Davis [v. United States,
      ___ U.S. ___, 131 S. Ct. 2419, 2426 (2011)], and for an officer whose
      conduct is “objectively reasonable[,] . . . [e]xcluding [such] evidence can in
      no way affect his future conduct unless it is to make him less willing to do
      his duty,” Leon, 468 U.S. at 919–20. Simply put, “[w]here the official
      action was pursued in complete good faith . . . the deterrence rationale loses
      much of its force.” Id. at 919.

          Under this same logic, the Supreme Court recently held that the good-
      faith exception applies to “searches conducted in objectively reasonable
      reliance on binding appellate precedent.” Davis, 131 S.Ct. at 2426. In
      Davis, at the time of the search at issue, the Eleventh Circuit had
      “established a bright-line rule authorizing the search of a vehicle’s
      passenger compartment incident to a recent occupant’s arrest.” 131 S.Ct. at
      2428. In conducting the search in Davis, law enforcement followed
      Eleventh Circuit precedent “to the letter”; the “officers’ conduct was in
      strict compliance with then-binding Circuit law and was not culpable in any
      way.” Id. In the Supreme Court’s view, law enforcement’s strict reliance
      on then-binding precedent “doom[ed]” the defendant’s claim. Id. The
      Supreme Court explained: “About all that exclusion would deter in this
      case is conscientious police work. Responsible law-enforcement officers
      will take care to learn what is required of them under Fourth Amendment
      precedent and will conform their conduct to these rules. But by the same
      token, when binding appellate precedent specifically authorizes a particular
      police practice, well-trained officers will and should use that tool to fulfill
      their crime-detection and public-safety responsibilities.” Id. at 2429
      (emphasis in original) (citations and quotation marks omitted).

Taylor, 979 F. Supp. 2d at 871.

                                            18
       Here, however, it is not necessary for us to delve deeply into a good-faith analysis.

This is because Keeylen is not seeking to suppress the information discovered as a direct

result of the improper GPS tracking of his vehicles, i.e., where he was at a given time.

Instead, he claims that this improperly-obtained location information was used to support

the search warrant and that the trial court was not informed of this fact. More specifically,

he seeks to suppress the evidence seized during the execution of the warrant to search his

home on Narrowleaf Drive, claiming that, without the use of the improperly-obtained

GPS information, the police could not properly support a search of his home. See

Appellant’s Br. p. 30 (“The core of this appeal is the search of [] Narrowleaf Drive and

evidence derivative from that search.      There is a single Fourth Amendment search

warrant at issue here: the search warrant for [] Narrowleaf Drive.”).

       For purposes of our discussion, we can assume arguendo that the good-faith

exception does not apply to the improperly-obtained GPS information. The issue before

us then, is the effect of the use of this improperly-obtained GPS information and the

omission from the probable cause affidavit of the manner in which this information was

obtained.

       D. Reverse-Franks Claim

       As noted above, Keeylen makes a “reverse Franks claim” that the omission of this

data was improper and that the warrant was therefore improperly issued. In the case of

an alleged omission from an affidavit supporting an application for a search warrant, the

defendant must establish (1) that the police engaged in a deliberate falsehood or reckless

disregard for the truth in omitting the information from the affidavit, and (2) show that

                                            19
the affidavit, if supplemented by the omitted information, would not have been sufficient

to support a finding of probable cause. Ware, 859 N.E.2d at 718; Atkin, 107 F.3d at 1217.

Franks protects only against omissions that are “designed to mislead, or that are made in

reckless disregard of whether they would mislead, the magistrate.” Colkley, 899 F.2d at

301. This is where Keeylen’s case falls short.

       First, despite Keeylen’s claims, we cannot say that he made a “substantial

preliminary showing” that Detective Graber engaged in a “deliberate falsehood” or a

“reckless disregard for the truth” when he failed to include in the probable cause affidavit

the facts regarding the GPS tracking of Keeylen. See Ware, 859 N.E.2d at 718; Atkin,

107 F.3d at 1217. Detective Graber submitted the probable cause affidavit to the very

same trial court and trial judge who had been authorizing the GPS searches for over a

year. It is unlikely that he thought that the omission of this information would mislead

the trial judge. Detective Graber also explained at the suppression hearing that the reason

he omitted information regarding the GPS searches was not to mislead the trial judge, but

to keep from Keeylen the fact that the police had been tracking his movements.

       We are also unable to conclude that probable cause would no longer exist if the

omitted information, i.e., the facts regarding the GPS tracking, had been considered by

the trial court. See Ware, 859 N.E.2d at 718; Atkin, 107 F.3d at 1217. Keeylen makes

no argument that the information included in the probable cause affidavit that was not

discovered as a result of the GPS tracking is insufficient to support a finding of probable

cause. Instead, he argues that the inclusion of the omitted information would eliminate

the probable cause that did exist because it would reveal that the police learned of

                                            20
Keeylen’s address on Narrowleaf drive only through the improper use of the warrantless

GPS tracking. We disagree.

       In the probable cause affidavit submitted with the application for the search

warrant, Detective Graber explained that he learned of Keeylen’s association with the

Narrowleaf Drive residence by Keeylen’s business, Go-Reala Entertainment. Go-Reala’s

website listed Keeylen as the “Owner/President/CEO” and listed the business address of

Go-Reala as the Narrowleaf Drive residence.        Detective Graber also stated that he

believed that the Narrowleaf Drive address was Keeylen’s residence “through

surveillance” and because “Keeylen ends his nights at this residence and does not leave

the location until the next morning. He spends multiple nights per week at this location.”

Ex. Vol., State’s Ex. A-2, p. 19. Keeylen claims that this “surveillance” is a reference to

the improper GPS tracking, without which, he claims, the police would not have tied him

to the Narrowleaf Drive address.

       To be sure, in one of the affidavits seeking authorization to track Keeylen with the

GPS device, Detective Graber stated that the police “learned, by monitoring [Keeylen’s]

activities with these GPS units, that Keeylen has moved to a new residence.” Id.,

Defendant’s Ex. B-10, p. 8. But Keeylen’s argument ignores the fact that the police had

also used Go-Reala’s website to link Keeylen to the Narrowleaf Drive address. The

probable cause affidavit also noted that Keeylen told one of the confidential informants to

send new “customers” to the Narrowleaf Drive address.          And the police confirmed




                                            21
Keeylen’s residence at the Narrowleaf Drive address by conducting a trash pull9 which

revealed that Keeylen was receiving mail, including a bank statement, at this address.10

The fact that the police also used information from their GPS monitoring to learn of

Keeylen’s address does not mean that the police learned of Keeylen’s new address only

by means of the improper GPS monitoring.

        Under all of these unique facts and circumstances, we therefore conclude that even

if the information regarding the warrantless GPS tracking was included in the probable

cause affidavit, the affidavit would have still supported a finding of probable cause to

issue the warrant.       The affidavit set forth the extensive, long-term investigation of

Keeylen, which included numerous controlled buys, which was sufficient to find

probable cause to support the search warrant. And there was information independent of

the warrantless GPS tracking of Keeylen’s vehicles which established Keeylen’s

connection with the Narrowleaf Drive residence.

                                             Conclusion

        Even though the warrantless installation of the GPS devices and monitoring of

Keeylen’s vehicles was improper, the trial court did not err in concluding that Keeylen

9
   Keeylen does not argue that this trash-pull was improper. Indeed, given the numerous controlled buys
that the police had conducted and the fact that they had connected Keeylen to the Narrowleaf Drive
address, it is apparent that they had at least a reasonable suspicion that Keeylen was engaged in the
trafficking of illegal drugs. See State v. Litchfield, 824 N.E.2d 356, 363 (Ind. 2005) (holding under
Article 1, Section 11 of the Indiana Constitution that trash searches must be based on an individualized,
reasonable articulable suspicion akin to that required for a Terry stop).
10
    We note that Detective Graber testified at the hearing on Keeylen’s motion to suppress/Franks hearing
that he learned of the Narrowleaf Drive address through one of his confidential informants. Detective
Graber and other officers then confirmed this by personally watching Keeylen move personal items to his
new residence. Keeylen claims that this is a in improper post hoc justification, but the other information
listed above regarding the Narrowleaf Drive address was included in the probable cause affidavit and was
sufficient to tie Keeylen’s activities to the Narrowleaf Drive address.
                                                   22
failed to establish that the police engaged in deliberate falsehood or acted with a reckless

disregard for the truth when they omitted the information regarding the GPS tracking

devices from the probable cause affidavit. Nor did Keeylen establish that probable cause

would no longer exist if the omitted information had been considered by the issuing judge.

Accordingly, the trial court did not err in denying Keeylen’s motion to suppress.

       Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




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