from the Superior Court in Coconino County The Honorable
Cathleen Brown Nichols, Judge No. CR2012-00246 AFFIRMED
of the Court of Appeals, Division One 239 Ariz. 495 (App.
2016) VACATED IN PART
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.
Diehl, Coconino County Public Defender, Brad Bransky
(argued), Deputy Public Defender, Flagstaff, Attorneys for
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.
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 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. [*]
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.
In reviewing a trial court's denial of a motion to
suppress, we 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.
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.
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
The State charged Jean with conspiracy, illegally conducting
an enterprise, money laundering, and transportation of
marijuana in an 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
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.
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)).
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.
"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.
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.
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
constitutional rights but of someone else's").
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
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
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.
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).
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").
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
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.").
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 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
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
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.
That Jean has no viable Fourth Amendment claim based on a
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 "[situations involving merely the
transmission of electronic signals without trespass . . .
remain subject to the Katz analysis." 565 U.S.
at 409-11 (emphasis omitted).
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
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).
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 ...