(CN) - Evidence from a GPS tracker that police installed without a warrant before the law clearly required one must be suppressed, a divided panel of the 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. It showed the van parked at a Rite Aid for two hours, after which local police stopped the van and 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 last week.
"We have no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court has compared to 'a constable's concealing himself in the target's coach in order to track its movements,'" Judge Joseph Greenaway Jr. wrote for the majority, citing 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.
Greenaway rejected the government's arguments that this was a "special needs" case, or that reasonable suspicion absolved the officers of the need to obtain a warrant for GPS surveillance.
"While the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect," Greenaway wrote. "We are hard pressed to say, therefore, that the police can - without warrant or probable cause - embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizen's private property. Consequently, we hold that - absent some highly specific circumstances not present in this case - the police cannot justify a warrantless GPS search with reasonable suspicion alone."
The automobile warrant exception is also inapplicable here, the 61-page opinion states.
While a normal vehicle search is limited to one discrete moment in time, a GPS tracker is a far greater intrusion into privacy, creating "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," Greenaway said.
The court found that the officers' alleged good faith intentions, and the lack of appellate guidance in 2010 on the constitutionality of such searches, does not absolve them of their duties under the 4th Amendment.
"Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice," Greenaway wrote. "Indeed, the police embarked on a long-term surveillance project using technology that allowed them to monitor a target vehicle's movements using only a laptop, all before either this Circuit or the Supreme Court had spoken on the constitutional propriety of such an endeavor."
He added: "Essentially, [the officers] 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."
Judge Franklin Van Antwerpen dissented from the majority's good-faith ruling, finding that the officers' should not be held accountable for failing to predict the outcome of Jones.
"United States v. Jones changed things; and changed them in a way very few - if any at all - predicted," Van Antwerpen wrote. "The exclusionary rule does not require us to punish the law enforcement officers here for failing to predict that sea change."
He concluded: "Under the circumstances present in this case, I do not find the law enforcement conduct to be 'sufficiently culpable' so that the benefit from deterring that conduct 'is worth the price paid by the justice system,' even if it might create a marginal incentive for officers to 'err on the side of constitutional behavior.'"
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.