By Hayes Hunt and Calli Varner
The Third Circuit’s decision in United States v. Katzin closes the door on an issue left open by the United States Supreme Court in United States v. Jones, 132 S. Ct. 945 (2012). Earlier this year, FTS discussed the Jones case where the Court held that GPS monitoring constitutes a search, although not one always requiring a warrant. The Court suggested that long-term GPS monitoring requires a warrant, but that one is not necessary where monitoring takes place for one to two days.
According to the Third Circuit, “[a]mong the issues that Jones left open, however, was whether warrantless use of GPS devices would be ‘reasonable — and thus lawful — under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause’ to execute such searches.”
Not surprisingly, lower courts read Jones as opening the door for law enforcement agencies to use technology to their advantage, without the need for a warrant. For example, the District Court for the District of Colorado held that evidence seized from a suspect’s vehicle that was tracked through a GPS device was admissible. The Sixth Circuit upheld a conviction premised on GPS information acquired from a suspect’s cell phone.
There, law enforcement officials identified a suspect involved in a string of burglaries of Rite Aid Pharmacies in Delaware, Maryland, and New Jersey. One morning, after consulting with the United States Attorney’s office, yet without a warrant, the officials affixed a “slap-on” GPS device on the exterior of the suspect’s van. Several days later, the GPS showed the van parked next to a Rite Aid. Once the van was back on the move, officers were instructed to stop the van, where they found the suspect and his two brothers as well as merchandise and equipment from the burglarized Rite Aid. All three brothers were arrested and all three moved to suppress the evidence discovered in the van. The Government opposed the motions arguing, inter alia, that a warrant was not required for use of the GPS device.
The Third Circuit decided that a warrant was required. The court determined that police cannot justify a warrantless GPS based solely on reasonable suspicion. Similarly, the court held that the automobile exception, which permits the warrantless search of an automobile where probable cause exists, was inapplicable since that type of search was limited to a distinct moment in time. As stated by the court: “[A]ttaching and monitoring a GPS tracker is different: It creates a continuous police presence for the purpose of discovering evidence that may come into existence and/or be placed within the vehicle at some point in the future”.
The court held, “the warrantless search in this case was not justifiable based solely on reasonable suspicion or probable cause, was thereby unreasonable, and consequently violated the Fourth Amendment.”