Warrantless GPS tracking deemed unconstitutional by Third Circuit

The U.S. Court of Appeals for the Third Circuit recently decided United States v. Katzin, a case that now expands the holding of United States v. Jones and requires law enforcement to obtain an authorized warrant before attaching a GPS tracking device to a vehicle.

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In 2004, Antoine Jones became the target of a narcotic trafficking investigation by a joint FBI and Metropolitan Police Department task force in the District of Columbia.  Law enforcement gathered information through visual surveillance of the nightclub Jones owned, installation of a camera on the front door of the club, and a wiretap on Jones’s cell phone.

Based in part on the information gathered during the surveillance, law enforcement applied to the United States District Court for the District of Columbia for a warrant authorizing the installation of a GPS tracking device in the vehicle registered to Jones’s wife.  The warrant was issued and allowed for installation of the device in the District of Columbia within ten days of its issuance.  The device tracked the movements of the vehicle and generated more than 2,000 pages of data over a four-week period.  After successfully tracking the vehicle, the government was able to obtain a multiple-count indictment, charging Jones with conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§841 and 846.  Jones ultimately was convicted and sentenced to life in prison.

The Supreme Court conceded that a vehicle is an “effect” and the installation of a GPS device into a target’s vehicle constitutes a “search.”

The tracking of Jones’s wife’s vehicle led to the 2012 United States Supreme Court case of United States v. Jones (pdf).  The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”  The Court in Jones conceded that a vehicle is clearly an “effect” in accordance with the Fourth Amendment and that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”  The Supreme Court concluded that prosecutors violated Jones’s rights when they attached the GPS tracking device to his Jeep and monitored his movements for twenty-eight days.

The Court never addressed warrants and whether a warrantless search of a vehicle using a GPS is unconstitutional.

Following the ruling, the FBI turned off 3,000 tracking devices that were in use at the time.  While this was monumental for privacy rights, the Jones decision was vague: it did not address the steps that law enforcement must follow to ensure that obtaining evidence via GPS tracking devices is constitutional.  The court did not address warrants (pdf) and whether a warrantless search of a vehicle using a GPS is unconstitutional.

Justice Scalia, who wrote for the majority (note: there was a 5 to 4 split in the justices’ reasoning but with no dissenting opinion), stated that the attachment of the device to Jones’s vehicle was indeed an unreasonable search and seizure in violation of the Fourth Amendment. Justice Scalia also stated that there may still be “an unconstitutional invasion of privacy” without having to physically trespass on a person’s property, but there is “no reason for rushing forward” to address and resolve more complicated issues outside of Jones’s case.

Not addressing the more complicated issues, however, left a great deal of discretion to the lower courts and law enforcement officers throughout the nation.  The question remained: what constitutes privacy, and more importantly, unconstitutional invasion of privacy, in a technological world?

United States v. Katzin held that installation of a GPS device is certainly an invasion of privacy and requires a warrant.

This question was answered just last month when the U.S. Court of Appeals for the Third Circuit handed down its opinion in United States v. Katzin (pdf).  The court ruled in the defendants’ favor and held that installation of a GPS device is certainly an invasion of privacy that, importantly, requires a warrant.

In Katzin, the police were investigating and tracking a number of burglaries at Rite-Aid pharmacies in several states.  The police had a strong suspicion that Katzin and his two brothers were committing the burglaries using Katzin’s van.  In December of 2010, before the Jones decision, the police found the van and called the U.S. Attorney’s Office; prosecutors advised the officers that they could put the GPS device on the vehicle without a warrant.

The attached device allowed the police to monitor the real-time activity of the car, and several days later, the GPS indicated that the car was parked next to a Rite-Aid pharmacy.  The police waited for the car to leave the parking lot before stopping it.  All three brothers were in the vehicle, and the search that followed the stop revealed stolen property from the pharmacy.

The facts of this case are somewhat similar to Jones, but the reasoning behind the court’s decision has the result of creating more privacy rights for the public.  The court began by addressing the history of the Fourth Amendment and the more recent “automobile exception” to the Fourth Amendment protections.  In Katz v. United States, the Court announced that the Fourth Amendment “protects people, not places,” an idea that eventually became known as an individual’s “reasonable expectation of privacy.”  This concept serves as the basis of courts questioning the constitutionality of tracking devices.

One of the first cases to address the constitutionality of GPS tracking devices was the 1999 case of United States v. McIver.

One of the first cases to address the constitutionality of GPS tracking devices was the 1999 case of United States v. McIver.  The U.S. Court of Appeals for the Ninth Circuit held that McIver was unable to demonstrate that there was a reasonable expectation of privacy in the exposed undercarriage of his vehicle where the GPS was attached. The use of electronic devices, therefore, did not constitute a search as defined by the Fourth Amendment.

Similarly in 2007, the U.S. Court of Appeals for the Sixth Circuit held in United States v. Garcia (pdf) that attaching a GPS device to a vehicle did not constitute a search.  The court viewed it essentially the same as following a car on a public street or highway, an activity that would certainly not be a search under the Fourth Amendment.

A number of courts agreed with the Sixth Circuit in the following years and continuously held that attaching a GPS to a vehicle was not a search.  In 2010, however, the D.C. Circuit Court finally held in Jones that attaching a GPS device to a defendant’s vehicle constituted a search under the Fourth Amendment.  This played a large role in the reasoning of the Third Circuit’s opinion in the Katzin case, but the Katzin court took its analysis much further.

The Third Circuit court noted that other courts analyze GPS tracking under a “reasonable expectation of privacy” standard but fail to look at the physical intrusion created by a GPS.

The Third Circuit first addressed the physical intrusion theory of the Fourth Amendment.  Before the “reasonable expectation of privacy” came into play, courts looked at the Fourth Amendment “search and seizure” protection as a protection to trespass.  It was consistent among all courts that the Fourth Amendment was in place to safeguard places, not people.  That view changed, as mentioned above, but the protection against physical intrusion did not completely disappear.

The Third Circuit court noted that other courts analyze GPS tracking under a “reasonable expectation of privacy” standard but fail to look at the physical intrusion created by a GPS.  The court spent little time analyzing this standard and held that attaching a GPS tracking device to one’s vehicle is, without a doubt, a physical intrusion that deserves Fourth Amendment protection.  The court concluded 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.’’

After briefly addressing the physical intrusion issue, the court then looked to other considerations that may weigh in favor of finding warrantless GPS searches to be unreasonable.

The Government argued that the Katzin search was reasonable because police action was based on reasonable suspicion, a standard lower than probable cause.  The court agreed that reasonable suspicion existed; however, the Government tried to argue that the facts of Katzin fell under one of three enumerated exceptions to the Fourth Amendment “reasonable search and seizure” requirement.  While there are indeed three exceptions, the court asserted that Katzin fell under none of them.  The three general categories that permit warrantless searches based on less than probable cause are: “special needs” cases, decisions addressing situations in which individuals have lessened privacy interests, and the Terry v. Ohio “stop and frisk.”

“Special needs” cases are suspicionless searches approved by the court.  They include stopping motorists at border control checkpoints and sobriety checkpoints, as well as random drug testing of student athletes.  The purpose of these searches typically is to promote public health and safety.

An instance where individuals might have lessened privacy interests would be the automobile exception: vehicles are mobile, and law enforcement run the risk of not obtaining evidence or failing to seize a suspect when they are forced to obtain a warrant based on probable cause.   Those operating a vehicle, therefore, have a lessened right to privacy and could be subject to stops based on reasonable suspicion.

Finally, situations involving a “stop and frisk” do not require probable cause.  Terry v. Ohio held that an officer may stop someone, short of arrest, where he has reasonable suspicion of danger before having information justifying an arrest.  The stop must be what is minimally necessary to determine whether the suspect is an actual danger, i.e. is armed or has contraband on his person.  The court considered each category but found that none apply to Katzin.

“We are hard pressed to say, therefore, that the police can—without a warrant or probable cause—embark on a lengthy program of remote electronic surveillance.”

The Katzin court disagreed with the Government’s arguments advocating for a reasonable suspicion standard.  While recognizing the importance of the interests furthered by the police, the court found that “the same interests arise in every investigation…we are hard pressed to say, therefore, that the police can—without a warrant or probable cause—embark on a lengthy program of remote electronic surveillance.”

The Government also argued that even if reasonable suspicion did not give rise to this type of warrantless search, there was probable cause, and a warrantless search of a vehicle based on probable cause is permitted under the Fourth Amendment.  The court was quick to note, however, that a warrantless search is not necessarily reasonable simply because probable cause exists.  The court acknowledged that the automobile exception permits warrantless searches of any part of a vehicle when there is “probable cause to believe that the vehicle contains evidence of a crime.”  The Third Circuit in United States v. Burton (pdf) held that warrantless vehicle searches are allowed when there is probable cause to believe it contains contraband.

The main difference between GPS tracking in Katzin and the type of warrantless vehicle search that typically would be permitted is that the police were not attempting to gather specific evidence already present in Katzin’s vehicle.  If this were the case, the automobile exception would apply and the search would have been constitutional, allowing police to enter the van and retrieve the drugs.  Instead, police tracked Katzin’s vehicle for a period of time far beyond the amount of time necessary to retrieve contraband that may have been inside.

The automobile exception to the Fourth Amendment does not permit law enforcement to attach an electronic device that can monitor one’s movement and whereabouts at all times.  Police cannot intrude indefinitely upon a vehicle just because they have probable cause to believe that at some indefinite time in the future, it may contain contraband or be used to obtain contraband.

A GPS search involves more than just physical intrusion.  Using a GPS to track a vehicle “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.”  Due to this lengthy intrusion, a warrant is always required for a GPS search.

“These protections are important because where people go reveals a great deal about them.”

When the Supreme Court left this issue open, it allowed the opportunity for courts to interpret warrantless GPS tracking in a number of ways.  Fortunately, the Third Circuit addressed the issue at length and provided a thorough analysis of why GPS tracking absolutely requires a warrant, regardless of reasonable suspicion or probable cause.  Tracking one’s vehicle, especially for days at a time, goes far beyond the scope of obtaining contraband.  It invades privacy on a level that was unimaginable twenty or thirty years ago.  “These protections are important because where people go reveals a great deal about them, from who their friends and business associates are to what doctors they go to,” said American Civil Liberties Union Staff Attorney Catherine Crump.

The Third Circuit decision is a step in the right direction toward ensuring that the public maintains its right to privacy as guaranteed by the Fourth Amendment, and it will be interesting to see if the U.S. Supreme Court takes up the issue in the future as more Circuit Courts interpret its ruling in Jones.  GPS tracking is, without a doubt, powerful technology, and this decision guarantees that the public will be protected from police use of these devices without an authorized warrant.


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About Rebecca Lopes, Senior Staff Writer (14 Articles)
Rebecca Lopes served as a Senior Staff Writer for the Campbell Law Observer. She is a graduate of North Carolina State University where she earned a degree in Communication with a focus in Media and a minor in Journalism. During law school, Rebecca interned at the Cumberland County District Attorney’s Office, Tally and Tally Law Firm and at The Richardson Firm, all in Fayetteville. She was also a member of Phi Alpha Delta and a case manager for the Campbell Law Innocence Project. Rebecca graduated from Campbell Law School in May 2014.
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