Ride the Lightning

Third Circuit Says GPS Trackers Require a Probable Cause Warrant

October 28, 2013

Wired reported last week that the Third Court Circuit of Appeals ruled, in a 2-1 decision, that law enforcement agencies need a probable-cause warrant to affix a GPS tracker to a target’s vehicle.

This is the first appellate court ruling since United States v. Jones, a Supreme Court case involving a convicted drug dealer. In that case, the Supreme Court justices ruled in January 2012 that law enforcement’s installation of a GPS device on a target’s vehicle constituted a search under the Fourth Amendment. The justices declined to rule at the time on whether such a search was unreasonable and therefore required a warrant.

There are a number of cases saying that the use of GPS trackers prior to the Jones decision was ok because the investigators were acting in good faith at the time. Although the Third Circuit Court did not have such a ruling in place prior to the Supreme Court decision, the government argued that investigators in this most recent case were operating under good faith based on prior rulings in other districts.

The appellate judges rejected this argument and ruled that the “good faith” exception did not apply. The appellate case, U.S. vs. Harry Katzin, Michael Katzin and Mark Louis Katzin, Sr., involved a string of pharmacy burglaries committed in Delaware, Maryland and New Jersey in 2009 and 2010.

The crimes occurred mostly at Rite Aid pharmacies, where the thieves cut external phone lines to disable the alarm systems. Harry Katzin was an electrician who, along with his two brothers, became targets of the investigation. They had criminal histories and were seen by police on several occasions outside Rite Aids prior to the lines being cut at the stores.

One morning, without obtaining a warrant, the FBI affixed a “slap-on” GPS tracker to the exterior of Katzin’s van. Using the device, investigators were able to map a trail directly connecting Katzin’s movements to a Rite Aid store. When they discovered that the store had been burglarized shortly afterward, police pulled over Katzin’s van and discovered all three brothers inside as well as merchandise from the store inside the van, including pill bottles and Rite Aid storage bins.

The brothers filed a motion to suppress the evidence. The government argued that a warrant was not required for the tracker and that the search of the car was based on reasonable suspicion. The government also argued that if officers were required to obtain a warrant and have probable cause prior to executing a GPS search, “officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.”

The justices said the government’s statement “wags the dog rather vigorously,” (and boy, did they get that right) noting that the primary reason for a search cannot be to generate evidence for law enforcement purposes. They also noted that “Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”

The justices also rejected the government’s argument that obtaining a warrant would impede the ability of law enforcement to investigate crimes. “Consequently, we hold that — absent some highly specific circumstances not present in this case — the police cannot justify a warrantless GPS search with reasonable suspicion alone,” the justices wrote.

Huzzah for this decision!

http://twitter.com/sharonnelsonesq