GPS tracking device (Creative Commons-licensed photo taken by Elona B. Shukron, Account Manager for TrackTec, Ltd.)

A federal appeals court has ruled that police must obtain a warrant in a case involving a “slap-on” GPS tracking device, where defendants had argued they were victims of searches that violated their privacy rights.

The court found the attachment of a GPS tracking device to a defendant’s van was not excused by the argument that law enforcement were acting in “good faith.” All evidence obtained from the search was ordered to be suppressed in the case.

The American Civil Liberties Union (ACLU) reacted to the Third Circuit Court of Appeals’ decision. “Today’s decision is a victory for all Americans because it ensures that the police cannot use powerful tracking technology without court supervision and a good reason to believe it will turn up evidence of wrongdoing,” ACLU staff attorney Catherine Crump said.

The case of US v. Katzin involved Harry Katzin, who police suspected was robbing Rite Aid pharmacies in Delaware, Maryland and New Jersey with his two brothers, Mark and Michael. Local police and the FBI suspected Harry of being behind the robberies in mid-May 2010 and, for months, they investigated him. Finally, in December of that year, they chose to attach a “slap-on” GPS tracking device to his van without getting a warrant.

On December 15, a Rite Aid pharmacy was robbed and Katzin’s van had been nearby. The van was stopped by state troopers. Merchandise and equipment from the Rite Aid “including pill bottles and Rite Aid storage bins” were found in the fan. The Katzin brothers were arrested and the van was impounded.

The court found, “under the physical intrusion theory of the Fourth Amendment, the police actions in this case—i.e., physical entry upon the occupation of an individuals’ house or effects for purposes of ongoing GPS tracking—are highly disconcerting.” Without hesitation, they held that police “must obtain a warrant prior to attaching a GPS device on a vehicle.”

It highlighted the Supreme Court’s ruling in the case of US v. Jones, where the court decided that “attaching a GPS device to a target car constituted a physical intrusion upon the vehicle owner’s private property.”

The decision supported the positions of Justice Sonia Sotomayor, who found that “when the government physically invades personal property to gather information a search occurs.” It also agreed with Sotomayor’s point that GPS devices offered “law enforcement agencies with a low-cost, low-resource method of tracking citizens,” which is why “even short-term surveillance constituted an impermissible search under the Fourth Amendment.”

But the appeals court acknowledged that Jones had not decided whether “warrantless use of GPS devices would be ‘reasonable’—and thus lawful—under the Fourth Amendment” if officers had reasonable suspicion and probable cause for a search. Courts, before the Jones case had chosen not to grapple with the warrant question. The appeals court did not think the search was permissible under a “good-faith exception” and took on the issue of warrants.

First, the appeals court found that Harry Katzin, “when the police attached the GPS device, enjoyed the full breadth of privacy interests owed to him under the Constitution.”

The court then refused to accept the argument from the government that slapping on GPS devices based on “reasonable suspicion” was similar to “stop-and-frisks.” The precedent for this argument is US v. Terry.

In “stop-and-frisks,” the search involved a situation where officers suspected an individual posed a danger to officers’ safety. “A GPS search, in contrast, is an ongoing, vastly broader endeavor.” Also, the police were not looking for any weapons or to “safeguard anyone’s immediate safety” but were investigating a crime.

The court further noted at one point in the decision that, “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.”

Furthermore, the decision scolded police, who would think they could make such a decision to not get a warrant because they had read something somewhere in existing case law, where a warrant was not required, and thought the situation was nearly identical.

“Where an officer decides to take the Fourth Amendment inquiry into his own hands, rather than to seek a warrant from a neutral magistrate — particularly where the law is as far from settled as it was in this case — he acts in a constitutionally reckless fashion,” the court stated.

This was a particularly significant part of the ruling (not to mention, for privacy advocates, quite self-satisfying to read).

Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice. Indeed, the police embarked on a long-term surveillance project using technology that allowed them to monitor a target vehicle‟s movements using only a laptop, all before either this Circuit or the Supreme Court had spoken on the constitutional propriety of such an endeavor. (That the surveillance lasted only a few days is mere coincidence.)

True, the police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional situation is nonetheless troubling: In lieu of a binding proclamation from either this Circuit or the Supreme Court — and instead of seeking approval from a neutral magistrate — law enforcement personnel looked to other (non-binding or distinguishable) authorities like our sister circuits‟ decisions. Essentially, they extrapolated their own constitutional rule and applied it to this case. We fail to see how this absolves their behavior. The assumption by law enforcement personnel that their own self-derived rule sanctioned their conduct — to say nothing of their unstated belief that this Circuit would automatically side with a majority of the minority of our sister circuits — was constitutionally culpable.

It was ultimately this institutional arrogance on the part of police that persuaded the court to find in favor of the Katzin brothers. It also pushed them to issue a ruling that would dissuade law enforcement in the US from thinking they could do this and violate persons’ privacy rights.

All of the above would have been enough to convince anyone that this was an excellent development for those concerned about Fourth Amendment rights in the United States. The court did not stop there and decided to take on the government’s argument that requiring a warrant might hurt the government’s ability to stop “terrorism.”

The Government contends that requiring a warrant prior to GPS searches would “seriously impede the government’s ability to investigate drug trafficking, terrorism, and other crimes.” (Appellant Br. at 27.) We fail to see how such a conclusory assertion suffices to except GPS searches from the requirements of the Fourth Amendment‟s Warrant Clause. Doubtless, we are aware of the dangers posed by terrorism and comparably reprehensible criminal activity. However, we would work a great disservice by permitting the word “terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution.[emphasis added]

Former FBI director Robert Mueller previously told the House Appropriations Committee in March 2012, “We have a number of people in the United States who we could not indict, there’s not probable cause to indict them or to arrest them who present a threat of terrorism, articulated maybe up on the Internet, may have purchased a gun, but taken no particular steps to take a terrorist act…And we are stuck in the position of surveilling that person for a substantial period of time.”

Such an argument is the hallmark of a government that has allowed lawlessness to be more and more permissible in law enforcement activities, but the court rightfully rejected it, since following the argument to its logical conclusion would have meant making Fourth Amendment protections even more weak in this country.

As the court suggested, if the government was allowed to invoke a “good faith exception” any time they rely on some “self-derived principle,” Fourth Amendment protections would be completely ineffective. Police would be able to intrude upon a person’s rights “without fear of suppression merely by relying on a particularly broad-sweeping, self-derived constitutional principle.”

The court appropriately feared that accepting the government’s arguments would lead to the good faith exception “swallowing the exclusionary rule” and issued a ruling that could be considered a victory for privacy.