Officers placed a GPS on another person’s vehicle knowing that defendant would be driving it, and he was the target. That gave him standing. The good faith exception doesn’t apply because there was no binding state precedent that said GPS surveillance was lawful pre-Jones. State v. Mitchell, 2014 Ariz. App. LEXIS 65 (April 21, 2014):
¶19 Thus, lawful possession of the vehicle during the trespass is sufficient to confer standing under Jones. Here, Mitchell was not in lawful possession of the vehicle at the time the GPS device was installed and, therefore, does not fall squarely within the scope of this general rule. However, he was in lawful possession before installation and sporadically thereafter, the police knew he was using the vehicle, he was the target of the surveillance, and it is undisputed that Mitchell lawfully possessed the vehicle on the day of his arrest. Therefore, on those occasions Mitchell had the rights of a bailee. As we explain below, we conclude that Mitchell has standing to challenge the GPS surveillance based on a continuing trespass.
B. Continuing Trespass
¶20 The State argues that Mitchell lacks standing to contest the trespass because he was not in possession of the car at the time the GPS device was installed. We understand the State’s argument to be that Mitchell lacks standing because he did not have a property interest in the car at the time the initial trespassory act occurred. The State’s argument reflects lower court holdings that have divided standing into two parts-distinguishing between when a defendant has standing to challenge the installation of the device and when he has standing to challenge its use, suggesting the former is subject to the Jones trespass analysis and the latter to the Katz reasonable-expectation-of-privacy test. See, e.g., Gibson, 708 F.3d at 1277-78 (concluding that defendant had property interest in vehicle sufficient to challenge GPS installation, but lacked standing to challenge use of device when vehicle was out of his possession); Hernandez, 647 F.3d at 219-20 (concluding that defendant lacked standing to challenge installation of device because not in possession at time of installation, but had standing to challenge use). This line of thinking limits the trespass to the actual installation of the device and not its continued presence and use. Thus, these courts have concluded that a defendant has standing under Jones only if he was in lawful possession of the vehicle at the time the GPS device was installed.
¶21 The State’s argument and the decisions upon which it relies, however, fail 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. Black’s Law Dictionary defines a “continuing trespass” as “[a] trespass in the nature of a permanent invasion of another’s rights, such as a sign that overhangs another’s property.” 1541 (8th ed. 2004). In the context of real property, the Restatement explains that the “failure to remove … [a] thing which … [has been] tortiously … placed … constitutes a continuing trespass for the entire time during which the thing is wrongfully [present].” § 161 cmt. b. If possessory interest in the property is transferred subsequent to the trespassory placement, the transferee may object to its continued presence. Id. at cmt. e. Furthermore, the Restatement recognizes continued trespasses to chattel. See § 217 cmt. f (“[A]n intermeddling unprivileged by … consent … may be a continuous one ….”).
¶22 That the ongoing presence of the GPS device constitutes a continuing trespass is demonstrated by Justice Alito ‘s “tiny constable” analogy in Jones. 132 S.Ct. at 958 n.3 (Alito , J., concurring). Justice Alito reasoned that the closest analog to GPS technology at the time the Fourth Amendment was adopted would have been a constable-albeit a tiny one-hiding in a target’s coach. Id. It would be absurd, however, to assert that the constable’s trespass ends after he finds a comfortable hiding place and plants himself there. Instead, the constable continues to trespass as long as he remains in the coach without permission. 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. Instead, the trespass continues so long as the device remains in physical contact with the vehicle without the consent of the owner or the borrower, just as the trespass would continue during the entire time the tiny constable was hidden in the coach.
¶23 As explained in LeFlore, standing to assert a Fourth Amendment violation should continue as long as the trespass continues, which means, in this context, so long as the GPS device remains on the vehicle without proper permission and the government is mining the device for information. 996 N.E.2d at 687 (“[T]he State’s continued, and conceivably neverending, use of the GPS device to monitor the vehicle constituted a continuing trespass.”). Thus, although lawful possession at the time of installation might be sufficient to confer standing, it is not necessary. If a defendant later comes into lawful possession of a vehicle upon which a GPS device was installed without permission, then that defendant is in lawful possession during an ongoing trespass, thereby placing him within the ambit of Jones. See id. at 686-87 (“[I]f the defendant is not in possession of the vehicle when the GPS device is installed, but he later comes into lawful possession by borrowing the vehicle with the owner’s consent and while the government’s trespassory act remains in place, the defendant has standing to challenge the use of the GPS device.”). This result is reinforced by the fact that Mitchell, the person having lawful possession of the vehicle during the continuing trespass, was the target of the surveillance-that is, the raison d’être for the GPS tracking in the first place.
. . .
III. Application of the Exclusionary Rule
. . .¶31 Several considerations weigh against applying the good-faith exception here. First, no binding Arizona or Supreme Court authority explicitly authorized law enforcement to trespass onto private property to obtain information. Indeed, many pre-Katz Supreme Court cases were decided on a trespass theory. See, e.g., Silverman v. United States, 365 U.S. 505, 511-12 (1961) (finding Fourth Amendment violation where “spike mike” used to listen in on a defendant’s conversations penetrated wall and made physical contact with heating duct, and distinguishing cases in which no unauthorized physical intrusion occurred). Further, the Supreme Court did not address the significance of the beeper installation in Knotts, and notably the installations in both Knotts and Karo were consensual rather than trespassory. The State points to no binding authority condoning the trespassory installation of a tracking device. Second, as the law regarding trespassory device placement was, at the very least, unsettled, application of the exclusionary rule would provide meaningful deterrence because, as Justice Sotomayor emphasized in her Davis concurrence, it incentivizes law enforcement to err on the side of constitutional behavior. 131 S.Ct. at 2435 (Sotomayor, J., concurring). Finally, as Justice Scalia made clear in Jones, Katz supplemented rather than replaced the Fourth Amendment trespass test. 132 S.Ct. at 951. Jones did not overrule prior Supreme Court precedent or announce a new legal standard, but instead simply applied existing–albeit dormant–Fourth Amendment principles. Thus, we do not suggest that law enforcement is expected to anticipate new developments in the law. It is clear, however, that a reasonable reading of the relevant binding case law should have alerted law enforcement that, before attaching a tracking device to private property, it must obtain either a warrant or the property owner’s permission to install the device.
¶32 We conclude, then, that Cramer and Knotts are not sufficiently apposite on the trespass question and, therefore, cannot trigger application of the good-faith exception. The State points to no controlling Arizona or United States Supreme Court decisions authorizing the type of warrantless GPS tracking engaged in here, or that authorized law enforcement agents to attach a tracking device to private property without permission from the property’s owner, nor do we find any. Consequently, we conclude that the good-faith exception to the warrant requirement is inapplicable and that the evidence should have been excluded.
