ROBB, Judge.
Christopher Wertz brings this interlocutory appeal, challenging the trial court's denial of his motion to suppress. He presents one issue, which is a matter of first impression: whether the warrantless search of his personal Garmin Global Positioning System ("GPS") device violated the Fourth Amendment to the United States Constitution.
On September 9, 2011, Wertz was driving in Madison County when he lost control of his vehicle and struck a utility pole. Wertz was severely injured, and his passenger, Megan Solinski, died at the scene of the accident as a result of injuries sustained. Law enforcement officers found a Garmin GPS device, which belonged to Wertz, near the wrecked vehicle.
Approximately one week after the accident, law enforcement officers visited Wertz at the hospital and obtained written consent to examine the content saved in the GPS unit. However, the GPS required a pin code to access the device, which Captain Rick Garrett obtained by contacting the company that produces the GPS device, Garmin International. Once that passcode was retrieved, an officer was able to collect information from the GPS device, including the route Wertz traveled and his speed at the time of the accident.
The State charged Wertz with reckless homicide, a Class C felony, and Wertz filed a motion to suppress evidence obtained through the warrantless search of his GPS device. The trial court found that Wertz's consent to search the device was invalid because he was on pain medication at the time the officers received his consent; however, the trial court held that Wertz had no reasonable expectation of privacy in the GPS device and thus the information collected from it was admissible.
A jury trial was held in March 2014 but ended in a mistrial, and a second jury trial was scheduled to take place on July 29, 2014. In the interim, the United States Supreme Court decided Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 189
On August 22, 2014, Wertz filed a motion to certify the trial court's order for interlocutory appeal, which the trial court granted on August 26, 2014. On September 11, 2014, Wertz requested that the Court of Appeals accept jurisdiction of the appeal, and we accepted jurisdiction on October 9, 2014. On appeal, the only issue is whether the search of Wertz's GPS device violated a reasonable expectation of privacy. The State does not challenge the trial court's determination that Wertz did not provide valid consent for the search.
When reviewing a trial court's denial of a defendant's motion to suppress, we view conflicting factual evidence in the light most favorable to the ruling but we will also consider substantial and uncontested evidence favorable to the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). That said, the constitutionality of a search or seizure is a question of law, which we review de novo. Id.
The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." "[T]he ultimate touchstone of the Fourth Amendment is `reasonableness[.]'" Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). We approach cases involving warrantless searches with the basic understanding that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)). Where there is no clear practice concerning the constitutionality of a search, the reasonableness of the search is judged by balancing "the degree to which it intrudes upon an individual's privacy and . . . the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U.S. 295, 299-300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
The Garmin GPS device searched by the State was personally owned by Wertz and kept in his vehicle. The device includes pre-loaded street maps and the ability to store hundreds of waypoints and locations. The device is also compatible with microSD cards, which are routinely able to store 16 to 128 gigabytes (GB) of data. In addition, Wertz's GPS device is designed to automatically record and store information such as location, past routes traveled, and speed. It is because of that automated storage that law enforcement was able to discover Wertz's route of travel and rate of speed on the day of his accident.
Wertz argues that the warrantless search of his GPS unit violated his right to be free from unreasonable searches. He claims that his GPS device is similar to a cell phone that cannot be searched without a warrant and that the location data stored
Warrantless searches are presumed unreasonable and may be excused only upon a showing of circumstances that yield a diminished expectation of privacy. To justify the search in this case, the State hangs it hat on the warrant requirement's "automobile exception."
The automobile exception has deep roots in Fourth Amendment jurisprudence and essentially provides that a vehicle—and its contents—may be searched without a warrant so long as law enforcement has probable cause to believe evidence of a crime may be found inside. See Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam). Principles underlying the automobile exception include a vehicle's mobility and subjection to government regulation, California v. Carney, 471 U.S. 386, 390-93, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), and the inability to avoid public scrutiny due to its exposure to "public thoroughfares where both its occupants and its contents are in plain view," South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (citation omitted).
The automobile exception allows law enforcement to search not only the vehicle itself but also any containers inside it that may contain evidence. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The authority to search containers found in a vehicle extends to locked containers. See id. at 577-79, 111 S.Ct. 1982 (abrogating United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)). The State likens the GPS device in this case to a locked container and directs us to lower court decisions comparing computers and cell phones to locked containers. See Brief of Appellee at 21-22. Indiana does not have a case directly on point, but lower courts in other jurisdictions are split on the issue of whether a computer or cell phone may be treated as a container and subjected to a warrantless search under the automobile exception. Compare United States v. Zaavedra, No. 12-CR-156-GKF, 2013 WL 6438981, at *3 (N.D.Okla. Dec. 9, 2013) (holding warrantless search of a cell phone was permissible under the automobile exception),
In Riley v. California, the United States Supreme Court held that a warrant is generally required to search an arrestee's cell phone, despite a recognized exception for searches incident to a lawful arrest. 134 S.Ct. at 2485. The Court reached its holding for two reasons: (1) concerns justifying a search incident to arrest are not applicable to digital data; and (2) digital data implicates substantial privacy concerns far beyond those implicated by the search of physical items ordinarily found on an arrestee's person. Id. at 2484-85. It is the latter rationale that is relevant to this case.
The Court said that "when privacy-related concerns are weighty enough a search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee." Id. at 2488 (quoting Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1979, 186 L.Ed.2d 1 (2013)) (quotation marks omitted). Such concerns were found weighty enough with respect to cell phones, which the Court said hold "the privacies of life." Id. at 2494-95 (citation omitted). As the Court explained, cell phones are "minicomputers" that may easily be called "cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." Id. at 2489. The Court reasoned that cell phones are quantitatively different from physical objects ordinarily found in a search incident to arrest because of their capacity to store enormous amounts of information, and that cell phones are qualitatively different from physical objects in that they are likely to contain private information that could not otherwise be gleaned from a search of one's person.
Of particular relevance to this case is the Court's reference to "location information" when discussing one's privacy interest in information contained in a cell phone. The Court said: "Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute, not only around town but also within a particular building." Id. at 2490 (citing United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 955, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring)).
In our view, the GPS unit in this case is akin to a computer or cell phone. The device stores large amounts of information that could not possibly be stored in an ordinary physical container. For that reason, an electronic storage device cannot be treated as a container. Moreover, the location data it does store has been identified by the Supreme Court as private information. Just as the Supreme Court believed that treating a cell phone as a container was "a bit strained," id. at 2491, we believe that treating the GPS device as a container under the automobile exception is inappropriate.
The State also asserts that "Riley does not control because it says nothing of the automobile exception." Br. of Appellee at 23. The State argues that unlike the search-incident-to-arrest exception, which is borne out of concerns for officer safety and preservation of evidence, the automobile exception is based on a diminished expectation of privacy in the vehicle itself and applies "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Id. at 23 (quoting Gant, 556 U.S. at 343, 129 S.Ct. 1710).
The State's proposed distinction would require us to conclude that a cell-phone found next to a driver in the passenger seat of his vehicle could be searched without a warrant, regardless of the Supreme Court's decision in Riley. But such an outcome is unthinkable if the Court meant what it said in Riley. Although the State is correct that Riley dealt only with the search-incident-to-arrest exception, Riley's discussion of Fourth Amendment protections afforded to electronic devices that store private information transcends the search-incident-to-arrest exception. The analysis in Riley easily transfers to other circumstances where an exception to the warrant requirement would otherwise exist, including the automobile context. See Chung, 2014 WL 5408439, at *5-6 (Tex. App. Feb. 11, 2015) (relying on Riley and holding that an officer's warrantless search of a cell phone was not justified under the automobile exception to the warrant requirement); United States v. Kim, Crim. Action No. 13-0100 (ABJ), 2015 WL 2148070, at *18-22 (D.D.C. May 8, 2015) (applying Riley to the search of a computer under the border exception to the warrant requirement).
In sum, we hold that Wertz's GPS device is similar in nature to a computer or cell phone, and that such a device cannot be treated as a "container" that may be searched pursuant to the automobile exception to the warrant requirement.
In addition to arguing that Wertz's GPS unit is effectively a locked container accessible under the automobile exception, the State also contends that the GPS device and the information contained therein is afforded a lesser degree of privacy.
In United States v. Knotts, the Supreme Court held that a defendant's Fourth Amendment rights were not violated when law enforcement monitored his whereabouts with the use of a radio transmitter that was placed in the defendant's vehicle. 460 U.S. 276, 285, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In that case, law enforcement placed a transmitter in a container purchased by a co-defendant, and the container was placed in the co-defendant's car. Police followed the co-defendant, maintaining contact using both visual
The Supreme Court held in Knotts that police monitoring of the transmitter—and thus, by extension, the whereabouts of the defendants—did not invade a legitimate expectation of privacy. Id. at 285, 103 S.Ct. 1081. After referencing the warrant requirement's automobile exception, 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." Id. at 281, 103 S.Ct. 1081. According to the Court, the driver "voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination . . ." Id. at 281-82, 103 S.Ct. 1081. The Court went on to say that visual surveillance from public places would have sufficed to gather all the information that was learned, and the use of a radio transmitter did not alter the analysis. Id. at 282, 103 S.Ct. 1081. The Court left for another day Knotts's concern that the holding would allow for twenty-four-hour surveillance of any citizen without the need for a warrant, stating that "if such dragnet type law enforcement practices . . . should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable." Id. at 283-84, 103 S.Ct. 1081.
The State argues that the information obtained from Wertz's GPS device—his location, route of travel, and speed—is of the same character as the information obtained by law enforcement in Knotts, and the fact that the information was gathered from Wertz's GPS unit rather than visual surveillance has no constitutional significance. The State reasons that if Wertz has no reasonable expectation of privacy in the information obtained (i.e. his location and movements), then the search did not violate his Fourth Amendment rights.
Contrary to the State's position, Knotts is not the Supreme Court's last word on the issue before us. In United States v. Jones, the Supreme Court held that the installation of a GPS tracking device on a vehicle and the use of that device to monitor the vehicle's movements constituted a "search" under the meaning
Justice Alito wrote a concurrence in the judgment joined by three Justices, in which he argued that law enforcement's long-term monitoring of Jones's vehicle violated reasonable expectations of privacy. Id. at 964 (Alito, J., concurring). He explained that constant monitoring of Jones's location for a four-week period involved a degree of intrusion that a reasonable person would not anticipate:
Id. That said, Justice Alito did not believe that all monitoring of a person's location would constitute a search under the Fourth Amendment, stating "relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable." Id. (citing Knotts, 460 U.S. at 281-82, 103 S.Ct. 1081).
Justice Sotomayor also filed a concurrence in which she agreed with the majority that a physical intrusion was sufficient to constitute a search under the Fourth Amendment, providing the majority with the necessary fifth vote. Nevertheless, the bulk of Justice Sotomayor's concurrence was spent discussing her concerns with GPS monitoring under the rubric of reasonable expectations of privacy. She agreed with Justice Alito that "at the very least, longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." Id. at 955 (Sotomayor, J., concurring) (quotation marks omitted).
Justice Sotomayor went on to say that "[i]n cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." Id. at 955 (Sotomayor, J., concurring).
The gathering of detailed historical location data from a personal GPS device is the functional equivalent of the long-term GPS monitoring in Jones or the twenty-four-hour dragnet-type surveillance that the Court alluded to in Knotts. It provides law enforcement with a simple method of reconstructing all of a person's public movements over several days, months, or possibly even years. Although a person can expect to be seen by someone when he leaves his home and drives to a
The State makes three attempts to distinguish or otherwise sidestep the impact of Jones. First, the State argues that Jones does not bind this court to hold the search in this case is unconstitutional, because the majority in Jones rested its decision on a physical intrusion, not privacy expectations. It is true that the facts of Jones are different from those here and that it was technically decided by emphasizing a physical trespass. Still, we cannot turn a blind eye to the obvious significance that the Jones concurrences have in relation to the issues presented here. Between the two concurrences by Justice Alito and Justice Sotomayor, there are at least five Supreme Court Justices who believe that long-term monitoring of a citizen's location violates reasonable expectations of privacy, despite the fact that the citizen's location was exposed to the public.
Second, the State contends the Jones concurrences are distinguishable from the facts of this case because there was no "long-term monitoring" of Wertz's location. As the State explains, "no monitoring, or tracking of movements, occurred here at all; instead, all law enforcement did was investigate after-the-fact where Wertz had been." Br. of Appellee at 13.
The Fourth Amendment forbids real-time, long-term monitoring of a citizen's location. See supra, ¶¶ 26-31 (discussing Jones concurrences). There is no logical basis for allowing the government to obtain the same information without a warrant by inspecting a citizen's location information after-the-fact. In Riley, the Court's references to location data were specific to "[h]istoric location information" stored on a cell phone, which could be used to "reconstruct someone's specific movements down to the minute." 134 S.Ct. at 2490. The Court regarded that information as private, understanding that the information would be obtained after-the-fact rather than through real-time tracking by law enforcement. The expectation of privacy in one's whereabouts is not only due to society's impulse to cringe at the idea of being followed day-and-night; the personal nature of the information itself gives rise to an expectation of privacy. As one court has aptly noted,
People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195, 1199 (2009).
Finally, we are not persuaded by the State's argument that the search was permissible because law enforcement only sought information about where Wertz was located on a particular evening. Differences between real-time monitoring and the inspection of historical location data make the State's position untenable. The police can physically follow a suspect and maintain visual contact for an entire day, and there is no doubt that surveillance
We hold that there is a reasonable expectation of privacy in detailed historical location data from a personal GPS device. Absent exigent circumstances, law enforcement must obtain a search warrant in order to access such information.
Finally, the State argues that even if a Fourth Amendment violation occurred, the exclusionary rule should not be applied because the officers reasonably believed that their search did not require a warrant.
The exclusionary rule prevents the prosecution from introducing evidence obtained in violation of a defendant's Fourth Amendment rights. It is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect . . . ." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citation omitted). The purpose of the exclusionary rule is to "deter future Fourth Amendment violations." Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011). "[E]xclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred. The remedy is subject to exceptions and applies only where its purpose is effectively advanced." Id. at 2431 (citations and quotation marks omitted). Accordingly, "when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply." Id. at 2434.
The State argues that it was reasonable for police, relying on Supreme Court precedent such as Knotts and Acevedo, to believe that a warrant was not necessary for them to search Wertz's GPS unit.
Further, although Knotts may be relevant to the extent its legal reasoning could be transferred to this case, the type of search conducted in that case is clearly distinguishable from the one that occurred here. Simply put, there exists no binding precedent allowing for a warrantless search of an electronic device storing historical location data. In the absence of such authority, the general rule is that a warrant is required. See Gant, 556 U.S. at 338, 129 S.Ct. 1710. In sum, we conclude that application of the exclusionary rule is appropriate in this case.
We conclude Wertz's GPS device cannot be treated as a "container" under the automobile exception. We further conclude that he has a reasonable expectation of privacy in the device and in the historical location data that the device stores. Therefore, the warrantless search of the GPS device violated the Fourth Amendment. We reverse and remand.
Reversed and remanded.
RILEY, and BAILEY, JJ., concur.
