PHOENIX -- A GPS device installed and tracked by police without a warrant is illegal even if the person being targeted for tracking is not the owner of the vehicle, the state Court of Appeals ruled Monday.
The judges rejected arguments by the Attorney General's Office that Thomas Mitchell had no right to complain about installing the device and being tracked because he had borrowed the car from someone else. Judge Donn Kessler, writing for the unanimous court, said monitoring the device without a warrant constituted illegal trespass by police and therefore a violation of Fourth Amendment rights against illegal search and seizure.
That also means the marijuana and methamphetamines seized by the Yavapai County Sheriff's Department cannot be used as evidence.
Monday's ruling extends the reach of a 2012 U.S. Supreme Court ruling which said warrantless use of GPS devices is illegal.
That case involved someone who was the exclusive user of a vehicle. Here the issue goes to the rights of someone who borrows a car with permission.
It also spells out that the legal issue is not whether the driver has a reasonable expectation of privacy. Instead the judges said the question is whether police illegally trespassed on the vehicle.
Potentially more significant, Kessler said the fact that Mitchell was not in possession of the vehicle when the tracking device was installed is irrelevant. He said the monitoring by the sheriff's deputy was a continuing -- and illegal -- trespass.
Mitchell became a target of investigation after an informant said he had purchased meth from a third party at a home in Humbolt. The deputy said while Mitchell owned several vehicles, he decided to monitor a Kia Sportage that he said Mitchell also drove.
Without a warrant, the deputy installed a GPS device which was programmed to send a text to a cell phone when the vehicle hit certain points, including going to Phoenix. After the device alerted to a Phoenix trip, the deputy followed Mitchell, stopped the vehicle and, after being denied permission to search, got a drug dog to sniff the vehicle.
The dog "alerted,' with the deputy finding several pounds of marijuana and bags of meth.
Attorneys for the state conceded there was a trespass but said Mitchell could not challenge the installation of the device since he was neither the owner nor in possession when it was installed.
But Kessler said the issue is not the installation of the device but its warrantless use.
"The state's argument ... fail(s) to appreciate the continuing nature of the trespass, which includes having the GPS device installed and maintained on the vehicle without the consent of a person having property rights to the vehicle,' the judge wrote.
Kessler pointed to a concurring opinion that Justice Samuel Alito wrote in that 2012 Supreme Court decision where he sought to explain how the Fourth Amendment rights of the 18th century apply to 21st century technology. In that, Alito compared a GPS device to a "constable -- albeit a tiny one -- hiding in a target's coach.'
"It would be absurd ... to assert that the constable's trespass ends after he finds a comfortable hiding place and plants himself there,' Kessler wrote. "Instead, the constable continues to trespass as long as he remains in the coach without permission.'
Kessler said the logic remains even if the technology has changed.
"If GPS is the government's modern-day constable surrogate, then there is no principled reason why courts should narrowly construe the trespass to the singular moment of affixing the device to a vehicle,' he wrote.
What that means in this case is that on May 30, 2010, when the deputy stopped the vehicle after monitoring for 25 days, there was an "ongoing' illegal trespass.
Kessler also pointed out that the deputy conceded he had the opportunity to ask a magistrate for a search warrant "but chose not to do so.'
The appellate court also rejected arguments by prosecutors that they had a good-faith reason to believe they did not need a warrant, especially as the U.S. Supreme Court had not yet ruled. But Kessler said that 2012 high court ruling did not overrule any prior precedent or announce a new legal standing "but instead simply applied existing -- albeit dormant -- Fourth Amendment principles.'