The U.S. Court of Appeals for the Third Circuit recently held in United States v. Katzin that law enforcement officers must have a valid warrant before installing a Global Positioning System (GPS) device on a suspect’s vehicle. The opinion builds upon the U.S. Supreme Court’s recent decision in United States v. Jones, where the Court held that the installation of a GPS tracking device constitutes a search triggering Fourth Amendment protections. The three-judge panel in Katzin was unanimous as to the warrant requirement, but it split 2–1 on another related issue—whether police conduct in this particular instance was excusable under a “good faith exception.”
In this column, I will address only the warrant aspect of the decision. I will first briefly describe the facts of the case and explain the Third Circuit’s reasoning behind its decision to require law enforcement officers to get a valid warrant before installing a GPS tracking device on a suspect’s vehicle. I argue that the court’s decision appropriately reinvigorates the Fourth Amendment’s protection against unreasonable searches. In an era where continuous monitoring by law enforcement is possible with minimal resources and effort, it is imperative that we maintain an understanding of constitutional safeguards that stays current with available technology.
The Facts and Arguments of United States v. Katzin
In 2009 and 2010, a string of similarly conducted burglaries hit Rite Aid stores in Delaware, Maryland, and New Jersey. Local law enforcement officers, with the help of the FBI, came up with a suspect, Harry Katzin, who had repeatedly been seen at or near burglary sites, along with his van. The police could predict with certainty the location of Katzin’s vehicle, and after consulting with the U.S. Attorney’s office, but without obtaining a warrant, law enforcement officers installed a GPS tracking device on Katzin’s van. Several days later, information from the GPS device allowed police to connect the vehicle to a burglary that occurred shortly beforehand. State troopers stopped the van and found the burglarized merchandise inside. Katzin and his alleged accomplices were criminally charged, with much of the evidence against them coming from the seizure of the contents of the van.
The defendants sought to exclude from evidence at trial all of the merchandise found in in the vehicle, citing the Fourth Amendment of the U.S. Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” except where there is a search warrant based on probable cause. Evidence gathered in violation of this Amendment is subject to the Exclusionary Rule, which provides that a criminal defendant may exclude from admission at trial any evidence obtained pursuant to an unlawful search.
For nearly half a century, courts have understood the right against unreasonable searches and seizures to stem from the reasonable expectation of privacy in the circumstances. The “vehicle exception”—the doctrine that law enforcement needs probable cause but not a warrant to search a vehicle for evidence of a crime—emerged from this understanding because one can reasonably expect to have less privacy in one’s vehicle than in one’s home (where the highest level of privacy is expected). Similarly, a person walking on the street has an even lower expectation of privacy and may lawfully be subjected to a “stop and frisk” upon an officer’s reasonable suspicion that the person was involved in the commission of a crime.
The defendants in Katzin relied on the U.S. Supreme Court’s decision in United States v. Jones to support its argument that the evidence obtained from the GPS-tracked van should be excluded. In that case, the Court ruled that the installation of a GPS device on a private person’s vehicle constitutes a “search” within the meaning of the Fourth Amendment. The Court left unanswered the question whether such a search would require a warrant, and it was that question the Katzin defendants brought before the court, arguing that a warrant was required. If the court agreed with their argument, then the evidence obtained as a result of that unlawful installation of the GPS device must be excluded at their trial.
Concluding That Warrantless GPS Searches Are Unreasonable
In deciding Katzin, the Third Circuit panel underwent an extensive analysis of whether a warrantless GPS search can ever be reasonable (and therefore abide by the Fourth Amendment). The court concluded that it cannot.
The court first considered valid, warrantless searches based on less than probable cause—namely, “reasonable suspicion.” Courts have recognized that in certain circumstances, a police officer does not need a warrant and probable cause to conduct a lawful search. Specifically, there are three instances in which an officer needs only a reasonable suspicion to conduct a warrantless search: “special needs” cases, cases involving lessened privacy interests, and circumstances outlined in the Supreme Court’s decision in Terry v. Ohio permitting a “stop and frisk.” In these cases, only “reasonable suspicion” is necessary for the search to be reasonable.
The court quickly discarded the notion that any of these three exceptions applied. The “special needs” case requires that the “primary purpose” of the search not be “to uncover evidence of ordinary criminal wrongdoing.” (the entire point of the GPS in Katzin was to detect criminal wrongdoing). The diminished privacy exception does not apply because Katzin was a private citizen entitled to full privacy under the Constitution at the time the GPS device was installed, and the search of a car still requires at least probable cause. Finally, the court found that the exception established in Terry v. Ohio was for a limited purpose (to see whether the officer was at risk of immediate harm) and limited in time (the duration of the frisk), and thus was distinguishable from the installation of a GPS device, which constitutes a search over a period of time.
Having concluded that a warrantless GPS search was never reasonable with anything less than probable cause, the court then turned to the question whether a warrantless GPS search even with probable cause was permissible.
The government argued that under the judicially recognized “automobile exception” a warrant was not needed to conduct a search of an automobile, and that the exception applied to GPS searches as well. However, the court rejected this argument, finding that the automobile exception allows only “warrantless searches of any part of a vehicle that may conceal evidence . . . where there is probable cause to believe that the vehicle contains evidence of a crime.” In Katzin, officers did not believe that the automobile presently contained evidence of a crime, only that its location might at some point lead to evidence of a crime. That, the Third Circuit held, is beyond the scope of the automobile exception and constitutes an unreasonable search in violation of the Fourth Amendment.
Protecting the Fourth Amendment From Erosion
The Third Circuit got it right. The Fourth Amendment cannot reasonably be understood to permit law enforcement officers to install GPS tracking devices without a warrant on vehicles of anyone merely suspected of a crime. The warrant requirement serves an invaluable purpose in safeguarding the American people from police overreach and tyranny. It requires a neutral magistrate to adjudicate whether there is probable cause for a search, rather than leaving that discretion in the hands of the government.
The drafters of the Constitution could not have envisioned the use of GPS tracking devices when writing that document; it is incumbent upon us to update our understanding of its protections. The Third Circuit correctly recognized that the Fourth Amendment does not permit law enforcement officers to leave behind an “ever-watchful electronic sentinel in order to collect future evidence” without a valid warrant. Any other holding would permit “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.” That power of surveillance would eviscerate the Fourth Amendment, erode our core constitutional protections, and establish a dystopia not unlike those depicted in George Orwell’s 1984 and Steven Spielberg’s “Minority Report.”