ACLU: Federal Appeals Court Rules Evidence Obtained From GPS Device Without Warrant Is Admissible:
PHILADELPHIA – The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement’s failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.
The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called “good-faith exception” to the Fourth Amendment’s exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive “beeper” tracking technology in concluding that no warrant was required for sophisticated GPS tracking.
Police used a GPS tracker on Harry Katzin’s car prior to a Supreme Court decision in January 2012, holding that attaching a GPS device to car and tracking its movements is a “search” under the Fourth Amendment. The decision in that case, U.S. v. Jones, left open whether it is the type of search that requires a warrant and probable cause.A three-judge panel of the Third Circuit Court of Appeals ruled in October 2013 – after the Jones ruling – that attaching a GPS device to a car and tracking its movements requires a warrant, and had ordered the GPS evidence to be suppressed. The government sought review by the en banc Third Circuit, and the American Civil Liberties Union represented Katzin before the en banc court in May.
United States v. Katzin, 12-2548 (3d Cir. October 1, 2014):
Application of the exclusionary rule is instead limited to those “unusual cases” in which it may achieve its objective: to appreciably deter governmental violations of the Fourth Amendment. Leon, 468 U.S. at 909, 918; see also United States v. Duka, 671 F.3d 329, 346 (3d Cir. 2011). To the extent the promise of admitting illegally seized evidence creates an incentive to disregard Fourth Amendment rights, the exclusionary rule removes that incentive by “forbid[ding] the use of improperly obtained evidence at trial.” Herring, 555 U.S. at 139. It thereby “compel[s] respect for the [Fourth Amendment’s] constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217 (1960).
However, while “[r]eal deterrent value” is necessary for the exclusionary rule to apply, there are other considerations and it alone is not sufficient. Davis, 131 S. Ct. at 2427. Deterrence must also outweigh the “substantial social costs” of exclusion. Leon, 468 U.S. at 907. These costs often include omitting “reliable, trustworthy evidence” of a defendant’s guilt, thereby “suppress[ing] the truth and
set[ting] [a] criminal loose in the community without punishment.” Davis, 131 S. Ct. at 2427. As this result conflicts with the “truth-finding functions of judge and jury,” United States v. Payner, 447 U.S. 727, 734 (1980), exclusion is a “bitter pill,” Davis, 131 S. Ct. at 2427, swallowed only as a “last resort,” Hudson, 547 U.S. at 591. Accordingly, to warrant exclusion, the deterrent value of suppression must overcome the resulting social costs. Davis, 131 S. Ct. at 2427.The good faith exception to the exclusionary rule was developed to effectuate this balance and has been applied “across a range of cases.” Id. at 2428. Where the particular facts of a case indicate that law enforcement officers “act[ed] with an objectively ‘reasonable good-faith belief’ that their conduct [was] lawful, or when their conduct involve[d] only simple, ‘isolated’ negligence,” there is no illicit conduct to deter. Id. at 2427–28 (citations omitted) (quoting Leon, 468 U.S. at 909; Herring 555 U.S. at 137). In such circumstances, “the deterrence rationale loses much of its force and exclusion cannot pay its way.” Id. at 2428 (quoting Leon, 468 U.S. at 907 n.6, 919) (internal quotation marks omitted).
Alternatively, where law enforcement conduct is “deliberate, reckless, or grossly negligent” or involves “recurring or systemic negligence,” deterrence holds greater value and often outweighs the associated costs. Id. at 2427–28 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Put differently, exclusion is appropriate only where law enforcement conduct is both “sufficiently deliberate” that deterrence is effective and “sufficiently culpable” that deterrence outweighs the costs of suppression. Herring, 555 U.S. at 144. Thus, determining whether the good faith exception applies require s courts to answer the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” Id. at 145 (quoting Leon, 468 U.S. at 922 n.23) (internal quotation marks omitted).
…
No doubt, sometimes officers’ reliance on non-binding authorities will fall short of an “objectively reasonable” good faith belief in the legality of their conduct. Suppression may then be appropriate to deter such reliance. It is equally elementary that close cases will be difficult.21 But in many other cases, law enforcement will likely correctly conclude, based upon a panoply of non-binding authority establishing a “constitutional norm,” Peltier, 422 U.S. at 542, that a particular police practice does not violate the Fourth Amendment. The value in deterring such conduct is low.
Additionally, adopting such a bright-line rule may impermissibly avoid our duty to conduct in each case a “rigorous weighing” of suppression’s costs and benefits, Davis, 131 S. Ct. at 2427, and to consider “all of the circumstances” to determine the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal,” Leon, 468 U.S. at 922 n.23. We would also risk “generat[ing] disrespect for the law and administration of justice” by applying the exclusionary rule so indiscriminately. Id. at 908 (quoting Stone, 428 U.S. at 491).
Because such a bright-line rule would supplant the required balancing act, we would have to be confident that in every conceivable future case, the substantial costs of suppression would be outweighed by the value of deterring police from relying on a “constitutional norm” simply because it had yet to be expressly established by precedential opinion in the Third Circuit. We have no such confidence and Appellees do little to assuage our concerns. Appellees’ good faith calculus conspicuously fails to confront the “cost” side of the equation, which they dismiss as “minimal.” (Appellee En Banc Br. at 8.) However, the Supreme Court has routinely stated the opposite; the cost of suppression is “substantial,” Leon, 468 U.S. at 907, because it often excludes “reliable, trustworthy evidence” of a defendant’s guilt, “suppress[es] the truth and set[s] [a] criminal loose in the community without punishment,” Davis, 131 S. Ct. at 2427. Here, by all appearances, the Government’s evidence against Appellees is substantial, and it is uncontested that the Government would have no case without it. The costs of exclusion are high.
The boundaries of the good faith exception are a sufficient deterrent to the conduct Appellees find objectionable. Law enforcement personnel will either tread cautiously or risk suppression.22 The legal authority relied upon must support an “objectively reasonable good faith belief” that specific conduct is constitutional. Id. (quoting Leon, 468 U.S. at 909) (internal quotation mark omitted).
Consequently, nothing in our holding today conflicts with the Supreme Court’s instructions to executive officers to “err on the side of constitutional behavior,” United States v. Johnson, 457 U.S. 537, 561 (1982), and in “doubtful or marginal case[s]” to obtain a warrant, Leon, 468 U.S. at 914 (quoting United States v. Ventresca, 380 U.S. 102, 106 (1965)). We do not believe this case to be either doubtful or marginal. In any event, just because law enforcement officers may one day unreasonably rely on non-binding authority does not absolve us of our duty to decide whether, under these facts, the agents’ conduct was “sufficiently deliberate” that deterrence will be effective and “sufficiently culpable” that deterrence outweighs the costs of suppression. Herring, 555 U.S. at 144. In this case neither standard is satisfied. Future decisions may reveal that applying the good faith exception to reliance on non-binding authority should be extremely rare, perhaps as rare as tectonic shifts in Fourth Amendment jurisprudence such as Jones. See Davis, 131 S. Ct. at 2433 (noting the infrequency with which the Supreme Court overrules its Fourth Amendment precedents). But that is a question for another day
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