Third Circuit Requires Warrant For GPS Tracking

-Submitted by David Drumm (Nal), Guest Blogger

3rd CircuitWe 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.

H/T: Orin Kerr, ACLU Brief (pdf), John Wesley Hall.

35 thoughts on “Third Circuit Requires Warrant For GPS Tracking”

  1. Thanks, leejcaroll.

    Regarding: “In retrospect it would have been interesting to find out more about him but his mind was so closed I found it too hard to even try and talk with him.” I understand. It’s difficult to engage with some of these folks — the conversations are often one-sided. Minds are all made up… and it’s pointless and energy-sapping…

    Thanks for looking for a transcript. If I can’t find it, I’ll transcribe parts of it myself, I suppose. (:

  2. AP. We (a bunch of us at the back of the bus) were having a spirited debate about Obama, that we were disappointed in him (I seemed to be alone in that group saying I was pleased with his social policies and that we were in recovery but they could only see the bad he has done; the Bush/Obama doctine) and the repubs refusing to pass on judicial nominees etc. That fellow started speaking and I didn’t get to know anything about him because he just kept on with all of his conspiracy theories. I ended up just saying there is no way to debate or have a discussion when someone refuses so adamantly to even consider that their position was wrong. In retrospect it would have been interesting to find out more about him but his mind was so closed I found it too hard to even try and talk with him. (I tried to find a transcript but wasn’t successful. I am sure it is available somewhere.)

  3. lottakatz, leejcaroll, Late in the day, yesterday, I heard that there were around 3,000 folks at the rally, but I can’t remember the source. Interesting story about the guy on the bus, leejcaroll. Another (: (Just out of curiosity (morbid?), did he happen to tell you anything else about himself that you’d care to share? )

    I’m grateful for those who participated and would have gone myself were it not for work. I’m trying to locate a transcript. If anyone happens to stumble on it and could post the link, I’d appreciate it.

  4. leejcaroll, Thanks for the update. From what I heard of the rally (thanks to AP) it sounded like a very enthusiastic crowd. Your bus ride must have been interesting 🙂 It’s heartening that the issue is getting broad support.

  5. AP Lottakatz, I was at the rally. smaller then expected, or hoped, I think, but glad we got some press. Definitely more then 2,000 but not sure how many more.There were a lot of democrats, progressives, and people of all stripes and beliefs (The guy I sat near on the bus down believed the birth certificate was a forgery and voter fraud, “from the highest levels” was why Mr., Obama “won” the presidency.)
    It’s a start. (I hope.)

  6. I suppose they the LEOs were hoping for a harmless error ruling…..that way they skirt the law all the time…. Generally courts uphold whatever the cops do…. Then the extreme happens…

    Dead on target OS….

  7. With lessening amounts of human work needed in police work. fewer :LEOs
    are needed and the rest should have to take a 20% pay cut in salary and
    in bennies.

  8. nick spinelli 1, October 26, 2013 at 2:42 pm

    You can track someone w/ their cell phone. Better than a GPS on a vehicle.
    It is harder to leave a van in someone else’s car than it is a cellphone.

  9. That was supposed to be an exclamation point (!) after the word Ninth in my comment above.

  10. There is a blue tab at the end of the article to open up the Amicus Brief filed by the ACLU, the National Ass. of Criminal Defense Lawyers and Electronic Frontier. This is a good brief. The right to privacy is discussed on page 21 or thereabouts. Expectations of privacy in a car– expectations of people in a car.
    Litigants in this area would do well to explore arguing the privacy rights emanating from the First, Third (quartering of troops), Fourth, Fifth, Ninth (rights retained), and Fourteenth Amendments.

    When they pull you out of the vehicle and remove the GPS device in your presence while laughing and then ask you to make a statement then invoke your right to silence and Take The Ninth? Bark it if you are a dog.


    “But there is a more disturbing possibility for opponents of mass surveillance. While a recent poll shows 74% of Americans believe the National Security Agency’s surveillance program intrudes on some American’s privacy rights, just 55% of those (and 41% of the overall population) believe this intrusion is unjustified. What if Americans understand the surveillance state, but just don’t care?”

    IMO, most Americans will care, if they ever learn the worst of it. There’s more to come…

  12. lottakatz, Agree about both Kucinich and Wolf. (She’s had better moments, but I, too, like her.) I missed Bruce Schneier — was he there?

  13. And, if you think this will keep cops from using GPS sans warrant I have a 25 carat diamond you might be interested in. They’ll just slap it on and said they simply followed someone.

  14. AP, Dennis K did a fine job. Naomi Wolf was kind of all over the place but very passionate, I like her..

Comments are closed.