FILED BY CLERK
SEP –6 2012
COURT OF APPEALS
IN THE COURT OF APPEALS DIVISION TWO
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2011-0076
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
XAVIER HIPOLITO ESTRELLA, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR201000122
Honorable Ann R. Littrell, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and Tucson
Diane Leigh Hunt Attorneys for Appellee
Joel A. Larson, Cochise County Legal Defender Bisbee
Attorneys for Appellant
B R A M M E R, Judge.
¶1 Xavier Hipolito Estrella appeals from his convictions and sentences for
transportation of marijuana for sale, possession of marijuana for sale, and possession of
marijuana. He argues the trial court erred in denying his motion to suppress evidence
obtained from a search following the warrantless placement of a tracking device on his
employer’s van and the resulting stop of the van while Estrella was driving it. Although
we vacate his convictions and sentences for possession of marijuana for sale and
possession of marijuana, we affirm in all other respects.
Factual and Procedural Background
¶2 “In reviewing the grant of a motion to suppress, we view the evidence
presented at the evidentiary hearing and any reasonable inferences from that evidence, in
the light most favorable to upholding the trial court’s order.” State v. Garcia-Navarro,
224 Ariz. 38, ¶ 2, 226 P.3d 407, 408 (App. 2010). In July 2009, Drug Enforcement
Administration special agent Wiel, despite not having obtained a search warrant, placed a
global positioning system (GPS) tracking device on a van owned by Estrella’s employer,
Sierra Vista Glass company, because he had been given information the van might be
used to transport illegal drugs from Sierra Vista to Tucson. Wiel attached the device
while the van was parked in a public parking lot.
¶3 Agents remotely monitored data the device transmitted every hour
regarding the van’s movements and location, although the van did not move during the
few days immediately after the device had been placed on it. Agents used physical
surveillance to confirm the van remained in the parking lot. Agents subsequently noticed
that information transmitted from the device showed the van traveling north from Sierra
Vista. They then established physical surveillance of the van in Tucson. Agents
2
monitoring the van contacted Arizona Department of Public Safety Officer Galarneau
and informed him the van might be transporting marijuana. Galarneau located the van,
which Estrella was driving, and stopped it for speeding and having excessive window
tint. Galarneau discovered Estrella had an outstanding warrant and arrested him; a
subsequent search of the van revealed it contained bundles of marijuana.
¶4 Estrella was indicted on one count of transportation of marijuana for sale,
over two pounds; one count of possession of marijuana for sale, over four pounds; and
one count of possession of marijuana, over four pounds. He moved to suppress evidence
derived from the search of the van, alleging the warrantless placement of the GPS device
on the van and collection of data it transmitted violated his Fourth Amendment rights.
After an evidentiary hearing, the trial court denied the motion to suppress. A jury
convicted Estrella on each count, and the court sentenced him as a repetitive offender to
concurrent, presumptive prison terms, the longest of which was 9.25 years. This appeal
followed.
Discussion
¶5 Estrella argues the trial court erred in denying his motion to suppress
evidence obtained following the warrantless placement of the GPS tracking device on his
employer’s van and the agents’ use of data from that device to track the van’s
movements. “In reviewing a trial court’s ruling on a motion to suppress, we defer to the
trial court with respect to the factual determinations it made but review the court’s legal
conclusions de novo.” State v. Olm, 223 Ariz. 429, ¶ 7, 224 P.3d 245, 248 (App. 2010).
3
United States v. Jones
¶6 Estrella relies on the Supreme Court’s recent decision in United States v.
Jones, ___ U.S. ___, 132 S. Ct. 945 (2012). That case addressed whether attaching a
GPS tracking device to the defendant’s vehicle and then using the device to monitor the
vehicle’s movements constituted a search under the Fourth Amendment, ultimately
concluding it did. Id. at ___, 132 S. Ct. at 949. 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,” and the Court in Jones noted a
motor vehicle is indisputably an “effect” under the Amendment. Id. The Court
concluded the government had “physically occupied private property for the purpose of
obtaining information” and that “such a physical intrusion” would have been a “search”
when the Fourth Amendment was adopted. Id.
¶7 Because the Fourth Amendment’s text “reflects its close connection to
property,” early Fourth Amendment jurisprudence was tied to common-law trespass until
later cases deviated from an exclusively property-based approach, ultimately adopting the
“reasonable expectation of privacy” test articulated in Justice Harlan’s concurrence in
Katz v. United States, 389 U.S. 347, 360 (1967). Jones, ___ U.S. at ___, 132 S. Ct. at
949-50. But the Court in Jones stated “the Katz reasonable-expectation-of-privacy test
has been added to, not substituted for, the common-law trespassory test.” Id. at ___, 132
S. Ct. at 952. Consequently, the Court concluded either a trespass or an invasion of
4
privacy, in combination with “an attempt to find something or to obtain information,”
constitutes a search under the Fourth Amendment. Id. at ___ n.5, 132 S. Ct. at 951 n.5.
¶8 The Fourth Amendment common-law trespass approach in Jones requires a
trespass on one’s own personal “effects.” Id. at ___, 132 S. Ct. at 949, 953. In Jones, the
defendant was the exclusive driver of a vehicle registered to his wife, and the government
did not challenge the Court of Appeals’s conclusion that the vehicle’s registration did not
affect whether the defendant could make a Fourth Amendment-based objection. Id. at
___ n.2, 132 S. Ct. at 949 n.2. Thus the Supreme Court, concluding that if Jones was not
the owner “he had at least the property rights of a bailee,” nonetheless declined to
consider further “the Fourth Amendment significance of Jones’s status.” Id. And the
majority opinion emphasized Jones had “possessed the [vehicle] at the time the
Government trespassorily inserted the information-gathering device”—distinguishing
him from someone who takes possession of property upon which a device already has
been installed. Id. at ___, 132 S. Ct. at 952 (distinguishing United States v. Karo, 468
U.S. 705 (1984)).
¶9 Estrella argues on appeal that the placement and use of the GPS device
constituted a search under the common-law trespass theory set forth in Jones. But he
failed to assert that theory below. Therefore, that claim is subject only to review for
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115
P.3d 601, 607 (2005). Estrella has not argued any error constitutes fundamental error and
thus the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185
5
P.3d 135, 140 (App. 2008) (fundamental error argument waived on appeal if not
argued).1 Consequently, we do not address further whether the use of the GPS device
was a search under a trespass theory.
Reasonable expectation of privacy
¶10 Although we conclude Estrella has forfeited any appellate challenge to the
GPS device on a trespass theory, we address whether Estrella can challenge the
placement and use of the device pursuant to Katz, 389 U.S. 347. See Jones, ___ U.S. at
___, 132 S. Ct. at 952 (Katz’s reasonable-expectation-of-privacy test augments trespass
test). 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); see also Katz, 389 U.S. at
361 (Harlan, J., concurring). However, a search does not occur unless an individual
exhibits an expectation of privacy and “‘society [is] willing to recognize that expectation
as reasonable.’” Kyllo, 533 U.S at 33, quoting California v. Ciraolo, 476 U.S. 207, 211
(1986) (alteration in Kyllo).
1
Enforcement of our waiver standards is especially appropriate in the context of a
motion to suppress because in such cases we are limited to the record presented at the
hearing on that motion. See State v. Newell, 212 Ariz. 389, ¶ 22, 132 P.3d 833, 840
(2006). In the absence of any trespass-based claim raised in the trial court, our record is
wholly inadequate to determine whether Estrella enjoyed any cognizable property interest
in the vehicle upon which the GPS monitor was placed. Although the record indicates
Estrella was an employee of the business that owned the vehicle, no evidence was
presented that would allow us to conclude he had secured consent, either express or
implied, to use the vehicle for the excursion in question.
6
¶11 Estrella has failed to demonstrate that any expectation he may have had was
one society would deem reasonable. See Hudson v. Palmer, 468 U.S. 517, 525 n.7
(1984) (Supreme Court consistently emphasizes objective requirement). He contends the
driver of a borrowed vehicle has an objectively reasonable expectation of privacy
“regarding its contents,” relying on State v. Acosta, 166 Ariz. 254, 255-56, 801 P.2d 489,
490-91 (App. 1990) (driver had standing to challenge car search revealing cocaine).
However, the issue in this case is not whether Estrella had a reasonable expectation of
privacy regarding the contents of the van—the alleged violation did not occur either
during his detainment or the search of the van’s interior. Rather, Estrella challenges the
placement of the GPS device on the van’s exterior and law enforcement’s subsequent
monitoring of the data the device transmitted. This is a much different inquiry, especially
because the remote electronic monitoring of a vehicle’s movement on a public road is
considerably less intrusive than a physical search of the vehicle’s interior that may result
in the seizure of some of its contents. Cf. United States v. Place, 462 U.S. 696, 707
(1983) (dog “sniff” not search; less intrusive than opening luggage); United States v.
Knotts, 460 U.S. 276, 285 (1983) (tracking beeper not search in part because no
information revealed not visible otherwise to naked eye).
¶12 Estrella provided no evidence he had permission to drive the van or
otherwise had any interest in it when the device was attached to the vehicle in a public
parking lot. Nonetheless, he emphasizes that he had a reasonable expectation of privacy
as to his personal movements. However, generally “[a] person travelling in an
7
automobile on public thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.” Knotts, 460 U.S. at 281. This is true particularly
where the government’s monitoring is short-term, see Jones, ___ U.S. at ___, 132 S. Ct.
at 964 (Alito, J., concurring in judgment) (short-term monitoring of person’s movements
in public “accords with expectations of privacy that our society has recognized as
reasonable”), and where the driver has borrowed another’s vehicle without any
knowledge of whether it is being tracked by a GPS device. From the reasonable
borrower’s perspective, it is entirely possible the owner has permitted the installation of
such a device. Cf. id. at ___, 132 S. Ct. at 952 (majority opinion) (person accepting
container with beeper not entitled to object to its presence even though used to monitor
location).
¶13 Our dissenting colleague states that the United States Supreme Court has
not addressed squarely “whether the state’s use of a GPS monitor to remotely track a
person constitutes a search in the absence of a trespass.” However, the test for whether a
search has occurred is whether a person has a reasonable expectation of privacy in the
“objects, activities, or statements” he intends to keep private, see Katz, 389 U.S. at 361
(Harlan, J., concurring), not whether a person reasonably expects a particular method will
be used to discover the information. Focusing on the method of surveillance, the dissent
distinguishes Knotts by noting that it concerned the use of a radio beeper incapable of
remote tracking. Although the technology used in this case is factually distinguishable,
the “activity” or interest at stake—a person’s expectation of privacy in his location while
8
traveling on public roads—indeed was addressed squarely in Knotts, with the Court
determining that a person has “no reasonable expectation of privacy in his movements”
on public roads. 460 U.S. at 281; see also Katz, 389 U.S. at 361 (Harlan, J., concurring)
(“objects, activities, or statements . . . expose[d] to the ‘plain view’ of outsiders” not
protected). Whether or not technological advances will cause the United States Supreme
Court to qualify or retreat from that conclusion in the future cannot control the outcome
in this case.2 See State v. Ring, 204 Ariz. 534, ¶ 61, 65 P.3d 915, 938 (2003) (lower court
must leave Supreme Court to overrule its own decisions).
¶14 Estrella expresses a concern echoed by the dissent that even short-term
GPS monitoring may violate a person’s expectation of privacy. He refers to Justice
Sotomayor’s concurrence in Jones, ___ U.S. at ___, 132 S. Ct. at 955, which noted GPS
monitoring may provide a “comprehensive record of a person’s public movements that
reflects a wealth of detail about her familial, political, professional, religious, and sexual
associations.” But here, the use of the GPS device was much more limited. Agents, upon
reasonable suspicion the van was to be used to transport drugs, installed and used the
device to monitor the van’s location and to initiate physical surveillance once it had
2
Our dissenting colleague makes some cogent and important observations about
technology and privacy. But despite the dissent’s suggestion Knotts has been qualified
by Jones, we observe instead that five Justices in Jones explicitly declined to decide
whether the defendant had a reasonable expectation of privacy. Jones, ___ U.S. at ___,
132 S. Ct. at 950 (declining to address because trespass analysis dispositive); Jones ___
U.S. at ___, 132 S. Ct. at 957 (Sotomayor, J., concurring) (same). Until the United States
Supreme Court makes a definitive statement on the issue, we have no basis for departing
from Knotts.
9
arrived in Tucson. Estrella has provided no evidence disputing the trial court’s finding
that the length of time the van was tracked was “not excessive or unreasonable.” Because
we conclude the use of the GPS device here did not constitute a search as to Estrella, we
need not determine whether the warrantless but minimally-intrusive use of GPS tracking
for the period of time involved here is reasonable and permissible when based on
reasonable suspicion. See State v. Superior Court, 149 Ariz. 269, 274, 718 P.2d 171, 176
(1986) (whether warrantless search supported by reasonable suspicion permissible
depends on balance of governmental interest and extent of intrusion). And because it is
not presented, we do not address the hypothetical situation Justice Sotomayor’s
observation suggests, in which GPS tracking is used to aggregate large amounts of
personal data for a much longer period of time, or on a purely arbitrary basis. The
determination of whether that type of surveillance may intrude on a person’s reasonable
expectations of privacy, and accordingly run afoul of constitutional standards, must wait
until the issue is presented.
¶15 For these reasons, Estrella has not shown he had a reasonable expectation
of privacy regarding either the van or its movements.3 Therefore, the trial court did not
err in denying his motion to suppress.
3
This inquiry also disposes of the state’s argument regarding “standing.” See State
v. Johnson, 132 Ariz. 5, 7, 643 P.2d 708, 710 (App. 1981) (we reach substantive issue of
privacy expectations rather than addressing Fourth Amendment “standing” as distinct
concept).
10
Lesser-included offenses
¶16 The state acknowledges Estrella’s convictions and sentences for counts two
and three of the indictment should be vacated because they are lesser-included offenses
of his conviction for count one. We agree. Count one alleged Estrella knowingly had
transported marijuana weighing more than two pounds for sale. Count two alleged
Estrella knowingly had possessed marijuana for sale, having a weight of more than four
pounds. Count three alleged Estrella knowingly had possessed marijuana. Estrella was
convicted and sentenced on all counts.4
¶17 “A lesser-included offense is one that contains all but one of the elements
of the greater offense.” Peak v. Acuna, 203 Ariz. 83, ¶ 5, 50 P.3d 833, 834 (2002). The
state may charge both lesser-included and greater offenses, Merlina v. Jejna, 208 Ariz. 1,
¶ 19, 90 P.3d 202, 206 (App. 2004), but a defendant may not be convicted for both, State
v. Welch, 198 Ariz. 554, ¶ 13, 12 P.3d 229, 232 (App. 2000). In this case, counts two and
three were lesser-included offenses of count one. See State v. Cheramie, 218 Ariz. 447,
¶¶ 11-12, 22, 189 P.3d 374, 376, 378 (2008) (possession and possession for sale lesser-
included offenses of transportation for sale). To cure the error, we vacate Estrella’s
4
The trial court’s sentencing minute entry erroneously states Estrella was
sentenced to terms of 9.25 years for two counts of knowingly possessing marijuana for
sale. However, the sentencing transcript indicates clearly that one of those sentences was
for count one—knowingly transporting marijuana for sale, having a weight of more than
two pounds. A court’s oral pronouncement of sentence controls over the written minute
entry in the event of a conflict. State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649
(1989).
11
convictions and sentences for counts two and three. See Welch, 198 Ariz. 554, ¶ 13, 12
P.3d at 232.
Disposition
¶18 We vacate Estrella’s convictions and sentences on counts two and three of
the indictment. We also direct the trial court to amend the sentencing minute entry to
reflect that the remaining 9.25-year sentence was for his conviction on count one,
transportation for sale. In all other respects, we affirm.
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
E C K E R S T R O M, Presiding Judge, dissenting.
¶19 I fully agree with my colleagues’ conclusion that Estrella has forfeited his
argument that the placement of a GPS tracking device on the vehicle he drove from
Sierra Vista to Tucson constituted a trespass and therefore a search under the analysis the
United States Supreme Court adopted in Jones. And, because Estrella made no such
argument to the trial court, he presented no evidence that he had any interest in the
vehicle that would have provided him standing to complain about a trespass upon it.
12
¶20 I write separately, however, because I would conclude that the remote,
electronic, non-consensual tracking of a person’s movements with a GPS monitor
intrudes upon a person’s reasonable expectation of privacy. For this reason, the state’s
electronic tracking of Estrella must be characterized as a search, triggering the traditional
protections of the Fourth Amendment.
¶21 Neither the United States Supreme Court nor any Arizona appellate court
has squarely addressed whether the state’s use of a GPS monitor to remotely track a
person constitutes a search in the absence of a trespass. See Jones, ___ U.S. at ___, 132
S. Ct. at 953-54 (majority declining to address whether electronic tracking without
accompanying trespass would constitute search); Knotts, 460 U.S. at 285 (concluding that
use of radio beeper, not itself capable of remote tracking but attached to assist visual
tracking, not search). However, as my colleagues correctly acknowledge, the Court has
adopted, and repeatedly applied, an analytical framework for determining whether a
particular investigative act constitutes a search cognizable under Fourth Amendment
standards. Such a search occurs “when the government violates a subjective expectation
of privacy that society recognizes as reasonable.” Kyllo, 533 U.S. at 33; see also Katz,
389 U.S. at 361 (Harlan, J., concurring).
¶22 Citing Knotts, the majority ultimately concludes that Estrella had no
reasonable expectation of privacy in his movements on Arizona’s roads and highways
because those movements occurred in public view. See Knotts, 460 U.S. at 285
(reasoning that use of beeper to assist visual surveillance not search because no
13
information revealed that was not visible to naked eye). Indeed, as the Supreme Court
has made clear in Katz, whether an expectation of privacy is reasonable turns in part upon
“whether that expectation relates to information that has been ‘expose[d] to the public.’”
United States v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010), quoting Katz, 389 U.S. at
351 (alteration in Maynard).
¶23 However, that some of our actions may occur in hypothetical public view
does not always resolve the question of whether those actions are “exposed to the public”
as that phrase has been understood in our jurisprudence. Societal notions of privacy are
complex and vary according to context. See O’Connor v. Ortega, 480 U.S. 709, 715
(1987) (plurality opinion) (“We have no talisman that determines in all cases those
privacy expectations that society is prepared to accept as reasonable.”). As one federal
circuit has correctly observed, we anchor our expectations of privacy not in what other
people could lawfully perceive but rather in what we reasonably expect another person,
following conventional social norms, to perceive. See Maynard, 615 F.3d at 559 (citing
string of United States Supreme Court cases to support proposition that, in evaluating
privacy expectations, “we ask not what another person can physically and may lawfully
do but rather what a reasonable person expects another might actually do”). Justice
O’Connor underscored this very feature of privacy when she joined the plurality in
rejecting a marijuana grower’s claim to privacy from airborne observation and stated:
Ciraolo’s expectation of privacy was unreasonable not
because the airplane was operating where it had a “right to
be,” but because public air travel at 1,000 feet is a sufficiently
routine part of modern life that it is unreasonable for persons
14
on the ground to expect that their curtilage will not be
observed from the air at that altitude.
Florida v. Riley, 488 U.S. 445, 453-55 (1989) (O’Connor, J., concurring) (discussing
Court’s prior reasoning in California v. Ciraolo, 476 U.S. 207, 212 (1986); see also Bond
v. United States, 529 U.S. 334, 338-39 (2000) (passenger expects baggage will be
handled but does not expect others will “feel the bag in an exploratory manner”).
¶24 For example, we expose traditionally private parts of ourselves to public
view when changing or showering in the locker room at the local fitness center. But
well-understood conventions of social behavior assure that we do not focus on each other
as we do so. We thus retain some expectation of privacy that society accepts as
reasonable as to private moments even in a public setting. Indeed, we would consider it a
marked breach of our privacy were any stranger to stare at us as we changed or
showered—and we would consider it a greater breach yet if someone were to
electronically document that process.
¶25 Applying that principle here, Estrella might reasonably expect to
episodically and fleetingly encounter many fellow travelers on his journey between his
employer’s parking lot in Sierra Vista and the location of his arrest in Tucson. However,
he would not reasonably expect any of those persons to follow him the entirety of the trip
or exhibit any focus on his path or destination. Thus, although Estrella may not claim
any privacy interest at any specific moment in his journey, he retains a reasonable
expectation that the sum total of his journey would remain private from comprehensive
15
tracking. See Maynard, 615 F.3d at 563 (making similar observation about more
prolonged tracking of a vehicle).5
¶26 This aspect of privacy we have traditionally enjoyed in our movements,
whether by vehicle or foot, is not trivial. “[Even short-term] GPS monitoring generates a
precise, comprehensive record of a person’s public movements that reflects a wealth of
detail about her familial, political, professional, religious, and sexual associations.”
Jones,___ U.S. at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring). As Judge Kozinski
of the Ninth Circuit Court of Appeals has pointedly observed:
[W]here we go says much about who we are. Are Winston
and Julia’s cell phones together near a hotel a bit too often?
Was Syme’s OnStar near an STD clinic? Were Jones,
Aaronson and Rutherford at that protest outside the White
House? The FBI need no longer deploy agents to infiltrate
groups it considers subversive; it can figure out where the
groups hold meetings and ask the phone company for a list of
cell phones near those locations.
United States v. Pineda-Moreno, 617 F.3d 1120, 1125 (9th Cir. 2010) (Kozinski, C.J.,
dissenting).
5
The majority analysis suggests that Estrella’s use of his employer’s vehicle might
affect whether he possessed a reasonable expectation of privacy in the specific journey
here. This is not a trivial point. Just as persons may waive a reasonable expectation of
privacy in their homes by taking actions in front of an open window exposed to the
public, there are many specific contexts wherein we might forego our usual expectation
of privacy in our movements. For example, many jobs require mobile employees to keep
their employers advised of their whereabouts at all times. Those employees would have
no reasonable expectation of privacy in their movements during work hours. But the
facts in the record before us do not provide us with sufficient information to determine
the conditions under which Estrella was entitled to use the vehicle here and whether those
conditions could be viewed as a waiver of his presumptive expectation of privacy in his
movements.
16
¶27 I suspect that it is not only Justice Sotomayor and Judge Kozinski who
recognize this expectation of privacy. If told that a stranger had been, without our
knowledge, electronically tracking our movements, few of us would deny feeling some
invasion had occurred. I also suspect that most Americans would consider such non-
consensual tracking to be an intrusion regardless of whether the tracking had (1) occurred
for thirty days or thirty minutes, (2) followed only their movements in hypothetical public
view, or (3) coincidentally disclosed any especially private event in their lives.
¶28 Indeed, this expectation of privacy has been acknowledged and protected in
our laws. Many states, including California, Utah, Minnesota, Pennsylvania, and Florida
have enacted statutes imposing civil and criminal penalties for the non-consensual use of
electronic tracking devices. See Maynard, 615 F.3d at 564 (listing states and specific
statutory provisions). Such statutes demonstrate that society recognizes this expectation
of privacy in our movements and the threat of new technology to it. Moreover, those
state courts with occasion to squarely address the question have likewise found a
reasonable expectation of privacy is invaded by electronic tracking. Id. (summarizing
those cases).
¶29 My colleagues maintain that our result in this case is compelled by the
Court’s reasoning in Knotts that a person has “no reasonable expectation of privacy in his
movements” on public roads. 460 U.S. at 281. But, in the context we address today—the
GPS tracking of a person’s movements on public roads—five justices of the Court have
implicitly declined to adopt that part of Knotts’s reasoning. See Jones, ___ U.S. at ___,
17
132 S. Ct. at 964 (Alito, J., concurring) (in context of long-term GPS tracking,
concluding, with three justices joining, that expectation of privacy exists in Jones’s
movements although those movements were on public roads); id. at ___, 132 S. Ct. at
955 (Sotomayor, J., concurring) (agreeing with Justice Alito’s conclusion and suggesting
she would reach same conclusion as to short-term tracking). I, therefore, cannot agree
that this aspect of Knotts must control our reasoning in this case.
¶30 Nonetheless, the Supreme Court has not retreated from the proposition that
law enforcement officers do not engage in a search of constitutional dimension when
conducting visual surveillance of a person’s public movements. See Knotts, 460 U.S. at
281-82. Why, then, should law enforcement officers be constrained when merely
effectuating the same surveillance more efficiently using the convenience of a remote
electronic tracking tool?
¶31 Five justices of the Supreme Court have suggested that such efficiency and
convenience may itself be the relevant constitutional distinction. Justice Alito, joined by
three other justices, observed in Jones that “the greatest protections of privacy” have
historically been “neither constitutional nor statutory, but practical.” ___ U.S. at ___,
132 S. Ct. at 963 (Alito, J., concurring). “Traditional surveillance for any extended
period of time was difficult and costly and therefore rarely undertaken.” Id. In the same
case, Justice Sotomayor wrote separately that “because GPS monitoring is cheap in
comparison to conventional surveillance techniques and, by design, proceeds
surreptitiously, it evades the ordinary checks that constrain abusive law enforcement
18
practices: ‘limited police resources and community hostility.’” Id. at ___, 132 S. Ct. at
956 (Sotomayor, J., concurring), quoting Illinois v. Lidster, 540 U.S. 419, 426 (2004).
¶32 Placed in practical law enforcement terms, costly investigative techniques
like traditional visual surveillance are not likely to be used unless law enforcement
officers have good reason to believe the technique will be productive. The cost of such
surveillance thereby creates a meaningful natural incentive to deploy the technique only
when there is substantial cause—usually probable cause—to do so. See Beck v. Ohio,
379 U.S. 89, 91 (1964) (officers have probable cause when “the facts and circumstances
within their knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the petitioner had committed or was
committing an offense”). The same incentives do not apply to the comparatively cheap
and easily deployed electronic surveillance tools in existence today. See Pineda-Moreno,
617 F.3d at 1125 (Kozinski, C.J., dissenting) (detailing the pervasiveness of electronic
tracking devices and ease by which law enforcement may gain access to data generated
by those devices). If we decline to characterize the use of such tools to monitor our
public movements as a search of constitutional dimension, then, under our laws,
governmental officials may track us without cause and at little expense—and do so
lawfully. See id. (“If . . . we have no privacy interest in where we go, then the
government can mine these databases without a warrant, indeed without any suspicion
whatsoever.”). I therefore agree with Justice Sotomayor that accepting such an outcome
risks altering “‘the relationship between citizen and government in a way that is inimical
19
to democratic society.’” Jones, ___U.S. at ___, 132 S. Ct. at 956 (Sotomayor, J.,
concurring), quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011)
(Flaum, J., concurring).
¶33 I cannot agree with Justice Alito’s concurrence in Jones, or the suggestion
of my colleagues, that the appropriate application of these principles must turn on the
duration or distance of the movements monitored. See ___U.S. at ___, 132 S. Ct. at 964
(Alito, J., concurring).6 If we accept the premise that the sum total of a person’s
movements on a journey can disclose private features of their lives, then such private
features may be discovered in monitoring of comparatively short duration as well as long.
A person need not take a long or complex trip to expose “familial, political, professional,
religious, and sexual associations” of the variety Justice Sotomayor correctly
characterized as private. Id. at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring). Nor is
it uncommon for Americans to take a comparatively brief morning or afternoon’s
journey, by foot or vehicle, specifically to seek out privacy and solitude that can be
elusive at home or work. That illegal searches of longer duration may impose more
6
That formulation has not been adopted by a majority of the Supreme Court. In
fact, Justice Scalia, joined by four justices, specifically chides Justice Alito for the
analytical chaos implied by Justice Alito’s approach. See Jones, ___ U.S. at ___, 132
S. Ct. at 953. One of those justices, Justice Sotomayor, as discussed below, expressly
questions whether electronic monitoring need be prolonged to constitute a search. See id.
at ___, 132 S. Ct. at 955 (Sotomayor, J., concurring). Thus, the five justices not joining
Justice Alito’s concurrence have at minimum conveyed some skepticism of the logic of
drawing constitutional distinctions between electronic tracking of short and long
duration.
20
egregiously on expectations of privacy seems a poor foundation for the argument that
shorter-term intrusions constitute no search at all.
¶34 Finally, wholly apart from the analytical difficulty in determining the
precise duration of tracking that would first trigger constitutional concerns, few officers
utilizing electronic tracking tools will be able to accurately predict the length of time such
monitoring will be needed to produce evidentiary fruit—or how quickly that monitoring
might reveal private features of the target’s life. Yet, under Justice Alito’s dichotomy
between prolonged tracking and shorter-term tracking, such predictions will be necessary
for officers to determine the need for a warrant, and for magistrates to determine the
propriety of issuing them. For those reasons, I do not consider such a distinction
practically feasible or analytically sound.
¶35 In Justice Alito’s concurring opinion in Jones, a plurality of the Court also
posited that advances in technology may necessarily change reasonable expectations of
privacy, as methods for readily locating and observing each other become inexpensive
and commonplace in contemporary society. See ___ U.S. at ___, 132 S. Ct. at 962-63
(Alito, J., concurring). In that context, Justice Alito suggested that we must ultimately
choose between the convenience those technologies provide and our traditional scope of
privacy. Id. But our courts have been fully capable of applying and enforcing traditional
expectations of privacy in the face of evolving technology. See, e.g., Kyllo, 533 U.S. at
40 (characterizing use of thermal imaging equipment to detect thermal patterns within
home as search requiring warrant); Katz, 389 U.S. at 353 (use of new technology to
21
eavesdrop on public phone booth without physical intrusion constitutes search requiring
warrant).
¶36 Justice Alito does not explain why our society cannot enjoy the efficiencies
provided by evolving technology while maintaining our traditional scope of privacy. In
the context presented here, we may continue to reap the benefits of the GPS systems
embedded in our cellular telephones and cars without any worry that government may
arbitrarily use those systems to track us. To achieve this, our courts need only recognize
the privacy interest at stake and properly characterize such tracking as a search. Under
our long-standing Fourth Amendment standards, no person could then be lawfully
tracked through their cell phones or vehicle navigation systems in the absence of
probable cause.
¶37 Nor would applying traditional Fourth Amendment constraints on the use
of such tools impose any novel hardship on our officers. We have historically depended
on the presumptive professionalism and training of our officers in modifying their
investigative techniques to conform to the requirements of the Fourth Amendment in a
variety of contexts. See, e.g., Arizona v. Gant, 556 U.S. 332, 349 (2009) (acknowledging
law enforcement officers trained in Fourth Amendment issues). And, nothing about
characterizing remote electronic tracking as a search would prevent officers from using
such tools when they can articulate legally sufficient cause for doing so. The traditional
exceptions to the warrant requirement would likewise find application here, allowing
officers to use electronic tracking technologies upon a showing of probable cause coupled
22
with exigent circumstances, or upon a showing of consent. See State v. Ault, 150 Ariz.
459, 463, 724 P.2d 545, 549 (1986) (exigent circumstances exception to warrant
requirement applies in “hot pursuit,” when police respond to emergency, or face
probability of destruction of evidence or possibility of violence); State v. Ahumada, 225
Ariz. 544, ¶ 6, 241 P.3d 908, 910 (App. 2010) (voluntarily given consent well-established
exception to warrant requirement).
¶38 For the foregoing reasons, I conclude that the officer’s remote electronic
tracking of Estrella was a search that triggered the protection of the Fourth Amendment.
I would therefore remand this case to the trial court for a determination of whether the
state can articulate both probable cause to have tracked Estrella and a constitutionally
permissible reason for failing to obtain a warrant before doing so.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
23
State of Arizona v. Xavier Hipolito Estrella
Court: Court of Appeals of Arizona
Date filed: 2012-09-06
Citations: 230 Ariz. 401, 286 P.3d 150, 2012 Ariz. App. LEXIS 148
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