Lead Opinion
OPINION
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.
A. Tracking Technology
This case concerns a “slap-on” GPS tracker, so called because it magnetically attaches to the exterior of a target vehicle, is battery operated, and thereby requires no electronic connection to the automobile. The tracker uses the Global Positioning System — a network of satellites originally developed by the military — to determine its own location with a high degree of specificity and then sends this data to a central server. This check-and-report process repeats every few minutes (depending on the tracker), thereby generating a highly accurate record of the tracker’s whereabouts throughout its period of operation. The great benefit of such a system — apart from its accuracy — is that anyone with access to the central server can analyze or monitor the location data remotely. These aspects make GPS trackers particularly appealing in law enforcement contexts, where the police can attach a tracker to some vehicle or other asset and then remotely monitor its location and movement.
GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as “beepers.” Beepers are nothing more than “radio transmitted[s], usually battery operated, which
B. The Brothers Katzin
A spectre was haunting Delaware, Maryland, and New Jersey in 2009 and 2010 — the three states had been hit by a wave of pharmacy burglaries, many of which affected Rite Aid pharmacies. The method used in the various crimes was largely consistent: in many cases, the alarm systems for the pharmacies would be disabled by cutting the external phone lines. The local police approached the FBI for help (collectively, “the police”) and the hunt was on.
By mid-May 2010, a suspect emerged: a local electrician named Harry Katzin. Not only had he recently been caught burglarizing a Rite Aid pharmacy, but he and his brothers — Mark and Michael — had criminal histories that included arrests for burglary and theft. Over the course of the following months, the joint state and federal investigation began receiving reports of seeing Harry Katzin around Rite Aid pharmacies throughout the three states. For example, in late October 2010, local police in Pennsylvania encountered Harry Katzin crouching beside some bushes outside of a Rite Aid after responding to reports of suspicious activity. The police did not arrest him, but discovered the next day that the phone lines to the pharmacy had been cut. The next month, Harry Katzin, along with one of his brothers and one other individual, was approached by the police as he sat outside of a different Rite Aid in his Dodge Caravan. After Harry Katzin consented to a search, the police discovered electrical tools, gloves, and ski masks. Harry Katzin explained that these were tools of the electrician’s trade and the police allowed the men to leave. The telephone lines to this Rite Aid had also been cut. Soon thereafter, the police obtained footage of another recently burglarized Rite Aid showing that a vehicle similar to Harry Katzin’s van had been parked outside for a long period of time. As the pieces began falling into place, the police proceeded with their next step: electronic tracking. The police knew that Harry Katzin regularly parked his van on a particular street in Philadelphia. Thus, in the early hours of a mid-December morning, after consulting with the United States Attorney’s office, but without obtaining a warrant, the FBI affixed a “slap-on” GPS tracker to the exterior of Harry Katzin’s van.
While the police do not appear to have set a time limit for using the GPS tracker, the device yielded the results they were after within several days. According to the tracker, Harry Katzin’s van had left Philadelphia on the evening of December 15, 2010, and had traveled to the immediate vicinity оf a Rite Aid in a neighboring town. Through use of the device, the police could see that the van had been driven around the town for several minutes before parking at a specific location for over two hours. That’s when the FBI began to tighten the net. They alerted local police as to Harry Katzin’s whereabouts, but cautioned them not to approach too closely for fear of tipping off either Harry Katzin or any individual he may have been traveling with. When the FBI noticed that the van
While state troopers stopped Harry Katzin’s van on a Pennsylvania highway, a squad of local police officers investigated the Rite Aid closest to where Harry Katzin’s van had been parked; they found that it had been burglarized and relayed this information to the troopers. Inside the van, troopers found Harry at the wheel, with Mark and Michael as passengers. From outside of the van, the troopers could see merchandise and equipment from the burglarized Rite Aid, including pill bottles and Rite Aid storage bins. The police impounded the van and arrested the Katzin brothers.
All three brothers moved to suppress the evidence discovered in the van. The Government opposed the motions, arguing: (a) that a warrant was not required for use of the GPS device; (b) that the police had acted in good faith when installing the GPS device; and (c) that Mark and Michael lacked standing to challenge the GPS search and therefore could not move to suppress any of the evidence. The District Court held in favor of the brothers and suppressed all of the evidence found in the van. United States v. Katzin, No. 11-226,
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction to hear this case pursuant to 18 U.S.C. § 3231; our jurisdiction stems from 18 U.S.C. § 3731. In reviewing a district court’s ruling on a motion to suppress, “we review [the] court’s factual findings for clear error, and we exercise de novo review over its application of the law to those factual findings.” United States v. Pavulak,
III. GPS SEARCHES AND THE WARRANT REQUIREMENT
The Fourth Amendment mandates that [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV. Prior to 1967, the Supreme Court of the United States interpreted this language generally to mean that the Fourth Amendment prevented the police from physically intruding upon an individual’s private property for purposes of conducting a search (the physical intrusion theory). See United States v. Jones, — U.S. —,
A. Beepers, GPS Devices, and the Fourth Amendment
It was in this context that courts began grappling with the constitutionality of using tracking devices. For purposes of our discussion, we begin with the Fifth Circuit’s 1981 decision in United States v. Michael,
Two years later, the Supreme Court took up the beeper issue, ultimately holding that concealing a beeper inside of a container that was then loaded onto a target’s vehicle did not constitute a search, where the beeper’s placement was accomplished with the container owner’s consent. United States v. Knotts,
The Supreme Court returned to beepers the following year when it decided United States v. Karo,
After the beeper-centered decisions in Michael, Knotts, and Karo, technological advances heralded the advent of a new electronic surveillance device: the GPS tracker. One of the first decisions to address the constitutionality of this new technology was United States v. McIver,
The Seventh Circuit followed suit in 2007, with Judge Posner explaining that attaching a GPS device to a target vehicle did not constitute a search because such a device merely substitutes for “following a car on a public street,” an activity that “is unequivocally not a search within the meaning of the [Fourth Amendment].” United States v. Garcia,
Three years later, the Ninth Circuit returned to the topic of GPS tracking, reaffirming its conclusion that attaching a GPS tracker to the undercarriage of a vehicle did not constitute a search. United States v. Pineda-Moreno,
Later that year, the D.C. Circuit split from our sisters, holding that attaching a GPS device to a defendant’s vehicle constituted a search under the Fourth Amendment that required the police to obtain a warrant. United States v. Maynard,
In reviewing the Maynard decision (now called Jones), the Supreme Court held that magnetically attaching a GPS device to a suspect’s automobile constituted a search for purposes of the Fourth Amendment. Jones,
Justice Alito concurred in the judgment, but did not join the majority’s opinion. Id. at 957 (Alito, J., concurring). In his opinion — joined by Justices Ginsburg, Breyer, and Kagan — the appropriate Fourth Amendment analysis was the “reasonable expectation of privacy” inquiry under Katz. The outcome would be no different if the Court had applied Katz, the concurrence argued, because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the .main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period” of time. Id. at 964.
Justice Sotomayor, who joined the majority, also filed a concurrence. Id. at 954 (Sotomayor, J., concurring). And while she agreed with portions of Justice Alito’s reasoning, she nonetheless rebuked the concurring Justices for potentially countermanding an “irreducible constitutional minimum: When the Government physically invades personal property to gather
Among the issues that Jones left open, however, was whether warrantless use of GPS devices would be “reasonable — and thus lawful — under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause” to execute such searches. Id. at 954 (citation and internal quotation marks omitted). The instant case squarely presents this very issue for our consideration.
B. The Warrant Requirement and Its Exceptions
The Fourth Amendment does not protect individuals from all searches, just unreasonable ones. Indeed, as the Supreme Court has noted: “[T]he ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia Sch. Dist. 47J v. Acton,
More often than not, courts “strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment.” Skinner v. Ry. Labor Execs.’ Ass’n,
We therefore begin with the following observation: under the physical intru
We thus 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.” Jones,
1. Valid, Warrantless Searches Based on Less than Probable Cause
The Government first argues that the warrantless use of a GPS device in this case constitutes a reasonable search because the police action was based on reasonable suspicion.
a. The “Special Needs” Cases
As the Supreme Court has explained: “We have recognized exceptions to th[e Warrant Clause] when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Skinner,
In the instant case, the reasoning behind the “special needs” doctrine is inapposite. The Government cannot articulate a particularized interest, other than a generalized interest in law enforcement. Indeed, the Government contends that if officers are required to obtain a warrant and have probable cause prior to executing a GPS search, “officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.” (Appellant Br. at 27 (emphasis added).) This statement— which wags the dog rather vigorously— runs headlong into Ferguson’s admonition that, to qualify for a “special needs” exception, the primary purpose of a search cannot be to “generate evidence for law enforcement purposes.”
b. Cases of Diminished Privacy Expectations
Still, the “special needs” cases are not the only decisions to permit warrantless searches based on less than probable cause. The Government also cites a number of cases that address situations where the targets of a search enjoyed a lower expectation of privacy.
c. Terry and Its Progeny
In no small part, the Government argues that the warrantless use of slap-on GPS devices is permissible based on reasonable suspicion under the principles of Terry v. Ohio,
We find Terry and its progeny to be inapposite in this situation. While the frisk in Terry involved a pat-down of an individual, that search was limited to a specific instance in time (and limited to ascertaining whether the individual was armed or otherwise posed a danger to officer safety). A GPS search, in contrast, is an ongoing, vastly broader endeavor.
Ultimately, we disagree with the Government’s arguments advocating a “reasonable suspicion” standard. 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. 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.
2. Valid, Warrantless Searches Based on Probable Cause
As an alternative, the Government suggests that warrantless GPS searches can
Generally speaking, a warrant-less search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant. See Vale v. Louisiana,
We hold that the automobile exception is inapplicable here. The key distinction in this case is the type of search at issue. While the Supreme Court has stated that the automobile exception permits a search that is “no broader and no narrower than a magistrate could legitimately authorize by warrant,” Ross,
It is no argument, then, to say that a GPS search presents the type of circumstances that usually trigger the automobile exception. It does not. While the police are still physically intruding into a target vehicle for evidence-gathering purposes, a GPS search 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.
Additionally, we think that the “pervasive regulation of vehicles capable of traveling on the public roadways” is of no moment for purposes of the instant case. California v. Carney,
Ultimately, in executing a GPS search, the police were not attempting to recover or ascertain the presence of evidence already present in Harry Katzin’s vehicle. If they were, the automobile exception would have sanctioned their search in so far as it allowed them to enter Harry Katzin’s van and retrieve and/or verify the presence or absence of the sought-after evidence. It would not (and, indeed, did not) permit them to leave behind an ever-watchful electronic sentinel in order to collect future evidence. Were we to hold otherwise, we would unduly expand the scope of the automobile exception well past its “specifically established and well delineated” contours, Ross,
For these reasons we hold that the warrantless search in this case was not justifiable based solely on reasonable suspicion or probable cause, was thereby unreasonable, and consequently viоlated the Fourth Amendment.
IY. The Exclusionary Rule & the Good Faith Exception
Having held that the police were required to obtain a warrant prior to executing their GPS search of Harry Katzin’s van, we now consider whether the evidence uncovered as a result of their unconstitutional actions should be suppressed. We hold that it should.
A. Exclusionary Rule Jurisprudence
While the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[, it] says nothing about suppressing evidence obtained in violation of this command.” Davis v. United States, — U.S. —,
As the Supreme Court has made plain, “exclusion has always been our last resort, not our first impulse.” Id. (internal quotation marks omitted). To that end, the Supreme Court has recognized the existence of a “good faith” exception to the exclusionary rule in cases where the police “act[ed] with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis,
To determine whether a particular situation is covered under this good faith exception, the Supreme Court has directed courts to consider whether exclusion would serve “to deter future Fourth Amendment violations.” Davis,
When considering the benefits gained from deterrence, we must necessarily consider the nature and culpability of the police conduct at issue. As the Supreme Court has explained, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring,
In light of these principles, the Government argues that the police conduct at issue in this case does not rise to the level of culpability necessary for the exclusionary rule to apply and that, as a consequence, the balancing test outlined in Herring and Davis militates in favor of applying the good faith exception. In service of its argument, the Government urges that the police acted with an objectively reasonable good faith belief that their conduct was constitutional because “[bjefore Jones, every court of appeals to consider the question!, with the exception of one,] had concluded that, in light of the Supreme Court’s decision in [Knotts ], police did not need to obtain a warrant to install a GPS tracking device on the exterior of a vehicle or to use that device to monitor the vehicle’s movements on public roads.” (Appellant Br. at 48-49.) Indeed, the Government posits that this “consensus” among our sister circuits, coupled with the “guidance in Knotts and Katz,” absolves law enforcement personnel for purposes of the exclusionary rule. (Id. at 50, 55 n. 21; Oral Argument Tr. at 23.) We find the Government’s position unpersuasive and therefore hold that the good faith exception does not apply here.
B. Reliance on Beeper Cases
The Government posits that law enforcement personnel acted in good faith because they relied on, among other things, the Supreme Court’s “guidance” from Knotts that using an electronic tracking device does not violate the Fourth Amendment. (Appellant Br. at 55 n. 21.) Indeed, the Government observes that the reasoning from Knotts underpins the decision of “every court of appeals to consider” GPS tracking (save the D.C. Circuit). (Id. at 48-49.) We first ask ourselves, therefore, whether the Knotts decision — along with its sibling case, Karo — qualifies as binding precedent under Davis v. United States, wherein the Supreme Court held that the good faith exception covers police officers acting in reliance on later-invalidated binding appellate precedent.
In Davis, the police had executed a search of the defendant’s car subsequent to his arrest. At the time of the search, prevailing Supreme Court and Eleventh
Of great significance to the instant case is the fact that in Davis the police relied on binding appellate precedent that “specifically authorize [d the] particular police practice.” Id. at 2429 (first emphasis added). Indeed, as Justice Sotomayor noted in her concurrence, Davis did not “present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled.” Id. at 2435 (Sotomayor, J., concurring).
Davis extends good faith protection only to acts that are explicitly sanctioned by clear and well-settled precedent, and neither Knotts nor Karo sanction the type of intrusion at issue in this case. Conse
C. Reliance on Out-of-Circuit GPS Cases
We therefore consider the Government’s contention that the good faith exception applies because the police acted in objectively reasonable reliance on out-of-circuit precedent sanctioning warrantless GPS surveillance. (Appellant Br. at 15-16 (“Before [Jones ], all but one of the courts of appeals to have addressed the issue had approved the warrantless installation and monitoring of a GPS device on a vehicle.... [T]he agents’ reliance on this body of case law was objectively reasonable....”).) And while the Government relies, in no small part, on the reasoning in Davis for support, we think that reading Davis so broadly would strain its reasoning, to say nothing of its holding.
The Davis decision hinged on the understanding that “Responsible law-enforcement officers will take care to learn what is required of them under Fourth Amendment precedent and will conform their conduct to these rules.” Id. (internal quotation marks omitted). At the most basic level, then, the applicable body of “Fourth Amendment precedent” to which the responsible officer must conform consists of those decisions that are binding on the officer’s jurisdiction. Accord Hudson v. Michigan,
Thus, as already stated, the Court in Davis recognized that the good faith exception applies to situations where the police “conducted a search in objectively reasonable reliance on binding appellate precedent,”
Indeed, extending the rationale from Davis to cover reliance on out-of-circuit precedent would turn this principle on its head: Though our first and last word on the matter is that warrantless GPS searches are unconstitutional, in effect the Government argues that our sister circuits’ decisions should control whether the evidence is excluded. This rule would eviscerate the notion that clear and well-settled precedent should control and thus contradicts the basic principles of stare decisis. We respect our sister circuits, but their decisions cannot dictate our eonclu
This is particularly true where, as in this case, our sister circuits are split on the relevant issue. The GPS search of Harry Katzin’s van occurred in late 2010. By that time, four of our sister circuits — the Seventh, Eighth, Ninth, and D.C. Circuits — had addressed GPS surveillance. Of those, three circuits had held that GPS surveillance either did not constitute a search or, even if it did, that the police did not require a warrant. See McIver,
At the same time, the D.C. Circuit had held in United States v. Maynard (which became Jones on appeal to the Supreme Court) that GPS surveillance did constitute a search and that the police did require a warrant. Maynard,
Moreover, we cannot burden district courts with the type of case-by-case assessment that the Government’s position would require. Unlike the archetypal situations in Leon or Davis, finding that the good faith exception applies in this case would, of necessity, require courts ruling on suppression motions to discern what amounts to sufficient out-of-circuit authority for purposes of an objectively reasonable good faith belief. Thus, district courts would need to consider how many circuits had addressed the police practice in question, what each one had said, whether the statements were mere dicta, and myriad other factors. Such an approach has no limiting principle and defies rational application. Surely police reliance on a single out-of-circuit decision could not support good faith, but what about two? If the circuits split two-to-one, that would
D. Exclusion based on Culpability and Deterrence
Up to this point we have considered only whether reliance by law enforcement personnel on out-of-circuit or distinguishable authority, by itself, suffices for purposes of the good faith exception. Per the previous discussion, we hold that such reliance is insufficient to support a per se finding of good faith.
Per the Government’s argument, the legal landscape in this case predominantly consisted of the out-of-circuit GPS cases, the Supreme Court’s beeper decisions, and the overarching privacy expectation framework for Fourth Amendment analysis adopted in Katz and deemed to be the sole rubric for analysis until Jones.
Law enforcement personnel can rightly rely on a number of sources for Fourth Amendment guidance — including on-point decisions by the Supreme Court and this Circuit, warrants, and statutes. We, both as a Court and as a society, expect that law enforcement officers will consult these sources — it is a part of how we expect reasonable officers to act. Davis,
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. 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. (That the surveillance lasted only a few days is mere coincidence.
The decisions in Knotts and Katz do not remedy the situation. The Government suggests that in this case law enforcement personnel properly reasoned that the GPS search did not require a warrant by analogizing to Knotts’ discussion of electronic
Moreover, since such constitutionally reckless action was the Government’s default choice in this case, we hold that applying the exclusionary rule aptly serves its intended purpose: to “deter future Fourth Amendment violations.” Davis,
Thus, heeding the Supreme Court’s views in Herring and Davis, and after considering the Government’s various arguments, we find that the “deterrent effect of suppression [in this case is] substantial and outweigh[s] any harm to the justice system.” Herring,
Fourth Amendment rights are personal rights, and a defendant seeking to suppress evidence must therefore demonstrate a violation of his own Fourth Amendment rights before he can be granted any form of relief. See Minnesota v. Carter,
We begin by stating the obvious: There is not, nor can there be, any dispute as to whether Harry Katzin — as the owner of the van — has standing to challenge the constitutionality of the GPS search as well as the stop and subsequent search of his van, and to seek suppression of any evidence discovered within the vehicle. Indeed, the Government concedes as much. (Appellant Br. at 69.) Certainly, then, the District Court rightly suppressed the evidence as against Harry Katzin.
The Government does challenge the standing of Mark and Michael Katzin. (Id. at 67-74.) Since “a search of a car does not implicate the rights of non-owner passengers,” the Government contends that such passengers are “generally held to lack ‘standing’ to object to evidence discovered in a search of a vehicle.” Mosley,
This Court in United States v. Mosley considered the illegal stop and subsequent search of a vehicle carrying three individuals, during the course of which the police discovered several firearms from the car. We held that the stop and subsequent search of the car was to be treated as a single event, thereby rejecting an approach that would split the inquiry between several “individual constitutional violations, each with [its own] victim, each of whom may seek to suppress only the fruits of the violation of his individual rights.” Id. at 257-58. In part, this conclusion was occasioned by our holding that “[t]he relationship between the seizure of a passenger in a moving vehicle, which necessarily occurs when that vehicle is stopped by the police, and thе subsequent discovery of evidence during that stop, is one of ineluctable and undeniable correlation.” Id. at 266. Additionally, while we acknowledged
True, precedent exists to support the proposition that an individual cannot challenge the legality of a search which was executed based on information obtained as a consequence of some illegal search or seizure of a third party. See, e.g., United States v. Chase,
The Government effectively contends that we must treat the stop of Harry Katzin’s van as constituting two stops: The first, a stop (i.e., seizure) of Harry Katzin himself as a result of the GPS search. The second, a stop of Mark and Michael Katzin based on the probable cause developed through use of information derived from the GPS search. The Government would have us evaluate the legality and attendant Fourth Amendment consequences (if any) of each stop individually. We rejected this individualized approach in Mosley, holding instead that “an illegal traffic stop of a car occupied by a driver and a passenger [constitutes] a single constitutional violation, with [multiple] victims, each of whom can seek to suppress all fruits of that violation.” Mosley,
VI. CONCLUSION
For the reasons discussed above, we will affirm the District Court’s suppression of evidence discovered inside of Harry Katzin’s van.
Notes
. We note that, at times, the Supreme Court has referred to this theory in the language of “trespass” rather than physical intrusion. Compare Jones,
. At the time of this writing, we are not aware of — nor has either party brought to our attention — any decision by one of our sister circuits that directly and definitively resolves the matter. As our brethren in the First Circuit noted earlier this year:
Few courts (and no circuits that we know of) have grappled with the warrant question so far, largely because the searches at issue in recent cases occurred pre-/ones, allowing the govemment to argue, and a number of courts to find, that the good-faith exception [to the exclusionary rule] would apply even if the searches were unconstitutional.
United States v. Sparks,
. We address the “automobile exception,” first recognized in Carroll, in greater detail below.
. We assume, without deciding, that the police had reasonable suspicion for purposes of our analysis.
. The Government contends that requiring a warrant prior to GPS searches would "seriously impede the government’s ability to investigate drug trafficking, terrorism, and other crimes.” (Appellant Br. at 27.) We fail to see how such a conclusory assertion suffices to except GPS searches from the requirements of the Fourth Amendment's Warrant Clause. Doubtless, we are aware of the dangers posed by terrorism and comparably reprehensible criminal activity. However, we would work a great disservice by permitting the word "terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution.
. The seemingly paradoxical exercise of analyzing a search based on physical intrusion under the rubric of privacy expectations does not escape our notice. Still, as the Supreme Court noted in Jones: "The Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassoiy test.” Jones,
. The Government argues that “[a] Terry search is the paradigmatic example of a law enforcement action, absent 'special needs' ..., in which the balancing of law enforcement interests and privacy rights yields a standard less than probable cause.'' (Appellant Br. at 33.) This is incorrect. While the Court found that the "stop” was permissible despite merely serving a "legitimate investigative function,” that same rationale did not apply to the "frisk.” Terry,
. The Government also seems to suggest that our evaluation should turn on how long the GPS unit remained attached to Harry Katzin’s van. (Appellant Br. at 25.) It is unclear, however, whether such a test would prove workable. It is not apparent whether, pursuant to such a test, the government would need to know how long a GPS search would last or whether they could, upon rеaching some threshold duration, request a warrant from the courts for further GPS surveillance. We need not definitively resolve this question now, however. In this case, it was only by dint of coincidence that the GPS surveillance lasted for a mere handful of days.
. In support of its position, the Government points to the Eighth Circuit’s decision in Marquez and the Fifth Circuit’s decision in Michael. In Marquez, the court suggested that "[w]hen electronic monitoring does not invade upon a legitimate expectation of privacy, no search has occurred.”
The Government's reliance is misplaced. Both Michael and Marquez were decided pri- or to Jones, and thus did not have the benefit of: (a) the Court's reliance on the pre-Katz trespass theory of the Fourth Amendment or (b) Justice Sotomayor’s concurrence. Moreover, both cases are inapposite: In Marquez, the court found that the defendant lacked standing to challenge the use of the GPS device and therefore never reached the question of whether such use constituted an unreasonable search.
.We note that a warrantless search based on probable cause is also reasonable in the presence of certain "exigent circumstances” that "make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, - U.S.-,
. Here we also assume, without deciding, that the police had probable cause for purposes of our analysis.
. The automobile exception began as part of the "exigent circumstances” jurisprudence. Carroll,
. We recognize that the Supreme Court has sanctioned warrantless searches under the automobile exception that, for example, have occurred some time after the police first impounded a vehicle. See, e.g., United States v. Johns,
. The Government also points to New York v. Class,
. As the Supreme Court noted in Herring, “good faith exception” is somewhat of a misnomer.
. We also note that the Eleventh Circuit's opinion in Davis was explicit on this point: "[We refuse] to apply the exclusionary rule when the police have reasonably relied on clear and well-settled precedent. We stress, however, that our precedent on a given point must be unequivocal before we will suspend the exclusionary rule's operation.” United States v. Davis,
. We note that the majority in Davis itself suggested that its holding is inapplicable to the situation presented in this case. While explaining that its ruling will not deter defendants from challenging existing Fourth Amendment doctrine, the Supreme Court noted:
This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the development of Fourth Amendment law will in no way be stunted.
Davis,
. The Government urges that our analysis in United States v. Duka,
. To see just how unwieldy the analysis could be, we need look no further than the Government’s own arguments in this case. At oral argument, the Government attempted to minimize the significance of Maynard, suggesting that this single decision had come too late in the process and was, ultimately, distinguishable. Such arguments would be disastrously disruptive to lower courts if we were to hold that reliance on out-of-circuit authority could, by itself, suffice for purposes of the good faith exception. How up-to-date must law enforcement be regarding the state of relevant legal principles? What if a decision were issued but either (a) was late in being added to a reporter/electronic database or (b) did not get sufficiently wide-spread exposure to bring it to the attention of police departments half-way across the country? Not only would district courts be forced to tally the authorities on either side of an issue like so many chit marks, but they would also have to decide whether decisions had come too late, or were perhaps too obscure.
. We note that some of our sister circuits have ruled otherwise, holding that, per Davis, pre-Jones warrantless GPS searches qualify for protection under the good faith exception. See United States v. Sparks,
To begin with, all three courts relied on binding precedent within their own circuits. The Ninth Circuit noted that the police could rely on, among other things, Mclver for the proposition that "placing an electronic tracking device on the undercarriage of a car was neither a search nor a seizure under the Fourth Amendment.” Pineda-Moreno,
Moreover, both the First and Fifth Circuits based their good faith exception determinations on cases dealing with beepers, with the First Circuit in Sparks going so far as to hold that Knotts was sufficiently "clear and apposite” so as to support a finding of good faith. Sparlcs,
. Our dissenting colleague points to a number of other decisions and Fourth Amendment doctrines which add further sauce to the Government's good faith goose. (See Dissent at 225-29 (discussing, for example, privacy considerations in the exterior of an automobile).) While we do not disagree that these too were part of the relevant legal landscape at the time the police executed their search, we nevertheless hold that — in light of our forthcoming discussion — such authority gets further and further afield of the relevant police conduct and could only supply marginal support to justify the police action.
The only possible exception is the advisory commentary on Federal Rule of Criminal Procedure 41. (Dissent at 230-31.) However, for the reasons articulated below, see infra note 24, we find that this commentary would not help the Government’s position — even assuming the Government had seen fit to cite (let alone mention) the language in its briefs or at oral argument.
. We therefore reject the Government’s attempts to distinguish Maynard. While it is true that the surveillance in Maynard lasted for nearly a month as compared to the several days in this case, it remains equally true that when the police attached their GPS device to Harry Katzin’s van, they had no way of knowing when the next Rite Aid robbery would take place. We likewise disagree with our Dissenting colleague’s assessment of Maynard. (Dissent at 229-30.) The good faith exception analysis cannot be post-hoc, and the police action at issue must be analyzed under the circumstances as they existed at the time the action was taken — in this case, before thе police knew when their GPS surveillance would end.
. The Government suggests that the good faith exception should apply because the police sought confirmation from "experienced government attorneys.” (Appellant Br. at 56.) The Government cites Messerschmidt v. Millender, - U.S. -,
. The Dissent argues that Federal Rule of Criminal Procedure 41 — particularly the 2006 advisory committee notes to that rule — further supports a finding that the law enforcement officers in this case acted with an objectively good faith belief that their conduct was constitutional. (Dissent at 230-31.) In particular, the Dissent points to the following language from the 2006 advisory committee notes: "If ... the officers intend to install and use [a tracking device] without implicating any Fourth Amendment rights, there is no need to obtain a warrant.” Fed.R.Crim.P. 41(b) advisory committee’s note (2006) (citing Knotts,
. We do not hold, of course, that the police can never make assumptions about our future Fourth Amendment rulings. We merely hold that where law enforcement personnel choose to take the constitutional analysis into their own hands, they effectively do so without a safety net: If their analysis is correct and we ultimately affirm the constitutionality of a search, then the police are rewarded with full use of any evidence derived from the search. If their analysis is wrong, however, and the search is ultimately held to be unconstitutional, then the police cannot avoid the cost of suppression by relying on the good faith exception. Just as the police enjoy the benefits when they are correct, so, too, do they bear the costs when they are wrong. Of course, the police can avoid this entire issue by requesting a warrant in the first instance.
. Johnson addressed retroactive application of Fourth Amendment decisions. In discussing the matter, the Court stated:
If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would encourage police or other courts to disregard the plain purport of our decisions and to adopt a let’s-wait-until-it's-decided approach.
Johnson,
.It bears noting that we do not deal here with a situation where some on-point binding precedent exists. That is, we are not presented with a case wherein law enforcement personnel were asked to apply on-point binding appellate law to a new factual scenario. Indeed, we recognize that applying existing precedential frameworks to subtle factual permutations is something that police officers— and other law enforcement personnel — do all the time. We have no occasion (or desire) to curtail such practices in this opinion. Thus, for example, we do not purport to limit the ability of an officer to decide whether a particular situation gives rise to exigent circumstances while standing outside an apartment door with suspicious sounds emanating from within. Such a case could lead to a different outcome under the Herring and Davis balancing test given that, unlike here, the officer would not be leaping recklessly into an unexplored constitutional situation.
. We explicitly noted in Mosley that courts “should not be distracted by the fact that this case involves evidence found in a car.” Mosley,
. It bears noting that Mark and Michael Katzin challenge the stop of Harry Katzin’s van, not the GPS search itself. That in the course of challenging the stop this Court must necessarily consider the constitutionality of the GPS search is merely incidental: Mark and Michael seek to vindicate their own rights, not those of their brother.
Concurrence Opinion
concurring in part and dissenting in part.
To briefly recap: In December 2010, law enforcement officers, after consulting an Assistant United States Attorney, and in accord with the general policy of the United States Department of Justice, magnetically attached an independently battery
At that time, the Supreme Court, in cases involving electronic beepers in vehicles, had held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts,
In light of the Supreme Court’s decision in Jones, and for the reasons discussed in the majority opinion, I agree that the Fourth Amendment now requires law enforcement officers to obtain a warrant, issued upon probable cause, before they install a GPS or a GPS-like device on a person’s automobile, or other mobile property, and thereafter use that device to conduct continuing surveillance. See Majority Opinion (“Maj.Op.”) at 197.
I disagree, however, with the majority’s conclusion that the District Court was correct to suppress the evidence obtained as a result of the warrantless GPS installation and subsequent surveillance. See Maj. Op. at 204-14. Given pre-Jones Supreme Court precedent, the consensus regarding GPS and GPS-like use across the federal courts, and other relevant considerations, I would hold that the law enforcement officers here acted “with an objectively ‘reasonable good-faith belief that their conduct [was] lawful.” Davis v. United States, 564 U.S. -,
I.
It is indisputable that the installation and use of the GPS device in this case was a “search” under the Fourth Amendment. See Jones,
The exclusionary rule “is a ‘prudential’ doctrine,” Davis,
But application of the exclusionary rule is not warranted “in every circumstance in which it might provide marginal deterrence.” Herring,
The costs of suppression are substantial. “Exclusion exacts a heavy toll on both the judicial system and society at large.” Davis,
Against these costs, “we weigh the benefits of the rule’s deterrent effects.” Tracey,
Of course, “the deterrence benefits of exclusion ‘vary with the culpability of the law enforcement conduct’ at issue.” Davis,
Under this so-called “good-faith” exception to the exclusionary rule, beginning with United States v. Leon, the Supreme Court has consistently ruled that the costs of suppression are not outweighed by the little, if any, deterrent benefit of suppressing evidence obtained “in [a] reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” Leon,
II.
Admittedly, the majority posits several pages focused on the balancing test outlined in Herring and Davis; the test which I describe at length above. See supra Part I. But while purporting to consider whether, “in light of all the circumstances in this case,” the law enforcement officers’ conduct “rises to the level of a ‘deliberate, reckless, or grossly negligent’ violation of the Fourth Amendment,” Maj. Op. at 211, the majority fragments its analysis by discussing whether Knotts and Karo and the cases from our sister circuits addressing GPS and GPS-like devices are “binding appellate precedent” under Davis.
Of course, the question of whether Davis’s specific holding — that is, that law enforcement reliance on “binding appellate precedent” qualifies as objective good-faith conduct — lingers in the background of this case. In the event the Government were arguing that the law enforcement officers here relied on “binding appellate precedent,” I would have no qualms with the majority addressing whether Knotts and Karo and the relevant cases from our sister courts properly qualified under that moniker. But, as the majority makes clear, that is not the Government’s argument.
Furthermore, although a seemingly reasonable analytical choice, the majority’s decision to first address whether those cases qualify as “binding appellate precedent” later infects the more general good-faith analysis. That is, the majority allows its conclusion that the “Beeper Cases” and the “OuNof-Cireuit GPS Cases” are not “binding appellate precedent” to emaciate the weight given to law enforcement reliance thereon in the more general good-faith analysis.
In effect, the majority’s search for Davis-like “binding appellate precedent” in this case places a heavy thumb on the scale in favor of suppression. Such an analysis does not comply with the Leon line of cases, which, since their inception, have time and again stated that the touchstone for the good-faith exception is “ ‘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,’ ” Herring,
At bottom, the majority claims that this case is “different.” The officers here acted “differently],” (and, thus, sufficiently culpable so as to justify application of the exclusionary rule), the majority concludes, because the officers relied on “non-binding precedent” from our sister circuits and “extrapolatefed] from, or analogized] to, existing case law” rather than seeking a warrant. Maj. Op. at 211. But the conclusion that this case is “different” results primarily from the majority’s prior deter
I do not think this case is “different” from other cases involving the good-faith exception, where courts are presented with specific facts and particularities and then asked whether “a reasonably well trained officer would have known that the search [conducted] was illegal in light of all the circumstances.” Herring, 555 U.S. at 145,
Nevertheless, “of great significance to the instant case,” the majority insists, “is the fact that in Davis the police relied on binding appellate precedent that ‘specifically authorize [d the] particular police practice.’ ” Maj. Op. at 207 (quoting Davis,
More importantly, the Davis dissent, other courts, and commentators do not read the Davis majority’s articulation of the good-faith exception as limited to only “binding appellate precedent.” See Davis,
Finally, the majority argues that Davis itself forecloses the conclusion that law enforcement reliance on analogous or nonbinding out-of-circuit precedent could ever constitute good faith. Quoting language from Davis
In short, I disagree with the way the majority’s opinion reads to suggest that Davis alone answers the questions presented in this appeal. In Davis, the Court was presented with a unique set of facts to which its holding was expressly directed: officer reliance on “binding appellate precedent” later overruled. See Davis,
Of paramount importance to this case is that the reasoning underlying Davis does address those questions. Davis and the Court’s good-faith jurisprudence teach us that we must look at the totality of the circumstances and ask whether, in light of those circumstances, the officers were acting with “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” which would justify suppression, or, instead, whether they were acting “with an objectively reasonable good-faith belief that their conduct [was] lawful” or “involve[d] only simple, isolated negligence.” Davis,
In Davis, the Court explained that Leon “imported” the reasoning of United States v. Peltier,
Essential to the Peltier Court’s decision was the now-familiar reasoning that “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. Especially relevant here, the Court stated that “unless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.” Id.
Thus, if the logic of Peltier was “imported ... into the good-faith inquiry” as Davis states,
All in all, my problem with the method of the majority’s good-faith analysis is that it myopically focuses too much on the facts and narrow holdings of Davis and other good-faith cases, and considers too little, if at all, the reasoning and principles of law underlying those decisions. The majority’s analysis is a search for some sort of “immutable authority or information that justifies [the law enforcement officers’] course of action.” See Maj. Op. at 205. But the good-faith exception to the exclusionary rule is not limited to those circumstances. The good-faith inquiry, like other Fourth Amendment analyses, requires us to “slosh our way through the factbound morass of ‘reasonableness.’ ” Scott v. Harris,
III.
A.
Before determining if the officers in this case acted with an objectively reasonable belief that them conduct complied with the Fourth Amendment, we must first determine what, precisely, their conduct was. Jones lumps the police conduct that oc
B.
Application of the exclusionary rule depends on whether the officers, at the time they were acting, would have or should have known their installation of the GPS and their subsequent use of the GPS to track Harry Katzin’s vehicle were unconstitutional. See Krull,
1.
United States v. Knotts,
want[s] to look”
What Knotts initially left undecided, however, was whether the installation of the beeper was a search under the Fourth Amendment. See Knotts,
Karo held that where officers arrange for a suspect to obtain an item containing a beeper, even if the suspect has no knowledge of the item’s foreign tenant, that transfer did not intrude upon that suspect’s reasonable expectations of privacy. Id. at 712,
Thus, at bottom, before Jones, Knotts and Karo established that no Fourth Amendment search occurred where officers use beeper-based electronics to monitor an automobile’s movements on public roads because a person has no reasonable expectation of privacy with regard to that information. But, because the facts of Karo correspondingly limited its holding, those cases did not address whether installation of a beeper onto or into a vehicle, in all circumstances, was a search. Nonetheless, Karo’s reasoning regarding the Fourth Amendment implications of a beeper installation on an automobile is telling,
Additionally, several other well settled Fourth Amendment principles are relevant. Before Jones, the Supreme Court had made perfectly clear that persons did not enjoy a reasonable expectation of privacy in the exterior of their automobiles. New York v. Class,
2.
After Knotts and Karo, what resulted was a uniform consensus across the federal courts of appeals to address the issue that the installation and subsequent use of GPS or GPS-like device was not a search or, at most, was a search but did not require a warrant. See, e.g., United States v. Marquez,
Most federal district courts, including the Middle District of Pennsylvania, had reached the same result. United States v. Jesus-Nunez, No. 1:10-cr-00017-01,
The only case to break from this consensus was United States v. Maynard,
As a result, the court concluded that although it may be “one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” it is a whole other thing “for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.” Id at 560. The court’s analysis in Maynard, therefore, was focused not on the installation of the device but rather the prolonged use of the GPS and the quality and quantity of information obtained over an extended period of time. Id. at 562 (“Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation.”).
Other than Maynard only a handful of dissenting opinions questioned Knotts’s and Karo’s holdings or their applicability to GPS installation and subsequent surveillance. See Karo,
3.
I also find several other considerations relevant. First, and most important, is Rule 41(b) of the Federal Rules of Criminal Procedure, which governs the issuance of warrants in all federal criminal proceedings. The 2006 Advisory Committee’s Note explains that Rule 41(b) was amended, in part, to “address the use of tracking devices.” Fed.R.Crim.P. 41(b) advisory comm, note (2006). In describing the ideal procedure, the Note states that “[warrants may be required to monitor tracking devices when they are used to monitor persons or property in areas where there is a reasonable expectation of privacy.” Id. (citing Karo,
Moreover, the law enforcement officers consulted with an Assistant United States Attorney before conducting the installation of the GPS unit and the subsequent surveillance. {See Appellant Br. at 56.) I agree with the majority that “a government attorney’s approval, standing alone, cannot and should not suffice to demonstrate good faith.” Maj. Op. at 212 n. 23. But, as Appellees’ attorney conceded at oral argument, it is certainly another consideration to take into account in the good-faith analysis. {See Oral Arg. Trans, at 52: 4-6 (conceding that the officers’ reliance on the opinion of an Assistant United States Attorney was “a factor to look at” in determining whether the officers acted in good faith).) See also Tracey,
IV.
In my view, in light of the legal landscape discussed above, when the officers installed the GPS device
The officers here were acting with an objectively reasonable good-faith belief that their warrantless installation of the GPS device upon the undercarriage of Harry Katzin’s automobile did not run afoul of the Fourth Amendment.
Based on fundamental Fourth Amendment principles which would have been familiar to any reasonably well trained law enforcement officer, there was no possibility that the officers, at the time they installed the GPS upon Harry Katzin’s vehicle, would have “had knowledge” — nor could we now “charge[ ] [them] with knowledge” — “that the search was unconstitutional under the Fourth Amendment.” Krull,
Before Jones, the touchstone of any Fourth Amendment analysis was whether the Government had invaded upon a person’s reasonable expectation of privacy. See Katz,
Of course, Harry Katzin had a reasonable expectation of privacy with respect to the interior of his vehicle; even if that privacy interest was diminished. See Cardwell,
In Cardwell v. Lewis,
B.
Similarly, the officers here were acting with an objectively reasonable good-faith belief that their warrantless use of the GPS to monitor Harry Katzin’s vehicle while it traversed public roads over the course of two days was constitutionally permissible.
First, the majority distinguishes, and thus dismisses, Knotts and Karo on their facts. Paramount, the majority says, are that facts that “[njeither case involved a physical trespass onto the target vehicle; in both cases the police placed the beeper inside of a container which was then loaded into the target vehicle by the driver.... [and] both Karo and Knotts addressed the use of beepers, which ... are markedly different from GPS trackers.” Maj. Op. at 207. True, these factual distinctions would matter much if the Government were arguing that Knotts and Karo qualified as “binding appellate precedent” under Davis. But, as discussed above, that is not the Government’s argument. A reasonably well trained police officer, acting in December 2010, would have thought Knotts and Karo to have meant exactly what they said with regard to GPS and GPS-like surveillance. Those cases made absolutely clear that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” Knotts,
This may well be enough to justify the officers’ good faith in performing warrant-less GPS surveillance of Harry Katzin’s automobile. See Sparks,
Consequently, in light of Knotts and Karo, and their subsequent treatment, it was “objectively reasonable” for the law enforcement officers to have believed that the use of the GPS device to conduct surveillance upon Harry Katzin’s vehicle while it moved along public roadways was not a Fourth Amendment “search.” See Knotts,
C.
Moreover, two additional considerations bolster my conclusion that the law enforcement officers here acted with “an objectively ‘reasonable good-faith belief that their conduct was lawful.’ ” Davis,
First is the fact that the warrantless installation of the GPS device and its subsequent surveillance complied with the commentary to Rule 41(b) of the Federal Rules of Criminal Procedure, which states that “[i]f ... the officers intend to install and use [a GPS] device without implicating any Fourth Amendment rights, there is no need to obtain [a] warrant.” Fed. R.CrimP. 41(b) advisory comm, note (2006). As discussed, it was objectively reasonable for the officers to have concluded that Harry Katzin lacked a reasonable expectation of privacy in the undercarriage of his automobile, and the GPS device was never used to conduct surveillance in any area but the public roadways upon which the car was traveling. Thus, a reasonable reading of this commentary would have led to the equally reasonable conclusion that the officers here did not require a warrant to act.
Thus, taking into consideration the Supreme Court jurisprudence, the near unanimous treatment by the federal courts to have addressed the issue, the commentary to Rule 41(b) of the Federal Rules of Criminal Procedure, and the fact the officers here consulted with an Assistant United States Attorney, it is clear that the officers were not acting with “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard of Fourth Amendment rights,” Davis,
V.
The majority holds otherwise, because, in its view, the difference between the beepers used in Knotts and Karo and the GPS device used in this case is “one of kind, not degree,” Maj. Op. at 210 n. 20, which makes all the “difference].” Furthermore, the majority chides reliance on Knotts, Karo, and the relevant cases from our sister circuits because United States v. Maynard, which held that prolonged GPS surveillance was a search and did require a warrant, put the officers on notice “that such devices could ‘implicate] ... Fourth Amendment rights.’ ” Maj. Op. at 213 n. 24. I disagree that these two considerations render the officers’ conduct here objectively unreasonable and sufficiently culpable so as to incur the wrath of the exclusionary rule.
Certainly, the technological difference between the beepers of the 1980s and modern GPS devices is a consideration to take into account in determining whether the law enforcement officers were acting with an objectively reasonable belief their actions were lawful. Modern “GPS units do not require police to follow the suspect visually, do not allow the driver to detect tailing, and do not require an expensive deployment of equipment and manpower.” United States v. Hernandez,
Admittedly, this makes GPS devices different from the beepers used in Knotts and Karo. Beepers do not independently determine their geographic location, but, instead, “emit[] periodic signals that can be picked up by a radio receiver” within range of the beeper’s radio transmitter. See Knotts,
Notwithstanding these technological differences, “[i]t is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.” Karo,
Regardless of the technological differences, the GPS reported to law enforcement no more information than that which the officers could have obtained through pure visual surveillance. Jesus-Nunez, No. 1:10-cr-00017-01,
The efficiency or efficacy of an officer’s natural senses often benefit from advances in technology. See Dow Chem. Co. v. United States,
Nor does the existence of United States v. Maynard,
Furthermore, consider this hypothetical: Imagine, under facts identical to our case, the D.C. Circuit’s Maynard decision was, instead, the only case holding that GPS use was not a search and did not require a warrant. If, under those circumstances, the officers claimed to rely only upon Maynard for a reasonable belief that their conduct complied with the Constitution, that consideration would weigh more toward a finding of law enforcement culpability. But, here, we are presented with the alternative, and Maynard was the only holding (i.e., not a dissent or concurring opinion) from any court at the time the officers executed the warrantless GPS surveillance that considered their conduct illegal. As a result, the fact that Appellees are pointing to Maynard as the only case that said the law enforcement officers could not do what they did is a consideration that weighs in the officers’ favor.
Under the majority’s rule, where law enforcement officers engage in “extrapolation] [of] their own constitutional rule,” or where officers “assum[e] that their own self-derived rule sanctions] their conduct,” those officers act with sufficient culpablity so as to justify application of the exclusionary rule. Maj. Op. at 212. I agree that “[t]he justifications for the good-faith exception [may] not extend to situations in which police officers have interpreted ambiguous precedent.” Sparks,
Before Jones, all but one federal court of appeals to address the issue unequivocally concluded that Knotts, Karo, and other relevant Supreme Court precedent sanctioned the law enforcement conduct that occurred here. These Fourth Amendment principles, upon which the law enforcement officers relied in this case, were settled maxims of constitutional jurisprudence, some of them governing law enforcement conduct for decades. The majority, viewing this case through Jones-colored lenses, rules with the benefit of a hindsight that was unavailable to the officers here.
United States v. Jones changed things; and changed them in a way very few — if any at all — predicted. The exclusionary rule does not require us to punish the law enforcement officers here for failing to predict that sea change.
*240 [T]he Court hastens to emphasize that it has no concern that the prosecutorial and law enforcement personnel here were undertaking their work in this investigation and prosecution in a calculated or otherwise deliberately cavalier or casual manner in the hopes of just meeting the outer limits of the constitutional contours of the Katzins’ rights. Indeed, these actors could well profess surprise at the specific outcome of Jones.
United States v. Katzin, Crim. No. 11-226,
Doing so renders the exclusionary rule a “strict-liability” regime, something which it emphatically is not. See Davis,
. I also agree with the majority that, under our decision in United States v. Mosley,
. The majority supports its limiting reading of Davis by pointing to the opinion below from the Eleventh Circuit, and several similar cases from our sister circuits, wherein courts "stress ... that [the] precedent on a given point must be unequivocal before [those courts would] suspend the exclusionary rule's operation.” United States v. Davis,
. The language quoted by the majority reads as follows:
This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the development of Fourth Amendment law will in no way be stunted.
Davis,
.As an aside, I fail to see how allowing law enforcement reliance on analogous or nonbinding out-of-circuit precedent to influence substantially the good-faith analysis would foreclose development of Fourth Amendment law. Leon made clear that "[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question [of] whether the Fourth Amendment has been violated.” 468 U.S. at 924,
. The majority insinuates that my analysis would "burden district courts with [an unwarranted] type of case-by-case assessment,” and create "a sprawling, amorphous, and self-contradicting doctrine.” Maj. Op. at 210. But all of the questions that the majority fears — i.e., "how many circuits had addressed the police practice in question, what each one said, whether the statements were mere dicta”; and "what if our sister courts had all ruled in near-unanimity on a point, with one stalwart (perhaps, highly persuasive) holdout?” — are exactly the sorts of questions we should be asking; particularly where the Supreme Court instructs us to answer the good-faith question by focusing on whether "a reasonably well trained officer would have known that the search [conducted] was illegal in light of all the circumstances.” Herring,
. See, e.g., Karo,
. I pause to note that separating GPS use into these two distinct Fourth Amendment acts is not appropriate for determining whether a Fourth Amendment search has occurred. The Jones majority clearly rejected the concurrence’s suggestion that it do so. Compare Jones,
.At the time, this holding was in accord many of the courts of appeals to have addressed the issue. A compelling number of courts found beeper surveillance did not implicate the Fourth Amendment. See, e.g., United States v. Michael, 645 F.2d 252, 257-58 (5th Cir.1981) (en banc) (holding “subsequent monitoring,” after installation of beeper upon reasonable suspicion, "did not violate ... reasonable expectation[s] of privacy”); United States v. Hufford,
Alternatively, some courts alluded that it implicated a person’s privacy interests, but did not hold such surveillance required a warrant. See, e.g., United States v. Moore,
The Fifth Circuit at one time held that beeper surveillance plainly implicated the Fourth Amendment. See United States v. Holmes,
. The proposition that one has no reasonable expectation of privacy in information willingly conveyed to third parties remains unquestioned. Smith v. Maryland,
. The Knotts Court also based its holding on the similarly well-established "open fields” doctrine, see Air Pollution Variance Bd. of Colo. v. W. Alfalfa Corp.,
. Karo's conclusion that "an actual trespass is neither necessary nor sufficient to establish a constitutional violation” was, until Jones, sacrosanct in Fourth Amendment law. In Katz v. United States,
. The Karo Court also rejected the argument that the transfer of the bugged container constituted a seizure, holding that no "possessory interest was interfered with in a meaningful way.” Karo,
. Michael was also the law in the Eleventh Circuit. See Bonner v. City of Prichard,
. The Supreme Court in Knotts, in response to the argument that its holding would allow “twenty-four hour surveillance of any citizen of this country ... without judicial knowledge or supervision,” opined that "the 'reality hardly suggests abuse,' ” and suggested that "if such dragnet-type law enforcement practices ... should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Knotts,
. I pause here to note that the majority characterizes Maynard as having held that the mere act of attaching a GPS device onto a person's vehicle for the purpose of conducting continual surveillance, alone, constituted a search. See Maj. Op. at 196-97; see also id. at 201 n. 9 (describing that Maynard "explained that warrantless installation of a GPS device by the police was per se unreasonable under the Fourth Amendment”). Such a characterization is unfaithful to the panel’s opinion, which explicitly tailored its holdings to the fact that the surveillance conducted in that case lasted for a month. See Maynard,
. By "installed the GPS device,” of course, I mean that the officers magnetically attached the "slap on" GPS device upon the undercarriage of Harry Katzin’s vehicle. That device was totally independent of the car, operating under its own power. Also, it was not physically installed onto the car using screws, adhesives, or otherwise. Its attachment was occasioned only magnetically. Thus, for the purpose of my analysis, I focus on those facts.
. The majority is correct to point out, in its brief discussion of Class 's applicability to our warrant analysis, that Jones dismissed Class's relevancy with regard to whether a search occurs where officers install and subsequently track a GPS device upon an automobile. See Maj. Op. at 204 n. 14. That does not mean, however, that Class and Cardwell are similarly irrelevant to our good-faith analysis. At the time the officers were acting, those two cases were generally understood to stand for the proposition that one lacks a reasonable expectation of privacy in the exterior of his automobile. See, e.g., Pineda-Moreno,
. The majority claims that, under the logic of my analysis, Maynard should have put the law enforcement officers "on notice that [GPS] devices could implicate Fourth Amendment rights.” Maj. Op. at 213 n. 24 (alteration, omission, and internal quotation marks omitted). For the reasons set forth at infra Part V, I disagree.
. Although the Government neglected to argue this fact, similar arguments have been made in similar cases, including cases heard
. See California v. Greenwood,
. See Brown,
. See Florida v. Riley,
. Today, the question remains open as to whether Jones effectually abrogated Knotts's conclusion that persons lack any reasonable expectation of рrivacy in the information the GPS unit was procuring. The only question answered in Jones was whether a search had occurred through the installation and subsequent use of the GPS device. Thus, the Fourth Amendment implications of the information obtained by the GPS surveillance, alone, were not discussed. Jones did state that "Knotts noted the 'limited use which the government made of the signals from [that] particular beeper; and reserved the question whether 'different constitutional principles may be applicable’ to 'dragnet-type law enforcement practices’ of the type that GPS tracking made possible [in that case].” Jones,
. The majority concludes otherwise, alluding that my preferred disposition would "leave [persons] at the mercy of advancing technology.” Maj. Op. at 211 n. 20 (citing Kyllo v. United States,
. The majority claims this is a distinction without a point, because "when the police attached their GPS device to Harry Katzin’s van, they had no way of knowing when the next Rite Aid robbery would take place”; thus characterizing the GPS tracking here as “a long-term surveillance project.” See Maj. Op. at 212 & n. 22. But for purposes of whether a Fourth Amendment violation occurred it matters not what law enforcement officers could have done but what they did do. See Dow Chem. Co.,
. The Knotts Court did say, however, that “if dragnet-type law enforcement practices” such as “twenty-four hour surveillance of any citizen of this country ... without judicial knowledge or supervision,” "should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Knotts,
. I have serious reservations about the implications of the majority’s ruling in this case. Nevertheless, I admit my position might encourage some law enforcement officers to bend and twist existing precedent and legal
But I have confidence that courts are aptly suited to discern the true "good-faith actors” from the bad; and that, in circumstances such as those presented in this case, we will be able to definitively answer the question of whether law enforcement officers were acting with objectively reasonable good faith. Rulings that officers come up short will help deter undesirable law enforcement conduct.
The majority recognizes that "applying existing precedential framework to subtle factual permutations is something that police officers — and other law enforcement personnel— do all the time." Maj. Op. at 214 n. 27. But while insisting that its opinion does not "curtail such practices,” the majority punishes the law enforcement officers in this case for performing that exact practice. There may not have been a case from our Circuit or the Supreme Court specifically detailing what the officers should have done in the particular circumstances presented here. But there were cases from the Supreme Court that came very close; close enough, in fact, that some of our sister courts found them to be controlling as precedents in situations similar to the case at bar.
Obviously there is not enough time, history, or reporter space to answer every single Fourth Amendment question. As a result, the exclusionary rule has developed to provide a remedy on the backend. Often the hurried judgments of an officer, however well intentioned, simply do not comply with constitutional rights. But as a matter of Fourth Amendment policy, I would rather allow the officer more freedom in performing his job— particularly where the answer to the "application of] existing precedential framework to subtle factual permutations” is so readily apparent as it was in this case — than protect courts from overly burdensome suppression motions. Ruling on suppression motions is part of our job.