State v. Liebl, A16–0618.

• Decision Date: 17 October 2016
• Docket Number: No. A16–0618.,A16–0618.
• Citation: 886 N.W.2d 512
• Parties: STATE of Minnesota, Appellant, v. Joshua Dwight LIEBL, Respondent.
• Court: Minnesota Court of Appeals

886 N.W.2d 512

STATE of Minnesota, Appellant,

v.Joshua Dwight LIEBL, Respondent.

No. A16–0618.

Court of Appeals of Minnesota.

Oct. 17, 2016.

Lori Swanson, Attorney General, St. Paul, MN, and Richard G. Stulz, Lac qui Parle County Attorney, Fiona B. Ruthven, Special Assistant County Attorney, Madison, MN, for appellant.

William G. Peterson, Peterson Law Office, LLC, Bloomington, MN, for respondent.

Teresa Nelson, Legal Director, St. Paul, MN, for amicus curiae American Civil Liberties Union of Minnesota.

Considered and decided by HALBROOKS, Presiding Judge; JOHNSON, Judge; and SMITH, JOHN, Judge.

OPINION

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 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 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 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, –––U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (“In the absence of a warrant, a search is reasonable only if it falls 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, 853 N.W.2d 114, 124 (Minn.2014).

“[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, ––– U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (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, 826 F.3d 1139, 1144 (8th Cir.2016) (stating that “[p]lacement of a GPS tracking device on a vehicle is a ‘search’ within the meaning of the Fourth Amendment, requiring probable cause and a warrant” (citing Jones, 132 S.Ct. at 949 )).

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 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, 13 L.Ed.2d 684 (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.’ ” 14 N.E.3d 865, 875 (Ind.Ct.App.2014)

. Yet the appellate court qualified that statement, declaring that “[t]he label, nonetheless, is significant.” Id. (quotation omitted). The court explained:

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.

... 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

...