Search Warrant Required For GPS Tracking, Third Circuit Holds

Posted On Thursday, October 24, 2013

Last year, the United States Supreme Court held in United States v. Jones that placing a GPS tracker on an automobile constituted a search for purposes of the Fourth Amendment.  Therefore, the police had to obtain a search warrant before engaging in such an activity.  A question which the Supreme Court didn’t answer, but which the Third Circuit has now addressed, is whether the warrantless use of a GPS tracker is permissible if the police have reasonable suspicion or probable cause to conduct the search. 

In 2009 and 2010, a string of burglaries took place at various Rite Aid pharmacies.  Harry Katzin came under suspicion because he had previously been caught robbing a Rite Aid.  Moreover, he was observed in the area of other Rite Aids which had either been burglarized or whose alarm systems showed signs of tampering.  Based upon this, the FBI, without obtaining a warrant, placed a GPS tracker on Katzin’s vehicle.  Information from the tracker ultimately led to the discovery of merchandise which had been stolen from a Rite Aid pharmacy.  Following his arrest, Katzin moved to suppress this evidence because the police didn’t obtain a warrant before placing the GPS tracker on his car.  The District Court granted Katzin’s motion and the government appealed.

On Tuesday, the Third Circuit concluded in United States v. Katzin, No. 12-2548 (3d Cir. October 22, 2013) that, as a general matter, law enforcement must obtain a warrant allowing the use of a GPS tracker even if there is reasonable suspicion to believe that criminal activity was taking place or probable cause to believe that a vehicle contains evidence of a crime.  The court went on to note that while probable cause allows the police to search for contraband that is already present in a vehicle, this isn’t what happens when a GPS tracker is used.  Rather, a GPS tracker creates a continuous police presence aimed at discovering evidence that may come into existence or be placed in the car sometime in the future.  Therefore, reasonable suspicion or probable cause, standing alone, doesn’t justify the failure to obtain a search warrant. 

The government argued that suppression of the evidence was inappropriate because the police had an objectively reasonable good faith belief that their conduct was lawful insofar as the  search took place prior to the Supreme Court’s decision in Jones.  The Third Circuit noted that it hadn’t previously ruled on whether GPS tracking constituted a search and that other courts of appeal had arrived at differing results.  Given this, the police had two choices:  a) assume that use of the GPS tracker violated the Fourth Amendment and that the Third Circuit would require a search warrant or b) gamble, at the risk of having the evidence excluded, that the Third Circuit would find that no Fourth Amendment violation had occurred.  The Third Circuit concluded that by excluding the evidence in this case, police would be encouraged to err on the side of following the Constitution and that future violations of the Fourth Amendment might be avoided.