Case Information
*1 STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0618
State of Minnesota,
Appellant,
vs.
Joshua Dwight Liebl,
Respondent.
Filed October 17, 2016
Affirmed
Smith, John, Judge [*] Lac qui Parle County District Court File No. 37-CR-15-22
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Richard G. Stulz, Lac qui Parle County Attorney, Fiona B. Ruthven, Special Assistant County Attorney, Madison, Minnesota (for appellant)
William G. Peterson, Peterson Law Office, LLC, Bloomington, Minnesota (for respondent) Teresa Nelson, Legal Director, St. Paul, Minnesota (for amicus curiae American Civil Liberties Union of Minnesota)
Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and Smith, John, Judge.
S Y L L A B U S
Absent application of a specific exception to the warrant requirement, law enforcement’s warrantless installation and monitoring of a global positioning system mobile tracking device on a target’s vehicle is an unreasonable search requiring suppression of the resulting evidence.
O P I N I O N
SMITH, JOHN , Judge
We affirm the district court’s order suppressing evidence and dismissing criminal charges against respondent, because law enforcement’s installation and monitoring of a global positioning system mobile tracking device on respondent’s vehicle was an unreasonable search requiring suppression of the resulting evidence on which evidence the charges were based.
FACTS
On September 24, 2014, Minnesota Department of Natural Resources Conservation Officer Ed Picht submitted to the issuing court a signed and sworn application requesting judicial authorization, pursuant to Minn. Stat. § 626A.37 (2014), to covertly install and monitor a global positioning system (GPS) mobile tracking device on a truck owned by respondent Joshua Dwight Liebl. [1] The application identified Liebl as the person to be *3 tracked with the GPS device and stated that GPS tracking was for the purpose of “collect[ing] information for the investigation of the criminal offenses of: Taking big game without a license, trespassing, the unlawful use of artificial lights to take big game, i.e., ‘shining,’ and transporting illegally taken big game.” The application also recited the “facts and circumstances” that led Officer Picht to suspect Liebl of these criminal violations of Minnesota’s game and fish laws (hunting crimes), including Officer Picht’s receipt of multiple citizen reports that implicated Liebl in hunting crimes; Officer Picht’s observation of physical evidence, such as blood, deer hair, deer antlers, drag marks, and tire tracks, that partially corroborated the citizen reports; and Officer Picht’s knowledge that Liebl’s Minnesota hunting privileges had been revoked due to an out-of-state criminal charge of “shining deer.” Finally, the application relayed Officer Picht’s belief that using GPS to “track[] the movements of [Liebl’s truck] w[ould] facilitate the investigation of [Liebl’s suspected hunting crimes] and that the information likely to be obtained by monitoring the [GPS] device [would be] relevant to the on-going criminal investigation.” The same day, the court issued the requested order (tracking order), which complied with the relevant statutory mandates, under Minn. Stat. § 626A.37, subds. 2–4, as to contents, time period and extensions, and nondisclosure of such orders.
About two weeks later, in the early morning hours of October 8, 2014, Conservation Officer Jeffery Denz reviewed the tracking order and covertly installed a GPS device on Liebl’s truck while it was parked in the driveway of Liebl’s home. From that date until October 21, Officer Denz used the GPS device to track the truck’s movements “on a daily basis” and “advised [Officer] Picht of any suspicious activity to include times and locations *4 when the [truck] was operating after dark and would slow down and stop on gravel roads not related to an intersection.” Officer Picht used this information to gather evidence of Liebl’s suspected hunting crimes. On October 21, Officer Picht applied for, secured, and executed search warrants for Liebl’s home and truck; the warrant applications relied in part on Officer Picht’s recitation of evidence resulting from the GPS tracking of Liebl’s truck. The searches revealed evidence, including 2 deer carcasses and more than 20 sets of deer antlers, that further implicated Liebl in hunting crimes.
Liebl was arrested and his truck was seized for forfeiture. Appellant State of Minnesota subsequently charged Liebl with transporting illegal big game, taking/possessing big game out of season, hunting big game while under revocation, transporting wild animals, using artificial lights to locate animals, hunting big game between evening and morning, hunting deer without a license, two counts of failing to tag big game (possessing/transporting game in state without tag), two counts of failing to tag big game (removing game from site of kill without tag), and two counts of failing to register big game.
Liebl moved to suppress the state’s evidence and to dismiss the charges against him, arguing that the evidence resulting from conservation officers’ GPS tracking of his truck must be suppressed because the GPS tracking was an unreasonable search under both the U.S. and Minnesota Constitutions. Liebl also argued that Minn. Stat. § 626A.42 (2014) provided an independent basis for suppression of the evidence resulting from the GPS tracking. In opposition, the state denied the applicability of Minn. Stat. § 626A.42 on the facts of this case; argued that the GPS tracking was a reasonable search because it was *5 conducted in compliance with Minn. Stat. §§ 626A.35–.39 (2014); and alternatively argued that, even if the GPS tracking was an unreasonable search, the resulting evidence nonetheless was admissible under a good-faith exception to the exclusionary rule. After hearing argument, the district court issued an order suppressing all evidence and dismissing all charges against Liebl, rejecting Liebl’s section-626A.42 argument but concluding that the officers’ GPS tracking of Liebl’s truck violated his rights under U.S. Const. amend. IV and that no good-faith exception applied to permit the admission of evidence resulting from the violation.
The state appeals.
ISSUE
Was conservation officers’ GPS tracking of Liebl’s truck an unreasonable search requiring suppression of the resulting evidence?
ANALYSIS
1. Unreasonable search
Both the U.S. and Minnesota Constitutions protect “[t]he right of the people to be
secure in their persons, houses, papers, and effects” by forbidding “unreasonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “Under the Fourth
Amendment to the United States Constitution and Article I, § 10 of the Minnesota
Constitution, warrantless searches are presumptively unreasonable unless one of a few
specifically established and well-delineated exceptions applies.”
State v. Diede
, 795
N.W.2d 836, 846 (Minn. 2011) (quotations omitted);
see also Riley v. California
, 134 S.
Ct. 2473, 2482 (2014) (“In the absence of a warrant, a search is reasonable only if it falls
*6
within a specific exception to the warrant requirement.”). Whether a state action was a
search, and whether a search was reasonable, are legal questions subject to de novo review.
State v. Eichers
,
“[T]he 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’” within the
meaning of U.S. Const. amend. IV.
United States v. Jones
, 132 S. Ct. 945, 949 (2012)
(footnote omitted). It follows, then, that conservation officers’ GPS tracking of Liebl’s
truck was an unreasonable search under the U.S. Constitution unless (1) the tracking order
was legally equivalent to a search warrant, or (2) a specific exception to the warrant
requirement applies.
[2]
Cf. United States v. Faulkner
,
The state argues that as a “pre-search judicial authorization of [GPS tracking,] made upon a sworn statement that, in fact, [was sufficient to] establish[] probable cause,” the *7 tracking order was legally equivalent to a search warrant. We reject the state’s legal- equivalency argument because such a holding would be contrary to the U.S. Constitution’s requirement that “a warrant may issue only upon a finding of probable cause.” See United States v. Ventresca , 380 U.S. 102, 107, 85 S. Ct. 741, 745 (1965) (quotation marks omitted). Here, there was no finding of probable cause at the time the tracking order was issued. [3]
Persuasive authority illustrates this point in the context of GPS tracking. In
Keeylen
v. State
, an Indiana appellate court acknowledged that “the police asked for, and received,
repeated authorizations from the trial court permitting the police to install and monitor GPS
devices on [the target]’s vehicles” and stated that “it is not dispositive that the trial court’s
authorizations were not labeled ‘warrants.’”
The defining features of a judicial search warrant are that: (a) it must be issued by a judicial officer; (b) the judicial officer must find that there is probable cause to believe that evidence of contraband is present in the place to be searched; (c) the probable cause finding must be supported by the information contained in the oath or affidavit; and (d) the warrant must describe with particularity the places to be searched and the things to be seized.
*8 . . . In a typical case, where a putative warrant is labeled a “warrant” and explicitly purports to issue under the Fourth Amendment’s Warrant Clause, the omission of the term “probable cause” from the face of the warrant would not cast the slightest doubt on the conclusion that the warrant necessarily issued upon a judicial finding of probable cause.
The reason, simply, is that a warrant, which is labeled a “warrant” and that purports to issue under the Fourth Amendment, may issue only upon a judicial finding of probable cause. The Fourth Amendment requires no more than this implied finding.
In a case where a “warrant” is not sought, however, things are quite different. The State argues that there is no procedure for authorizing a search based on anything less than a showing of probable cause. But it is also true that, [from 2009 to 2011, when] the trial court issued the authorizations, it was not clear that a warrant supported by probable cause was required before the installation and use of a GPS tracking device. Indeed, it is telling that the officers did not seek a “warrant.” Their failure to do so suggests that the officers, by merely seeking an order of authorization, sought something less than a warrant, and, as is easily inferred, on less than probable cause.
Id. at 868–70, 875–76 (quotations and citations omitted). The appellate court accordingly rejected the state’s argument that officers “substantially complied with th[e warrant] requirement by seeking repeated authorizations of the use of the GPS devices from the trial court,” and it concluded that “the warrantless installation of the GPS devices and monitoring of [the target]’s vehicles was improper.” Id. at 875–76, 879.
In our view,
Keeylen
’s reasoning is even more compelling in this case, where
statutes expressly authorized the issuance of a tracking order in the absence of a probable-
cause finding by the issuing court.
See
Minn. Stat. § 626A.37, subd. 1 (providing for
issuance of tracking order on finding “that there is reason to believe that the information
*9
likely to be obtained by the installation and use is relevant to an ongoing criminal
investigation”);
cf. State v. Fakler
,
Contrary to the state’s assertions on appeal, the district court here did not conclude that the tracking order’s “failure . . . to include an express finding of probable cause on its face was fatal” to the state’s legal-equivalency argument. Rather, the district court found that “[n]o finding of probable cause was requested [of] or made” by the issuing court. The state does not allege, much less demonstrate, clear error in the district court’s finding, which has ample support in the record. Because the tracking order was not based on a probable-cause finding by the issuing court, the tracking order was not a valid substitute for a search warrant. Consequently, we reject the state’s legal-equivalency argument and conclude that conservation officers’ warrantless GPS tracking of Liebl’s truck was an unreasonable search that violated U.S. Const. amend. IV, irrespective of compliance with Minn. Stat. §§ 626A.35–.39 and existence of probable cause.
In support of its legal-equivalency argument, the state cites three nonprecedential
cases:
United States v. Ponce
, No. 12-115(3),
While
Ponce
provides no guidance here,
Harrington
and
Burgos
are more directly
on point. In
Harrington
, GPS tracking of the target’s vehicle was authorized “via an entry
signed by a . . . municipal court judge.”
The
Burgos
court similarly concluded that a tracking order that was issued pursuant
to state statute and supported by probable cause “serve[d] as the functional equivalent of
[a] traditional search warrant[],” despite the failure to comply with “traditional search
warrant requirements” as to “the documents upon which the tracking of [the target]’s
vehicle was grounded and the manner and timing of the execution” of the tracking order.
[4]
*11
Contrary to the state’s assertions in its briefs and at oral argument, the Burgos and Harrington opinions do not make clear that, in those cases, the judicial authorizations of GPS tracking were not based on contemporaneous probable-cause findings. In this case, by contrast, it is beyond dispute that the tracking order lacked an apparent probable-cause finding by the issuing court, although the district court subsequently found that Officer Picht’s tracking-order application included “ample information to support a finding of probable cause.” Here the state decries “overly formalistic readings of probable-cause requirements” as the exaltation of “form over substance” and points to caselaw suggesting that a warrant need not “recite an express finding of probable cause” to be valid. But the state misses the mark in its focus on the question whether a probable-cause finding must be express or implied.
device will yield information relevant to the investigation of the criminal activity.” 18 Pa.
Cons. Stat. § 5761(c) (2010). In response to
Jones
, the Pennsylvania legislature amended
the statute to require probable cause rather than reasonable suspicion.
See
18 Pa. Cons.
Stat. § 5761(c) (2014) (providing that tracking-order application must “provide a statement
setting forth all facts and circumstances which provide the applicant with probable cause
that criminal activity has been, is or will be in progress and that the use of a mobile tracking
device will yield information relevant to the investigation of the criminal activity”);
Burgos
,
A judicial finding of probable cause is a precondition of a valid warrant.
See
Ventresca
,
2. Suppression of the evidence
The state urges the application of a federal good-faith exception to the exclusionary
rule, asserting that Officer Picht believed that warrantless GPS tracking of Liebl’s truck
was lawful and arguing that Officer Picht’s belief was objectively reasonable in light of the
tracking order issued pursuant to Minn. Stat. § 626A.37. In support of its argument, the
*13
state cites
United States v. Taylor
, 979 F.Supp.2d 865 (S.D. Ind. 2013),
aff’d on other
grounds
,
But in
Taylor
, the warrantless GPS tracking took place in September and October
2011, months prior to
Jones
’s release in January 2012.
The state has not cited a single case that applies a federal good-faith exception to preserve the admissibility of evidence that, like the evidence at issue in this case, was obtained through post- Jones warrantless GPS tracking of a vehicle. Our own research has revealed no such case; instead, we have found cases suggesting that courts will not find *14 good faith in facts involving post- Jones warrantless GPS tracking. See, e.g. , Taylor , 776 F.3d at 517 (stating that “[the] good-faith exception [under Davis v. United States , 564 U.S. 229, 131 S. Ct. 2419 (2011)] . . . applies to pre- Jones use of GPS devices to track a suspect’s car based on earlier Supreme Court precedent”); United States v. Aguiar , 737 F.3d 251, 255, 262 (2d Cir. 2013) (“[S]ufficient Supreme Court precedent existed [in January 2009 when] the GPS device was placed for the officers here to reasonably conclude a warrant was not necessary in these circumstances. Plainly, post- Jones , the landscape has changed, and law enforcement will need to change its approach accordingly.”); United States v. Sparks , 711 F.3d 58, 62 (1st Cir. 2013) (stating that “the [warrantless GPS tracking] at issue in recent cases occurred pre- Jones , allowing the government to argue, and a number of courts to find, that the good-faith exception would apply even if the searches were unconstitutional”).
We conclude that
Jones
forecloses the possibility of objectively reasonable, good-
faith reliance on (1) judicial authorization of GPS tracking of a vehicle that is not based on
a contemporaneous probable-cause finding, (2) statutes providing for judicial authorization
of GPS tracking of a vehicle on less than probable cause, and (3) pre-
Jones
caselaw
permitting warrantless GPS tracking of a vehicle.
Cf. Illinois v. Krull
,
The state also appears to argue that Officer Picht’s belief in the lawfulness of warrantless GPS tracking of Liebl’s truck was objectively reasonable because of the post- Jones “pattern and practice” regarding warrantless tracking devices in Minnesota—i.e., law enforcement’s continued use of Minn. Stat. § 626A.36 to apply for judicial authorization of tracking orders, courts’ continued issuance of tracking orders pursuant to Minn. Stat. § 626A.37, and the legislature’s failure to amend or repeal those statutes. But as articulated by amicus curiae American Civil Liberties Union of Minnesota, “the failure of state actors to conform to a newly announced rule of constitutional criminal procedure should never insulate that conduct from constitutional scrutiny.”
In sum, Officer Picht lacked an objectively reasonable basis for his belief that warrantless GPS tracking of Liebl’s truck was constitutionally permissible after Jones . We believe that the exclusionary rule’s deterrence rationale was served here, because law enforcement has a duty to stay abreast of changes in the law. We therefore decline the state’s invitation to apply a federal good-faith exception in this case and conclude that *16 conservation officers’ warrantless GPS tracking of Liebl’s truck was an unreasonable search requiring suppression of the resulting evidence.
We note that Liebl argues that suppression of the evidence resulting from conservation officers’ warrantless GPS tracking of his truck also was mandated by Minn. Stat. § 626A.42. [5] The district court rejected Liebl’s interpretation of that statute, reasoning that “[it] was intended to apply to devices already in the possession of an individual.” In light of our conclusion that the GPS tracking was an unreasonable search requiring suppression of the evidence, we do not reach the section-626A.42 issue here.
D E C I S I O N
Because conservation officers’ GPS tracking of Liebl’s truck was a warrantless search to which no warrant-requirement exception applies and to which the good-faith exception does not apply, the district court did not err in suppressing the evidence that resulted from the GPS tracking and dismissing the criminal charges that were based on the suppressed evidence.
Affirmed.
Notes
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1] That statute provides: “Upon an application made under section 626A.36, the court may enter an ex parte order authorizing the installation and use of a . . . mobile tracking device . . . if the court finds on the basis of the information submitted by the applicant that there is reason to believe that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.” Minn. Stat. § 626A.37, subd. 1.
[2] We do not suggest that Minn. Const. art. I, § 10, does not provide protection against GPS
tracking that is at least equivalent to the protection provided by U.S. Const. amend. IV.
See
State v. McBride
,
[3] We note that the state did not argue at the district court level that a warrant exception applies to conservation officers’ GPS tracking of Liebl’s truck; it thereby forfeited any such argument on appeal. See State v. Gauster , 752 N.W.2d 496, 508 (Minn. 2008) (concluding that state forfeited warrant-exception argument by failing to raise it below, reasoning that “[appellate courts] generally will not consider arguments raised for the first time on appeal”).
[4] That statute provided: “An order authorizing the use of one or more mobile tracking devices may be issued . . . upon written application” that “provide[s] a statement setting forth all facts and circumstances which provide the applicant with a reasonable suspicion that criminal activity has been, is or will be in progress and that the use of a mobile tracking
[5] That statute provides: “[A] government entity may not obtain the location information of an electronic device without a tracking warrant. A warrant granting access to location information must be issued only if the government entity shows that there is probable cause the person who possesses an electronic device is committing, has committed, or is about to commit a crime.” Minn. Stat. § 626A.42, subd. 2(a). Evidence obtained in violation of section 626A.42 is not admissible “in any criminal, civil, administrative, or other proceeding.” Id. , subd. 6(a).