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Appeals court limits GPS tracking

Taking a major Supreme Court ruling a big step further, the Third Circuit Court in Philadelphia ruled Tuesday that police and federal agents must get a warrant in order to put a GPS tracking device on a car or truck to monitor the travels of a suspect they are investigating. This was the first federal appeals court to add a warrant requirement to a practice that the Supreme Court ruled, in last year’s decision in United States v. Jones, was a search governed by the Fourth Amendment.

Electronically linked to satellites circling the world, a Global Positioning System device tracks a continuing sequence of quite precise locations of the device and, if it is attached to a car or truck, it logs the vehicle’s several locations.  Police can monitor it from a central location, and thus don’t have to physically follow or observe the vehicle.  In the Jones decision, the Court ruled that installation of such a device on a private vehicle is a search, but it left open the question of police authority to use that technology.

The warrant requirement was supported by all three judges on the Third Circuit panel, in the case of United States v. Katzin (Circuit docket 12-2548).  But the panel split, two to one, in ruling that the use of a GPS device by the FBI and Pennsylvania police in this case could not be excused on the premise that this incident occurred before the Supreme Court’s decision and so the officers had a “good faith” belief that they did not need a warrant.

Circuit Judge Joseph A. Greenway, Jr., wrote the main opinion, joined by Circuit Judge D. Brooks Smith.  Senior Circuit Judge Franklin S. Van Antwerpen disagreed on the officers’ “good faith” excuse.  The ruling blocked federal prosecutors’ use of evidence that had been obtained from three Philadelphia brothers, linking them to a string of burglaries at Rite Aid drugstores in Delaware, Maryland and New Jersey.  They were finally caught when the GPS device showed their van parked near a Rite Aid that had been burglarized.  The officers found pills and other Rite Aid merchandise in the van.

Although the Third Circuit so far stands alone among federal appeals courts in declaring that a warrant is needed to install a GPS on a private vehicle, the appeals courts are divided on how to treat the use of such a tracking method prior to the Justices’ Jones ruling.

Before that 2012 ruling by the Supreme Court, several federal appeals courts had ruled that use of a GPS tracker was not a search under the Fourth Amendment, so they rejected challenges to the practice.   The D.C. Circuit Court, however, in a 2010 decision in United States v. Maynard, ruled that the practice did amount to a search, and required a warrant.  That was the ruling that the Supreme Court reviewed, with the case newly titled United States v. Jones.

A majority of the Justices ruled that installation of a GPS tracker on a private car without the owner’s consent was a physical intrusion that amounted to a search.  But the Court left open the issue of whether installation without a warrant would violate the Fourth Amendment.  And that is the question the Third Circuit answered on Tuesday,

Judge Greenaway wrote that it was “highly disconcerting” for police to physically intrude on a vehicle by installing a monitoring device that would continue in use.  The opinion said the three judges had “no hesitation” in holding this was a search requiring a warrant, based on probable cause.   It is not enough, it added, for police to install the device based only on a “reasonable suspicion” that the vehicle was being used in criminal activity.

While individuals in their cars have a lowered expectation of privacy, the opinion said, that is not enough to do away with a warrant requirement.   Quoting from Justice Sonia Sotomayor’s separate opinion in the Jones case, Judge Greenaway said the electronic monitoring by a GPS device can “generate a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

While the Supreme Court has sometimes allowed searches of cars based upon the lessened privacy inside a movable vehicle, the opinion said that doctrine does not apply in the situation because the GPS tracking is not limited to an isolated, one-time entry into a vehicle’s interior to search for already-existing evidence of crime.  Rather, such a device itself allows the police to gather future evidence of crime, because this technology involves “an ever-watchful electronic sentinel” looking for such evidence.

The Circuit Court rejected a prosecutor’s argument that a warrant requirement should only be required if such a device remains in place for a significant period of time.  That test, Judge Greenaway wrote, is unworkable.  It was only fortuitous that, in this case, the device did its investigative work over the span of “a mere handful of days,” the opinion said.

Turning to the issue on which the circuit panel was divided, the majority ruled that the so-called “exclusionary rule” — barring the use of evidence obtained in an unconstitutional way — sometimes does allow evidence to be used if officers got it by methods they believed were lawful at the time, but there is no exception that would forgive officers when they install a GPS device without obtaining a warrant.   The technology involved in GPS tracking, the opinion said, is different from anything that had been allowed by pre-Jones rulings of the appeals courts allowing use of a more primitive electronic device.

Police in this case could not have relied on an appeals court ruling permitting a warrantless use of a GPS tracking device, because any such precedent was handed down before the Jones ruling and, besides, such rulings had been issued by appeals courts other than the Third Circuit.  This panel did not agree with those precedents, it noted.

“Excluding the evidence here,” Judge Greenaway wrote, “will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations.”

Although the circuit panel’s decision was ultimately limited to the facts of the particular case, barring specific criminal evidence because of the warrantless use of the GPS tracker, the Greenaway opinion used expansive language that would suggest that it a warrant would generally be required before installation of such technology.

Even so, the opinion did contain a few words — not explained further — which suggested that there might be exceptions to the warrant requirement.  Judge Greenaway wrote that the panel was not ruling upon “some highly specific circumstances not present in this case.”  Without elaboration, that left very unclear just when a warrant would not be required.

Judge Van Antwerpen, in his lengthy dissenting opinion, argued that the officers in this case had properly replied upon “the consensus regarding GPS and GPS-like use” that had developed among federal courts prior to the Supreme Court’s Jones ruling.

Recommended Citation: Lyle Denniston, Appeals court limits GPS tracking, SCOTUSblog (Oct. 22, 2013, 5:17 PM),