(CN) - Evidence from a warrantless GPS tracker that police put on a car before the Supreme Court forbade the practice is admissible at trial, the full 3rd Circuit ruled.
The case involves the 2010 investigation into a wave of Rite Aid pharmacy burglaries that hit Delaware, Maryland and New Jersey. Circumstantial evidence led police to suspect Harry Katzin and his brothers, Michael and Mark Katzin.
After consulting with the U.S. Attorney's Office, but without getting a warrant, the FBI affixed a "slap-on" Global Positioning System (GPS) tracker to Harry Katzin's van.
Within several days, the tracker yielded the evidence needed to arrest the brothers. Local police who followed the van from a Rite Aid where it had been parked for two hours found it full of stolen merchandise from the pharmacy.
A federal judge in Philadelphia suppressed the evidence discovered in the van for lack of a warrant, however, and a divided three-judge panel of the 3rd Circuit affirmed nearly a year ago, finding that officers "extrapolated their own constitutional rule" that "sanctioned their conduct."
Upon rehearing the matter en banc, however, the Philadelphia-based federal appeals court reversed the panel decision 8-5 Wednesday, finding that the officers acted with the good-faith belief that their actions were legal.
The surveillance took place roughly one year before the Supreme Court's 2012 ruling in U.S. v. Jones that said police need a warrant before using a GPS device to track a suspect.
"Jones fundamentally altered [the] legal landscape by reviving - after a forty-five year hibernation - the Supreme Court's prior trespass theory," Judge Franklin Van Antwerpen wrote for the majority. "As the Ninth Circuit recently stated: 'The agents in Jones labored under the misconception that the 'reasonable expectation of privacy' test exclusively marked the [Fourth] Amendment's boundaries. Cases fostering that impression were ubiquitous.'"
Van Antwerpen had sat on the original three-judge panel and wrote the dissented from that affirming opinion.
"The constellation of circumstances that appeared to authorize [the agents'] conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA [assistant U.S. attorney] pursuant to a DOJ-wide policy," the newer opinion states. "Given this panoply of authority, we cannot say that a 'reasonably well trained officer would have known that the search was illegal,' nor that the agents acted with 'deliberate, reckless, or grossly negligent disregard for [Appellees'] Fourth Amendment rights.'"
The good-faith exception to the warrant requirement applies here because "when the agents acted, they did so upon an objectively reasonable good faith belief in the legality of their conduct," Van Antwerpen added.
Judge Joseph Greenaway Jr., who wrote the 2013 opinion for the original panel, said that the majority's decision "expands the good faith exception to the point of eviscerating the exclusionary rule altogether," and sends a message to law enforcement that "the good faith exception will extricate officers from nearly any evidentiary conundrum."
Consulting with a federal prosecutor did not absolve the police from deliberately not applying for a warrant, the dissent says, noting that neither the Supreme Court or the 3rd Circuit had authorized the warrantless practice.
Indeed the FBI had looked to other circuits, three of which authorized the warrantless search, and one of which forbade it.
"What if the split had been 2-2 or 1-3?" Greenaway asked. "Is there a basis from which one can imagine that law enforcement's decision would have been different?
"True, the police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional predicament is nonetheless worrisome. Essentially, they extrapolated their own constitutional rule, in consultation with the U.S. Attorney's Office, and applied it to this case."
The agents disregarded the possibility that the 3rd Circuit could side with the minority of circuits, and rule that GPS surveillance constitutes a search under the Fourth Amendment.
"I would not hold, of course, that the police can never make assumptions about our future Fourth Amendment rulings," the dissent concludes. "If their analysis is correct and we ultimately affirm the constitutionality of a search, then the police are rewarded with full use of any evidence derived from the search. If their analysis is wrong, however, and the search is ultimately held to be unconstitutional, then the police cannot avoid the cost of suppression by relying on the good faith exception. Of course, the police can avoid this entire issue by requesting a warrant in the first instance, a task unburdened by time nor trouble."
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