[Cite as State v. Sullivan,

.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13-CA-10 MONTIE E. SULLIVAN

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2010-CR-0043

JUDGMENT: Affirmed in part; Reversed in part and remanded

DATE OF JUDGMENT ENTRY: November 22, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

GREGG MARX MARK P. ORT Prosecuting Attorney 13297 Rustic Drive, NW Pickerington, Ohio 43147-8976 By: JOCELYN S. KELLY Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 13-CA-10 2

Hoffman, P.J.

{¶1} Plaintiff-appellant the state of Ohio appeals the January 28, 2013

Judgment Entry entered by the Fairfield County Court of Common Pleas sustaining a

motion to suppress filed by Defendant-appellee Montie E. Sullivan, and ordering all

evidence obtained by law enforcement as a result of the unlawful search and seizure be

suppressed.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

{¶2} Following a series of home invasions believed to be committed by the

same person or persons, the Franklin County Sheriff's Office identified a white Honda

Civic belonging to Appellee as being an automobile connected to the robberies. The

officers commenced surveillance of the address to which the automobile was registered

and the parking lot of the apartment complex.

{¶3} Detectives continued visual surveillance over a three day time period and

followed the vehicle whenever Appellee or his co-defendant, David White, were driving.

Due to a lack of resources, constant surveillance remained difficult.

{¶4} Due to limited resources to continue the visual surveillance, Corporal

Minerd of the Franklin County Sheriff's Office and an undercover officer installed a small

GPS unit under the vehicle's bumper. The device attached to the vehicle by magnets.

{¶5} Corporal Minerd monitored the GPS data showing the movements of the

white Honda Civic approximately three to four times a day for approximately ten minutes

at a time.

{¶6} On January 23, 2010, Minerd noticed the car moving suspiciously in the

3400 block of Bickel Church Road. He observed the vehicle slowed through Fairfield County, Case No. 13-CA-10 3

neighborhoods and circled an area in Licking County. Corporal Minerd continued to

monitor the GPS device data until the vehicle returned to the residence. Two hours

later, the vehicle again drove slowly through neighborhoods and circled an area in

Fairfield County. Minerd contacted the Fairfield County dispatcher, identified himself,

and explained the situation. He learned a home invasion had occurred in the suspect

area

{¶7} A search warrant was issued for Appellee's residence and the vehicle.

Upon execution of the warrant, officers found property from a recent robbery, as well as,

previous robberies.

{¶8} Appellee was indicted on one count of improperly discharging a firearm, at

or into a habitation, with two firearm specifications; one count of aggravated burglary,

with two firearm specifications; and one count of grand theft, with a firearm specification.

{¶9} Appellee filed a motion to suppress the GPS device data and any

evidence derived therefrom. Via Judgment Entry entered July 22, 2010, the trial court

overruled the motion to suppress.

{¶10} On October 19, 2010, Appellee entered a plea of no contest to improperly

discharging a firearm into a habitation, with one firearm specification, and to one count

of aggravated burglary. The remaining charges were dismissed.

{¶11} The trial court sentenced Appellee to nineteen years in prison, including

three years of mandatory time for the firearm specification. The trial court ordered

Appellee pay $1000.00 in restitution.

{¶12} Appellee filed an appeal of the conviction and sentence to this Court in

State v. Sullivan, 5th Dist. No. 2010-CA-52,

. This Court reversed the Fairfield County, Case No. 13-CA-10 4

trial court's denial of the motion to suppress and remanded the case to the trial court for

further proceedings.

{¶13} On October 28, 2011, this Court certified a conflict of the decision

rendered in

with the holding of another jurisdiction. The Ohio Supreme

Court accepted jurisdiction, ultimately directing the judgment of this Court be vacated,

and ordering the case remanded to the trial court to apply the United States Supreme

Court decision in United States v. Jones,

,

,

(2012). See State v. Sullivan,

,

.

{¶14} On May 15, 2012, Appellee filed a petition for post-conviction relief in the

trial court, and moved for summary judgment on an action for post-conviction relief

based on the United States' Supreme Court decision in

{¶15} Via Judgment Entry of January 28, 2013, the trial court sustained

Appellee's motion to suppress. The trial court ordered all evidence obtained by law

enforcement as a result of the unlawful search and seizure be suppressed.

{¶16} The State certified the trial court's ruling rendered its proof of the charges

so weak in its entirety any reasonable possibility of effective prosecution was destroyed,

and timely filed a notice of appeal.

{¶17} The State now assigns as error:

{¶18} “I. THE TRIAL COURT IMPROPERLY APPLIED THE EXCLUSIONARY

RULE WHEN EXCLUDING ALL EVIDENCE WOULD ONLY DETER CONSCIENTIOUS

POLICE WORK AND WOULD IMPOSE A COSTLY TOLL BECAUSE IT WOULD

PREVENT THE PROSECUTION OF A FELONY OFFENSE AND REQUIRE THE

COURT TO IGNORE RELIABLE, TRUSTWORTHY EVIDENCE. Fairfield County, Case No. 13-CA-10 5

{¶19} “II. THE TRIAL COURT IMPROPERLY SUPPRESSED APPELLEE’S

STATEMENTS TO LAW ENFORCEMENT WHEN THAT STATEMENT WAS NOT

DERIVED FROM THE USE OF THE GPS TRACKING DEVICE.

{¶20} “III. THE TRIAL COURT IMPROPERLY SUPPRESSED EVIDENCE

FROM THE INSTALLATION AND TRACKING OF A GPS DEVICE. THE USE OF

THAT DEVICE WAS A REASONABLE SEARCH AND WAS PERMISSIBLE UNDER

THE FOURTH AMENDMENT.”

I. and III.

{¶21} Appellant's first and third assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

{¶22} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress.

{¶23} First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning,

,

(1982); State v. Klein,

,

(4th Dist. 1991); State v. Guysinger,

,

(4th

Dist. 1993). Second, an appellant may argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an appellate court can

reverse the trial court for committing an error of law. State v. Williams,

,

(4th Dist. 1993). Finally, assuming the trial court's findings of fact

are not against the manifest weight of the evidence and it has properly identified the law

to be applied, an appellant may argue the trial court has incorrectly decided the ultimate Fairfield County, Case No. 13-CA-10 6

or final issue raised in the motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case.

State v. Curry,

,

(8th Dist. 1994); State v. Claytor,

,

(4th Dist. 1993); Guysinger. As the United States

Supreme Court held in Ornelas v. U.S.,

,

,

(1996), “... as a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal.”

{¶24} The Fourth Amendment protects people, not places. Katz v. United States

,

,

(1976). In Jones,

,

, 181 L.Ed2d 911 (2012), the United States Supreme Court held,

{¶25} "'The Fourth Amendment provides in relevant part 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.' It is beyond dispute that a vehicle is an

‘effect’ as that term is used in the Amendment. United States v. Chadwick,

,

,

(1977). We hold that the Government's installation of

a GPS device on a target's vehicle, [Footnote omitted] and its use of that device to

monitor the vehicle's movements, constitutes a 'search.'"

{¶26} The Supreme Court declined to address the issue of whether the

warrantless search was reasonable and lawful under the Fourth Amendment as the

government did not raise the issue below.

{¶27} In the case sub judice, the State maintains even if a violation of the Fourth

Amendment occurred the trial court must engage in a separate analysis to determine Fairfield County, Case No. 13-CA-10 7

whether the remedy afforded by the exclusionary rule is appropriate. Illinois v. Gates,

(1983). The purpose of the exclusionary rule is to deter future Fourth

Amendment violations. Davis v. United States,

,

(2011).

Exclusion is the appropriate remedy when the deterrence benefits of suppression

outweigh the costs imposed. Herring v. United States

,

.

{¶28} The State asserts the officers herein acted in good faith and without

knowledge installing the device was improper under United States v. Jones,

,

, 181 L.Ed2d 911 (2012). Rather, the officers objectively relied upon

the search warrant as valid. Further, the State asserts there is no deterrent value in

suppressing the evidence in this case, and exclusion would only deter conscientious

police work.

{¶29} The United States Court of Appeals for the District of Columbia Circuit

held in United States v. Maynard,

(CADC, 2010), the predecessor to

{¶30} "It does not apodictically follow that, because the aggregation of Jones's

movements over the course of a month was not exposed to the public, his expectation

of privacy in those movements was reasonable; 'legitimation of expectations of privacy

must have a source outside the Fourth Amendment,’ such as ‘understandings that are

recognized or permitted by society,' United States v. Jacobsen,

, 123 n. 22,

,

(1984) (quoting Rakas, 439 U.S. at 143 n. 12,

). So it is that, because the 'Congress has decided ... to treat the interest in

‘privately’ possessing cocaine as illegitimate,' 'governmental conduct that can reveal Fairfield County, Case No. 13-CA-10 8

whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no

legitimate privacy interest.' Id. at 123,

.

{¶31} "The Government suggests Jones's expectation of privacy in his

movements was unreasonable because those movements took place in his vehicle, on

a public way, rather than inside his home. That the police tracked Jones's movements in

his Jeep rather than in his home is certainly relevant to the reasonableness of his

expectation of privacy; 'in the sanctity of the home,' the Court has observed, ' all details

are intimate details' Kyllo, 533 U.S. at 37,

. A person does not leave his

privacy behind when he walks out his front door, however. On the contrary, in Katz the

Court clearly stated “what [one] seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected.'

,

. Or, as this court has said, outside the home, the 'Fourth Amendment ... secur[es]

for each individual a private enclave, a ‘zone’ bounded by the individual's own

reasonable expectations of privacy.' Reporters Comm. for Freedom of Press v. AT & T,

, 1042–43 (1978).

{¶32} "Application of the test in Katz and its sequellae to the facts of this case

can lead to only one conclusion: Society recognizes Jones's expectation of privacy in

his movements over the course of a month as reasonable, and the use of the GPS

device to monitor those movements defeated that reasonable expectation. As we have

discussed, prolonged GPS monitoring reveals an intimate picture of the subject's life

that he expects no one to have—short perhaps of his spouse. The intrusion such

monitoring makes into the subject's private affairs stands in stark contrast to the

relatively brief intrusion at issue in Knotts; indeed it exceeds the intrusions occasioned Fairfield County, Case No. 13-CA-10 9

by every police practice the Supreme Court has deemed a search under Katz, such as

a urine test, see Skinner v. Ry. Labor Executives' Ass'n,

,

,

(1989) (urine test could 'reveal a host of private medical facts about an

employee, including whether he or she is epileptic, pregnant, or diabetic'); use of an

electronic listening device to tap a payphone, Katz,

,

(user

of telephone booth 'entitled to assume that the words he utters into the mouthpiece will

not be broadcast to the world'); inspection of a traveler's luggage, Bond, 529 U.S. at

338,

('travelers are particularly concerned about their carry-on luggage');

or use of a thermal imaging device to discover the temperature inside a home, Kyllo,

,

('In the home, all details are intimate details').

{¶33} "We note without surprise, therefore, that the Legislature of California, in

making it unlawful for anyone but a law enforcement agency to 'use an electronic

tracking device to determine the location or movement of a person,' specifically declared

'electronic tracking of a person's location without that person's knowledge violates that

person's reasonable expectation of privacy,' and implicitly but necessarily thereby

required a warrant for police use of a GPS, California Penal Code section 637.7,

Stats.1998 c. 449 (S.B. 1667) § 2. Several other states have enacted legislation

imposing civil and criminal penalties for the use of electronic tracking devices and

expressly requiring exclusion of evidence produced by such a device unless obtained

by the police acting pursuant to a warrant. See, e.g., Utah Code Ann. §§ 77–23a–4, 77–

23a–7, 77–23a–15.5; Minn. Stat. §§ 626A.37, 626A.35;

, 934.42;

S.C.Code Ann. § 17–30–140; Okla. Stat., tit. 13, §§ 176.6, 177.6; Haw. Rev. Stat. §§

803–42, 803–44.7; 18 Pa. Cons.Stat. § 5761. Fairfield County, Case No. 13-CA-10 10

{¶34} "Although perhaps not conclusive evidence of nationwide ‘societal

understandings,’ Jacobsen,

n. 22,

, these state laws are

indicative that prolonged GPS monitoring defeats an expectation of privacy that our

society recognizes as reasonable. So, too, are the considered judgments of every court

to which the issue has been squarely presented. See Weaver, 12 N.Y.3d at 447,

,

('the installation and use of a GPS device to monitor an

individual's whereabouts requires a warrant supported by probable cause'); Jackson, 76

P.3d at 223–24 (under art. I, § 7 of Washington State Constitution, which 'focuses on

those privacy interests which citizens of this state have held, and should be entitled to

hold, safe from governmental trespass,' 'use of a GPS device on a private vehicle

involves a search and seizure'); cf. Commonwealth v. Connolly,

,

, 369–70 (Ma. 2009) (installation held a seizure).***"

{¶35} We are persuaded by the holding in

and the rationale of the

Circuit Court of Appeals in

We find the installation of the GPS tracking

device by law enforcement in this case without a warrant, for an extended period of

time, is a violation of the vehicle owner/operator's reasonable expectation of privacy and

amounts to an unlawful search. We find the trial court correctly ruled the GPS evidence

should be suppressed.

{¶36} The first and third assignments of error are overruled.

II.

{¶37} In the second assignment of error, the State maintains the trial court erred

in suppressing Appellee's statements made to law enforcement which were not derived

from the use of the GPS tracking device. We agree. Fairfield County, Case No. 13-CA-10 11

{¶38} During the course of the investigation, Corporal Minerd obtained a search

warrant for Appellee's cell phone. Minerd traced Appellee using cell phone tower

information relayed to Appellee's phone. Appellee's cell phone was tracked and located

at the Motel 6. After checking the hotel registry, law enforcement confirmed Appellee

was registered at the hotel. Appellee was found at the hotel and taken into custody.

The officers read Appellee his Miranda rights, and conducted an interview. The trial

court determined the statements were voluntary, and Appellee understood his rights.

However, the trial court suppressed Appellee's statements made while in custody as

being derived from the use of the GPS tracking device.

{¶39} The exclusionary rule "prohibits the introduction of derivative evidence,

both tangible and testimonial, that is the product of the primary evidence, or that is

otherwise acquired as an indirect result of the unlawful search, up to the point at which

the connection with the unlawful search becomes 'so attenuated as to dissipate the

taint.'" Murray v. United States,

,

,

(1988),

quoting Nardone v. United States,

,

,

(1939).

{¶40} Appellee's location at the hotel was obtained utilizing information obtained

from his cell phone records, not the GPS monitoring. Appellee was located and taken

into custody at the hotel, Mirandized and questioned. We find the statements were not

derived from the use of GPS monitoring.

{¶41} Accordingly, we agree with the state of Ohio, the trial court improperly

suppressed Appellee’s statements.

{¶42} The second assignment of error is sustained. Fairfield County, Case No. 13-CA-10 12

{¶43} The judgment of the Fairfield County Court of Common Pleas is affirmed

in part, reversed in part and remanded for further proceedings in accordance with this

Opinion and the law.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. SHEILA G. FARMER

___________________________________ HON. PATRICIA A. DELANEY Fairfield County, Case No. 13-CA-10 13

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : MONTIE E. SULLIVAN : : Defendant-Appellee : Case No. 13-CA-10

For the reasons stated in our accompanying Opinion, the judgment of the

Fairfield County Court of Common Pleas is affirmed in part, reversed in part and

remanded to the trial court for further proceedings in accordance with our Opinion and

the law. Costs waived.

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. SHEILA G. FARMER

___________________________________ HON. PATRICIA A. DELANEY