Last year the U.S. Supreme Court in United States v. Jones held that attaching a magnetic GPA tracking device to the exterior of a vehicle constituted a “search” within the meaning of the Fourth Amendment. Saying that attaching such a device is an intrusion on an individual’s private property, Justice Antonin Scalia put it this way: “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
Today’s law enforcement routinely use what is called a “slap-on” GPS tracker—a magnetic device attached to an exterior area of a suspect’s vehicle. The battery operated device uses the Global Positioning System, which is a network of satellites, to track a vehicle with a high degree of accuracy and sends this data to a central server. This allows law enforcement to compile a very specific record of the vehicle’s whereabouts during a given period of surveillance. Besides its accuracy, this surveillance technique allows anyone with access to the central server to remotely track and even analyze the data—a boon to law enforcement operating with limited manpower. They do not have to set up surveillance teams in separate vehicles to keep tabs on either the movements or location of the target vehicle.
While the Fourth Amendment offers protection against unreasonable searches, whether a given search is unreasonable requires a court to balance the intrusion on an individual’s Fourth Amendment rights against legitimate governmental interests in conducting the search. To reach a proper determination under this general standard, the court is required to consider the “totality of the circumstances” surrounding the search. Courts generally strike the balance in favor of long established Fourth Amendment jurisprudence that a search is per se unreasonable unless approved by a magistrate or judge with a showing of probable cause to obtain a warrant. This jurisprudence, however, distinguishes the difference between the search of a dwelling and a vehicle. This distinction notwithstanding, the Supreme Court has held since 1925 that a warrantless search of a vehicle must be based on probable cause.
Because the Court in the Jones decision focused on the trespassory nature of attaching the GPS device, it left open the question of whether the warrantless use of GPS devices is reasonable under the Fourth Amendment where law enforcement officers have reasonable suspicion and/or probable cause to execute such a search.
This is a thorny issue because an en banc decision by the Fifth Circuit in 1981, and in a pair of decisions by the Supreme Court in 1983 and 1984, held in “beeper” cases that an individual does not enjoy a Fourth Amendment “expectation of privacy” in a vehicle on a public thoroughfare. This led the Seventh, Eighth, and Ninth Circuits between 1999 and 2010 to hold that attaching a GPS tracking device was not a constitutional violation because no expectation of privacy existed. Late in 2010, the D.C. Circuit refused to follow the lead of these three sister circuits saying that the warrantless vehicle search exception (a search based solely on the reasonable suspicion that a vehicle contains contraband) does not extend to the attachment of a “tracking device” on a vehicle without the approval of a judge or magistrate.
This D.C. Circuit case arrived at the Supreme Court under Jones’s name. The Jones court, however, did not focus on the privacy issue. Instead the majority opinion confined itself to the physical intrusion on property issue. The court left unanswered the critical question of whether the warrantless use of a GPS tracking device would be “reasonable” under the Fourth Amendment when officers have a reasonable suspicion, even probable cause, to execute such a search. This question has not been squarely addressed by the federal circuits because most GPS tracking device cases occurred pre-Jones which allowed the government to argue in these cases that even such searches were unconstitutional, they were permissible under the “good-faith exception” to the exclusionary rule.
The Third Circuit on October 22, 2013, in United States v. Katzin, became the first federal circuit to reject the good-faith exception defense and find that a warrant based on probable cause is required before law enforcement can attach a GPS tracking device to a vehicle. The facts of the Katzin case were outlined by the appeals court: Between 2009 and 2010 a wave of pharmacy burglaries occurred in Delaware, Maryland and New Jersey. At the behest of the local authorities, the FBI joined the investigation. A local electrician named Harry Katzin was identified as a main suspect. He and his two brothers, Mark and Michael, had extended criminal histories for burglary and theft with Harry having been caught committing a pharmacy burglary. The joint state and federal investigation began to receive tips that Harry was seen around pharmacies in the tri-state area. In November 2010, the police approached a vehicle occupied by Harry, one of his brothers, and another individual parked outside a pharmacy. Harry consented to a vehicle search during which electrical tools, gloves and ski masks were discovered. Harry explained these were tools used in an electrician’s trade. The police allowed them to leave. Further investigation revealed that the telephone lines to this pharmacy had been cut and security video surveillance had captured a vehicle similar to Harry’s parked outside another pharmacy.
Based on this information, law enforcement decided to resort to GPS tracking. In mid-December, the FBI consulted with the local U.S. Attorney’s office about their plans but did not request, or receive, a warrant before they attached a “slap-on” GPS tracker to the exterior of Harry’s vehicle. The Third Circuit explained what happened next: “While the police do not appear to have set a time limit for using the GPS tracker, the device yielded the results they were after within several days. According to the tracker, Harry Katzin’s van had left Philadelphia on the evening of December 15, 2010, and had traveled to the immediate vicinity of a Rite Aid [pharmacy] in neighboring town. Through use of the device, the police could see that the van had been driven around town for several minutes before parking at a specific location for over two hours. That’s when the FBI began to tighten the net. They alerted local police as to Harry Katzin’s whereabouts, but cautioned them not to approach too closely for fear of tipping off either Harry Katzin or any individual he may have been traveling with. When the FBI noticed that the van was once again traveling, the call came in: the van was to be taken.
“While state troopers stopped Harry Katzin’s van on a Pennsylvania highway, a squad of local police officers investigated the Rite Aid close to where Harry Katzin’s van had been parked; they found that it had been burglarized and relayed this information to the troopers. Inside the van, troopers found Harry at the wheel, with Mark and Michael as passengers. From outside the van the trooper could see merchandise and equipment from the burglarized Rite Aid, including pill bottles and Rite Aid storage bins. The police impounded the van and arrested the Katzin brothers.”
The brothers moved to have the evidence discovered in the van suppressed because the police did not have a warrant for the GPS device. In suppressing the evidence, the U.S. District Court rebuffed the government’s arguments that (1) a warrant was not required for use of a GPS device, and (2) the police acted in good faith when they installed the GPS device. The Third Circuit agreed with the trial court, finding without hesitation that “the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court [in Jones] has compared to ‘a constable’s concealing himself in the target’s coach in order to track its movements.’”
What the other federal circuits will do on this issue is unclear. The Ninth Circuit has given off some signals that it is receptive to an approach similar to the Third Circuit. The Seventh and Eighth Circuits would have to overturn prior precedents applying the good faith exception to reach the conclusion drawn by the Third Circuit. The other circuits haven’t spoken yet. In the end, we expect the GPS tracking device issue to traverse itself back to the Supreme Court.