State v. Zahn , 2012 S.D. LEXIS 19 ( 2012 )

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2012 S.D. 19IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ELMER WAYNE ZAHN, JR., Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE TONY PORTRA
Judge
* * * *
MARTY J. JACKLEY
Attorney General
FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
THOMAS M. TOBIN of
Tonner, Tobin and King, LLP
Aberdeen, South Dakota Attorneys for defendant
and appellant.
* * * *
ARGUED ON MARCH 23, 2011
OPINION FILED 03/14/12
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SEVERSON, Justice
[¶1.] Without obtaining a search warrant, police attached a global
positioning system (GPS) device to Elmer Wayne Zahn Jr.’s vehicle. The GPS
device enabled officers to track and record the speed, time, direction, and geographic
location of Zahn’s vehicle within five to ten feet for nearly a month. Police used the
information they gathered to obtain a search warrant for two storage units that
Zahn frequently visited. Officers recovered drug paraphernalia and approximately
one pound of marijuana from a freezer in one of the storage units. Before trial, the
trial court denied Zahn’s motion to suppress the evidence that the officers
discovered during the execution of the search warrant. Zahn appeals his conviction
of several drug possession charges, arguing that the trial court erred by denying his
motion to suppress. We reverse.
Background
[¶2.] Zahn and his wife, Ranee, lived in Gettysburg, South Dakota. In June
2008, Ranee passed away while visiting her daughter, Katie Circle Eagle, in
Aberdeen. Because Ranee was not in the care of a physician when she died, police
were called to Circle Eagle’s residence to investigate the death. Zahn was present
when the officers arrived but left before they interviewed him.
[¶3.] As part of the death investigation, the officers searched the bedroom
where Ranee died. They found a large, brown suitcase in a bedroom closet. The
suitcase contained a digital scale and approximately 120 quart-sized plastic
containers. A strong odor of raw marijuana emanated from several of the
containers. The officers also found $8,890 cash in a nylon shoulder bag in one
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corner of the bedroom. A drug dog later alerted to the cash as having the odor of
marijuana or some narcotic. Their suspicions aroused, the officers attempted to
contact Zahn, but they were unable to do so.
[¶4.] In November 2008, Zahn was arrested for driving while intoxicated.
The arresting officers searched Zahn’s vehicle. They found a black duffel bag in the
backseat that contained an unmarked pill bottle filled with a green, leafy substance.
Tests later confirmed that the substance was marijuana. The officers also recovered
a large amount of cash from the duffel bag, from a purse in the cargo area of the
vehicle, and from Zahn’s person. In total, the officers discovered nearly $10,000
cash. Zahn was charged with and pleaded guilty to driving under the influence,
possession of two ounces or less of marijuana, and possession of drug paraphernalia.
[¶5.] On March 3, 2009, Tanner Jondahl, a detective with the Aberdeen
Police Department, attached a GPS device to the undercarriage of Zahn’s vehicle
while it was parked in the private parking lot of an apartment complex. The GPS
device was attached to Zahn’s vehicle with a magnet and did not interfere with the
operation of his vehicle. Because the GPS device was battery-powered, it did not
draw power from Zahn’s vehicle. For twenty-six days, it continuously transmitted
the geographic location of Zahn’s vehicle, enabling officers to pinpoint his location
within five to ten feet, monitor his speed, time, and direction, and detect non-
movement. A computer at the Brown County Sheriff’s Office recorded the
movements of Zahn’s vehicle.
[¶6.] Using the GPS device, Detective Jondahl tracked Zahn’s movements
for twenty-six days in March 2009. He observed that Zahn’s vehicle traveled to a
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storage unit at Plaza Rental five times and a storage unit at Store-It four times.
The visits to the storage units generally lasted only a few minutes. Detective
Jondahl later confirmed that a Plaza Rental storage unit was rented to Ranee and
that a Store-It storage unit was rented to Alan Zahn, Zahn’s brother. Detective
Jondahl represented that, based on his training and experience, he believed that
Zahn kept controlled substances in the storage units and was involved in drug
distribution.
[¶7.] On March 29, 2009, Zahn traveled to Gettysburg, South Dakota.
Because Zahn was out on bond at the time, he was not permitted to leave Brown
County. Officers used the GPS device to determine that Zahn left Brown County,
and Zahn was arrested for the bond violation when he returned to Aberdeen. A
search of his person revealed approximately $2,000 cash.
[¶8.] Later that day, Detective Jondahl submitted an affidavit in support of
a search warrant for the Plaza Rental storage unit, the Store-It storage unit, and
Zahn’s person. A judge signed the search warrant, and Detective Jondahl, along
with several other officers, executed the warrant. During the search of the Store-It
storage unit, a drug dog alerted to a freezer that was hidden from view by a wall of
empty cardboard boxes. In the freezer, the officers discovered two jars filled with
nearly one ounce of a finely-ground, green substance that emitted a strong odor of
raw marijuana. A large suitcase in the freezer contained five four-ounce plastic
bags of a green, leafy substance. Tests later confirmed that the substance in both
the jars and the plastic bags was marijuana. The freezer contained several other
items, including a glass pipe, three empty plastic bags, and several unused plastic
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containers. Various boxes and cardboard tubes bearing Zahn’s name were also
recovered from the Store-It storage unit. No evidence was recovered from the Plaza
Rental storage unit. A urine sample taken from Zahn that day tested negative for
marijuana ingestion.
[¶9.] In April 2009, a Brown County grand jury indicted Zahn on one count
of possession with the intent to distribute one pound or more of marijuana and one
count of possession of one to ten pounds of marijuana. Additionally, Zahn was
charged with possession of drug paraphernalia. Zahn filed a motion to suppress the
evidence obtained through the use of the GPS device. The trial court denied the
motion after a hearing on the matter. The case proceeded to a court trial in
February 2010, and Zahn was convicted of all charges. Zahn appeals.
Standard of Review
[¶10.] Our standard of review of motions to suppress is well settled. “A
motion to suppress based on an alleged violation of a constitutionally protected
right is a question of law reviewed de novo.” State v. Wright, 2010 S.D. 91, ¶ 8, 791
N.W.2d 791, 794 (quoting State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377).
“The trial court’s factual findings are reviewed under the clearly erroneous
standard” of review. Id. (quoting Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).
However, “[o]nce the facts have been determined . . . the application of a legal
standard to those facts is a question of law reviewed de novo.” Id. (quoting
Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377).
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Analysis and Decision
[¶11.] Zahn challenges the use of the GPS device to monitor his activities for
nearly a month under the Fourth Amendment to the United States Constitution
and Article VI, § 11, of the South Dakota Constitution. The Fourth Amendment to
the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
Similarly, Article VI, § 11, of the South Dakota Constitution provides:
The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures
shall not be violated, and no warrant shall issue but upon
probable cause supported by affidavit, particularly describing
the place to be searched and the person or thing to be seized.
[¶12.] While Zahn challenges the use of the GPS device to monitor his
activities under Article VI, § 11, of the South Dakota Constitution, he has not
asserted a basis to distinguish the protections that the South Dakota Constitution
provides from those that the United States Constitution provides. See State v.
Kottman, 2005 S.D. 116, ¶ 13, 707 N.W.2d 114, 120 (“Counsel advocating a separate
constitutional interpretation ‘must demonstrate that the text, history, or purpose of
a South Dakota constitutional provision supports a different interpretation from the
corresponding federal provision.’” (quoting State v. Schwartz, 2004 S.D. 123, ¶ 57,
689 N.W.2d 430, 445)). We thus decide this case on federal constitutional principles
and will not address the question of whether the South Dakota Constitution affords
South Dakotans greater protection against the use of GPS devices to monitor their
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activities over an extended period of time. See State v. Opperman, 247 N.W.2d 673,
675 (S.D. 1976) (recognizing that “this [C]ourt has the power to provide an
individual with greater protection under the state constitution than does the United
States Supreme Court under the federal constitution”).
Is the Use of a GPS Device a Search?
[¶13.] In the recent case of United States v. Jones, the United States Supreme
Court addressed the issue of whether the attachment of a GPS device to an
individual’s vehicle, and the subsequent use of the device to track the vehicle’s
movements, constitutes a search under the Fourth Amendment. 565 U.S. __, 132 S.
Ct. 945, __ L. Ed. 2d __ (2012). In Jones, the Government applied for and was
granted a search warrant authorizing it to install a GPS tracking device on a
vehicle that was registered to Jones’s wife. Id. at __, 132 S. Ct. at 948. One day
after the warrant expired, the Government installed the device.1 Id. The
Government then used the device to track the vehicle’s movements for twenty-eight
days. Id.[¶14.] The Government later secured an indictment charging Jones and other
alleged co-conspirators with several crimes, including conspiracy to distribute and
to possess with intent to distribute cocaine and cocaine base. Id. Prior to trial,
Jones moved to suppress the evidence the Government obtained through the use of
1. The warrant authorized the Government to install the GPS device in the
District of Columbia within ten days of the issuance of the warrant. Id. The
Government installed the GPS device eleven days after the warrant was
issued. At the time the device was installed, the vehicle was located in
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the GPS device. Id. The District Court held that the data obtained from the GPS
device while the vehicle was on public streets was admissible because “a person
traveling in an automobile on public thoroughfares has no reasonable expectation of
privacy in his movements from one place to another.” Id. (quoting United States v.
Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006)). The United States Court of Appeals
for the District of Columbia Circuit reversed, holding that the admission of the
evidence obtained by the Government through the warrantless use of a GPS device
violated the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 568
(D.C. Cir. 2010).
[¶15.] The United States Supreme Court granted certiorari and affirmed the
holding of the D.C. Circuit. Jones, 565 U.S. at __, 132 S. Ct. at 954. However, in
doing so, the Court did not apply the Fourth Amendment analysis first introduced
by Justice Harlan in his concurrence in Katz v. United States, 389 U.S. 347, 88 S.
Ct. 507, 19 L. Ed. 2d 576 (1967), which centers on whether an individual has a
“reasonable expectation of privacy” in the area searched. See Thunder, 2010 S.D. 3,
¶ 16, 777 N.W.2d at 378 (applying the Katz “reasonable expectation of privacy”
test). Instead, the Court applied a “physical trespass” test to determine whether
the Government’s conduct constituted a Fourth Amendment search.
[¶16.] The Court observed that the Fourth Amendment protects “the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” Jones, 565 U. S. at __, 132 S. Ct. at 949. The
Court went on to state, “It is beyond dispute that a vehicle is an ‘effect’ as that term
is used in the Amendment.” Id. (citing United States v. Chadwick, 433 U.S. 1, 12,
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97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977)). Thus, the Court unequivocally 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.[¶17.] In Jones, the Court acknowledged two separate tests for identifying a
Fourth Amendment search: the “physical trespass test” and the Katz “reasonable
expectation of privacy” test. Justice Scalia, writing for the majority, determined it
was unnecessary to reach the question of whether Jones had a “reasonable
expectation of privacy” in the vehicle or in the whole of his movements on public
roads. The majority explained:
The Government contends that the Harlan standard shows that
no search occurred here, since Jones had no “reasonable
expectation of privacy” in the area of the Jeep accessed by
Government agents (its underbody) and in the locations of the
Jeep on the public roads, which were visible to all. But we need
not address the Government’s contentions, because Jones’s
Fourth Amendment rights do not rise or fall with the Katz
formulation. At bottom, we must “assur[e] preservation of that
degree of privacy against government that existed when the
Fourth Amendment was adopted.” As explained, for most of our
history the Fourth Amendment was understood to embody a
particular concern for government trespass upon the areas
(“persons, houses, papers, and effects”) it enumerates. Katz did
not repudiate that understanding.
Id. at __, 132 S. Ct. at 950 (internal citations omitted).
[¶18.] However, Justice Alito wrote a concurring opinion, which was joined by
Justices Ginsburg, Breyer, and Kagan. Id. at __, 132 S. Ct. at 957 (Alito, J.,
concurring). Justice Alito characterized the majority’s holding as “unwise,” stating,
“It strains the language of the Fourth Amendment; it has little if any support in
current Fourth Amendment case law; and it is highly artificial.” Id. at __, 132 S. Ct.
at 958. Justice Alito reasoned that the case should be analyzed “by asking whether
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[Jones’s] reasonable expectations of privacy were violated by the long-term
monitoring of the movements of the vehicle he drove.” Id. Without identifying the
specific point at which the surveillance became a Fourth Amendment search,
Justice Alito concluded that the continual monitoring of Jones’s movements during
a four-week period violated Jones’s reasonable expectations of privacy. Justice Alito
explained, “In this case, for four weeks, law enforcement agents tracked every
movement that [Jones] made in the vehicle he was driving. We need not identify
with precision the point at which the tracking of this vehicle became a search, for
the line was surely crossed before the 4-week mark.”2 Id. at __, 132 S. Ct. at 964.
[¶19.] In this case, law enforcement attached a GPS device to Zahn’s vehicle.
It then monitored Zahn’s movements for twenty-six days. In accordance with the
majority’s opinion in Jones, we hold that law enforcement’s installation of a GPS
device on Zahn’s vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a Fourth Amendment search under the “physical trespass
test.”
2. Justice Sotomayor joined the majority but wrote a separate concurring
opinion. Id. at __, 132 S. Ct. at 954 (Sotomayor, J., concurring). She agreed
with the majority that the Government conducted a Fourth Amendment
search when it physically invaded Jones’s personal property to gather
information. Id. Justice Sotomayor thus found it unnecessary to address the
issue of whether Jones’s reasonable expectations of privacy had been violated.
Nonetheless, Justice Sotomayor indicated that she agreed with Justice Alito’s
conclusion that, “at the very least, ‘longer term GPS monitoring in
investigations of most offenses impinges on expectations of privacy.’” Id. at
__, 132 S. Ct. at 955. Thus, at least five Justices reasoned that prolonged
GPS monitoring violates an individual’s reasonable expectation of privacy.
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[¶20.] Law enforcement’s actions also constituted a search under the Katz
“reasonable expectation of privacy” test.3 This Court has stated, “A two-part test
determines whether an individual has a reasonable expectation of privacy” in a
particular area. Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d at 378 (citing Cordell v.
Weber, 2003 S.D. 143, ¶ 12, 673 N.W.2d 49, 53). “First, we consider whether [an
individual] exhibited an actual subjective expectation of privacy in the area
searched.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Second, we
consider whether society is prepared to recognize that expectation of privacy as
reasonable.” Id. (citing Cordell, 2003 S.D. 143, ¶ 12, 673 N.W.2d at 53). “Whether
[an individual] has a legitimate expectation of privacy in [an area] is determined on
a ‘case-by-case basis, considering the facts of each particular situation.’”4 Id.(quoting State v. Hess, 2004 S.D. 60, ¶ 17, 680 N.W.2d 314, 322).
3. We find it appropriate to address this issue because, in arguing this case,
both parties focused on the application of the Katz “reasonable expectation of
privacy” test. At the time this case was argued, the United States Supreme
Court had not yet decided Jones.
4. Prior to Jones, courts that were faced with the issue of whether the use of a
GPS device to monitor an individual’s movements was a Fourth Amendment
search applied the Katz “reasonable expectation of privacy” test. For
example, two federal circuit courts held that the use of a GPS device to
monitor an individual’s activities on public roads did not amount to a Fourth
Amendment search under the Katz “reasonable expectation of privacy” test.
See United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011), vacated, 2012
WL 538289; United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010),
vacated, 2012 WL 53827. One federal appellate court reached the opposite
conclusion. See Maynard, 615 F.3d 544, aff’d, Jones, 565 U.S. __, 132 S. Ct.
945.
A number of state courts held that the use of a GPS device to monitor an
individual’s activities was not a Fourth Amendment search. See Devega v.
State, 689 S.E.2d 293 (Ga. 2010); Stone v. State, 941 A.2d 1238 (Md. Ct. Spec.
(continued . . .)
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[¶21.] We first address whether Zahn had a subjective expectation of privacy
in the whole of his movements for nearly a month. Ordinarily, “[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S. Ct. at 511 (citing
Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 427, 17 L. Ed. 2d 312(1966); United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 748, 71 L. Ed. 1202(1927)). “But what he seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.” Id. (citing Rios v. United States, 364 U.S.
253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960)) (citation omitted).
[¶22.] In this case, the State argues that Zahn could not have had a
subjective expectation of privacy in his movements because he voluntarily exposed
his movements to the public. We disagree. While a reasonable person understands
that his movements on a single journey are conveyed to the public, he expects that
those individual movements will remain “disconnected and anonymous.” Maynard,
615 F.3d at 563 (citation omitted). Indeed, the likelihood that another person would
observe the whole of Zahn’s movements for nearly a month “is not just remote, it is
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(. . . continued)
App. 2008); Osburn v. State, 44 P.3d 523 (Nev. 2002); People v. Gant, 802
N.Y.S.2d 839 (N.Y. Crim. Ct. 2005); State v. Johnson, 944 N.E.2d 270 (Ohio
Ct. App. 2010), appeal docketed, No. 2011-0033 (Ohio 2011); Foltz v.
Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), aff’d en banc, 706 S.E.2d
914 (2011); State v. Sveum, 769 N.W.2d 53 (Wis. Ct. App. 2009).
Three state courts held the warrantless use of a GPS device to monitor
an individual’s movement was impermissible under their respective state
constitutions. See People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v.
Campbell, 759 P.2d 1040 (Or. 1988); State v. Jackson, 76 P.3d 217 (Wash.
2003).
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essentially nil.” Id. at 560. The prolonged use of a GPS device in this case enabled
officers to determine Zahn’s speed, time, direction, and geographic location within
five to ten feet at any time. It also enabled officers to use the sum of the recorded
information to discover patterns in the whole of Zahn’s movements for twenty-six
days. The prolonged GPS surveillance of Zahn’s vehicle revealed more than just the
movements of the vehicle on public roads; it revealed an intimate picture of Zahn’s
life and habits. We thus believe that Zahn had a subjective expectation of privacy
in the whole of his movements. This subjective expectation of privacy was not
defeated because Zahn’s individual movements were exposed to the public.
[¶23.] We next consider whether Zahn’s expectation of privacy in the whole of
his movements for nearly a month was reasonable. After all, his personal desire for
privacy alone, no matter how earnestly held, does not trigger the protections of the
Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 740-41, 99 S. Ct. 2577,
2580, 61 L. Ed. 2d 220 (1979) (citations omitted).
[¶24.] The State argues that, under United States v. Knotts, 460 U.S. 276,
103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983), Zahn could not have possessed a reasonable
expectation of privacy in his movements on public roads. In Knotts, the United
States Supreme Court considered whether the use of a tracking device to monitor
an individual’s activities during a single journey amounted to a Fourth Amendment
search. Id. at 285, 103 S. Ct. at 1087. The Court held 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. at 1085. The
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Court noted that police efficiency does not equate with unconstitutionality. Id. at
284, 103 S. Ct. at 1086.
[¶25.] By today’s standards, the beeper used in Knotts was a rudimentary
tracking device. It enabled investigators to maintain visual contact with Knotts’s
vehicle on a single journey, but it could not indicate with any degree of accuracy
where Knotts’s vehicle was located. Id. at 278, 103 S. Ct. at 1083. And it certainly
could not record Knotts’s movements over an extended period of time. The Court in
Knotts expressly declined to address whether twenty-four hour surveillance over an
extended period of time is a Fourth Amendment search. The Court stated, “[I]f such
dragnet type law enforcement practices as [Knotts] envisions should eventually
occur, there will be time enough then to determine whether different constitutional
principles may be applicable.” Id. at 284, 103 S. Ct. at 1086.
[¶26.] In Jones, the majority did not reach the question of whether the use of
a GPS device to monitor an individual’s activities for an extended period of time
violates an individual’s “reasonable expectations of privacy.” Jones, 565 U.S. at __,
132 S. Ct. at 950. But in his concurrence, Justice Alito recognized that
longer term GPS monitoring in investigations of most offenses
impinges on expectations of privacy. For such offenses, society’s
expectation has been that law enforcement agents and others
would not – and indeed, in the main, simply could not – secretly
monitor and catalogue every single movement of an individual’s
car for a very long period.
Id. at __, 132 S. Ct. at 964 (Alito, J., concurring). Justice Sotomayor expressly
stated in her concurrence, “I agree with Justice Alito that, at the very least, ‘longer
term GPS monitoring in investigations of most offenses impinges on expectations of
privacy.’” Id. at __, 132 S. Ct. at 955 (Sotomayor, J., concurring).
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[¶27.] Technology has advanced exponentially since the United States
Supreme Court decided Knotts twenty-nine years ago. Current GPS technology is
uniquely intrusive in the wealth of highly-detailed information it gathers. See
Renee McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth
Amendment, 55 U.C.L.A. L. Rev. 409, 456-57 (2007). The GPS device used in this
case continuously transmitted the geographic location of Zahn’s vehicle to a
computer at the Brown County Sheriff’s Department. It enabled officers to not only
determine his speed, direction, and geographic location within five to ten feet at any
time, but to also use the recorded information to discover patterns in the whole of
his movements for nearly a month.
[¶28.] When the use of a GPS device enables police to gather a wealth of
highly-detailed information about an individual’s life over an extended period of
time, its use violates an expectation of privacy that society is prepared to recognize
as reasonable.5 The use of a GPS device to monitor Zahn’s activities for twenty-six
5. We do not believe that the popularity of GPS technology constitutes a
surrender of personal privacy. Weaver, 909 N.E.2d at 1200. In his
concurrence in Jones, Justice Alito accepted this proposition in concluding
that the use of a GPS device to monitor of Jones’s movements during a four-
week period violated Jones’s reasonable expectations of privacy. Jones, 565
U.S. at __, 132 S. Ct. at 964 (Alito, J., concurring). However, Justice Alito
indicated that future advances in technology may influence society’s
expectation of privacy. He explained,
the Katz test rests on the assumption that this hypothetical
reasonable person has a well-developed and stable set of privacy
expectations. But technology can change those expectations.
Dramatic technological change may lead to periods in which
popular expectations are in flux and may ultimately produce
significant changes in popular attitudes. New technology may
provide increased convenience or security at the expense of
(continued . . .)
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days was therefore a Fourth Amendment search under the Katz “reasonable
expectation of privacy” test.
Does the Fourth Amendment Require a Warrant to Use a GPS Device?
[¶29.] Detective Jondahl did not obtain a search warrant before he used the
GPS device to monitor Zahn’s activities for nearly a month. “[A] warrantless search
and seizure is per se unreasonable” unless it falls within an exception to the
warrant requirement. State v. Sweedland, 2006 S.D. 77, ¶ 14, 721 N.W.2d 409, 413
(quoting State v. Luxem, 324 N.W.2d 273, 279 (S.D. 1982)). “If a warrantless search
or seizure is conducted, it is the State’s burden to show that the entry into the
protected area was justified.” Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting
Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378).
[¶30.] The United States Supreme Court has carved out a number of “well-
delineated exceptions” to the warrant requirement. Katz, 389 U.S. at 357, 88 S. Ct.
at 514. The Court has found that the presence of exigent circumstances excuses a
warrantless search and that a warrantless search and seizure of an individual for
the limited purpose of briefly investigating reasonably suspicious behavior is
permissible. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Consent
searches, searches conducted incident to a valid arrest, automobile searches, and
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(. . . continued)
privacy, and many people may find the tradeoff worthwhile.
And even if the public does not welcome the diminution of
privacy that new technology entails, they may eventually
reconcile themselves to this development as inevitable.
Id. at 962.
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searches of items in plain view are also allowed without a warrant.6 None of these
exceptions readily applies to the use of a GPS device to monitor an individual’s
activities over an extended period of time.
[¶31.] We thus hold that the attachment and use of a GPS device to monitor
an individual’s activities over an extended period of time requires a search warrant.
Because the unfettered use of surveillance technology could fundamentally alter the
relationship between our government and its citizens, we require oversight by a
neutral magistrate. Wright, 2010 S.D. 91, ¶ 9, 791 N.W.2d at 794 (quoting
Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378). Thus, the warrantless attachment
and use of the GPS device to monitor Zahn’s activities for nearly a month was
unlawful, and the evidence obtained through the use of the GPS device should be
suppressed.
[¶32.] By our holding today, we do not deny police the ability to use this
valuable law enforcement tool. We recognize that police must be allowed to use
developing technology in the “often competitive enterprise of ferreting out crime.”
Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d at 415 (quoting Illinois v. Gates, 462
U.S. 213, 240, 103 S. Ct. 2317, 2333, 76 L. Ed. 2d 527 (1983)). The Fourth
Amendment “cannot sensibly be read to mean that police [should] be no more
6. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854(1973) (consent searches); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.
2022, 29 L. Ed. 2d 564 (1971) (searches of items in plain view); Chimel v.
California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (searches
conducted incident to arrest); Carroll v. United States, 267 U.S. 132, 45 S. Ct.
280, 69 L. Ed. 543 (1925) (automobile searches).
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efficient in the twenty-first century than they were in the eighteenth” century.
United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007), cert. denied, 552 U.S.
883, 128 S. Ct. 291, 169 L. Ed. 2d 140 (2007). But police must obtain a warrant
before they attach and use a GPS device to monitor an individual’s activities over an
extended period of time.
[¶33.] Our disposition of this case makes it unnecessary to address Zahn’s
additional challenges to this conviction.
[¶34.] Reversed and remanded for additional proceedings.
[¶35.] GILBERTSON, Chief Justice, and MEIERHENRY, Retired Justice,
concur.
[¶36.] KONENKAMP and ZINTER, Justices, concur with a writing.
ZINTER, Justice (concurring).
[¶37.] The majority opinion in United States v. Jones, 565 U.S. ___, 132 S. Ct.
945, 181 L. Ed. 2d 911 (2012), resolves a virtually identical case. Therefore, I join
the Court’s opinion insofar as it holds this was an unlawful search under Jones’s
physical trespass test. See id. at ___, 132 S. Ct. at 949 (“We hold 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.’” (footnote
omitted)); see supra ¶¶ 15, 19. However, it must be pointed out that the majority7 of
7. Justice Sotomayor, the fifth vote, did suggest that GPS monitoring would
impinge on expectations of privacy in some cases. Jones, 565 U.S. at ___, 132
S. Ct. at 955 (Sotomayor, J., concurring) (“I agree with Justice Alito that, at
the very least, ‘longer term GPS monitoring in investigations of most offenses
impinges on expectations of privacy.’”). Nonetheless, Justice Sotomayor did
(continued . . .)
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the Supreme Court expressly declined to adopt Justice Alito’s concurrence arguing
for application of the Katz “reasonable expectation of privacy” test. In fact, the
majority pointed out a number of problems in applying the reasonable expectation
of privacy test in this context. The majority concluded that the Court would “have
to grapple with these ‘vexing problems’ in some future case where a classic
trespassory search is not involved and resort must be had to Katz analysis; but
there is no reason for rushing forward to resolve them here.” Jones, 565 U.S. at ___,
132 S. Ct. at 954.
[¶38.] Because a majority of the Supreme Court expressly considered but
declined to apply the reasonable expectation of privacy test in Jones, I do not join
this Court’s application of the reasonable expectation of privacy test in Zahn’s case.
Because we are deciding this case under the federal Constitution, we should not
utilize a Fourth Amendment test that the majority of the Supreme Court has
expressly declined to apply.8 It is also unnecessary becauselike the Supreme
________________________
(. . . continued)
not apply the Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516, 19
L. Ed. 2d 576 (Harlan, J., concurring), reasonable expectation of privacy test
in that month-long GPS monitoring case. She indicated that technological
advances would “affect” the Katz test in future cases. Jones, 565 U.S. at ___,
132 S. Ct. at 955 (Sotomayor, J., concurring) (“[T]he same technological
advances that have made possible nontrespassory surveillance techniques
will also affect the Katz test by shaping the evolution of societal privacy
expectations.”). Ultimately, Justice Sotomayor joined the majority,
concluding that it was unnecessary to address the reasonable expectation of
privacy test. Id. at ___, 132 S. Ct. at 957.
8. The Court today also uses the D.C. Circuit Court of Appeals’ view of how
Katz’s reasonable expectation of privacy test (and in particular, the subjective
expectation of privacy prong) invalidates prolonged use of GPS monitoring.
See supra ¶ 22 (citing United States v. Maynard, 615 F.3d 544, 563 (D.C. Cir.
(continued . . .)
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Courttoday’s Court finds this use of a GPS to be an unlawful search under the
physical trespass test. Concededly, this case was argued on the reasonable
expectation of privacy test. But Jones was decided after oral argument, and “[t]he
Court [should] not pass upon a constitutional question although properly presented
by the record, if there is also present some other ground upon which the case may
be disposed of.” Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed.
688 (1936) (Brandeis, J., concurring). “[W]e should . . . adhere to a basic
constitutional obligation by avoiding unnecessary decision of constitutional
questions.” Morse v. Frederick, 551 U.S. 393, 428, 127 S. Ct. 2618, 2640, 168 L. Ed.
2d 290 (2007). As Justice Sotomayor concluded in providing the fifth vote for the
majority opinion in Jones, “[r]esolution of [the] difficult questions [regarding
expectations of privacy was] . . . unnecessary . . . because the Government’s physical
intrusion . . . supplie[d] a narrower basis for decision.” Jones, 565 U.S. at ___, 132
S. Ct. at 957.
[¶39.] KONENKAMP, Justice, joins this special writing.
________________________
(. . . continued)
2010)). But the D.C. Circuit Court of Appeals’ decision in Maynard involved
a joint appeal by both defendants Maynard and Jones, and the United States
Supreme Court expressly declined to follow Maynard’s application of the
reasonable expectation of privacy test in prolonged GPS monitoring. See
Jones, 565 U.S. at ___, 132 S. Ct. at 954. The Supreme Court noted that
applying the Katz reasonable expectation of privacy test “leads us needlessly
into additional thorny problems.” Id.- 19 -