THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Alfred Adams, Petitioner.

Appellate Case No. 2012-212779

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County J. C. Nicholson, Jr., Circuit Court Judge

Opinion No. 27445 Heard May 7, 2014 – File d September 10, 2014

REVERSED AND REMANDED

Appellate Defender R obert M. Pachak, of Columbia, for Petitioner.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Deputy Attorney Ge neral Deborah R.J. Shupe, all of Columbia, and Solic itor Scarlett Wilson, of Charleston, for Respondent.JUSTICE KITTREDGE: Believing Petitioner Alfred Adams was a drug dealer, officers from the North Charleston Sout h Carolina Police Department (NCPD), acting without a warrant, placed a Global Positioning System (GPS) 1 device on a vehicle driven by Adams. After monitoring Adams' travel to Atlanta, Georgia, and upon his return to South Carolina, law en forcement stationed a drug canine unit on the interstate within the NCPD's jurisdicti on, with instructions to conduct a traffic stop on Adams' vehicle. An officer conducted the requested traffic stop and discovered cocaine in Adams' possession, wh ich resulted in Adam s' arrest. Adams moved to suppress the drugs, arguing that the warrantless installation of the GPS device violated the Fourth Amendment. The trial court denied Adams' motion, finding no constitutional violation. The court of appeals found the warrantless installation of the GPS device violated th e Fourth Amendment but determined that the exclusionary rule did not apply becau se "Adams's traffic violations were intervening criminal acts sufficient to cure the taint arising from unlawfully installing the [GPS] device and monitoring the vehicle." State v. Adams , 397 S.C. 481, 489, 725 S.E.2d 523, 527–28 (Ct. App. 2012). We reverse and remand.

I.

In 2008, a confidential informant approached the NCPD and informed officers that Adams was selling cocaine and heroin in the North Charleston area. The confidential informant informed officers that Adams purchased drugs from Atlanta and New York. After an investigation, officers installed a GPS device on the undercarriage of Adams' car, which was parked in a public garage in Charleston. Officers inexplicably did not obtain a warrant or court authorization for the installation of the GPS device. Ther eafter, the officers monitored Adams ' movements by way of the GPS data. Five days after in stalling the device, the GPS data indicated that Adams' vehicle was in Atlanta.

When Adams' vehicle was returning towa rd Charleston, investigators contacted Sergeant Timothy Blair and instructed him to position himself, along with a drug canine, at a rest area on In terstate 26 in North Charleston. Sergeant Blair, who was aware that Adams was a susp ected drug dealer, was inst ructed be on the lookout for Adams and to conduct a traffic stop. Soon thereafter, Sergeant Blair observed Adams' vehicle and pulled onto the intersta te behind it. A short time later, Adams

1 "Global Positioning System (GPS) data is a technique by which radio signals are received . . . from a system of satellites in geosynchronous orbi t and interpreted by programs to provide highly accurate location data." In re Smartphone Geolocation Data Application , 977 F. Supp. 2d 129, 137 (E.D.N.Y. 2013).committed an improper lane change. Serg eant Blair did not, however, initiate a traffic stop. Instead, Sergeant Blair con tinued to follow Adams, observed another traffic violation, and waited for Adam s to drive near Charleston Southern University before turning on his blue lig hts and directing Adams to pull over.

This was no ordinary traffic stop. Se rgeant Blair immediately called for backup and drew his weapon as he approached the vehicle. The backup officer, Officer James Greenawalt, arri ved one or two minutes later. Sergeant Blair directed Greenawalt to remove Adams from th e vehicle and run a license check. Meanwhile, Sergeant Blair used the dog to conduct a perimeter sniff of Adams' vehicle. The dog alerted to the driv er's door of Adams' vehicle.

At this point, Sergeant Blair instru cted Greenawalt to pat Adams down for weapons. In doing so, Greenawalt felt a "j agged, round object" near Adams' groin that he believed to be narcotics. Gr eenawalt retrieved the item, which was 141.62 grams of cocaine.

Adams was charged with tr afficking cocaine and possession with the intent to distribute cocaine within proximity of a school.

II.

Prior to trial, Adams moved to suppress th e seized evidence, c ontending that the installation and monitoring of the GPS de vice violated the Fourth Amendment and section 17-30-140 of the South Carolina C ode (2014), which requires officers to obtain a court order prior to installing a mobile tracking device.

In response, the State first contended th at there was no constitutional violation, relying on United States v. Knotts for the proposition that "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. " 460 U.S. 276, 281 (1983). Second, the State admitted that the officers did not obtain court authorization pursuant to section 17-30-140. In fact, the officers did not even know about the statute's existence. The State nevertheless claime d that, even if the officers violated the statute, suppression was not warranted absent a constitutional violation.

The trial court found that officers vi olated section 17-30-140 by not obtaining a court order prior to installing the GPS de vice. Clearly disturbed by the State's failure to comply with section 17-30-140, the trial court remarked: "Start following the statute or at some point in time, [t he evidence is] going to be suppressed."Ultimately, however, the trial court found no constituti onal violation and concluded that the statutory violation alone did not warrant suppression of the drug evidence.

The case proceeded to a bench trial. The trial court found Adams guilty of trafficking cocaine and sent enced him to twenty-five years in prison and a $50,000 fine. 2

Adams appealed to the court of appeals, during the pendency of which, the United States Supreme Court issued United States v. Jones , 132 S. Ct. 945 (2012). In Jones , the Supreme Court held that "the Gove rnment's [warrantless] installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitute s a 'search.'" 132 S. Ct. at 949. While the Supreme Court's holding of a Fourth Amendment vi olation was unanimous, the majority's rationale was based on a theory of trespass, characterizing the government's conduct as the physical occupation of private property for the purpose of obtaining incriminating evidence. Id

. Relying on Jones , the court of appeals found that the failure to obtain a warrant violated the Fourth Amendment. Adams , 397 S.C. at 488–89, 725 S.E.2d at 527. However, the court of appeals held that th e exclusionary rule did not apply because "Adams's traffic violations were interven ing criminal acts sufficient to cure the taint arising from unlawfully installing th e device and monitoring the vehicle." Id

. at 489, 725 S.E.2d at 527.

We issued a writ of certiorari to review the court of appeals' decision. The State has not challenged the court of appeals' ho lding that officers violated the Fourth Amendment. Thus, the only question befo re this Court is whether suppression may be avoided by the intervening criminal acts doctrine, or some other alternative sustaining ground.

2 The trial court directed a verdict of acquittal for Adams on the proximity charge, for the proximity charge was the result of the officer's decision to conduct the traffic stop near Charleston Southern Univ ersity. As the trial court observed, "all [Adams] was doing was following the direc tion of the police officer who stopped him [with] a blue light and he just happene d to be across the street from Charleston Southern University." After directing a ve rdict for Adams, the trial court agreed to the State's request to nolle pros the proximity charge.III.

"In criminal cases, this Court only reviews errors of law." State v. Gamble , 405 S.C. 409, 415, 747 S.E. 2d 784, 787 (2013) (citing State v. Jacobs , 393 S.C. 584, 586, 713 S.E.2d 621, 622 (2011)). "On appeals from a mo tion to suppress based on Fourth Amendment grounds, this Court a pplies a deferential st andard of review and will reverse if there is clear error." State v. Tindall , 388 S.C. 518, 521, 698 S.E.2d 203, 205 (2010) (citing State v. Khingratsaiphon , 352 S.C. 62, 70, 572 S.E.2d 456, 459 (2002)). Howe ver, this Court reviews que stions of law de novo. State v. Whitner , 399 S.C. 547, 552, 732 S.E. 2d 861, 863 (2012) (citations omitted).

A.

Adams contends that the court of appeals erred in finding that his traffic violations were intervening criminal acts that di ssipated the taint from the unlawful search and concluding the facts did not wa rrant suppression. We agree.

The exclusionary rule "is a judicially cr eated remedy designed to safeguard Fourth Amendment rights generally through its de terrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra , 414 U.S. 338, 348 (1974). The remedy of excl usion "compel[s] respect for the constitutional guaranty in the only eff ectively available way—by removing the incentive to disregard it." Elkins v. United States , 364 U.S. 206, 217 (1960) (citation omitted). However, "[t]he fact that a Fourth Amendment violation occurred . . . does not necessarily mean th at the exclusionary rule applies." Herring v. United States , 555 U.S. 135, 140 (2009) (citing Illinois v. Gates , 462 U.S. 213, 223 (1983)). To that end, courts have recognized several exceptions to the exclusionary rule, 3 two of which are implicated in this case—the attenuation/intervening act doctrine and th e good-faith reliance exception. We turn first to the court of appeals' holding th at suppression was not warranted because Adams' traffic violations were intervening criminal acts.

3 See, e.g., United States v. Leon , 468 U.S. 897, 919 (1984) (g ood-faith reliance); Nix v. Williams , 467 U.S. 431, 443 (1984) (i nevitable discovery); United States v. Crews , 445 U.S. 463, 471 (1980) (independent source doctrine); Wong Sun v. United States , 371 U.S. 471, 486–91 (1963) (attenuation)."Generally, evidence derived fr om an illegal search or arre st is deemed fruit of the poisonous tree and is inadmissible." United States v. Najjar , 300 F.3d 466, 477 (4th Cir. 2002) (citing Wong Sung v. United States , 371 U.S. 471, 484–85 (1963)). "However, not all evidence conceivably de rived from an illegal search need be suppressed if it is somehow attenuated enough from the violation to dissipate the taint." Id . "To determine whether the deriva tive evidence has been purged of the taint of the unlawful search, we [may] cons ider several factors, including: (1) the amount of time between the illegal action and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." United States v. Gaines , 668 F.3d 170, 173 (4th Cir. 2012) (citing Brown v. Illinois , 422 U.S. 590, 603–04 (1975)).

The court of appeals relied on State v. Nelson , 336 S.C. 186, 519 S.E.2d 786 (1999), to support its finding of attenuation. We find Nelson inapplicable to this case. In Nelson , a police officer was driving behi nd the defendant and flashed his high beam lights to get the defendant's at tention. 336 S.C. at 189, 519 S.E.2d at 787. The defendant responded by driving through a stop sign. Id . The officer followed and conducted a traffic stop. Id . After approaching the vehicle, the officer smelled alcohol, and the defendant re fused to participate in field sobriety
tests. Id . On appeal, this Court held that "even assuming [the officer's] initial attempt to stop Defendant would have violated the Fourth Amendment, [the officer] was nonetheless justified in maki ng the stop after Defendant committed the subsequent traffic infractions." Id . at 193, 519 S.E.2d at 789. This Court's rationale was that "'[t]here is a strong policy reason for holding that a new and distinct crime, even if triggered by an ille gal stop, is a sufficient intervening event to provide independent grounds for arrest.'" Id . at 194, 519 S.E.2d at 790 (quoting United States v. Sprinkle , 106 F.3d 613, 619 (4th Cir. 1997)).

Here, however, Adams' traffi c violations provide an insufficient attenuation from the taint of the illegal search. The tr affic stop was entirely predicated on the information obtained from the GPS device a nd law enforcement's desire to search Adams and his vehicle for drugs. The patr ol officer was instructed to find a basis to stop Adams' vehicle so that a search for drugs could be conducted. Even the trial court, without the benefit of Jones , repeatedly referred to the stop of Adams' vehicle as "a trap," noting that officers "would have never got[ ten] behind [Adams] to get the traffic violation if [officers] ha dn't had the tracking de vice." The court of appeals characterized the traffic violations as "intervening criminal acts sufficient to cure the taint arising from unlawfully in stalling the device[,]" a view which we respectfully reject. Adams , 397 S.C. at 489, 725 S.E.2d at 527–28.We cannot endorse the court of app eals' reasoning, which would unwittingly provide a blueprint for circumventing the protections of the Fourth Amendment. Indeed, were we to sanction the interv ening acts rule under these circumstances, law enforcement would be free to inst all a GPS device on a suspect's vehicle without a warrant, track the suspect w ith impunity, and cure all ills from the underlying Fourth Amendment violation by wa iting for a fortuitous traffic offense. See Maryland v. Wilson , 519 U.S. 408, 423 (1997) (K ennedy, J. dissenting) ("[United States Supreme Court precedent] allow[s] the police to stop vehicles in almost countless circumstances." (citing Whren v. United States , 517 U.S. 806 (1996)); Elizabeth E. Joh, Discretionless Policing: Technology and the Fourth Amendment , 95 Cal. L. Rev. 199, 210 n.61 (2007) ("Many traffic officers say that by following any vehicle for 1 or 2 minutes , they can observe a basis on which to stop it.") (citation and quotation omitted)). Such an affront to the Fourth Amendment would render Jones meaningless and would not serve the exclusionary rule's stated purpose of deterring unlawful police conduct. See State v. Brown , 401 S.C. 82, 92, 736 S.E.2d 263, 268 (2012) ("[T]he exclusionary rule's sole purpose is to deter future Fourth Amendment violations . . . .").

Because each of th e three attenuation factors we ighs against admission of the seized evidence, we hold th at Adams' traffic violations were not intervening criminal acts sufficient to dissipate the taint from the underlying Fourth Amendment violation. 4

B.

By way of additional sustaining ground, the State invites us to find that the exclusionary rule should not apply b ecause the officers relied in objective good

4 Accord United States v. Lee , 862 F. Supp. 2d 560, 564–67 (E.D. Ky. 2012) (applying the exclusionary rule when officers installed a GPS device without a warrant, waited for the defendant to re turn from a drug pickup, and pulled the defendant over for not wearing a seatbe lt, based on a finding that the illegal installation of the GPS device did not se ver the causal connection between the illegal search and the stop); State v. Jackson , 435 S.W.3d 819, 827 (Tex. App. 2014) (finding that exclusion was appropr iate even though officers observed the defendant commit a speeding violation); Hamlett v. State , 753 S.E.2d 118, 128 (Ga. App. 2013) (excluding evidence seized after a G PS device was installed on defendant's vehicle without a warrant an d officers pulled the defendant over for having a broken brake light).faith on binding precedent that authorized the placement of a GPS device without a warrant. The presence of our state statut e requiring a warrant and the absence of
any pre- Jones binding precedent in this federal circuit authorizing the placement of a GPS device without a warrant compel us to reject the proposed additional sustaining ground.

In Davis v. United States , the United States Supreme Court stated that the exclusionary rule does not apply in cases where "the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful." 131 S. Ct. 2419, 2427 (2011) (quoting United States v. Leon , 468 U.S. 897, 909 (1984)). The Davis court explained, "[r]esponsible law-enforcement o fficers will take care to learn 'what is required of them' under Fourth Amendment precedent and will conform their conduct to these rules." Id . at 2429 (quoting Hudson v. Michigan , 547 U.S. 586, 599 (2006)). "But by the same toke n, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities." Id . (first emphasis added). This is so because "[a]n officer who conducts a search in reliance on binding appellate precedent does no more than 'ac[t] as a reasonable officer would a nd should act' under th e circumstances." Id

. (quoting Leon , 468 U.S. at 920).

The State contends that two United States Supreme Court cases— United States v. Knotts , 460 U.S. 276 (1983) and United States v. Karo , 468 U.S. 705 (1984)— constitute binding precedent that specifica lly authorized officers to install a tracking device on Adams' car wit hout a warrant. We disagree.

In Knotts , law enforcement, with the owne r's consent, concealed a beeper 5 in a container of chloroform that was eventua lly loaded onto a target vehicle. 460 U.S. at 278. Law enforcement then monitored the beeper and maintained surveillance on the target vehicle, ultimately arres ting Knotts several days after he took possession of the container. Id . at 279

. The Supreme Court found no Fourth Amendment violation, upholding the warran tless use of the beeper because "[a]

5 "A beeper is a radio transmitter, usua lly battery operated, which emits periodic signals that can be picked up by a radio receiver." Knotts , 460 U.S. at 277. Conversely, a GPS device uses "signals fr om multiple satellites" to relay location data (often accurate to within 50 to 100 feet) to a computer. Jones , 132 S. Ct. at 948. This distinction is noteworthy b ecause beepers serve as aids to law enforcement already conducting physical surveillance, while a GPS enables officers to take a passive role and simp ly monitor location data from a computer.person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his move ments from one place to another." Id . at 281.

One year later, in Karo
, the Supreme Court "addresse d the question left open by Knotts , whether the installation of a beeper in a container amounted to a search or seizure." Jones , 132 S. Ct. at 952 (citing Karo , 468 U.S. at 713). In Karo , law enforcement officers installed a beeper insi de a container of chemicals prior to the container being transferred to the buyer. Karo , 468 U.S. at 707. "As in Knotts , at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later." Jones , 132 S. Ct. at 952 (citing Karo , 468 U.S. at 708). The Court held that, because the beeper was installed with the consent of the owner of the container, no search or seizure occurred because "[t]he mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest." Karo , 468 U.S. at 712.

Neither Knotts nor Karo involved, much less expressly or impliedly authorized, a physical trespass as occurred in this case. As the Supreme Court observed in Jones , " Knotts noted the limited use which the government made of the signals from [the] particular beep er, and reserved the question whether different constitutional principles may be applicable to dragnet-type law enforcement practices of the type that GPS tr acking [makes] possible . . . ." Jones , 132 S. Ct. at 952 n.6 (internal citations and quot ations omitted). Moreover, no pre- Jones precedent in this federal circuit extended Knotts or Karo to the installation and monitoring of a GPS device. We conclude Knotts and Karo did not constitute binding precedent that authorized law en forcement's warrantless actions in this

case.

Having found no support in federal jurisprudence for the State's use of the GPS in this case, we turn now to South Carolina law.

Prior to Jones , no South Carolina appellate deci sion addressed the constitutionality of the warrantless installation and monitori ng of a GPS device. There is, however, a state statute that squarely addresses la w enforcement's use of electronic tracking devices. In 2002, as a part of the South Carolina Homeland Security Act, 6 the legislature enacted a statute that provide s that "[t]he Attorn ey General or any solicitor may make applicati on to a judge of competent jurisdiction for an order authorizing or approving the installation and use of a mobile tracking device by the

6 Act No. 339, 2002 S.C. Acts 3619.South Carolina Law Enforcement Division or any law enforcement entity of a political subdivision of this State." S. C. Code Ann. § 17-30-140(A). This statutory requirement "provide[s] law enfo rcement . . . with the proper means and tools to enable them to protect and de fend South Carolina and her citizens while preserving individual constitutional right s and liberties." Act No. 339, 2002 S.C. Acts 3625.

At the suppression hearing, the State ack nowledged to the trial court that the officers involved in the investigation did not know about this statutory requirement but sought to justify the failure to obtain a court order pursuant to the statute on the basis that the officers "didn't know they had to." We reject this proposition, for it is a well-established principle, ofte n advanced by the State in criminal prosecutions, "that ignorance of the law is no excuse." State v. Binnarr , 400 S.C. 156, 160 n.7, 733 S.E.2d 890, 892 n.7 (2012) . There would be a "fundamental unfairness [in] holding citizens to 'the trad itional rule that ignorance of the law is no excuse,' while allowing those 'entrusted to enforce' the law to be ignorant of it." United States v. Chanthasouxat , 342 F.3d 1271, 1280 (11th Cir. 2003) (internal citation omitted) (quoting Bryan v. United States , 524 U.S. 184, 196 (1998)). In fact, the officers' lack of knowledge of the existence of section 17-30-140 is exacerbated in this case because the st atute had been in effect for almost six years at the time the NCPD was investigating Adams.

Because the only binding law in this case was a statute that forbade law enforcement officers from installing a G PS device on Adams' car without court authorization, there is no support for the State's invocation of the good-faith reliance exception as an additional su staining ground to uphold the conviction. 7

IV.

The exclusionary rule is a judicially created remedy for a Fourth Amendment violation. The primary rationale for th e exclusionary rule is to deter police

7 Accord State v. Mitchell , 323 P.3d 69, 78 (Ariz. Ct . App. 2014) (rejecting application of the good-faith exception rule because "no binding Arizona or Supreme Court authority explicitly author ized law enforcement to trespass onto private property to obtain information"); People v. LeFlore , 996 N.E.2d 678, 691 (Ill. 2013) (rejecting application of the good-faith exception in a GPS case); State

v. Allen , 997 N.E.2d 621, 626–27 (Ohio Ct. A pp. 2013) (rejecting application of the good-faith exception in light of the "unsettled nature of the issue surrounding Fourth Amendment constraints on GPS attachment and tracking" prior to Jones ).misconduct. Where there is no misconduct, and thus no deterrent purpose to be served, suppression of the evidence is an unduly harsh sanction. Other judicially created rules—such as the interveni ng acts doctrine and the good-faith reliance exception—have developed to avoid supp ression. As discu ssed above, we are constrained to reject the State's reliance on the intervening acts doctrine and the good-faith reliance exception. We do not make our decision lightly. In reversing the court of appeals, we are mindful of and respect greatly th e burdens faced daily by our state's law enforcement officers. We are guided by the rule of law, which provides no basis to uphold the denial of Ad ams' motion to suppress. In law, the ends do not justify the means.

REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, HEARN, JJ., a nd Acting Justice James E. Moore,

concur.