State v. Mitchell

234 Ariz. 410

323 P.3d 69

685 Ariz. Adv. Rep. 7

STATE of Arizona, Appellee,

v.Thomas Keller MITCHELL, Appellant.

No. 1 CA–CR 13–0339.

Court of Appeals of Arizona, Division 1.

April 21, 2014.

Arizona Attorney General's Office By Linley Wilson, Phoenix, for Appellee.

David Goldberg, Attorney at Law, Fort Collins, By David Goldberg, Colorado, for Appellant.

Presiding Judge DONN KESSLER delivered the opinion of the Court, in which Judge PATRICIA K. NORRIS and Judge MAURICE PORTLEY joined.

OPINION

KESSLER, Presiding Judge.

¶ 1 Appellant Thomas Keller Mitchell (“Mitchell”) appeals from his convictions for transportation of dangerous drugs for sale, possession of marijuana, and possession of drug paraphernalia. Mitchell argues that the trial court erred by not suppressing evidence acquired during a vehicle search—which he asserts was the fruit of unconstitutional, warrantless global positioning system (“GPS”) surveillance—and that he was subject to a duplicitous indictment. We reverse Mitchell's convictions because the installation, continued presence, and use of the GPS device to monitor Mitchell's movements constituted an unlawful search under the Fourth Amendment to the United States Constitution.¹See United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Mitchell became the target of a drug investigation in early 2010 after a material informant (“Informant 1”) told a Yavapai County Sheriff's deputy (“the Deputy”) that he had purchased methamphetamine through a third party from Mitchell at a residence in Humboldt, Arizona. Informant 1 claimed to have purchased methamphetamine from Mitchell on two separate occasions between March 23 and March 31, 2010. Additionally, Informant 1 said that Mitchell would travel to Phoenix to collect money, including from someone named “Fat Jack” who lived in Humboldt. The Deputy knew Fat Jack to be associated with drug activity. The third party through whom Informant 1 purchased methamphetamine later became a second material informant (“Informant 2”). Informant 2 explained that Mitchell made drug runs to Phoenix several times a week.

¶ 3 Based on visual surveillance, the Deputy learned that Mitchell owned several vehicles, including a Ford pickup. The Deputy also learned that Mitchell used other people's vehicles to make drug runs. Prior to May 5, the Deputy observed Mitchell driving a Kia Sportage, which he later determined belonged to another person, C.W., who had given Mitchell permission to use the vehicle. The Deputy decided that the Kia was worth monitoring because it was the only vehicle belonging to another person that he had observed Mitchell driving.

¶ 4 On the night of May 5, acting without a warrant, the Deputy surreptitiously attached a GPS device to the undercarriage of the Kia without C.W.'s consent while it was parked in her driveway. The device remained on the Kia through May 30.² During this twenty-five-day period, the Deputy received constant updates from the GPS device. The GPS device tracked the Kia's speed and location and collected data about its whereabouts. The device was programmed to send text message alerts to the Deputy's cell phone whenever the Kia crossed certain “wave-points,” one of which was the Phoenix city limits. Thereafter, the Deputy relied on the GPS data to locate the Kia in lieu of traditional visual surveillance.

¶ 5 On May 30, the Deputy received a GPS alert that the Kia was traveling towards Phoenix. The Deputy drove to C.W.'s residence and saw that the Kia was gone but that Mitchell's Ford pickup was in the driveway. He began tracking the Kia's location using the GPS data. When the GPS device indicated that the Kia was en route back to Humboldt, the Deputy parked his vehicle along Highway 69 at the entrance to Spring Valley to visually verify the GPS information. Within minutes, the Deputy saw Mitchell drive by in the Kia.

¶ 6 The Deputy followed the Kia into Humboldt and then took a quicker route to the Humboldt residence to intercept the Kia there. He arrived first and pulled in behind Mitchell's Ford pickup. Seconds later, Mitchell pulled into the driveway behind the Deputy, followed by a second deputy who had been called as backup.

¶ 7 The Deputy asked Mitchell where he was coming from, to which Mitchell replied that he had been visiting a friend in Mayer. As this contradicted the Deputy's visual and electronic surveillance, he asked Mitchell to step out of the car and requested permission to conduct a vehicle search. Mitchell said that he did not believe he had permission to consent to the search because he did not own the vehicle. C.W. also refused consent. Consequently, the Deputy arranged for a drug dog to sniff the vehicle for contraband. When the dog alerted to the vehicle, the Deputy searched the Kia and located a black bag containing four and one half grams of methamphetamine, several pounds of marijuana, and bags of methamphetamine.

¶ 8 Mitchell was indicted on several drug-related charges. Mitchell moved to suppress the evidence obtained from the vehicle search, arguing that the installation and use of the GPS device to monitor his movements constituted an unlawful search under the Fourth Amendment. The trial court denied Mitchell's motion, explaining that Mitchell lacked standing to challenge the installation of the GPS device because “[t]he placement occurred on [C.W.'s] private property and not on property that belonged to [Mitchell].” The trial court also found that under United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the use of the GPS device to monitor Mitchell's movements on public streets did not constitute a search under the Fourth Amendment.

¶ 9 Before the start of trial, the United States Supreme Court decided Jones, which addressed the Fourth Amendment implications of GPS placement and tracking. Mitchell moved for reconsideration of his motion to suppress in light of Jones, but the trial court summarily denied his motion. Mitchell again pressed his motion on the first day of trial, but the trial court denied it again, explaining its decision “was based on [Mitchell's] lack of standing.”

¶ 10 Ultimately, a jury convicted Mitchell on one count of transportation of dangerous drugs for sale, one count of possession of marijuana, and two counts of possession of drug paraphernalia. Mitchell timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12–120.21(A)(1) (2003).

STANDARD OF REVIEW

¶ 11 We review the denial of a motion to suppress evidence for an abuse of discretion. State v. Peterson, 228 Ariz. 405, 407, ¶ 6, 267 P.3d 1197, 1199 (App.2011). In doing so, we consider only the evidence presented at the suppression hearing and view that evidence in the light most favorable to sustaining the trial court's ruling. State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App.2007). Although we defer to the trial court's factual determinations, we review its legal conclusions de novo. State v. Olm, 223 Ariz. 429, 432, ¶ 7, 224 P.3d 245, 248 (App.2010).

DISCUSSION

¶ 12 Relying on Jones, Mitchell argues that the warrantless installation and use of the GPS device to track his movements while driving the Kia was an unlawful search.³ The State does not dispute that a trespass occurred but argues that Mitchell lacks standing to challenge the installation of the device because he was not in possession of the vehicle at the time the device was installed, he was not the owner of the vehicle, nor was he the exclusive driver, as was Jones. Further, the State asserts that even if the GPS tracking was unlawful, the good-faith exception precludes application of the exclusionary rule because Jones was decided after the events here, and the Deputy relied in good faith on binding appellate precedent when he attached the GPS device without a warrant. For the following reasons, we conclude that Mitchell has standing to challenge the warrantless GPS tracking, that such tracking violated his Fourth Amendment rights under Jones, and that the exclusionary rule applies to all evidence seized as a fruit of the unconstitutional GPS surveillance.

I. Standing

¶ 13 The Fourth Amendment to the United States Constitution provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In Jones, the Supreme Court concluded that the installation of a GPS device on a target suspect's vehicle and its subsequent use to track the target's movements was a search under the Fourth Amendment. 132 S.Ct. at 949. There, law enforcement agents installed a GPS device on the undercarriage of a vehicle driven exclusively by Jones, but registered to his wife, while it was parked in a public parking lot. Id. at 947, 949 n. 2. Instead of determining whether Jones had a reasonable expectation of privacy in his public movements under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),⁴ the jones majority relied on a trespass theory. the court clarified that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Jones, 132 S.Ct. at 952. Thus, the Court reasoned that an automobile is undisputedly an “effect” for purposes of the Fourth Amendment, and that the government's physical occupation of private property with the purpose of obtaining information undoubtedly “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949. Because Jones involved a trespass onto a private effect, the Court's majority declined to decide whether similar tracking accomplished without a physical intrusion would constitute a search under the Katz test. ⁵Id. at 954.

¶ 14 Further, the Court explicitly declined to consider the Fourth Amendment significance of Jones' status vis-'a-vis the vehicle...