Third Circuit Requires Warrant for GPS Monitoring and Limits Good-Faith Exception in United States v. Katzin

Today the Third Circuit handed down United States v. Katzin, an important cases on three related issues of Fourth Amendment law: first, whether the installation of a GPS device requires a warrant; second, the scope of the Davis good-faith exception to the exclusionary rule; and third, who has standing to suppress the evidence from the physical search of a car following a GPS search.

The divided court ruled in the defendants’ favor on all three issues. First, installation of a GPS device requires a warrant; second, the Davis good-faith exception applies only when there was directly on-point binding appellate precedent allowing the government’s acts; and third, every passenger in the car at the time it is stopped has standing to challenge the fruits of the subsequent physical search. There’s a lot in the Katzin case, so I thought I would blog on the three issues and offer my perspective on them.

I. The Facts

The police were tracking a string of burglaries at Rite-Aid pharmacies across several states, and they came to have very strong suspicion that Katzin and his two brothers were committing the burglaries using Katzin’s van. The police found the van one day, so they called the local U.S. Attorney’s Office. The prosecutors at the office advised them that they could put the GPS device on without a warrant. (This was December 2010, before the Supreme Court’s GPS decision in Jones.) The police attached the GPS device on the car when it was parked on a public road. The device allowed the police to monitor the location of the car in real-time remotely. The GPS device quickly paid off: Just several days after placing the GPS device on the car, the GPS showed the car parked for a few hours right next to a Rite-Aid pharmacy. The police waited for the car to move, and then stopped the car. All three brothers were inside, and a search of the car revealed lots of stolen property from the Rite-Aid pharmacy. All three defendants moved to suppress.

II. The Warrant Requirement

The Court first holds that a warrant is required to install and used a GPS device on a car. The Court rejects several arguments by DOJ that a warrant isn’t necessary. I think the most difficult and most interesting argument is the automobile exception. As I explained back when Jones was decided, there is at least a plausible doctrinal argument that the Fourth Amendment requires probable cause but not a warrant to install a GPS device under the automobile exception. The automobile exception creates a bright line rule that searches of cars don’t require a warrant, and that should be just as true when the search of a car occurs through the GPS device as through any other search of the car. The Third Circuit disagreed on the ground that a GPS search of a car happens over time:

[Past cases on the automobile exception were] limited to a discrete moment in time. For example, the exception permits the police to enter upon and search a vehicle to ascertain whether it indeed contains the evidence that they suspect is inside. . . . Attaching 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.

It is no argument, then, to say that a GPS search presents the type of circumstances that usually trigger the automobile exception. It does not. While the police are still physically intruding into a target vehicle for evidence-gathering purposes, a GPS search extends the police intrusion well past the time it would normally take officers to enter a target vehicle and locate, extract, or examine the then-existing evidence. . . .

Ultimately, in executing a GPS search, the police were not attempting to recover or ascertain the presence of evidence already present in Harry Katzin‟s vehicle. If they were, the automobile exception would have sanctioned their search in so far as it allowed them to enter Harry Katzin‟s van and retrieve and/or verify the presence or absence of the sought-after evidence. It would not (and, indeed, did not) permit them to leave behind an ever-watchful electronic sentinel in order to collect future evidence. Were we to hold otherwise, we would unduly expand the scope of the automobile exception well past its “specifically established and well delineated” contours, Ross, 456 U.S. at 824, permitting the police to intrude indefinitely upon a target vehicle based solely on the prospect that it will, in the future, contain some contraband or be used during the commission of a crime.

I don’t yet have fixed views on whether the warrant requirement should apply to Jones GPS searches, although the Court’s answer here strikes me as plausible. In my view, though, the best argument for introducing a warrant requirement is the practical implication of the time-bound aspect of the search, not its mere existence. In a traditional one-time automobile search, the search is allowed based on probable cause to believe that there is evidence in the car at that moment. With a GPS search, however, the government doesn’t want to search the car now: It wants to know where the car goes over time. As a result, the concept of probable cause has a necessary implied time window. That is, probable cause would mean a reasonable likelihood that the location of the car will yield evidence of the car not at this instant, but rather over some period of time into the future. If there’s a warrant requirement, courts can allow searches that are particular to that probable cause, in effect establishing a particularity in time instead of the usual particularity in physical space. Without a warrant, there’s no obvious way to regulate the time window; the police won’t know how long they can use the GPS device once it is installed. As I see it, this is why the one-time search versus search-over-time makes a difference. The scope of the search is defined by time instead of space, and a warrant can impose a time restriction that otherwise is hard to imagine. Cf. Berger v. New York (1967). Given that, it’s plausible to say that the automobile exception applies only when there is probable cause to believe there is contraband or evidence to search the car at that moment, not over some unspecified future period of time. So consider that a friendly amendment to the Third Circuit’s reasoning.

III. The Good-Faith Exception

The court next rules that the good-faith exception doesn’t apply because there was no binding appellate precedent allowing the installation of the GPS device. If you’re unfamiliar with this subject, you might want to read this recent post on lower court interpretations of Davis v. United States to get up to speed on the issue. (Seriously, I’ll wait.)

The court’s holding on the good faith exception has several moving parts. First, the court adopts the narrow view of Davis that it only applies when there is binding appellate precedent. Caselaw from other circuits is irrelevant: Unless the Supreme Court or the Third Circuit has approved the search, Davis cannot apply. As far as I know, this is the first federal circuit court to squarely address the issue of whether Davis extends beyond binding circuit precedent; as I note in Part 4 of my earlier post, this is an issue that is being litigated across the country with very broad divisions in the district court.

Second, the court holds that Davis only applies when the binding appellate precedent “clearly sanctions” the search in the subsequent case. Here the court takes a somewhat different view than other circuits, specifically on the issue of whether cases involving beepers clearly sanction cases involving GPS devices. Other courts have indicated that cases from the 1970s and 1980s involving beepers can “clearly sanction” the installation of a GPS device. See, e.g., United States v. Sparks, 711 F.3d 58 (1st. Cir. 2013) (concluding that an officer relied reasonably on radio beeper cases from 1970s and 1980s to install a GPS device because “nothing inheres in the technology to take it out of” those cases, and those cases “gave scant reason to think that the duration of the tracking in that case was material to the Court’s reasoning”) The Third Circuit disagrees, concluding that officers should know that GPS devices are so different from beepers that the beeper cases can’t apply to GPS surveillance:

As our foregoing discussion suggests: we disagree with this position. The difference between beepers and GPS trackers is one of kind, not degree. Any time technology shifts in this way, courts should expect that law enforcement will tread lightly and will refrain from reasoning by (potentially ill-fitting) analogy.

Third, the court holds that the good-faith exception shouldn’t apply under the broader Herring/Davis culpability standard:

[T]he police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional situation is nonetheless troubling: In lieu of a binding proclamation from either this Circuit or the Supreme Court — and instead of seeking approval from a neutral magistrate — law enforcement personnel looked to other (non-binding or distinguishable) authorities like our sister circuits’ decisions. Essentially, they extrapolated their own
constitutional rule and applied it to this case. We fail to see how this absolves their behavior. The assumption by law
enforcement personnel that their own self-derived rule sanctioned their conduct — to say nothing of their unstated belief that this Circuit would automatically side with a majority of the minority of our sister circuits — was constitutionally culpable.

I’m no fan of the Davis good-faith exception — as regular readers know, I think it was wrongly decided — so on one hand, I appreciate the fact that the court construed the case narrowly. Limiting the case to “binding” appellate precedent seems correct, as the Supreme Court clearly relied on that limitation to justify its holding. With that said, as much as I oppose the introduction of a free-floating culpability requirement on the exclusionary rule, if courts are to recognize such a requirement, it probably should mean something: The court here seems to add the requirement (which it didn’t have to do) but then construes to mean almost nothing. The police here didn’t apply a “self-derived” rule, as the court says; they applied the rule that was reflected in the caselaw and found in the treatises. If there’s a culpability requirement to be applied, then it seems like a relatively tough fit with the facts here. Anyway, much of good-faith exception material is likely to lead to relatively deep splits in the next two to three years, so all of this is probably just percolation that will end up leading to future Supreme Court decisions.

IV. Standing

Finally, the court also decides that all three brothers have standing to object to physical search of the van even though only one of them, Harry Katzin, owned the van. All three brothers have standing, the court rules, because Third Circuit precedent dictates that an unlawful seizure of a car leads to the suppression of evidence of all evidence found in a search or the car. That’s what happened here, the court reasons: The illegal warrantless GPS search led to the illegal stop of the car, and all the passengers therefore had standing. Accepting that Third Circuit precedent as fixed, that result seems correct, although it’s important to note that the standing here is as to the physical search of the car, not the GPS search: As far as I can tell, the court doesn’t reach the issue of who has standing to challenge the admissibility of the GPS evidence directly.