APPEAL fro THE MARION SUPERIOR COURT, CRIMINAL DIVISION 20. The Honorable Steven Eichholtz, Judge. Cause No. 49G20-1106-FA-40850.
ATTORNEYS FOR APPELLANT: TODD ESS, Indianapolis, Indiana, STEPHEN GERALD GRAY, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, IAN MCLEAN Deputy, Attorney General, Indianapolis, Indiana.
MATHIAS, Judge. FRIEDLANDER, J., and PYLE, J., concur.
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
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
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 ...