CA3: Planting a GPS device pre-Jones without a warrant or court order was unconstitutional and isn’t saved by good faith exception

Planting a GPS device in 2010 (pre-Jones) without a warrant or court order was unconstitutional, and it isn’t saved by good faith exception. United States v. Katzin, 732 F.3d 187 (3d Cir. 2013):

This appeal stems from the Government’s warrantless installation of a Global Positioning System device (a “GPS device” or “GPS tracker”) to track the movements of Appellee Harry Katzin’s van. Harry Katzin, along with his brothers Mark and Michael (collectively, “Appellees”), claims that attaching the GPS device without a warrant violated the Fourth Amendment. The United States Government (“Appellant” or “Government”) argues that: (a) a warrant is not required to install a GPS device; (b) even if a warrant were required, the police were acting in good faith; and (c) in any case, Mark and Michael lack standing to contest admissibility of evidence recovered from Harry Katzin’s van.

The instant case therefore calls upon us to decide two novel issues of Fourth Amendment law: First, we are asked to decide whether the police are required to obtain a warrant prior to attaching a GPS device to an individual’s vehicle for purposes of monitoring the vehicle’s movements (conduct a “GPS search”). If so, we are then asked to consider whether the unconstitutionality of a warrantless GPS search may be excused for purposes of the exclusionary rule, where the police acted before the Supreme Court of the United States proclaimed that attaching a GPS device to a vehicle constituted a “search” under the Fourth Amendment. For the reasons discussed below, we hold that the police must obtain a warrant prior to a GPS search and that the conduct in this case cannot be excused on the basis of good faith. Furthermore, we hold that all three brothers had standing to suppress the evidence recovered from Harry Katzin’s van. We therefore will affirm the District Court’s decision to suppress all fruits of the unconstitutional GPS search.

I. FACTS AND PROCEDURAL HISTORY

Given that the issues in this matter touch upon several forms of electronic tracking devices, we feel it necessary — in service of our forthcoming analysis — to embark on a brief discussion of the relevant technology before delving into the specific circumstances surrounding Appellees.

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