Jul 07 2015, 10:02 am

ATTORNEY FOR APPELLANT

ATTORNEYS FOR APPELLEE

B. Joseph Davis
Law Office of B. Joseph Davis, PC
Muncie, Indiana

Gregory F. Zoeller
Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA
Christopher Wertz,

July 7, 2015

Appellant-Defendant,

Court of Appeals Cause No.
48A04-1409-CR-427

v.

State of Indiana,
Appellee-Plaintiff,

Appeal from the Madison Circuit
Court
Honorable Dennis Carroll, Judge
Cause No. 48C06-1112-FC-2380

Robb, Judge.

Case Summary and Issue
[1]

Christopher Wertz brings this interlocutory appeal, challenging the trial court’s
denial of his motion to suppress. He presents one issue, which is a matter of
first impression: whether the warrantless search of his personal Garmin Global
Positioning System (“GPS”) device violated the Fourth Amendment to the

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 United States Constitution.1 We conclude Wertz’s GPS device is not a
“container” under the automobile exception and that he has a reasonable
expectation of privacy in the device and its contents. Therefore, the warrantless
search of the GPS device violated the Fourth Amendment. We reverse and
remand.

Facts and Procedural History
[2]

2

On September 9, 2011, Wertz was driving in Madison County when he lost
control of his vehicle and struck a utility pole. Wertz was severely injured, and
his passenger, Megan Solinski, died at the scene of the accident as a result of
injuries sustained. Law enforcement officers found a Garmin GPS device,
which belonged to Wertz, near the wrecked vehicle.

[3]

Approximately one week after the accident, law enforcement officers visited
Wertz at the hospital and obtained written consent to examine the content
saved in the GPS unit. However, the GPS required a pin code to access the
device, which Captain Rick Garrett obtained by contacting the company that
produces the GPS device, Garmin International. Once that passcode was

1

Wertz’s brief also mentions Article 1, Section 11 of the Indiana Constitution. However, he provides no
independent analysis on this point. Therefore, we consider his state constitutional argument forfeited. See
Fair v. State, 627 N.E.2d 427, 430 n.1 (Ind. 1993) (stating failure to provide separate authority and argument
that a search violated the Indiana Constitution forfeited that issue on appeal).
2

We heard oral argument in this case on April 14, 2015 at the Hammond Academy of Science and
Technology (HAST). We commend counsel for their advocacy and thank the faculty, staff, and students at
HAST for their participation.
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 retrieved, an officer was able to collect information from the GPS device,
including the route Wertz traveled and his speed at the time of the accident.
[4]

The State charged Wertz with reckless homicide, a Class C felony, and Wertz
filed a motion to suppress evidence obtained through the warrantless search of
his GPS device. The trial court found that Wertz’s consent to search the device
was invalid because he was on pain medication at the time the officers received
his consent; however, the trial court held that Wertz had no reasonable
expectation of privacy in the GPS device and thus the information collected
from it was admissible.

[5]

A jury trial was held in March 2014 but ended in a mistrial, and a second jury
trial was scheduled to take place on July 29, 2014. In the interim, the United
States Supreme Court decided Riley v. California, 134 S.Ct. 2473 (2014), which
held that a warrant was required to search digital information on an arrestee’s
cell phone. Wertz reacted by requesting that the trial court reconsider his
motion to suppress in light of the Supreme Court’s recent decision in Riley. The
trial court revisited the matter but ultimately issued an order on August 4, 2014,
denying Wertz’s renewed motion to suppress.

[6]

On August 22, 2014, Wertz filed a motion to certify the trial court’s order for
interlocutory appeal, which the trial court granted on August 26, 2014. On
September 11, 2014, Wertz requested that the Court of Appeals accept
jurisdiction of the appeal, and we accepted jurisdiction on October 9, 2014. On
appeal, the only issue is whether the search of Wertz’s GPS device violated a
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 reasonable expectation of privacy. The State does not challenge the trial court’s
determination that Wertz did not provide valid consent for the search.

Discussion and Decision
I. Standard of Review
[7]

When reviewing a trial court’s denial of a defendant’s motion to suppress, we
view conflicting factual evidence in the light most favorable to the ruling but we
will also consider substantial and uncontested evidence favorable to the
defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). That said, the
constitutionality of a search or seizure is a question of law, which we review de
novo. Id.

[8]

The Fourth Amendment to the United States Constitution protects “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .” “[T]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness[.]’” Brigham City v. Stuart, 547 U.S. 398,
403 (2006). We approach cases involving warrantless searches with the basic
understanding that “searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated
exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967) (footnote omitted)). Where there is no clear
practice concerning the constitutionality of a search, the reasonableness of the
search is judged by balancing “the degree to which it intrudes upon an
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 individual’s privacy and . . . the degree to which it is needed for the promotion
of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 299300 (1999).

II. Wertz’s GPS Device
[9]

The Garmin GPS device searched by the State was personally owned by Wertz
and kept in his vehicle. The device includes pre-loaded street maps and the
ability to store hundreds of waypoints and locations. The device is also
compatible with microSD cards, which are routinely able to store 16 to 128
gigabytes (GB) of data. In addition, Wertz’s GPS device is designed to
automatically record and store information such as location, past routes
traveled, and speed. It is because of that automated storage that law
enforcement was able to discover Wertz’s route of travel and rate of speed on
the day of his accident.

III. Fourth Amendment
[10]

Wertz argues that the warrantless search of his GPS unit violated his right to be
free from unreasonable searches. He claims that his GPS device is similar to a
cell phone that cannot be searched without a warrant and that the location data
stored in the GPS is private information. To support his arguments, Wertz
relies heavily on two recent United States Supreme Court decisions: Riley v.
California, 134 S.Ct. 2473 (2014) and United States v. Jones, 132 S.Ct. 945 (2012).
The State, for its part, argues that a GPS device is less private than a cell phone,
the information stored in the GPS device is entitled to less protection because it
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 is information Wertz exposed to the public, and the search was allowable under
the automobile exception to the warrant requirement.

A. Automobile Exception to the Warrant Requirement
[11]

Warrantless searches are presumed unreasonable and may be excused only
upon a showing of circumstances that yield a diminished expectation of
privacy. To justify the search in this case, the State hangs it hat on the warrant
requirement’s “automobile exception.”

[12]

The automobile exception has deep roots in Fourth Amendment jurisprudence
and essentially provides that a vehicle—and its contents—may be searched
without a warrant so long as law enforcement has probable cause to believe
evidence of a crime may be found inside. See Maryland v. Dyson, 527 U.S. 465,
466-67 (1999) (per curiam). Principles underlying the automobile exception
include a vehicle’s mobility and subjection to government regulation, California
v. Carney, 471 U.S. 386, 390-93 (1985), and the inability to avoid public scrutiny
due to its exposure to “public thoroughfares where both its occupants and its
contents are in plain view,” South Dakota v. Opperman, 428 U.S. 364, 368 (1976)
(citation omitted).

[13]

The automobile exception allows law enforcement to search not only the
vehicle itself but also any containers inside it that may contain evidence.
California v. Acevedo, 500 U.S. 565, 580 (1991). The authority to search
containers found in a vehicle extends to locked containers. See id. at 577-79
(abrogating United States v. Chadwick, 433 U.S. 1 (1977)). The State likens the
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 GPS device in this case to a locked container and directs us to lower court
decisions comparing computers and cell phones to locked containers. See Brief
of Appellee at 21-22. Indiana does not have a case directly on point, but lower
courts in other jurisdictions are split on the issue of whether a computer or cell
phone may be treated as a container and subjected to a warrantless search
under the automobile exception. Compare United States v. Zaavedra, No. 12-CR156-GFK, 2013 WL 6438981, at *3 (N.D. Okla. Dec. 9, 2013) (holding
warrantless search of a cell phone was permissible under the automobile
exception),3 and United States v. Garcia-Aleman, No. 1:10-CR-29, 2010 WL
2635071, at *12 (E.D. Tex. June 9, 2010) (same), with United States v. Mayo, No.
2:13-CR-48, 2013 WL 5945802, at *9-14 (D.Vt. Nov. 6, 2013) (holding that cell
phones are comparable to computers and that if seized under the automobile
exception, a warrant is required to justify the search of a cell phone); Chung v.
State, No. 10-13-307-CR, 2014 WL 5408439, at *6 (Tex. App. Oct. 23, 2014)
(citing Riley v. California, 134 S.Ct. 2473 (2014)) (same). It should be noted that
the State’s persuasive authority comparing computers and cellphones to
containers were all decided before the Supreme Court’s decision in Riley v.
California, infra, which we believe is instructive.
[14]

In Riley v. California, the United States Supreme Court held that a warrant is
generally required to search an arrestee’s cell phone, despite a recognized

3

The court’s opinion in Zaavedra contains a string cite of cases which have held that the contents of a cell
phone may be searched under the automobile exception. See id. at *3. Those cases are all cited in the State’s
brief. See Br. of Appellee at 22.
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 exception for searches incident to a lawful arrest. 134 S.Ct. at 2485. The Court
reached its holding for two reasons: (1) concerns justifying a search incident to
arrest are not applicable to digital data; and (2) digital data implicates
substantial privacy concerns far beyond those implicated by the search of
physical items ordinarily found on an arrestee’s person. Id. at 2484-85. It is the
latter rationale that is relevant to this case.
[15]

The Court said that “when privacy-related concerns are weighty enough a
search may require a warrant, notwithstanding the diminished expectations of
privacy of the arrestee.” Id. at 2488 (quoting Maryland v. King, 133 S.Ct. 1958,
1979 (2013)) (quotation marks omitted). Such concerns were found weighty
enough with respect to cell phones, which the Court said hold “the privacies of
life.” Id. at 2494-95 (citation omitted). As the Court explained, cell phones are
“minicomputers” that may easily be called “cameras, video players, rolodexes,
calendars, tape recorders, libraries, diaries, albums, televisions, maps, or
newspapers.” Id. at 2489. The Court reasoned that cell phones are
quantitatively different from physical objects ordinarily found in a search
incident to arrest because of their capacity to store enormous amounts of
information, and that cell phones are qualitatively different from physical
objects in that they are likely to contain private information that could not
otherwise be gleaned from a search of one’s person.4 Id. at 2489-91. Finally,

4

Examples of private information that could be found on a cell phone included pictures, videos, address
books, call logs, text messages, location data, Internet search history, and mobile application software (i.e.
“apps”). See Riley, 134 S.Ct. at 2489.
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 the Court rebuked the government’s assertion that a cell phone could be
analogized to a “container” that could be searched incident to arrest. Id. at
2489, 2491 (distinguishing cell phones from a cigarette package searched in
United States v. Robinson, 414 U.S. 218 (1973)).
[16]

Of particular relevance to this case is the Court’s reference to “location
information” when discussing one’s privacy interest in information contained in
a cell phone. The Court said: “Data on a cell phone can also reveal where a
person has been. Historic location information is a standard feature on many
smart phones and can reconstruct someone’s specific movements down to the
minute, not only around town but also within a particular building.” Id. at
2490 (citing United States v. Jones, 132 S.Ct. 945, 955 (2012) (Sotomayor, J.,
concurring)).

[17]

In our view, the GPS unit in this case is akin to a computer or cell phone. The
device stores large amounts of information that could not possibly be stored in
an ordinary physical container. For that reason, an electronic storage device
cannot be treated as a container. Moreover, the location data it does store has
been identified by the Supreme Court as private information. Just as the
Supreme Court believed that treating a cell phone as a container was “a bit
strained,” id. at 2491, we believe that treating the GPS device as a container
under the automobile exception is inappropriate.

[18]

The State maintains that Wertz’s GPS device is not deserving of the same level
of protection as a cell phone, because a GPS device does not contain the same
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 amount of personal information. The GPS unit does not hold pictures, Internet
history, text messages, a calendar, or several of the other features that a smart
phone does. No one will dispute that society considers a cell phone to be more
private than the GPS device in this case. But that does not mean that electronic
devices other than cell phones are not entitled to Fourth Amendment
protections. It remains true that devices like Wertz’s GPS have an enormous
storage capacity, and they store information that most people consider to be
private. Any differences between the contents of a cell phone and a GPS device
do not support treating the GPS device as a container.
[19]

The State also asserts that “Riley does not control because it says nothing of the
automobile exception.” Br. of Appellee at 23. The State argues that unlike the
search-incident-to-arrest exception, which is borne out of concerns for officer
safety and preservation of evidence, the automobile exception is based on a
diminished expectation of privacy in the vehicle itself and applies “when it is
reasonable to believe evidence relevant to the crime of arrest might be found in
the vehicle.” Id. at 23 (quoting Gant, 556 U.S. at 343).

[20]

The State’s proposed distinction would require us to conclude that a cell phone
found next to a driver in the passenger seat of his vehicle could be searched
without a warrant, regardless of the Supreme Court’s decision in Riley. But
such an outcome is unthinkable if the Court meant what it said in Riley.
Although the State is correct that Riley dealt only with the search-incident-toarrest exception, Riley’s discussion of Fourth Amendment protections afforded
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 incident-to-arrest exception. The analysis in Riley easily transfers to other
circumstances where an exception to the warrant requirement would otherwise
exist, including the automobile context. See Chung, 2014 WL 5408439, at *5-6
(Tex. App. Feb. 11, 2015) (relying on Riley and holding that an officer’s
warrantless search of a cell phone was not justified under the automobile
exception to the warrant requirement); United States v. Kim, Crim. Action No.
13-0100 (ABJ), 2015 WL 2148070, at *18-22 (D.D.C. May 8, 2015) (applying
Riley to the search of a computer under the border exception to the warrant
requirement).
[21]

In sum, we hold that Wertz’s GPS device is similar in nature to a computer or
cell phone, and that such a device cannot be treated as a “container” that may
be searched pursuant to the automobile exception to the warrant requirement.

B. Privacy Expectations in Location Data
[22]

In addition to arguing that Wertz’s GPS unit is effectively a locked container
accessible under the automobile exception, the State also contends that the GPS
device and the information contained therein is afforded a lesser degree of
privacy.

[23]

In United States v. Knotts, the Supreme Court held that a defendant’s Fourth
Amendment rights were not violated when law enforcement monitored his
whereabouts with the use of a radio transmitter that was placed in the
defendant’s vehicle. 460 U.S. 276, 285 (1983). In that case, law enforcement
placed a transmitter in a container purchased by a co-defendant, and the
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 container was placed in the co-defendant’s car. Police followed the codefendant, maintaining contact using both visual surveillance and a signal from
the transmitter. The container was transferred to a second co-defendant’s
vehicle, and law enforcement pursued the second co-defendant until he began
driving evasively, at which point officers were unable to maintain visual
surveillance and also lost the signal from the transmitter. With the aid of a
monitoring device in a police helicopter, law enforcement was able to relocate
the transmitter signal approximately one hour later, and they were able to find
the transmitter, which came to rest at Knotts’s residence. 5 Police executed a
search warrant on the residence and discovered a methamphetamine
laboratory. At trial, Knotts moved to suppress evidence based on the
warrantless monitoring of the transmitter.
[24]

The Supreme Court held in Knotts that police monitoring of the transmitter—
and thus, by extension, the whereabouts of the defendants—did not invade a
legitimate expectation of privacy. Id. at 285. After referencing the warrant
requirement’s automobile exception, the Court reasoned 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.
According to the Court, the driver “voluntarily conveyed to anyone who
wanted to look the fact that he was travelling over particular roads in a
particular direction, the fact of whatever stops he made, and the fact of his final

5

In all, the police tracked the transmitter from Minneapolis, Minnesota to Shell Lake, Wisconsin.

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 destination . . . .” Id. at 281-82. The Court went on to say that visual
surveillance from public places would have sufficed to gather all the
information that was learned, and the use of a radio transmitter did not alter the
analysis. Id. at 282. The Court left for another day Knotts’s concern that the
holding would allow for twenty-four-hour surveillance of any citizen without
the need for a warrant, stating that “if such dragnet type law enforcement
practices . . . should eventually occur, there will be time enough then to
determine whether different constitutional principles may be applicable.” Id. at
283-84.
[25]

The State argues that the information obtained from Wertz’s GPS device—his
location, route of travel, and speed—is of the same character as the information
obtained by law enforcement in Knotts, and the fact that the information was
gathered from Wertz’s GPS unit rather than visual surveillance has no
constitutional significance. The State reasons that if Wertz has no reasonable
expectation of privacy in the information obtained (i.e. his location and
movements), then the search did not violate his Fourth Amendment rights. 6

[26]

Contrary to the State’s position, Knotts is not the Supreme Court’s last word on
the issue before us. In United States v. Jones, the Supreme Court held that the

6

The State’s argument is reminiscent of a comment made by Justice Scalia in United States v. Jones, in which
he mused about a possible argument that a search is not unconstitutional so long as it produces only public
information. See 132 S.Ct. 945, 952 (2012) (“Knotts would be relevant, perhaps, if the Government were
making the argument that what would otherwise be an unconstitutional search is not such where it produces
only public information. The Government does not make that argument, and we know of no case that would
support it.”).
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 installation of a GPS tracking device on a vehicle and the use of that device to
monitor the vehicle’s movements constituted a “search” under the meaning of
the Fourth Amendment. 132 S.Ct. 945, 948 (2012). The majority based its
holding on the fact that a physical trespass—installation of the GPS device—for
the purpose of obtaining information is a “search” under the Fourth
Amendment. Id. at 949-54. Of course, there was no physical trespass in
Wertz’s case; however, two concurrences in Jones, which focus their analysis on
reasonable expectations of privacy, are germane.
[27]

Justice Alito wrote a concurrence in the judgment joined by three Justices, in
which he argued that law enforcement’s long-term monitoring of Jones’s
vehicle violated reasonable expectations of privacy. Id. at 964 (Alito, J.,
concurring). He explained that constant monitoring of Jones’s location for a
four-week period involved a degree of intrusion that a reasonable person would
not anticipate:
[T]he use of 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. That said, Justice Alito did not believe that all monitoring of a person’s
location would constitute a search under the Fourth Amendment, stating
“relatively short-term monitoring of a person’s movements on public streets
accords with expectations of privacy that our society has recognized as
reasonable.” Id. (citing Knotts, 460 U.S. at 281-82).
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 [28]

Justice Sotomayor also filed a concurrence in which she agreed with the
majority that a physical intrusion was sufficient to constitute a search under the
Fourth Amendment, providing the majority with the necessary fifth vote.
Nevertheless, the bulk of Justice Sotomayor’s concurrence was spent discussing
her concerns with GPS monitoring under the rubric of reasonable expectations
of privacy. She agreed with Justice Alito that “at the very least, longer term
GPS monitoring in investigations of most offenses impinges on expectations of
privacy.” Id. at 955 (Sotomayor, J., concurring) (quotation marks omitted).

[29]

Justice Sotomayor went on to say that “[i]n cases involving even short-term
monitoring, some unique attributes of GPS surveillance relevant to the Katz
analysis will require particular attention. 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.” Id. at 955 (Sotomayor, J., concurring).7 It is also important to
note that Justice Sotomayor’s concerns were not limited to governmentinstalled GPS trackers like the one in Jones, but also with “factory- or ownerinstalled vehicle tracking devices or GPS-enabled smartphones” from which the
government could obtain location information. Id. at 955 (emphasis added).

[30]

The gathering of detailed historical location data from a personal GPS device is
the functional equivalent of the long-term GPS monitoring in Jones or the

7

This passage was cited with approval by the majority in Riley. See 134 S.Ct. at 2490.

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 twenty-four-hour dragnet-type surveillance that the Court alluded to in Knotts.
It provides law enforcement with a simple method of reconstructing all of a
person’s public movements over several days, months, or possibly even years.
Although a person can expect to be seen by someone when he leaves his home
and drives to a given destination, it does not follow that he should expect the
government to know his whereabouts all the time. We are confident in saying that
there is a reasonable expectation of privacy in historical location data, whether
it be stored in a cell phone, a GPS unit, or in “the cloud.”8
[31]

The State makes three attempts to distinguish or otherwise sidestep the impact
of Jones. First, the State argues that Jones does not bind this court to hold the
search in this case is unconstitutional, because the majority in Jones rested its
decision on a physical intrusion, not privacy expectations. It is true that the
facts of Jones are different from those here and that it was technically decided by
emphasizing a physical trespass. Still, we cannot turn a blind eye to the
obvious significance that the Jones concurrences have in relation to the issues
presented here. Between the two concurrences by Justice Alito and Justice
Sotomayor, there are at least five Supreme Court Justices who believe that longterm monitoring of a citizen’s location violates reasonable expectations of
privacy, despite the fact that the citizen’s location was exposed to the public.

8

Cloud storage is a method of storing electronic data on remote servers—in addition to or in lieu of the
device itself. Data stored in the cloud can be accessed by an electronic device connected to the Internet.
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 [32]

Second, the State contends the Jones concurrences are distinguishable from the
facts of this case because there was no “long-term monitoring” of Wertz’s
location. As the State explains, “no monitoring, or tracking of movements,
occurred here at all; instead, all law enforcement did was investigate after-thefact where Wertz had been.” Br. of Appellee at 13.

[33]

The Fourth Amendment forbids real-time, long-term monitoring of a citizen’s
location. See supra, ¶¶ 26-31 (discussing Jones concurrences). There is no logical
basis for allowing the government to obtain the same information without a
warrant by inspecting a citizen’s location information after-the-fact. In Riley,
the Court’s references to location data were specific to “[h]istoric location
information” stored on a cell phone, which could be used to “reconstruct
someone’s specific movements down to the minute.” 134 S.Ct. at 2490. The
Court regarded that information as private, understanding that the information
would be obtained after-the-fact rather than through real-time tracking by law
enforcement. The expectation of privacy in one’s whereabouts is not only due
to society’s impulse to cringe at the idea of being followed day-and-night; the
personal nature of the information itself gives rise to an expectation of privacy.
As one court has aptly noted,
[d]isclosed in [GPS] data . . . will be trips the indisputably private
nature of which takes little imagination to conjure: trips to the
psychiatrist, the plastic surgeon, the abortion clinic, the AIDS
treatment center, the strip club, the criminal defense attorney, the bythe-hour motel, the union meeting, the mosque, synagogue or church,
the gay bar and on and on.

People v. Weaver, 909 N.E.2d 1195, 1199 (N.Y. 2009).
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 [34]

Finally, we are not persuaded by the State’s argument that the search was
permissible because law enforcement only sought information about where
Wertz was located on a particular evening. Differences between real-time
monitoring and the inspection of historical location data make the State’s
position untenable. The police can physically follow a suspect and maintain
visual contact for an entire day, and there is no doubt that surveillance remains
permissible under the Fourth Amendment—largely because the search and the
information that may be obtained is limited. See Knotts, 460 U.S. at 281-85. By
contrast, examination of a suspect’s historical location data necessarily gives the
police access not only to a specific date, but to information concerning every
day. When police accessed Wertz’s GPS unit, all of his data was available for
inspection, not just the information from the specific timeframe for which the
police were looking. Allowing the search of historical location data because the
target of the search is a timeframe police could have observed would be like
allowing warrantless entry into a residence to seize a piece of contraband if
police could have observed it through an open window. Sure, the homeowner
does not have a reasonable expectation of privacy in contraband exposed to the
public through the window, but reasonable expectations of privacy in the house
and its contents still require law enforcement to acquire a warrant before
entering and seizing the contraband. See Justice v. State, 765 N.E.2d 161, 164-65
(Ind. Ct. App. 2002) (discussing the open view doctrine). Similarly, the mere
fact that an officer could have observed a citizen’s whereabouts at a given time
does not mean it is permissible to conduct a warrantless search of the citizen’s
location data.
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 [35]

We hold that there is a reasonable expectation of privacy in detailed historical
location data from a personal GPS device. Absent exigent circumstances, law
enforcement must obtain a search warrant in order to access such information.

IV. Applicability of the Exclusionary Rule
[36]

Finally, the State argues that even if a Fourth Amendment violation occurred,
the exclusionary rule should not be applied because the officers reasonably
believed that their search did not require a warrant.

[37]

The exclusionary rule prevents the prosecution from introducing evidence
obtained in violation of a defendant’s Fourth Amendment rights. It is “a
judicially created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect . . . .” United States v. Leon, 468 U.S. 897,
906 (1984) (citation omitted). The purpose of the exclusionary rule is to “deter
future Fourth Amendment violations.” Davis v. United States, 131 S.Ct. 2419,
2426 (2011). “[E]xclusion of evidence does not automatically follow from the
fact that a Fourth Amendment violation occurred. The remedy is subject to
exceptions and applies only where its purpose is effectively advanced.” Id. at
2431 (citations and quotation marks omitted). Accordingly, “when the police
conduct a search in objectively reasonable reliance on binding appellate
precedent, the exclusionary rule does not apply.” Id. at 2434.

[38]

The State argues that it was reasonable for police, relying on Supreme Court
precedent such as Knotts and Acevedo, to believe that a warrant was not

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 necessary for them to search Wertz’s GPS unit.9 Therefore, the exclusionary
rule would not serve its purpose of deterrence in this case and should not be
applied. We disagree.
[39]

We are not persuaded that a law enforcement officer could rely on binding
precedent for the warrantless search of Wertz’s GPS device. As the Supreme
Court noted in Riley, a “container” had been previously described as “any
object capable of holding another object.” 134 S.Ct. at 2491 (quoting New York
v. Belton, 453 U.S. 454, 460 n.4 (1981)). An electronic storage device does not
fall under that definition. Additionally, general reliance on the automobile
exception is not sufficient, because not all things located in a vehicle are
necessarily subject to a warrantless search under the automobile exception. See,
e.g., United States v. Di Re, 332 U.S. 581, 587 (1948) (holding that a person, by
mere presence in a suspected vehicle, does not lose immunities from search of
his person to which he would otherwise be entitled). We read Riley only as
clarifying that electronic storage devices are not properly treated as containers,
not as a new rule of law or as overruling any binding precedent previously
allowing for the warrantless search of an electronic device under the automobile
exception to the warrant requirement.

[40]

Further, although Knotts may be relevant to the extent its legal reasoning could
be transferred to this case, the type of search conducted in that case is clearly

9

At oral argument, the State proclaimed there has been a “sea-change” in Fourth Amendment jurisprudence
regarding the search of electronic devices and monitoring of citizens’ public movements.
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 distinguishable from the one that occurred here. Simply put, there exists no
binding precedent allowing for a warrantless search of an electronic device
storing historical location data. In the absence of such authority, the general
rule is that a warrant is required. See Gant, 556 U.S. at 338. In sum, we
conclude that application of the exclusionary rule is appropriate in this case. 10

Conclusion
[41]

We conclude Wertz’s GPS device cannot be treated as a “container” under the
automobile exception. We further conclude that he has a reasonable
expectation of privacy in the device and in the historical location data that the
device stores. Therefore, the warrantless search of the GPS device violated the
Fourth Amendment. We reverse and remand.

[42]

Reversed and remanded.

Riley, J., and Bailey, J., concur.

10

We note that the State does not argue that the exclusionary rule should not be applied due to a good faith
attempt to obtain consent from Wertz, and the record is not sufficient to facilitate review of such a claim even
if the State made the argument.
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