GPS Tracking and the Exclusionary Rule

Screen Shot 2014-11-05 at 5.11.04 PMBy Nicholas Ulrich

A year ago, the Third Circuit in United States v. Katzin issued an opinion on GPS tracking, stating unequivocally and for the first time that a warrant is required before police can place a GPS tracking device on someone’s vehicle. Nine months ago, the Third Circuit agreed to rehear Katzin en banc. (We previously covered this case and discussed the uncertainty this rehearing created as to the warrant requirement.) About a month ago, the Third Circuit published its en banc decision. In contrast to the resounding endorsement of the warrant requirement by the panel, the en banc court focused on the good-faith exception to the exclusionary rule. The court ultimately allowed the GPS tracking data to be admitted at the trial even though it was obtained without a warrant.

The uncertainty as to whether a warrant is required stems from the Supreme Court’s decision in United States v. Jones. In Jones, the Supreme Court for the first time stated that placing a GPS tracker on a vehicle is a “search” within the meaning of the Fourth Amendment. The Court, however, did not state specifically whether a warrant would be required for such searches in the future, or, in the alternative, whether some lesser standard such as reasonable suspicion would suffice. (Check out our blog post following the Jones decision.)

The Third Circuit’s original decision exhaustively examined and rejected alternatives to the warrant requirement, concluding that police must first obtain a warrant before placing a GPS tracking device. In contrast, the Third Circuit’s en banc decision ignored the warrant question, focusing instead on whether the evidence should have been excluded or not. In so doing, the court relied on the good-faith exception to the exclusionary rule. The exclusionary rule normally prohibits evidence obtained in violation of the Fourth Amendment from being admitted at trial. The good-faith exception, however, allows a court to admit such evidence if officers were relying on a valid previous interpretation of the Fourth Amendment. Because the GPS tracker was placed and the evidence was obtained prior to the Supreme Court’s decision in Jones, the Third Circuit applied the good-faith exception.

The Third Circuit’s en banc opinion was not unanimous. Five judges, including the Third Circuit’s chief judge, joined together in dissent. The dissent argued that the good-faith exception to the exclusionary rule is inapplicable in this case because there was no binding precedent that the officers relied on when they decided to proceed without a warrant. The majority’s decision, the dissent states, expands the already expansive good-faith exception to unreasonable proportions.

Because of this reversal by the Third Circuit, it remains to be seen whether or not a warrant is required before police officers can place a GPS tracking device on a vehicle. The majority in the en banc opinion did leave a strong statement about the landscape post Jones: “after Jones, law enforcement should carefully consider that a warrant may be required when engaging in such installation and surveillance.” We will have to wait until post-Jones facts rise to the appellate level before we know for sure whether a warrant is required.

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