{"id":13509,"date":"2014-10-01T21:41:58","date_gmt":"2014-10-02T02:41:58","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=13509"},"modified":"2014-10-01T21:43:05","modified_gmt":"2014-10-02T02:43:05","slug":"ca3-gfe-for-gps-can-derive-from-old-law-without-binding-authority","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=13509","title":{"rendered":"CA3: GFE for GPS can derive from old law, without binding authority"},"content":{"rendered":"

ACLU: Federal Appeals Court Rules Evidence Obtained From GPS Device Without Warrant Is Admissible<\/a>:<\/p>\n

PHILADELPHIA \u2013 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.<\/p>\n

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.
\n
\nPolice 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.<\/p>\n

A three-judge panel of the Third Circuit Court of Appeals ruled in October 2013 \u2013 after the Jones ruling \u2013 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.<\/p><\/blockquote>\n

United States v. Katzin<\/a>, 12-2548 (3d Cir. October 1, 2014):<\/p>\n

Application of the exclusionary rule is instead limited to those \u201cunusual cases\u201d 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 \u201cforbid[ding] the use of improperly obtained evidence at trial.\u201d Herring, 555 U.S. at 139. It thereby \u201ccompel[s] respect for the [Fourth Amendment\u2019s] constitutional guaranty.\u201d Elkins v. United States, 364 U.S. 206, 217 (1960).<\/p>\n

However, while \u201c[r]eal deterrent value\u201d 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 \u201csubstantial social costs\u201d of exclusion. Leon, 468 U.S. at 907. These costs often include omitting \u201creliable, trustworthy evidence\u201d of a defendant\u2019s guilt, thereby \u201csuppress[ing] the truth and
\nset[ting] [a] criminal loose in the community without punishment.\u201d Davis, 131 S. Ct. at 2427. As this result conflicts with the \u201ctruth-finding functions of judge and jury,\u201d United States v. Payner, 447 U.S. 727, 734 (1980), exclusion is a \u201cbitter pill,\u201d Davis, 131 S. Ct. at 2427, swallowed only as a \u201clast resort,\u201d 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.<\/p>\n

The good faith exception to the exclusionary rule was developed to effectuate this balance and has been applied \u201cacross a range of cases.\u201d Id. at 2428. Where the particular facts of a case indicate that law enforcement officers \u201cact[ed] with an objectively \u2018reasonable good-faith belief\u2019 that their conduct [was] lawful, or when their conduct involve[d] only simple, \u2018isolated\u2019 negligence,\u201d there is no illicit conduct to deter. Id. at 2427\u201328 (citations omitted) (quoting Leon, 468 U.S. at 909; Herring 555 U.S. at 137). In such circumstances, \u201cthe deterrence rationale loses much of its force and exclusion cannot pay its way.\u201d Id. at 2428 (quoting Leon, 468 U.S. at 907 n.6, 919) (internal quotation marks omitted). <\/p>\n

Alternatively, where law enforcement conduct is \u201cdeliberate, reckless, or grossly negligent\u201d or involves \u201crecurring or systemic negligence,\u201d deterrence holds greater value and often outweighs the associated costs. Id. at 2427\u201328 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Put differently, exclusion is appropriate only where law enforcement conduct is both \u201csufficiently deliberate\u201d that deterrence is effective and \u201csufficiently culpable\u201d 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 \u201cobjectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.\u201d Id. at 145 (quoting Leon, 468 U.S. at 922 n.23) (internal quotation marks omitted).<\/p>\n

…<\/p>\n

No doubt, sometimes officers\u2019 reliance on non-binding authorities will fall short of an \u201cobjectively reasonable\u201d 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 \u201cconstitutional norm,\u201d 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. <\/p>\n

Additionally, adopting such a bright-line rule may impermissibly avoid our duty to conduct in each case a \u201crigorous weighing\u201d of suppression\u2019s costs and benefits, Davis, 131 S. Ct. at 2427, and to consider \u201call of the circumstances\u201d to determine the \u201cobjectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal,\u201d Leon, 468 U.S. at 922 n.23. We would also risk \u201cgenerat[ing] disrespect for the law and administration of justice\u201d by applying the exclusionary rule so indiscriminately. Id. at 908 (quoting Stone, 428 U.S. at 491). <\/p>\n

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 \u201cconstitutional norm\u201d 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\u2019 good faith calculus conspicuously fails to confront the \u201ccost\u201d side of the equation, which they dismiss as \u201cminimal.\u201d (Appellee En Banc Br. at 8.) However, the Supreme Court has routinely stated the opposite; the cost of suppression is \u201csubstantial,\u201d Leon, 468 U.S. at 907, because it often excludes \u201creliable, trustworthy evidence\u201d of a defendant\u2019s guilt, \u201csuppress[es] the truth and set[s] [a] criminal loose in the community without punishment,\u201d Davis, 131 S. Ct. at 2427. Here, by all appearances, the Government\u2019s evidence against Appellees is substantial, and it is uncontested that the Government would have no case without it. The costs of exclusion are high.<\/p>\n

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 \u201cobjectively reasonable good faith belief\u201d that specific conduct is constitutional. Id. (quoting Leon, 468 U.S. at 909) (internal quotation mark omitted).<\/p>\n

Consequently, nothing in our holding today conflicts with the Supreme Court\u2019s instructions to executive officers to \u201cerr on the side of constitutional behavior,\u201d United States v. Johnson, 457 U.S. 537, 561 (1982), and in \u201cdoubtful or marginal case[s]\u201d 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\u2019 conduct was \u201csufficiently deliberate\u201d that deterrence will be effective and \u201csufficiently culpable\u201d 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<\/p><\/blockquote>\n

.<\/p>\n","protected":false},"excerpt":{"rendered":"

ACLU: Federal Appeals Court Rules Evidence Obtained From GPS Device Without Warrant Is Admissible: PHILADELPHIA \u2013 The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,17],"tags":[],"class_list":["post-13509","post","type-post","status-publish","format-standard","hentry","category-good-faith-exception","category-gps-tracking-data"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/13509","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13509"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/13509\/revisions"}],"predecessor-version":[{"id":13510,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/13509\/revisions\/13510"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13509"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13509"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13509"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}