Federal Appeals Court Rules Evidence from Warrantless GPS Tracking Does Not Have to Be Suppressed
A federal appeals court ruled that law enforcement does not need to get a warrant in order to legally use evidence obtained from surveillance in a criminal case. The court also effectively endorsed consultation among officials in the executive branch instead of going to a judge for a warrant as “good faith” conduct.
In 2010, FBI agents attached a GPS tracking device to the car of Harry Katzin in order to track his movements because they suspected he was involved in the robberies of multiple Rite-Aid pharmacies. The agents did not seek a warrant from a judge. They used the tracking device to follow Katzin as his car drove to another Rite-Aid, and Katzin was arrested.
The Supreme Court decided unanimously in US v. Jones in 2012 that when law enforcement attaches a GPS device to a vehicle and uses it to track a person a “search” under the Fourth Amendment is taking place.
The Third Circuit Court of Appeals did not dispute the fact that Katzin’s arrest was the result of warrantless surveillance, according to the Supreme Court decision. However, what the court did have a problem with was using the “exclusionary rule” to suppress the evidence from the surveillance, which violated Katzin’s Fourth Amendment rights.
The court ruled 8-5 that the evidence should not be suppressed. Judge Franklin Van Antwerpen, appointed to the appeals court by President George W. Bush, wrote the majority opinion [PDF].
“Despite its connection to the Fourth Amendment, there is no constitutional right to have the evidentiary fruits of an illegal search or seizure suppressed at trial,” Van Antwerpen argued in the court’s opinion. A Fourth Amendment violation does not automatically require exclusion of evidence. “The exclusionary rule is instead ‘a judicially created means of effectuating the rights secured by the Fourth Amendment.'”
Van Antwerpen further explained, “Where the particular facts of a case indicate that law enforcement officers “act[ed] with an objectively ‘reasonable good-faith belief’ that their conduct [was] lawful, or when their conduct involve[d] only simple, ‘isolated’ negligence,” there is no illicit conduct to deter.” The agents believed their actions were lawful.
Since the violation of rights occurred before the Supreme Court decision, Van Antwerpen suggested, “The agents’ inadvertent Fourth Amendment violation was neither ‘calculated’ nor the result of a ‘deliberately cavalier or casual’ attitude toward appellees’ Fourth Amendment rights, and that the agents were likely ‘surprise[d]” by Jones.'” And added, “Application of the good faith exception turns on whether the agents, at the time they acted, would have or should have known their installation of the GPS and their subsequent monitoring of Harry Katzin’s vehicle were unconstitutional.”
One key aspect of the majority’s decision was dependent upon the fact that agents had consulted and received approval from the Assistant US Attorney before engaging in the warrantless surveillance.
“It was [Justice Department] policy at the time that a warrant was not required to install a battery-powered GPS on a vehicle parked on a public street and to surveil it on public roads. We have previously considered reliance on government attorneys in our good faith calculus and concluded that, based upon it in combination with other factors, “[a] reasonable officer would…have confidence in [a search’s] validity.”
Judge Joseph A. Greenaway Jr., who was appointed to the appeals court by President Barack Obama, wrote the dissenting opinion and specifically called attention to this consultation being part of the justification for not suppressing evidence.
“I do not believe that this intra-executive consultation absolves police personnel’s behavior,” Greenaway wrote. “Now, the assumption by law enforcement that their own self-derived rule sanctioned their conduct becomes true, thanks to the majority’s analysis. Such decision-making is wrongful conduct that can and should be deterred—for that is the primary purpose of the exclusionary rule! The police practice at issue here effectively disregarded the possibility that we could find a GPS search constitutes a Fourth Amendment violation requiring a warrant.”
“Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”
Specifically,” he added, “Law enforcement contends that they acted reasonably by consulting with their co-investigators at the U.S. Attorney’s Office. However, what is missing here is neutral authorization of any sort for the conduct undertaken by the police. Consultation with the U.S. Attorney’s Office is not a panacea for the constitutional issues raised here.”
…[T]he agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized…
Greenaway also argued, “Courts have given power to the words of the critics by using the good faith exception to chip away at the breadth of the rule. The majority, in its alternative holding, expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle.”
He stated, “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.”
And Greenaway contended, “Neutral authorization for law enforcement’s actions has been the hallmark of the good faith exception’s application. Without this control, what is the fail-safe to preclude further erosion? I fear there is none. For these reasons, I respectfully dissent.”