-Submitted by David Drumm (Nal), Guest Blogger
We have previously discussed the unanimous Supreme Court decision in United States v. Jones, where the Court ruled that the installation of a GPS device constituted a “search” for Fourth Amendment purposes. In Jones, the Court did not rule that a search warrant was required to affix a GPS device to a car. In the case of United States v. Katzin, the Court of Appeals for the Third Circuit ruled that the installation of a GPS tracking device without a warrant was unconstitutional.
Police were investigating a three-state sequence of burglaries, many affecting Rite Aid pharmacies. Suspicion fell on an electrician named Harry Katzin. Katzin and his van had been discovered outside a Rite Aid where it was later discovered that the alarm system’s phone line had been cut. After consulting with an Assistant US Attorney, a GPS tracking device was attached to Katzin’s van while it was parked on a public street in Philadelphia, Pennsylvania. The Assistant US Attorney’s advice was that a warrant was not required and one was not obtained.
The GPS device allowed for real-time, remote surveillance. A few days later, the GPS showed the van parked outside a Rite Aid store. Police waited for the car to move and then pulled it over. The three Katzin brothers were inside along with stolen property from the Rite Aid. All three defendants moved to suppress the evidence. The District Court suppressed the evidence and the Third Circuit affirmed. The Government opposed the motions to suppress arguing, in part, that a warrant was not required.
In Jones, the Supreme Court left unresolved the issue of whether warrantless use of GPS device would be lawful under the Fourth Amendment if the officers have reasonable suspicion or probable cause. The Government tried to argue various exceptions to the requirement for a warrant. The Government contended that requiring a warrant for GPS searches would “seriously impede the government‟s ability to investigate drug trafficking, terrorism, and other crimes.” The Third Circuit noted that the unsupported use of the word “terrorism” would “act as a skeleton key to the liberties guaranteed under the Constitution.”
The Government argued for the “automobile exception” to the warrant requirement. The automobile exception began with a case where it is not practicable to obtain a warrant because the vehicle could be quickly moved out of the jurisdiction. Other automobile exception precedence relied on the reduced “expectation of privacy” argument. The Third Circuit ruled that:
[Past cases on the automobile exception were] limited to a discrete moment in time. For example, the exception permits the police to enter upon and search a vehicle to ascertain whether it indeed contains the evidence that they suspect is inside. … Attaching and monitoring a GPS tracker is different: It creates a continuous police presence for the purpose of discovering evidence that may come into existence and /or be placed within the vehicle at some point in the future.
The automobile exception has been based on the probable cause to believe there is evidence in the vehicle at the time the vehicle is searched. As the Third Circuit noted:
A GPS search does not deal with existing evidence, but with future evidence that the police suspect could come into being. That is a worthy goal, to be sure, but it cannot absolve law enforcement personnel of the warrant requirement.
The Third Circuit also noted that certain “exigent circumstances” could exist wherein the police could justify a warrantless GPS search based on probable cause. In Katzin, the Court could find no exigency that would have allowed the police to search Katzin’s van.
In a concurrence-in-part, a Judge agreed with the majority opinion that law enforcement officers are required to obtain a warrant. However, in the dissent-in-part, the Judge noted that since Katzin was pre-Jones, the officers acted in good-faith and the suppression was unwarranted.