Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 1 of 21

ATTORNEY FOR APPELLANT

B. Joseph Davis

Law Office of B. Joseph Davis, PC

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Brian Reitz

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Christopher Wertz,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

July 7, 2015

Court of Appeals Cause No.

48A04-1409-CR-427

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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 2 of 21

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 History2

[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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 3 of 21

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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 4 of 21

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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 5 of 21

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, 299-

300 (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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 6 of 21

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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 7 of 21

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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 8 of 21

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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 9 of 21

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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 10 of 21

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 

to electronic devices that store private information transcends the search-
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 11 of 21

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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 12 of 21

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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 13 of 21

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.”).
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 14 of 21

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). 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 15 of 21

[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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 16 of 21

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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 17 of 21

[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). 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 18 of 21

[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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 19 of 21

[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 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 20 of 21

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. 
Court of Appeals of Indiana | Opinion 48A04-1409-CR-427 | July 7, 2015 Page 21 of 21

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.