Keeylen v. State, 49A05–1308–CR–419.

• Docket Nº: No. 49A05–1308–CR–419.
• Citation: 14 N.E.3d 865
• Case Date: August 08, 2014
• Court: Court of Appeals of Indiana

14 N.E.3d 865

Victor KEEYLEN, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1308–CR–419.

Court of Appeals of Indiana.

Aug. 8, 2014.

14 N.E.3d 867

Todd Ess, Indianapolis, IN, Stephen Gerald Gray, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Victor Keeylen (“Keeylen”) brings this interlocutory appeal challenging the Marion Superior Court's denial of his motion to suppress. On appeal, Keeylen claims that both Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States Constitution require the suppression of evidence he claims was discovered as a result of the police installing a GPS tracking device on his vehicles without a warrant. Although we agree with Keeylen that the warrantless installation and use of the GPS devices was improper, we nevertheless conclude that suppression

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of the evidence discovered during the execution of a search warrant on Keeylen's residence was not warranted under the particular facts and circumstances of this case. Accordingly, we affirm the trial court's denial of Keeylen's motion to suppress.

Facts and Procedural History

Keeylen was the subject of an extended narcotics investigation by the Indianapolis Metropolitan Police Department (“IMPD”). Detective Ryan Graber of the IMPD was the lead officer involved in the investigation, which included numerous controlled buys using various confidential informants. According to Detective Graber's probable cause affidavit, Keeylen sold cocaine and/or heroin to the police and confidential informants on February 3, February 11, March 6, and August 20, 2009. On August 26, 2009, a controlled buy was conducted at an automotive garage on East 21st Street in Indianapolis from an individual known as “Sammie,” who indicated that Keeylen left cocaine at the garage for others to sell.

Also on August 26, 2009, the police filed a “Petition to Authorize Installation and Use of Global Positioning System Tracking Unit,” in Marion Superior Court, Criminal Division, Room 20, in which the police sought the permission of the trial court to install a GPS tracker onto Keeylen's 2007 Dodge Magnum. This petition was accompanied by the affidavits of Detective Graber and Officer Stephen Fitzpatrick (“Officer Fitzpatrick”). Officer Fitzpatrick's affidavit described the technical aspects of the GPS tracking unit, and Detective Graber's affidavit detailed the investigation of Keeylen, including the controlled buys, that had occurred thus far. The trial court granted the petition that same day in an order that reads in relevant part:

COMES NOW the State of Indiana ... and submits to the Court a Petition to Authorize Installation and Use of Global Positioning System Tracking Unit, with attached affidavit of Stephen Fitzpatrick. The Court, having examined the foregoing Petition ... now FINDS that such petition should be granted.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court, as follows:

1. That law enforcement officers are hereby authorized to install a Global Positioning System (GPS) tracking unit upon the following vehicle:

2007 Dodge Magnum, Green/Gray in Color, Colts License Plate [ ], VIN# [ ].

2. That law enforcement officers are further authorized to obtain, store and print any and all data collected and transmitted by the GPS tracking unit;

3. That such GPS tracking unit may be installed by law enforcement officers upon any exterior portion of the vehicle described above and such GPS tracking unit may be connected to the battery of such vehicle;

4. That such GPS tracking unit may be installed on (or later removed from) the vehicle described above while such vehicle is either in a public place or on private property where the general public would have access to such vehicle;

5. That the authority granted by this Order shall continue for a period of thirty (30) days from the date of the signing of this Order.

6. That the Court shall maintain a copy of the Petition to Authorize Installation and Use of Global Positioning System Tracking Unit, with attached

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affidavits and shall also maintain a copy of this Order.

Ex. Vol., Defendant's Ex. B–1, pp. 8–9.

Following the issuance of this order, the police conducted another controlled buy in which they purchased heroin and cocaine from Keeylen in a public place. When the trial court's thirty-day authorization of use of the GPS tracking unit expired, the police petitioned the court for a thirty-day extension of the authorization, which the trial court granted on September 25, 2009. This thirty-day extension of authorization expired on October 25, 2009. Three days later, Detective Graber sought another thirty-day extension of authorization to use the GPS tracking unit on Keeylen's vehicle, which the trial court granted on October 28, 2009. On November 3, 2009, the police petitioned the trial court for permission to install another GPS tracking unit on Keeylen's 2003 Chevrolet Tahoe, and the court granted the request that same day.

Although the record is not entirely clear on the matter, the police apparently received another extension of authorization to use the GPS tracking units, which expired on December 24, 2009. Due to the holiday season, Detective Graber did not file a petition to extend the authorization until December 29, 2009, and the trial court granted the extended authorization. The police then sought and received extensions of authorization from the trial court until October 29, 2010.

During this period of 2010, the police continued their investigation of Keeylen, including additional controlled buys. Specifically, on February 25, Keeylen sold a small amount of heroin, stated that he had just sold a large amount of heroin, and would soon have more; on March 15, Keeylen sold heroin to a confidential informant after making a quick stop at his home; on March 26, Keeylen sent an associate of his to sell heroin to a confidential informant after indicating that he was out of town and could not conduct the transaction himself; on April 26, Keeylen again sold heroin to a confidential informant in a public place; on July 2, Keeylen arranged a meeting with a confidential informant and one of Keeylen's associates, who sold heroin to the informant; and on September 16, a confidential informant bought heroin from another of Keeylen's associates.

On October 29, 2010, the police received an extension of authorization to use the GPS tracking units until January 29, 2011. In his affidavit attached to the October 29 petition requesting the extension of time, Detective Graber stated that Keeylen had been making repeated trips to Chicago, which Graber believed was to obtain more illicit drugs, and also stated that “law enforcement officers have learned, by monitoring his activities with these GPS units, that Keeylen has moved to a new residence.” Id., Defendant's Ex. B–10, p. 8. Detective Graber later testified at the suppression hearing that one of the confidential informants had informed the police that Keeylen was moving to a new residence on Narrowleaf Drive. Detective Graber also testified that, upon learning this information, the police conducted “eyes-on” surveillance of Keeylen, during which they saw Keeylen and other individuals load furniture and belongings onto a moving van, drive to a house on Narrowleaf Drive, and unload the van.

The police also learned of Keeylen's address through a business owned by Keeylen, Go–Reala Entertainment. Specifically, the police noted that Keeylen was listed as the “Owner/President/CEO” of Go–Reala on the company's website. Although Marion County property records indicated that Go–Reala had a business address on

14 N.E.3d 870

East 21st Street in Indianapolis,¹ Go–Reala's website listed the Narrowleaf Drive address as the business address. Detective Graber later averred in the probable cause affidavit that he believed the Narrowleaf Drive address was Keeylen's current address because surveillance indicated that Keeylen spent the night at the address multiple times per week. In addition, Keeylen instructed one of the confidential informants to send new customers to the Narrowleaf Drive address.

The trial court's authorization for the GPS tracking unit expired on January 29, 2011, and the police did not petition the trial court for permission to continue tracking Keeylen's vehicles until March 8, 2011, a span of thirty-eight days.² In his affidavit accompanying the March 8 petition, Detective Graber stated, “Since the prior issuance of authorization to monitor these GPS units, law enforcement has continued to monitor them to track target Keeylen, with minimal monitoring since approximately January 29, 2011. Due to ongoing matters, law enforcement has...