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State v. Jean

Supreme Court of Arizona

January 3, 2018

State of Arizona, Appellee,
Emilio Jean, Appellant.

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

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

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

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

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

          David J. Euchner (argued), Slade E. Smith, Rule 38(d) Certified Law Student, Arizona Attorneys for Criminal Justice, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

          CHIEF JUSTICE BALES authored the opinion of the Court with respect to Parts I, II(A), (B), (C), and (D), in which JUSTICES BRUTINEL, TIMMER, and BOLICK joined. VICE CHIEF JUSTICE PELANDER authored the opinion of the Court with respect to Parts II(E) and III, in which JUSTICES BRUTINEL, TIMMER, and GOULD and JUDGE ESPINOSA joined. [*]


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


         ¶2 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.

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

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

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

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

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

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



         ¶9 "We review for abuse of discretion the trial court's factual findings on the motion to suppress, but review de novo the trial court's ultimate legal determination that the search complied with the Fourth Amendment." State v. Gilstrap, 235 Ariz. 296, 297 ¶ 6 (2014). The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. A vehicle is an "effect" under the Fourth Amendment, and the installation and use of a GPS tracking device may constitute a search. Jones, 565 U.S. at 404.

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


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

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

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

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

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

         ¶16 Jean argues that a person who is neither an owner nor a bailee may nonetheless have a possessory interest in property sufficient to challenge a search under the trespass test. Cf. Mitchell, 234 Ariz. at 417 ¶ 25 (concluding that "one who comes into lawful possession of a vehicle upon which law enforcement has installed a GPS device without permission may assert a Fourth Amendment violation under Jones based on a continuing trespass"). Even if we accept this general proposition, it does not avail Jean here. In applying the trespass test, the United States Supreme Court has not clarified whether 18th-century common law or instead more recent precedent determines whether government conduct involves a trespass. Compare Jones, 565 U.S. at 404-05 (observing that the government's physical intrusion onto property would have been regarded as a trespass, and thus a search, "within the meaning of the Fourth Amendment when it was adopted"), with Florida v. Jardines, 569 U.S. 1, 10-12 (2013) (applying the Jones trespass test and holding that a dog's sniff from the doorstep of a home constituted a search); id. 16-22 (Alito, J., dissenting) (observing that "[t]he Court's decision . . . is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence, " and noting that common law generally recognized a license for people to walk to the front door of a residence); see also United States v. Sweeney, 821 F.3d 893, 899-900 (7th Cir. 2016) (remarking that "[n]either Jones nor the common law provides sharp boundaries for the meaning of trespass").

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

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

         ¶19 In addition, unlike Velez-Colon, Jean - on the record before us - did not have the right to exclude others from the truck. That right is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979); accord Rakas, 439 U.S. at 143 n.12. Accordingly, courts routinely emphasize the importance of the right to exclude in analyzing Fourth Amendment issues. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (rejecting a defendant's Fourth Amendment claim when he had no "right to exclude other persons from access" to a friend's purse into which he had placed drugs); Rakas, 439 U.S. at 148-49 (denying Fourth Amendment protection to defendants who "asserted neither a property nor a possessory interest in [an] automobile" and had no right to exclude others from the areas searched); Lyall, 807 F.3d at 1188, 1189 & n.10 (in evaluating warrantless search of warehouse and whether various occupants had protectible Fourth Amendment interests under trespass theory, court differentiated those who had no "right to exclude others from any portion of the warehouse" from those who did); United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006) (stating that "indicia of ownership - including the right to exclude others - coupled with possession and the permission of the rightful owner, are sufficient grounds upon which to find standing").

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

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

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


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

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

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

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