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. I would get cases from retired FBI agents who went into PI business. They were always surveillance. Before GPS, a surveillance meant usually 5 or more agents. Well, in the private sector, you’re expected to do it solo. My clients trusted me when I said we needed a double team. I NEVER did, not did I need, more than a double team.

  2. Police are bureaucrats w/ guns. Of course they’re lazy. Alert all media on that observation!!

  3. You can track someone w/ their cell phone. Better than a GPS on a vehicle.

  4. AP, thanks for the link, it’s now streaming in another tab. The camera looks to be fixed on the stage, I wonder how many people turned out? Again, thanks.

  5. One has to wonder if the military NSA spying saga, which has 30 governments up in arms, had anything to do with it.

    Perhaps the Third Circuit realized the folly of weakening the U.S. Constitution, and sought to change course back toward normalcy.

    The head of the military NSA, General Alexander, has called for the suppression of the press because of their reporting the military NSA spying on all Americans and people the world over.

    They zapped the 4th Amendment with their warrant-less spying, and now want the 1st Amendment to fall too.

  6. ” The police knew that Harry Katzin regularly parked his van on a particular street in Philaafter. … after consulting with the United States Attorney‟s office, but without obtaining a warrant, the FBI affixed a“slap-on”GPS tracker to the exterior of Harry Katzin‟s van”

    They knew where the vehicle was regularly parked so why in the world couldn’t they have taken the time to get a warrant? So yes, I must agree with Mike S’s response to OS …”What you say is true and I would guess that laziness and arrogance played a role. ” And add “a certain amount of stupidity”.

  7. When’s the last time you saw a police car chase that didn’t end in an accident?

  8. I read where the police shot a gps tracking device on to the trunk of a stolen car from the grill of the police car. Then they abandoned the chase and later arrested the thieves after the stopped. When the thieves thought they were no longer being pursued they slowed down to normal speeds.

  9. Now, in D.C.

    Rally Against Mass Surveillance Livestream:

    “A stellar group of whistleblowers, activists, researchers and others from both sides of the political spectrum will be speaking at this historic event. The list includes:

    Congressman Justin Amash
    Former Congressman Dennis Kucinich
    Bruce Schneier, internationally renowned security technologist
    Former senior NSA executive and whistleblower Thomas Drake
    Indie pop senation YACHT
    Former New Mexico Governor Gary Johnson
    Lt. Dan Choi, LGBT advocate and U.S. veteran
    Laura Murphy, ACLU
    Rainey Reitman, EFF
    Craig Aaron, Free Press
    Social critic Naomi Wolf
    Kymone Freeman, Director of the National Black LUV Fest
    Khaliah Barnes, EPIC
    Shahid Buttar, Bill of Rights Defense Committee
    Malachi Byrd, DC Youth Poetry Slam Team
    Wafa Ben Hassine, writer and human rights advocate
    NOT4PROPHET, Hip Hop MC and community organizer
    Black Alley, DC-based soul-garage band”

  10. In the end, there’s no such thing as a good piece of evidence*!*
    Criminals HAVE to sell their ill gotten gains or how else will their Criminal Lawyers get paid???
    Wait a Dod-Gamned minit #%&##$
    Punish the Criminals and the Cops for their infractions.
    Throwing out the evidence punishes the Citizenry who have done nothing wrong*!*!*!*
    Compounding that, the Criminal Lawyers are rewarded for their dishonesty – keeping the truth from being known…………Gus-Dusted.

  11. Great job David. Kudos to the 3rd Circuit. I also agree with OS that the police could have easily obtained a warrant.

  12. What, WHAT?! A warrant? How quaint. Next, you’ll be telling us grand juries will be seated to probe matters of war crimes.

    Well. Best to wake up from THAT nightmare…if one could…

  13. “What could law enforcement have been thinking. They knew who the suspect was, and no doubt knew where he lived. They could have easily gotten a probable cause warrant and installed the device.”


    What you say is true and I would guess that laziness and arrogance played a role.

    I’m sure there are some that would look at this from a result-oriented perspective. The brothers were probably guilty….so what’s the big deal? The problem with that perspective is the assumption that these abrogations of our freedoms will never apply to you. In a world where there is evermore sophisticated technology to spy on the lives of individual citizens suspected of criminal activity, the ability of LEO’s to arbitrarily use such tools without judicial oversight opens the field up for all manner of abuses. We are either a society of laws governed by our constitution and long established precedent, or we are a police state with our individual citizens cringing in fear of their government.

  14. Well… There is a backdoor around this. By means of requesting information from electronic toll collection device providers, and, if the vehicle is factory equipped with a GPS system, the vehicle identification number is given to the OEM or aftermarket system provider and request for data related to an investigation. Nothing needs to be affixed to the vehicle by police, and the system providers are always more than happy to help out. It started back in the mid-1990s. There are also remote readers that can be attached to lamp posts, traffic signal posts, trees, or placed on the ground. They will read any serial numbers of any toll payment devices and the time the unit passed by the reader. Intelligence is then gathered for future use. The only way around it is if, the toll payment device is wrapped in an RDIF Secure envelope. As for the OEM GPS systems, there is no way around those, and the systems have backdoors to re-enable remotely. Tampering causes reduction in engine performance and raises fuel consumption.

  15. What could law enforcement have been thinking. They knew who the suspect was, and no doubt knew where he lived. They could have easily gotten a probable cause warrant and installed the device.

  16. A small advance for the Fourth Amendment – in the midst of a general retreat.

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