United States v. Harry Katzin

advisory above, range sentencing, within the Guidelines as noted the District —is District substantively unreasonable. The Court did not translate the intended resti- dan- posed grave Court found that Ward Instead, tution a fine. into the District ger society to and had committed serious Court considered the relevant factors to crimes, necessitating long thus sentence. fine, imposition of a consistent with 18 The District Court was well within its dis- § U.S.C. 3572. Based on the record be- impose cretion to 300 month sentence. us, fore the District decision Court’s to reject argument therefore Ward’s We impose a fine at resentencing was unrelat- substantively his sentence is unreasonable. ed to its decision not to order restitution. We will therefore not consider Ward’s ar- 6. Restitution gument relatedness fine Ward contends that the District gives standing and restitution him to chal- comply Court failed to with 18 U.S.C. lenge the failure to order restitution. § requires sentencing which court to order defendant resti pay III. Conclusion if tution to his victims their losses can reasons, foregoing For the af- will (b)(3), 2259(a), § determined. 18 & U.S.C. firm the District Court’s judgment sen- (b)(4)(A). requests Ward now that we va tence. cate his sentence remand for resen tencing so that the District Court can or

der object restitution. Ward did not

the District Court’s decision not to order

restitution at resentencing. his As re

sult, we review the District Court’s deci plain

sion for error. United States v.

Couch, (3d Cir.2002). 252-53 standing chal-

Ward lacks to raise this America, UNITED STATES of victim, lenge only the because crime Appellant representative, crime legal victim’s or the government may rights assert to a related Katzin; Harry KATZIN; Michael 3771(d)(1). §

restitution award. U.S.C. Katzin, Mark Louis Sr.

Therefore, argument his is meritless.

Ward, however, asserts that he has No. 12-2548. standing imposition fine because of a Appeals, United States Court of directly related the District Court’s Third Circuit. inability impose argu- restitution. This ment appeal. misconstrues record on Argued March 2013. On Ward’s appeal, first we noted that Opinion Filed: Oct. District impose Court’s decision to a fine instead of restitution was be- improper

cause simply “the Court translated

intended into a restitution fine owed to

government, anal- engaging without

ysis why as to appropriate a fine was

despite having ... no fine appeared Ward, imposed.”

would be F.3d (citation omitted). re-

185-86 At Ward’s Zauzmer, Esq. [argued], Emi-

Robert A. Esq., D. ly Esq., Memeger, Zane McKillip, Zaleski, Esq., Thomas Office of United M. PA, Ap- Attorney, Philadelphia, States pellant States of America. The United Dreyer, Esq. [argued], A. Thomas Ford, PA, Appellee Harry for Kat- Chadds zin. DeStefano, Esq., A. Stevens &

William PA, Lee, Appellee for Mi- Philadelphia, chael Katzin. Jr., Esq. Cipparone, [argued],

Rocco C. NJ, Heights, Appellee Haddon for Mark Katzin, Louis Sr. Wizner,

Benjamin Esq., E. Catherine N. Wessler, Crump, [Argued], Nathan Esq. Union, Esq., Civil Liberties New American York, NY, Appellees for Amicus the Amer- ican Civil Liberties Union Foundation. Walczak, Rose, Esq., Witold Sara J. J. Union, Esq., American Civil Liberties PA, Crump, Esq. N. Pittsburgh, Catherine Union, [argued], American Civil Liberties NY, York, Appellees New for Amicus American Liberties Union Founda- Civil Pennsylvania. tion of Crump, Esq. [argued], N. Catherine Union, American Civil Liberties New York, NY, Fakhoury, Mar- Esq., Hanni M. Hoffman, Esq., cia Electronic Frontier CA, Francisco, Foundation, Ami- San for Appellees cus the Electronic Frontier Foundation. PA, Ardmore, Goldberger, Esq.,

Peter [argued], Crump, Esq. N. Amer- Catherine Union, York, NY, ican Civil Liberties New the National Appellee Harry Amicus Associa- evidence recovered from Kat- Lawyers. tion of Criminal Defense zin’s van. We therefore affirm will District suppress Court’s decision to all JR., SMITH, GREENAWAY, Before: fruits of the unconstitutional GPS search. ANTWERPEN, Judges. and VAN Circuit I. AND FACTS PROCEDURAL HIS- OPINION TORY GREENAWAY, JR., Judge. Circuit Given that the issues in this matter appeal This stems from the Govern- touch several forms electronic ment’s installation of a warrantless Global devices, tracking necessary we feel it —in (a Positioning System device “GPS device” service of our forthcoming analysis—to tracker”) to track or “GPS the movements embark on brief discussion of the rele- Appellee Harry Katzin’s van. technology delving vant before into the Katzin, along with his brothers Mark and specific surrounding Appel- circumstances (collectively, “Appellees”), Michael claims lees. attaching the GPS device without a warrant violated the Fourth Amendment. Tracking Technology A. (“Appel- The United States Government “Government”) (a) argues “slap-on” lant” that: This case concerns a is not to required warrant install a GPS tracker, called it magnetically so because (b) device; even if a warrant re- were target vehicle, attaches exterior of a police acting good the were quired, battery operated, thereby requires and (c) faith; any case, and Mark Mi- and no connection electronic to the automobile. admissibility lack to standing chael contest The uses Positioning tracker the Global Harry evidence from of recovered Katzin’s System originally network of satellites —a van. developed by military the determine —to The instant therefore us case calls high location degree its own with a of to decide two novel issues of Fourth and this specificity then sends data to a First, law: we are to asked central check-and-report pro- server. This police whether to required decide the are every repeats (depending cess few minutes a to prior attaching obtain warrant a GPS tracker), thereby a generating high- the pur- to an device individual’s vehicle for ly accurate record of the tracker’s where- poses monitoring of the move- vehicle’s throughout operation. its period abouts (conduct search”). so, ments a If we “GPS great system apart The benefit of such a — then consider the are asked to whether anyone accuracy from its with ac- —is unconstitutionality a warrantless GPS analyze cess to the central server can may purposes be excused for the search remotely. monitor the location data These exclusionary rule, police where the acted make aspects particularly GPS trackers the Supreme before Court of the United contexts, appealing law enforcement proclaimed that attaching States a GPS a police where can attach tracker to to a a device vehicle constituted “search” some vehicle or other asset and then re- under the Fourth Amendment. For the motely monitor its location and movement. below, reasons discussed we hold technology distinguished GPS must be a police prior must obtain warrant to a primitive tracking from more devices search and that the conduct in this GPS yesteryear “beepers.” Beepers such as case cannot be on the excused basis Furthermore, nothing are more than “radio transmit- faith. all good we hold that ted[s], standing usually battery operated, three brothers had to which suppress him, the next did not arrest but discovered signals picked that can be periodic emit[ ] to States v. day phone pharmacy that the lines receiver.” a up by radio month, Harry Knotts, cut. The next had been (1983). Katzin, his along with one of brothers In contrast to GPS 75 L.Ed.2d 55 individual, approached other was trackers, independently do not as- one beepers as he outside of a different they only police broadcast sat certain their location— After Dodge Aid in Caravan. police can then follow via Rite his signal that the a search, Moreover, Harry Katzin consented corresponding receiver. tools, gloves, police if the discovered electrical range-limited: are beeper signals Harry explained Katzin away ski masks. enough far move police were of the electrician’s these tools be unable receive beeper, they will men to allowed the police unit At bot- trade and broadcasts. signal that Rite Aid telephone The lines tom, then, police mere aids for leave. beepers are thereafter, surveillance of also been cut. Soon alrеady performing had officers trackers, recently of another footage obtained target Unlike vehicle. showing Rite that a vehi- police expend burglarized re- Aid beepers require Harry cle Katzin’s van had been manpower physical- similar sources—time —to period time. parked long outside for a vehicle. ly target follow a falling began place, As the into pieces B. Brothers Katzin The step: police proceeded with their next The tracking. electronic knew Delaware, Ma- spectre haunting

A was parked Katzin his van on regularly Jersey in 2009 and ryland, and New Thus, Philadelphia. street in particular hit had been 2010—the three states early of a mid-December hours burglaries, many of wave pharmacy morning, consulting after with the United pharmacies. Rite Aid which affected office, Attorney’s States but without ob- in the method used various crimes warrant, FBI a taining “slap- a the affixed cases, many in the largely consistent: Harry on” the GPS tracker to exterior of pharmacies for the systems alarm Katzin’s van. by cutting phone the external be disabled the police approached local lines. The police appear the do not to While (collectively, police”) FBI “the and help for tracker, using time limit the set a for GPS the hunt was on. yielded they the results were the device days. According to By mid-May suspect emerged: a after within several tracker, Harry Harry Katzin. Not Katzin’s van had left local electrician named the recently caught burglar- Philadelphia evening on the December he been had izing pharmacy, but he his and traveled to the immedi- a Rite Aid and had in vicinity neighboring and crimi- of a Aid Michael—had ate Rite brothers —Mark device, Through po- arrests the the nal that included for bur- town. use of histories glary theft. Over the course of lice could see that the van had been driven and months, minutes joint feder- several be- state and around town for following began receiving parking location for over investigation reports specific al fore began Aid the FBI to seeing Harry Katzin around Rite two hours. That’s when tighten pharmacies throughout They police the three states. the net. alerted local whereabouts, Harry cau- For late October local Katzin’s but example, closely for police Pennsylvania Harry approach tioned them not to too encountered crouching tipping Harry either Katzin or Katzin beside some bushes out- fear of off traveling may have been responding any side of Rite Aid after individual he noticed the van reports activity. with. the FBI suspicious police The When move, ruling the call came court’s again suppress, once on the on a motion to “we the van review in: was to be taken. factual findings [the] court’s error, clear and we exercise de novo re- stopped Harry troopers While state Kat- view over application its of the law to those highway, Pennsylvania zin’s van on a factual findings.” United States v. Pavu- squad police investigated of local officers lak, (3d Cir.2012) 700 F.3d (citing where Harry the Rite Aid closest to Kat- Coles, United States v. parked; zin’s van had been found that (3d Cir.2006)). burglarized relayed it had been and this van, information to Inside the troopers. III. AND GPS SEARCHES THE WAR- wheel, troopers found REQUIREMENT RANT passengers. Mark and Michael as From The Fourth Amendment mandates that van, troopers outside of the could see merchandise and from the bur- equipment right [t]he people to be secure in Aid, glarized including pill houses, Rite bottles persons, their papers, and ef- storage police Rite Aid The im- bins. against fects unreasonable searches and pounded the van and arrested the Katzin seizures, violated, shall not be and no brothers. issue, Warrant shall but probable cause, supported affirmation, Oath or suppress All three brothers moved to and particularly describing place the evidence the van. discovered searched, persons and the things motions, opposed arguing: Government to be seized. (a) that a required warrant was not for use Const, (b) device; GPS that the amend. IV. Prior to had in good acted installing faith when Court of the United States inter (c) device; preted language generally that Mark and Mi to mean that the standing challenge prevented chael lacked the GPS search and from physically intruding upon therefore could not move to suppress private property of the evidence. The individual’s for purposes Dis (the trict Court of conducting physical held favor a search intru brothers suppressed Jones, all theory). of the evidence found in sion See United States — Katzin, U.S. —, 945, 949-50, the van. United 11- States No. (E.D.Pa. also, *11 May (2012); WL L.Ed.2d 911 see e.g., Olm 2012). States, appeal This followed. stead v. 564, S.Ct. 72 (upholding L.Ed. 944 II. JURISDICTION AND STANDARD the wiretapping warrantless of a target’s OF REVIEW telephone primarily lines because “[t]here was no jurisdiction entry The District had of the houses or offices of the Court defendants”), part to hear this to pursuant case 18 U.S.C. overruled Katz v. 3231; States, 347, § jurisdiction 507, our stems from 18 United 389 88 U.S. S.Ct. (1967).1 § reviewing U.S.C. 3731. In a A change district 19 L.Ed.2d 576 came in that, times, (Alito, J., Supreme We note the dissenting) (criticizing Supreme 1. at Court the theory language has referred to in the application physi- Court’s most recent “trespass” physical noting theory “trespass rather than intrusion. cal intrusion that Jones, 949-50, Compare provides 132 S.Ct. at law support with no for the Court’s hold- - Jardines, -, States, ing today”); Florida v. U.S. 133 S.Ct. v. United 365 Silverman 1409, 1414, (2013). 505, 511, 185 495 L.Ed.2d As the U.S. 81 5 L.Ed.2d 734 stands, (1961) (”[W]e currently pause law we think the latter need not to consider "physical ap- trespass intrusion” —is the more whether or not there was a technical term' — propriate. Jardines, property relating party See 133 S.Ct. at 1420-21 under the local to the physically intruded defendant’s in Katz v. United the decision 1967 with car). See, States, (i.e., at e.g., the his id. property involved warrantless which public phone (Tate, J., a booth. dissenting). wiretapping 260-70 Katz, In the Court 507. 88 S.Ct. later, years Supreme Court Two Amendment that the Fourth announced issue, ultimately hold- up beeper took places,” id. “protects people, not a concealing beeper that a inside of ing eventually be principle a tar- container that was then loaded onto Harlan Justice came embodied what search, did constitute a get’s vehicle not expec “reasonable individual’s termed an accom- beeper’s placement where the was (the theory), id. privacy privacy” tation of the container owner’s consent. plished with (Harlan, J., concur 360-61, S.Ct. 507 Knotts, 279- United States v. ring). subsequent years, In 1081, 75 103 S.Ct. L.Ed.2d driving behind theory force became (1983). Supreme doing, In so while jurisprudence, Fourth Amendment explained traveling in an person “[a] theory lay dormant. physical intrusion thoroughfares has no public automobile on Santillo, See, e.g., United States privacy in his expectation reasonable (3d Cir.1975) (noting that F.2d place another.” movements one concepts early Fourth trespassory [in “the Nonetheless, Id. at 103 S.Ct. 1081. ... since jurisprudence] Amendment ruling unequivocal, Court’s omitted) (cit (footnotes been discredited” Majority cautioning twenty- Katz, 352-53, ing 88 S.Ct. hour, “dragnet type four law enforcement 507)). implicate could consti- practices” “different Devices, Beepers, A. 283-84, principles.” tutional S.Ct. 1081. began in this that courts It was context beepers The Court returned to constitutionality of us- grappling with the following year when it decided United purposes For of our tracking devices. Karo, States v. discussion, begin Fifth Cir- with the (1984), 82 L.Ed.2d cen- which cuit’s deсision in United States beeper tered on the DEA’s use of (5th Cir.1981) (en Michael, F.2d regarding collect information the where- banc), the warrantless which considered objects private abouts resi- inside of a sus- beeper use of a surveillance Karo, again In DEA had dence. once Michael, pected drug manufacturer. beeper secreted a inside of container— that installation of the court assumed also with the owner’s consent— container beeper the exterior of a constituted on van and ensured the container would holding the DEA search before loaded Id. at target’s into vehicle. agents’ constitutional since conduct was agents then suspicion. acted based beeper used the track vehicle (holding Id. at that defendant had 256-59 various locations determined that and in privacy expectations “reduced” beeper-concealing had been container movement of his automobile and (some- brought inside several residences intrusive). minimally use of beeper a was verify thing they not with visual could pair that, A dissenting opinions argued of surveillance). Id. at among things, agents the DEA were other required holding beeper 3296. In that use of the to obtain a warrant because rights property cient real law.”

walls. niceties tort or Inherent Fourth (footnote omitted)). inevitably are of an- not measurable in terms under did not a was unconstitutional those circum- constitute search because such a stances, that, in explained unlike the Court merely device substitutes “following for a Knotts —where information was “voluntari- street,” car public activity on a that “is anyone ly conveyed to who wanted unequivocally not a search within the moni- look”—the information obtained meaning the [Fourth Amendment].” toring the while beeper private inside a Garcia, United v. States 474 F.3d DEA “that gave residence information (7th Cir.2007). However, echoing the Su- visually could not Id. have been verified.” Knotts, preme Court’s concerns in the Sev- (internal at quotation enth might Circuit warned that it need to omitted). dissent, partial marks In a Jus- its reevaluate conclusion if faced with a (joined by tice Stevens Brennan Justices concerning case use of technology GPS Marshall) argued and placing mass surveillance. Id. at 998. container, beeper inside a which then vehicle, target’s loaded into the implicated later, years Three the Ninth Circuit re- both a “seizure and a search within the topic tracking, turned to of GPS reaf- meaning of the Fourth Id. Amendment.” firming attaching conclusion that a its (Stevens, J., 104 S.Ct. 3296 dissent- tracker of a undercarriage vehicle part). in did not constitute search. United States in beeper-centered After the decisions Pineda-Moreno, 1214-15 Michael, Knotts, Karo, and technological (9th Cir.2010). The filed appellant peti- advances heralded advent of a new banc, rehearing tion for though en electronic surveillance device: the GPS Ninth petition, Circuit denied the Chief tracker. One of the first to ad decisions Judge a fiery Kozinski issued dissent from constitutionality dress the tech this new denial, accusing the Pineda-Moreno McIver, nology was United States v. majority being “inclined to refuse noth- (9th Cir.1999). Mclver, F.3d 1119 In ing” to the needs of law enforcement. rejected argu Ninth Circuit defendant’s Pineda-Moreno, States F.3d installing ment that (along GPS device (9th Cir.2010) (Kozinski, C.J., with a beeper) “undercarriage on the dissent, dissenting). his the Chief [the defendant’s automobile]” constituted Judge noted that GPS devices “have little “seizure of the vehicle.” at 1127 in primitive common with the devices in (“Mclver present any did not evidence Knotts,” because, part unlike GPS de- placement magnetized tracking vices, require! “still beepers ] least one deprived devices him of dominion con usually many officer—and more—to follow [vehicle], trol of his nor did he demon Thus, suspect.” Id. the dis- objects strate that the presence these noted, “[y]ou your sent while can preserve caused damage the electronic com vehicle.”). anonymity prying eyes, pub- even in ponents of the also The court lic, that, by traveling night, through heavy concluded because Mclver dem could expectation pri traffic, crowds, onstrate no reasonable using circuitous vacy in exposed undercarriage of his route, disguising your appearance, passing car, the use of the electronic did devices being of buildings and out careful not constitute a search under the Fourth followed,” hiding to be there is “no Amendment. Id. at 1126-27. all-seeing, from the network of GPS satel- overhead, lites that hover which never

The Seventh followed Circuit suit blink, sleep, never and never lose atten- Judge with Posner that explaining attaching a device to a tion.” at 1126. target GPS vehicle Id. (now reviewing Maynard the decision Circuit be year, Eighth the

That same Jones), say Supreme the held our sister courts to called Court third of came the car a target magnetically attaching a device to a GPS device attaching GPS that violation. United suspect’s a constitutional a automobile constituted a was not to Marquez, 605 F.3d 609-10 purposes States for of the Fourth Amend- search Cir.2010). (8th Marquez the court Jones, While at 949. Rather ment. S.Ct. it ruling standing grounds, based its the of focusing than on whether owner the in dicta—that still announced—albeit expectation a reasonable vehicle had monitoring does in not electronic “[w]hen public car privacy driving while the over pri legitimate expectation a upon vade (with streets, the Court Justice Scalia Id. vacy, has occurred.” at 609 no search writing majority) for the concluded that (“A traveling via automobile on person a attaching target device to a car con- expecta no reasonable public streets has physical a intrusion the vehi- stituted movements from one tion of in his (“The private property. cle owner’s Id. Knotts, (citing another.” locale to occupied private physically Government 1081)). 281, 103 obtaining in- property purpose for year, split the D.C. Circuit have no doubt that such a

Later that formation. We sisters, holding attaching physical from our intrusion would been consid- to a defendant’s vehicle consti- GPS device meaning ered a ‘search’ within the tuted under Fourth Amend- a search when Fourth Amendment was to required ment obtain adopted.”). Maynard, States warrant. United judgment, Justice Alito concurred (D.C.Cir.2010). doing, In so F.3d 544 join majority’s opinion. but did not argument rejected court the Knotts-based (Alito, J., concurring). opin- In his at 957 exposed to that a movements are driver’s joined by Breyer, Ginsburg, Justices ion— not public and therefore do constitute Kagan appropriate Fourth —the by the information shielded analysis “reasonable (“[W]e Amendment. Id. at 560 hold the expectation privacy” inquiry under Katz. person’s

whole movements over the if The outcome would be no different actually not exposed course of a month is Katz, had applied Court concurrence public because the likelihood “society’s argued, expectation because has those stranger would observe all move- agents been law enforcement oth- remote, just essentially ments not it is indeed, .main, not—and in the ers would nil.”). time, At the same the court simply secretly could monitor and not— rejected the Maynard applicability of the catalogue every single movement of an to exception the warrant re- automobile very long for a period” individual’s car excep- quirement, holding while time. Id. at 964. a car “permits tion to search Sotomayor, joined Justice who the ma- if without a warrant have reason jority, also filed a concurrence. Id. at 954 believe ... does it] it contains contrabando J., (Sotomayor, concurring). And while tracking authorize them install agreed portions she of Justice Alito’s approval car of a device on a without the reasoning, nonetheless rebuked the she magistrate.” year neutral Id. at 567. A later, concurring potentially counter- granted certiora- Justices ri, manding an “irreducible constitutional the name States v. changing — Jones, U.S.-, physi- 180 minimum: When the Government (2011). gather cally personal property invades L.Ed.2d 885

197 information, Id. at meets a search occurs.” 955. the reasonableness standard is Moreover, Sotomayor argued that judged by Justice its balancing intrusion on the present devices law-enforcement individual’s Fourth Amendment interests low-cost, with a low-resource agencies against promotion legitimate its govern such, tracking citizens. As even method mental interests.” Id. 115 S.Ct. surveillance constituted an im- (internal short-term omitted). 2386 quotation marks permissible search under the Fourth “general Under this ... approach,” courts also, (calling, Amendment. Id. at 955-57 look to the “totality circumstances” potentially reassessing for in- in performing balancing this test. United enjoy terests individuals information 112, Knights, 118, States v. 534 U.S. so parties disclosed third as to account 587, (2001) (internal S.Ct. 151 L.Ed.2d 497 the new the digital age). realities of omitted). quotation marks Among open, the issues that Jones left not, More often than courts “strike however, was whether warrantless use of this balance in procedures favor GPS devices would be “reasonable —and described the Warrant Clause of the thus lawful—under the Fourth Amend- Fourth Ry. Amendment.” Skinner v. La [where] ment officers ha[ve] Ass’n, 602, bor 619, Execs.’ 489 U.S. suspicion, and probable indeed cause” to 1402, (1989). Thus, L.Ed.2d (citation such execute searches. principle “[i]t remains a cardinal omitted). quotation internal marks searches judicial conducted outside the squarely presents The instant case this process, prior approval without by judge very issue for our consideration.2 We magistrate, se per are un unreasonable turn therefore now to consideration of subject der the Fourth Amendment — require- Amendment’s warrant to a specifically few established and well- and the ment various—albeit circum- delineated exceptions.” United States exceptions thereto. scribed— Harrison, (3d Cir.2012) (internal omitted). This quotation marks Requirement B. Warrant and Its protection applies to both “‘houses’ and Exceptions ” ‘effects,’ “ presence barring the of some The Fourth Amendment does not ” ‘exceptional circumstances’ that would searches, protect just individuals from all permit See exception. United States v. Indeed, unreasonable ones. as the Su Jeffers, preme “[T]he has noted: ultimate L.Ed. 59 (quoting Johnson v. Unit constitutionality gov measure of the of a States, ed ” ernmental search is ‘reasonableness.’ (1948)). L.Ed. 436 Acton, Sch. Vernonia Dist. 47J begin with L.Ed.2d 564 We therefore the follow (1995). particular physical “[W]hether search observation: under the intru- writing, govemment argue, At the time we of this are not aware and a number of courts find, party brought of—nor has either to our atten- good-faith exception that the [to the decision of our sister one cir- exclusionary apply rule] would even if the tion — directly definitively cuits resolves the searches were unconstitutional. in the matter. As our brethren First Circuit (1st Sparks, States v. F.3d year: earlier noted Cir.2013). explain greater length As (and of) Few courts no that we know circuits below, good-faith we do not believe that the grappled question warrant so exception аpplies consequent- in this case and far, largely because the searches at issue in ly take on the issue. warrant pre-/ones, allowing recent cases occurred

198 Amendment, cle, thereby undertaking a search that theory of the sion case—ie., to compared Court has “a consta- Supreme physical in this police actions target’s concealing himself in ble’s an individu entry occupation and of in track its coach order to movements.” of purposes ongo al’s or effects house Jones, at 950 n. the follow- S.Ct. 3. disconcert highly ing tracking—are GPS therefore, section, analyze whether ing States, 365 v. United ing. In Silverman in fa- weigh additional considerations L.Ed.2d 734 to finding vor GPS searches of warrantless a (1961), acting without war police, be reasonable. rant, a “spike driven surreptitiously had (a up spike capable picking long mic” Valid, 1. Based Searches Warrantless sound) neighboring of a through the wall on Less than Probable Cause heating into duct of the house and argues The Government first 506-07, home. Id. S.Ct. defendant’s a use of device in this the warrantless this proclaimed Court to be 679. The constitutes a reasonable search be case in “beyond pale even those decisions action based on rea cause closely Court has held that which a divided suspicion.4 In ar sonable service accomplished by other than eavesdropping gument, posits the Government not did amount to electronic means Ohio, S.Ct. Terry “[s]ince rights.” of Fourth Amendment invasion (1968), the Court has L.Ed.2d 679; 511-12, id. at Id. at law enforcement actions identified various (“This has never held S.Ct. qualify as Fourth Amendment may warrant officer without a federal seizures, or may searches but that never physically entrench and consent without without a warrant or theless conducted home, secretly into man’s office or there a 23.) probable (Appellant cause.” Br. at listen, relate at man’s observe or This is true. Government cites trial was seen or criminal what subsequent general categories per three of cases that added)). (emphasis While heard.” mit less warrantless searches based on recognizes Fourth Amendment differ cause: probable “special than needs” “store, of a ence the invasion between cases, addressing circumstances decisions house, other ... of dwelling structure which individuals have lessened may readily which a ... warrant be ob interests, progeny Terry and the boat, motor ship, and a search of tained category Ohio. We consider each in turn ... wagon, or automobile where find that none to the instant apply warrant,” practicable to secure dif matter. ference, own, its still mandates that of a car warrantless search be based on “Special a. The Needs” Cases cause—and, then, probable even in a As ex Court has highly circumscribed universe cases. plained: recognized exceptions “We have States, Carroll v. United special Warrant when th[e Clause] (1925).3 69 L.Ed. needs, beyond the normal need for law no enforcement, thus have hesitation hold proba make warrant We ing impracticable.” must obtain a warrant requirement that the ble-cause Skinner, prior 619-20, 109 on a attaching GPS device vehi- assume, deciding, po- exception,” 4. that the We address the “automobile We without Carroll, purposes recognized greater suspicion for first detail lice had reasonable analysis. below. our (internal omitted) (collect wags quotation dog marks which rather vigorously— cases). Thus, “primary as the runs long headlong Ferguson’s so into admonition that, is not to evidence of purpose” qualify “special “uncover for a needs” excep tion, ordinary City criminal In wrongdoing,” primary purpose of a search can Edmond, 32, 42, 121 dianapolis “generate v. 531 U.S. not be to evidence for law en 447, (2000), purposes.” 83, 148 L.Ed.2d 333 courts forcement 532 S.Ct. U.S. at 121 omitted); Edmond, governmental pri (emphasis “balance the should S.Ct. 48, 121 vacy practicality interests to assess the U.S. at (finding S.Ct. 447 a probable-cause require did qualify the warrant search not under the “special Skinner, context,” particular needs” “primary ments doctrine where the pur 619, 1402. pose S.Ct. See also of the is ultimately [search] indistin Ward, States v. general United 342 guishable from the interest Cir.1997). (3d cases, control”).5 needs” “special Such crime of which

many permit searches without Privacy Cases of Expec- b. Diminished any particularized suspicion, constitute a tations “closely guarded category” of Fourth jurisprudence. Ferguson Still, “special needs” cases not are Charleston, City permit decisions to warrantless (inter S.Ct. 149 L.Ed.2d 205 searches based less probable on than omitted). quotation nal marks cause. The Government also cites a num- ber cases that address situations where case, reasoning

In the instant behind targets of a enjoyed search a lower “special needs” is inapposite. doctrine See, expectation privacy.6 e.g., The par- Government cannot articulate a Knights, States v. interest, general- ticularized than a other (2001) (“When Indeed, interest in 5.Ct. L.Ed.2d ized law enforcement. an officer has suspicion that if that a Government contends officers subject a required probationer to to search are obtain a warrant and have condition is engaged in probable prior executing activity, cause to criminal is there search, enough “officers could not use GPS likelihood that criminal devices conduct is gather to information probable occurring to establish that an intrusion on proba- cause, productive which is most significantly tioner’s diminished privacy in- often reasonable.”). use such (Appellant devices.” Br. at 27 terests is We do not think added).) (emphasis This statement— reasoning such applicable this case. requiring seemingly paradoxical 5. The Government contends that The exercise of ana- 6. lyzing physical prior a search warrant based intrusion GPS searches would "seri- privacy expectations under the rubric of does impede ously government’s ability to in- Still, escape our notice. as the terrorism, vestigate drug trafficking, and oth- Court noted in Jones: "The reasonable- Katz 27.) (Appellant er crimes.” We Br. fail to to, expectation-of-privacy test has added been conclusory see such a how assertion suffices for, trespas- not substituted the common-law except require- GPS searches from the Jones, soiy test.” 132 S.Ct. at 952. More- ments Warrant Amendment's over, Katz, we note before that even the Su- Doubtless, aware Clause. we are of the dan- preme balancing Court was the "need for posed gers comparably rep- terrorism and against right effective law enforcement However, activity. rehensible criminal privacy” considering particular whether a great by permitting work a disservice exception situation constituted (in word "terrorism” the absence of requirement. Fourth Amendment’s warrant circumstance) other information or to act as a Johnson, 333 U.S. at 68 S.Ct. 367 key guaranteed skeleton to the liberties under (considering warrantless searches based on the Constitution. cause). probable activi- light experience of his that criminal a GPS search police executed -who, ty may be afoot.” against an Katzin— individual — for search—the frisk —the Court police attached the GPS As when the least permitted privacy search was device, explained full breadth enjoyed the reasonably him the Constitu- when officer believed under owed interests dealing he is person[] “the with whom was executed on That the search tion. presently dangerous may be armed is, likewise, While the unpersuasive. car nothing stages initial ... and where in the acknowledged in- has Supreme Court dispel rea- of the encounter serves to his expectation of enjoy a lowered dividuals safety.” fear his own others’ sonable cars, United States their search, given per- Id. Such Chadwick, cause, probable formed without “must be (1977), abrogated 538 L.Ed.2d Califor- necessary to that which for the limited Acevedo, 565, 111 nia 500 U.S. S.Ct. v. discovery weapons might which used be (1991), 619 absent cir- 114 L.Ed.2d nearby, to the or and harm officer others present are not in this that cumstances may realistically be characterized as some- case, probable must still have police the a ‘full’ thing less than search.” Id. 579-80, Acevedo, cause, U.S. at 111 500 The has Terry S.Ct. 1868. framework 88 S.Ct. 1982. where, expanded since to include situations Progeny Terry c. and Its example, for an automobile has been See, v. stopped. e.g., Michigan Long, argues the Government part, In no small 3469, 77 U.S. L.Ed.2d slap-on use of GPS that the warrantless (1983); Mimms, Pennsylvania v. permissible on reasonable devices is based (1977); L.Ed.2d v. principles Terry under the suspicion (3d Yamba, United States Ohio, S.Ct. L.Ed.2d Cir.2007). Terry, Court held 889. an “stop” Terry progeny officer could individ- find and its to be police that a We in questioning inapposite ual for and then this situation. While on street in an Terry pat-down him to whether the indi- frisk involved a “frisk” ascertain individual, a carrying Terry, 392 that search was limited to weapons. vidual was (and 22-27, in specifi- specific More instance time limited U.S. at 88 S.Ct. 1868. ascertaining held that a warrantless whether the individual was cally, Court posed danger search—the when armed otherwise stop permissible —was contrast, search, safety). cause if the A in probable based on less officer than “police vastly is an ongoing, officer unusual conduct broader endeavor.7 observes York, Berger reasonably which leads him to conclude New Cf. argues Terry person,

7. The al’s that it "now concerned with “[a] Government example paradigmatic a law search is governmental than the interest more in investi- action, 'special enforcement absent needs' (em- gating Id. at crime.” 88 S.Ct. 1868 ..., balancing in which enforce- added). phasis Specifically, Terry court yields privacy rights ment interests and looked to the "more immediate interest probable (Appel- cause.'' standard less than taking police steps officer in to assure himself 33.) lant Br. at This is incorrect. While person dealing that the whom he is permissible "stop” was Court found that the weapon armed with a unex- not could despite merely serving "legitimate investiga- pectedly fatally against used him.” function,” tive that same rationale did not car, attaching police, a GPS device to a Terry, apply to the "frisk.” looking weapons generally not are are Rather, explicitly S.Ct. 1868. safeguard attempting anyone's not immedi- noted, evaluating of an individu- search (noting 18 L.Ed.2d 1040 the police potential have a suspect. We are pressed say, therefore, hard “eavesdropping for a peri- two-month police can —without probable warrant or of a equivalent od is the series of intru- lengthy cause —embark program of seizures”). searches, sions, Over the remote electronic surveillance re- operation, course of the GPS tracker’s quires almost no law enforcement re- “generate[ precise, compre- device can a] sources and physically intrudes person’s public hensive record of a move- ordinary privаte property. citizen’s Con- ments that reflects a wealth of detail about sequently, we hold that —absent some familial, political, professional, her reli- highly specific circumstances present Jones, gious, and sexual associations.” in this case —the justify cannot J., (Sotomayor, at 955 concurring).8 warrantless GPS search with reasonable Ultimately, disagree with the Gov- suspicion alone.9 arguments ernment’s advocating a “rea- Valid, Warrantless Searches Based

sonable suspicion” standard. While on Probable Cause interests wished to further certainly important, this case are the same ‍​​‌​‌​​‌​​‌‌​​​​‌‌‌‌‌​​​‌​​‌​​‌​​​​​​‌​​‌‌‌‌‌​‌‌‍alternative, As an the Government sug- every interests arise in investigation gests that where warrantless GPS searches can safety they attempting ate investigate agents are to beeper to install a on the defendant’s — crime. ("The car. 645 F.2d at 257-58 actual instal- beeper lation of the was much less intrusive suggest 8. The Government also seems to that typical stop than the and frisk. Michael ... long our evaluation should turn on how questioned; was not detained or he suffered GPS unit remained attached to Kat- indignity; nothing no from the interior of the 25.) (Appellant zin’s van. Br. at It is un- searched; indeed, van nothing was seized or clear, however, whether such test would even from the van's exterior was removed.” whether, prove apparent workable. It is not (footnote omitted)). test, pursuant government to such a long would need to know how a GPS search misplaced. Government's reliance is could, would last or whether reach- Marquez Both pri- Michael and were decided duration, ing request some threshold a war- Jones, or to and thus did not have the benefit rant from the courts for further GPS surveil- (a) of: pre-Katz the Court's reliance on the definitively lance. We need not resolve this trespass theory of the Fourth Amendment or now, case, question however. In this it was (b) Sotomayor’s Justice concurrence. More- only by dint of coincidence that the GPS over, inapposite: Marquez, both cases are In surveillance days. lasted for a mere handful of the court found that the defendant lacked standing challenge the use of the GPS support position, In of its the Government device and ques- therefore never reached the points Eighth to the Circuit’s decision in Mar- of tion whether such use constituted an un- quez and the Fifth Circuit’s in Mi- decision reasonable search. 605 F.3d at 609. The Marquez, suggested chael. In the court that Eighth Circuit’s discussion of reasonable sus- monitoring "[w]hen electronic does not in- dicta, picion coming only is therefore while upon legitimate expectation vade privacy, of musing the court was happen what would no search has occurred.” 605 F.3d at 610 standing.” “[e]ven if [the defendant] had (”[W]hen police suspicion have reasonable Michael, In the Fifth Circuit focused on a particular transporting drugs, that a vehicle is beeper markedly is when, different from a required a warrant is not while the —which GPS device—and its decision is parked therefore dis- public place, vehicle is in a they install tinguishable. 645 F.2d at 256-59. Addition- tracking a non-invasive GPS device on it for a time.”). Michael, ally, up against both period holding decisions run of Maynard, explained explained Fifth Circuit where the D.C. Circuit that the "reduced” expectation respect warrantless installation of a GPS device police movement of an per automobile and the nonintru- se unreasonable under procedure permitted sive nature of the DEA the Fourth Amendment. 615 F.3d at 566-67. probable cause to believe where there proba- if the have constitutional vehicle contains evidence of a to a line of cause, principally pointing ble McGlory, crime.” United Stаtes v. excep- addressing the “automobile cases (3d Cir.1992) (internal quota F.2d do requirement.10 We to the warrant tion” omitted); tion see also United marks agree.11 not Ross, 798, 825, 102 v. 456 U.S. S.Ct. States Generally speaking, warrant- (1982) (“If probable 72 L.Ed.2d rendered reasonable search less ..., justifies justifies cause the search cause existed merely probable because every part of the vehicle and search justified the of a issuance that would may object its contents that conceal Louisiana, v. See Vale warrant. Burton, search.”); United States 1969, L.Ed.2d Cir.2002) (3d (holding F.3d Johnson, (1970); also see searches an automobile are warrantless assumption evi (“Any S.Ct. 367 permitted “probable if cause exists be support a magistrate’s dence sufficient (internal lieve quo it contains contraband” determination issue disinterested omitted)). said, the tation marks That Su justify the warrant will officers search preme has recognized “[t]he a warrant making a search without would word ‘automobile’ is not a talisman in nullity to a the Amendment reduce presence Fourth Amendment whose in the people’s homes secure leave Coolidge away disappears.” fades officers.”). However, discretion 443, 461-62, New Hampshire, exception,” per (1971) (discuss under the “automobile 2022, 29 L.Ed.2d part searches of in the exception mit “warrantless automobile context circumstances).12 Indeed, exigent conceal evidence ... may vehicle that assume, deciding, 11. Here we also without 10.We note a warrantless search based police probable pur- that the had cause for probable is also reasonable in the on cause poses analysis. our of "exigent presence of certain circumstances” the "make needs of law enforcement so began part exception The automobile of compelling that ob warrantless search is [a] jurisprudence. "exigent the circumstances” jectively reasonable under the Fourth Amend Carroll, 153, (noting U.S. at S.Ct. 280 45 - U.S.-, Kentucky King, ment.” v. a that the Fourth Amendment made distinc- 1849, 1856, (2011) L.Ed.2d S.Ct. tion for searches of automobiles since "it is omitted). (internal quotation marks Such exi warrant, practicable not to secure a because include, gent but are limit circumstances not quickly the can be moved out the vehicle to, felon, pursuit suspected ed "hot of a the locality jurisdiction the in which warrant may possibility that evidence be removed or sought”). expanded Later cases on must be destroyed, danger and to the lives of officers rationale, adding justification this further Coles, or others.” United States why police a the need not obtain search war- 361, (3d Cir.2006) ("In these limited situ significantly, the car. the rant for Most after ations, the need for effective enforcement given precedential impri- decision had Katz right trumps privacy require the and the language "privacy,” the the matur to warrant, thereby excusing ment of a search Chadwick, explained in United States v. " an otherwise unconstitutional intrusion.” expectation a lesser '[o]ne has case, (footnote omitted)). perceive is motor vehicle because its function trans- to) (and exigency points the no Government portation one’s and it seldom serves as resi- justified police that would in imme repository personal as the ef- dence or ” diately searching Harry Katzin’s van. We do 12, (quoting 433 U.S. 97 S.Ct. fects.’ discount, therefore, 590, possibility Lewis, Cardwell v. S.Ct. highly specific (1974)). Finally, under circumstances —such as 41 L.Ed.2d line, say police is on can Supreme where life connection Court severed the be- —the justify undertaking exception exigent a warrantless GPS search tween the automobile circumstances, exception probable holding that based on cause. exception does not validate all within the automobile vehicle at some point in the searches, automobile but in- warrantless future. “unquestionably specifically stead is es- [a] argument, then, It is no to say that a exception. and well delineated” tablished presents search type of circum- (in-

Ross, 456 U.S. 102 S.Ct. 2157 usually stances that trigger the automobile omitted). Thus, quotation ternal marks exception. It does not. While police “ scope of a warrantless search of an ‘[t]he are still physically intruding a target into object ... automobile defined vehicle for evidence-gathering purposes, a places the search and the in which there is GPS search extends police intrusion probable cause to may believe that it past well the time it normally take ” Acevedo, found.’ 500 U.S. at officers to enter a target vehicle and lo- Ross, 1982 (quoting United States v. cate, extract, or examine then-existing reasons, evidence.13 For similar the case (1982)). L.Ed.2d 572 in favor applying the automobile excep- We hold that the automobile ex tion fares no better if we look to the ception inapplicable key here. The dis “ready mobility” of target vehicle. tinction in this type case is the of search at Burton, (“[T]he 288 F.3d at 100 ‘ready issue. While the stat Court has mobility’ of automobiles permits their ed that the exception permits automobile search probable cause.”); based search is “no broader no narrow see Maryland Dyson, also er than a magistrate legitimately could 144 L.Ed.2d 442 warrant,” Ross, authorize 456 U.S. at (noting that “the automobile does not have the search is still separate exigency requirement,” partly limited to discreet moment in time. For mobile”). “readily because vehicles are example, exception permits police Simply put: attaching monitoring to enter and search a vehicle to GPS tracker does not purposes serve the ascertain whether it indeed contains the animating the exception. automobile As Thus, evidence that suspect is inside. already has been said: the automobile ex- assuming we said we would—that the —as ception permits to intrude into a probable had cause to believe that vehicle to retrieve or examine then-exist- van Katzin’s contained some form of ing evidence. A GPS search does not deal contraband, justified would have been evidence, with existing but with evi- in entering “any part of vehicle that [the] future police suspect dence that the could come may conceal evidence.” McGlory, 968 being. worthy into That is a added). goal, to be (emphasis F.2d at Attaching 343 sure, but it cannot absolve law enforce- monitoring a GPS tracker is different: personnel ment require- It of the warrant police presence creates continuous for out, purpose the ment. As the discovering points evidence that Government may come into placed existence Supreme exception Court’s automobile de- and/or Johns, 478, 485-88, separate exigency requirement” “has no at 469 U.S. 105 S.Ct. 465, 466, (1985). Maryland Dyson,

all. 83 L.Ed.2d 890 We think this to be of (1999). 119 S.Ct. 144 L.Ed.2d 442 purposes. no moment for our In cases such as Johns the search at issue still occurs at a recognize Supreme 13. We specific point that the specifically has in time and limit- is scope "places sanctioned warrantless searches under the ed in its to in there which is that, exception example, automobile probable for have cause to believe that [contraband] 485-86, police may occurred some time after the first im- be found.” Id. at 105 S.Ct. 881 See, pounded (internal e.g., omitted). quotation vehicle. United States v. marks 204 “ dispense asking permission for from a practicalities on the are ‘based cisions ” (Appellant Br. presented.’ magistrate seeking physi

the situations neutral when to Ross, 9,n. 456 at 807 (quoting U.S. for cally target intrude vehicle 2157).) However, the Govern- remove, S.Ct. locate, longer necessary than to is power that the to to overlook ment seems already-exist verify presence and/or police ongoing, an near-invisible create criminal wrongdoing. evidence of Cf. a GPS tracker skews the presence via Prouse, 648, 662-63, Delaware v. protection ... appraisal “realistic (not 1391, L.Ed.2d provide” rule would contrary that a in the ing, Terry stops, context of decidedly minor” ma- “relatively subject to unfettered individual “[w]ere (Id. protection “priva- for jor. (discussing he en governmental every intrusion time interests”).) cy automobile, security guaran tered an “perva think that the Additionally, we by the would be teed Fourth Amendment of trav regulation capable of vehicles sive circumscribed”).14 seriously roadways” is of eling public no search, Ultimately, executing a GPS of the instant purposes moment case. recover attempting were not Carney, 471 U.S. California al- presence or ascertain the of evidence (1985). S.Ct. 85 L.Ed.2d ready present Harry Katzin’s vehicle. True, regulation gave rise pervasive such they were, If exception the automobile individual understanding that an in so sanctioned their search automo privacy [his] “accorded less far as it them allowed to enter Indeed, principle Id. animated bile[ ].” verify Katzin’s van and retrieve and/or statement Court’s presence sought-after or absence of the cases where automobile was “[e]ven (and, indeed, evidence. It would not did mobile, expec immediately not the lesser not) permit them to leave an ever- behind resulting from its use as tation of watchful sentinel in to col- electronic order justified readily application mobile vehicle lect future evidence. Were we hold 391, 105 exception.” of the vehicular otherwise, unduly expand we would Nevertheless, we still hold scope exception past of the automobile well sufficiently that a different GPS search “specifically its established and well delin- type from the of search sanctioned Ross, contours, eated” U.S. exception jurisprudence automobile —and 2157, permitting to intrude that, as a consequence, even the extensive indefinitely upon target based affecting scheme of now motor vehicle regulation will, government solely prospect ists does on the that it in the permit Class, points 14. The to New Yorkv. followed. Government also Class, underlying S.Ct. 960. A brief look at the Class, however, (1986), reasoning proposition L.Ed.2d for the that a demonstrates warrantless, minimally inapposite: search of a that it is intrusive the Court reasoned police gov- permitted important vehicle where the have the brief search served several 37). probable (Appellant beyond Br. at ernment in law cause. needs basic interest Class, enforcement, including police stopped governmental a car for "the in- had various safety” highway traffic After driver exited terest in and a "concern for violations. 118, accord, ap- safety.” vehicle an officer Id. at 106 S.Ct. of his own officers’ Here, proached directly copy the the vehicle in order to VIN neither interests is Jones, (hold- Finding number his on the dashboard. view served. Accord obscured, ing inapplicable car GPS searches the officer into the Class is reached and, "attaching papers process, move [a] [car]" some in the ob- because device outcome). gun. may served have in a the handle of Inevitable results resulted different future, contain some contraband or be Supreme As the plain, Court has made the commission of a during used crime. always “exclusion has resort, been our last (internal impulse.” not our first quota For these reasons we hold that the war- omitted). tion end, marks To that justifi- in rantless search this case was not Supreme recognized Court has the exis solely suspicion able based on reasonable “good tence of a faith” exception to the cause, probable thereby unreason- in exclusionary rule cases where the able, consequently violated the Fourth an objectively “act[ed] with reasonable Amendment. good-faith belief their conduct [was] Exclusionary IY. Rule & the Good Davis, (internal lawful.” 131 S.Ct. at 2427 Exception Faith omitted).15 quotation marks More specifi cally, Supreme Court has held this Having held that were re- exception to cover quired to obtain a situations where prior warrant to execut- personnel their enforcement GPS search of Katzin’s in acted ob van, we now jectively consider whether the evidence reasonable reliance on some uncovered aas result of their unconstitu- seemingly immutable authority or informa tional suppressed. actions should be We justifies tion that their course of action. hold that it should. Davis, (later-reversed See 131 S.Ct. 2419 binding appellate precedent); Herring, 555 Exclusionary Jurisprudence A. Rule (undiscovered 135, 129 U.S. S.Ct. 695 error While the Fourth Amendment database); in police-maintained Arizona v. protects “right of the people to be Evans, 514 U.S. 115 S.Ct. houses, persons, secure their papers, (1995) (undiscovered L.Ed.2d 34 error in effects, against unreasonable searches database); court-maintained Illinois v. seizures[, says nothing sup it] about Krull, 480 U.S. 107 S.Ct. pressing evidence obtained violation of L.Ed.2d 364 (subsequently over States, this command.” Davis v. United statute); Leon, turned United States v. — —, 2419, 2426, 131 S.Ct. 104 S.Ct. 82 L.Ed.2d (2011) (internal L.Ed.2d quotation (1984) (later-invalidated warrant). omitted). Nevertheless, marks “compel To par determine whether a respect for the guaranty,” constitutional ticular situation is good covered under this Supreme Court created the exclusion faith exception, Supreme has States, ary rule. Elkins v. United directed courts to consider whether exclu 206, 217, 80 S.Ct. 4 L.Ed.2d sion would serve “to deter future Fourth (1960). The rule mandates that evi Davis, Amendment violations.” dence obtained violation of 2426; Leon, see also 468 U.S. at Amendment should not be available at tri (“If 104 S.Ct. 3405 exclusion evidence States, al. Herring v. United pursuant obtained to a subsequently invali 172 L.Ed.2d 496 (2009). dated warrant is to have However, deterrent “that a Fourth Amend effect, ... it must alter the ment violation occurred ... behavior of does not nec essarily mean that individual exclusionary rule law enforcement officers or the 140, 129 applies.” Id. at policies Thus, S.Ct. 695. departments.”). their 15. As the Herring, “objectively Court noted in looks to an officer's Nonetheless, “good exception” faith is somewhat of a mis- reliance.” Id. because the Su- (and decisions) preme nomer. 555 U.S. at 129 S.Ct. 695. The Court our own use the all, inquiry subjective is not interchangeably, at but instead terms we do so as well. tracking a GPS device on the exte- exception the faith install good whether analyzing “the benefits of a vehicle use that balances rior of or to device applies, the Court the against effects on public the rule’s deterrent monitor the vehicle’s movements exclusion, ‘letting 48-49.) Indeed, include which (Appellant of roads.” Br. at costs dangerous defendants guilty possibly and that this “consen- posits the Government ” Tracey, 597 go circuits, States v. free.’ United among coupled sus” our sister (3d Cir.2010) Her (quoting Katz,” F.3d “guidance the in Knotts and with 695). 141, 129 at ring, 555 U.S. personnel absolves law enforcement (Id. exclusionary of the rule. at purposes the benefits considering When 23.) 21; n. Tr. at Argument Oral necessar gained deterrence, must from position unper- find the Government’s We culpability ily the nature and consider good and hold that the suasive therefore the Su at As police the conduct issue. here. exception apply faith does not “police con preme explained, has Court sufficiently deliberate that duct must be Beeper B. Reliance on Cases it, and deter meaningfully exclusion can posits The Government that law enforce- deterrence sufficiently culpable that such personnel good ment faith acted because sys paid by justice the price the worth on, things, among relied other the Herring, tem.” Supreme “guidance” Court’s Knotts Davis, (cautioning 695; at 2429 using tracking an electronic device “the officer from discourage not to courts (alteration does not violate the Fourth Amendment. and internal doing duty” his 21.) Indeed, Br. n. omitted)). Thus, (Appellant at 55 the ap “we quotation marks reasoning Government observes ply police conduct is ‘delib the rule when underpins from Knotts the decision “ev- erate, reckless, negligent,’ or grossly or ery court of to consider” ‘recurring systemic appeals when it will deter ” (save Circuit). (Id. tracking Tracey, F.3d the D.C. negligence.’ 48-49.) therefore, ourselves, Herring, We first ask (quoting 695). hand, isolated or along On other whether Knotts decision— case, war sibling acts of do not negligence qualifies binding attenuated its Karo — States, application. rant the rule’s precedent under Davis v. United Supreme wherein the held that the light principles, In these good exception police faith covers officers argues police con Government acting in reliance on later-invalidated bind- not rise to duct at issue this case does ing appellate precedent. 131 S.Ct. 2419. necessary for the culpability level forthcoming As the discussion demon- that, exclusionary as a apply rule strates, explicit we find holding that the outlined in consequence, balancing test from Davis is inapposite because Knotts in favor of Herring and Davis militates Karo are distinguishable given both In ser applying good exception. faith (1) lack of a physical intrusion in those argument, vice of its the Government (2) eases, placement by police urges objec acted with containers, beepers inside tively good belief that faith technological marked differences between their conduct because was constitutional beepers and GPS trackers. “[bjefore Jones, every appeals court Davis, had exception executed question!, consider the with the one,] that, subsequent of the car light search defendant’s had concluded search, ], po to his arrest. At the time of the Supreme in [Knotts Court’s decision prevailing lice Court and Eleventh did need to obtain a warrant precedent police great Circuit held that significance Of to the instant case lawfully a suspect’s could search car inci is the fact that in police Davis the relied dent to his arrest. See New v. Bel York on binding appellate precedent that “spe- ton, 69 cifically authorize particular police [d the] (1981); L.Ed.2d 768 United States v. Gon (first practice.” Id. at 2429 emphasis add- (11th zalez, Cir.1996). 71 F.3d 819 ed). Indeed, Sotomayor as Justice noted unsuccessfully defendant challenged the concurrence, her Davis did not “present search. appeal While the defendant’s markedly question different whether pending, Supreme Court limited Bel exclusionary applies rule when the law ton, effectively restricting the areas of the governing the constitutionality of a partic- police car that the were allowed to sеarch (So- ular search is unsettled.” Id. suspect’s after a arrest. See Arizona J., tomayor, concurring).16 By plain its Gant, terms, therefore, express holding (2009). Davis, L.Ed.2d 485 In deciding Davis is inapposite to this case because Court reasoned that “Re Knotts qualify and Karo do not appro- sponsible law-enforcement officers will priate binding appellate precedent: Nei- take care to learn required what is of them ther case physical involved a trespass onto under Fourth precedent vehicle; target police both cases the will conform their conduct to these rules.” placed beeper inside of a container (internal 131 S.Ct. at 2429 quotation marks which was then loaded into omitted). target vehi- Court, According to po (all by cle the driver with the container merely lice Davis behaved as “reason Karo, permission). able would and should act.” owner’s See officer[s] Id.

(internal omitted). quotation 3296; Knotts, marks Con sequently, the Court found that de “[t]he Additionally, 1081. both terrent effect of exclusion in such a case Karo and Knotts addressed the use of can be to discourage the officer from beepers, already which—-as we have ex- do[ing] duty,” his which was not “the kind plained markedly different from GPS —are exclusionary of deterrence the rule seeks trackers. Maynard, See 615 F.3d at 556- (internal to foster.” quotation Id. marks omitted). therefore, Ultimately, the Court Davis good protection only extends faith deemed that the in Davis were cov acts that are sanctioned explicitly ered good exception faith precedent, clear and well-settled and nei- exclusionary rule and evidence recovered pursuant ther nor type to the search was Knotts Karo sanction the sup pressed. intrusion at issue in this case. Conse- 16. We also note that precedent given point the Eleventh Circuit's our on a must be un- opinion explicit point: in Davis was on this equivocal suspend before we will the exclu- apply exclusionary "[We refuse] rule Davis, sionary operation.’" (quoting rule’s reasonably when the relied on 1266)); McCane, 598 F.3d at United States stress, precedent. clear and well-settled however, We (10th Cir.2009) 573 F.3d 1045 n. 6 precedent given point our on a (finding good exception applied that the faith unequivocal suspend must be before we will jurisprudence sup- because "Tenth Circuit exclusionary operation.” rule's Thus, porting the search was settled. there Davis, (11th States v. 598 F.3d was no risk that law enforcement officers Cir.2010) (citations omitted) (emphasis add- engage type complex legal in the ed); Buford, see also United States v. analysis judicia- research and better left to the (6th Cir.2011) (“Like 276 n. 9 the Elev- bar”). ry and members of the Circuit, 'stress, however, enth we also jurisdiction. Accord that law enforcement’s officer’s Hudson we hold

quently, cases, Michigan, on beeper standing the reliance on (noting that 165 L.Ed.2d 56 own, sufficiently insulates the cannot

its expected officers are to learn abide from in this case the exclu- search GPS courts hav- required “what is them” sionary rule. them). jurisdiction over GPS Reliance on Out-of-Circuit C. Thus, stated, already the Court in Cases faith recognized good Davis that the ex- therefore consider Government’s We ception applies po- to situations where the faith good exception that contention in objectively lice “conducted a search objec- acted in because the applies binding appellate reliance on on out-of-circuit tively reasonable reliance precedent,” 131 S.Ct. at because sanctioning warrantless precedent in effect ... such case “[t]he deterrent Br. at 15-16 (Appellant surveillance. discourage can be to the оfficer from (“Before ], one of courts all but [Jones duty,” “the doling] his which was not kind appeals to have addressed issue had exclusionary rule deterrence seeks the warrantless installation and approved (internal foster,” quotation id. on a monitoring of GPS device vehi- omitted). cannot marks The same be said agents’ body reliance on cle.... [T]he particular the law is in a where unsettled objectively law was reason- of case jurisdiction, even au- persuasive where able....”).) And while Government in thority may exist the form decisions relies, reasoning in small on the in part, no by other circuit courts. think support, reading for that

Davis Indeed, extending the rationale from broadly strain Davis so its reason- to cover reliance on out-of-circuit Davis holding.17 say nothing of its ing, to precedent principle would turn this its on on hinged The Davis decision the under- Though head: our and last first word on “Responsible that law-enforce- standing the matter is that warrantless GPS will take care to learn what ment officers unconstitutional, in searches are effect the of them under Fourth Amend- required argues sister Government that our circuits’ precedent and conform their con- ment will decisions should control whether the evi- (internal quota- to these rules.” Id. duct dence is excluded. This rule would evis- omitted). At the tion marks most basic cerate the notion clear and well-set- then, level, body of “Fourth applicable tled precedent should control thus precedent” Amendment which the re- principles contradicts the basic of stare circuits, sponsible respect officer must conform consists of decisis. We our sister but are their our binding those decisions that decisions cannot dictate eonclu- seizure, majority jurisdictions 17. We note Davis itself search or defendants suggested holding inapplicable its question open which remains will still presented in this situation case. While litigate have an undiminished incentive to explaining ruling will not its deter defen- certiorari, grant issue. This Court can then challenging existing dants from development and the of Fourth Amendment doctrine, Court not- way will no stunted. ed: Davis, added) (emphasis This Court reviews criminal convictions (footnote omitted). Thus, Court in Davis Appeals, 50 12 Federal Courts of state courts recognized holding its limited to resort, of last and the District of Columbia jurisdictions clearly where .the law was set- Appeals. many Court of If one or even tled. uphold particular type these courts such, any law offi- sions. As enforcement that law enforcement personnel would take primarily cer who in reliance on the acts the time to pore over out-of-circuit deci- proclamations Fourth Amendment of our relating sions procedures, it is not peril sister circuits does so at his own duty their for purposes of the exclusionary purposes exclusionary of the rule. parse rule to and weigh the decisions of our sister circuits in an attempt to predict where, particularly This is true as in this (or what this Court even the Supreme case, our sister split circuits are on the Court) say if faced with a similar relevant issue. The GPS search of case.18 Katzin’s occurred in By van late 2010. time, four of our sister circuits—the Moreover, we cannot burden district

Seventh, Ninth, Eighth, and D.C. Cir courts with type case-by-case as- cuits—had addressed GPS surveillance. sessment position Government’s those, Of three circuits had held that GPS would require. Unlike the archetypal situa- surveillance either did not constitute a Davis, tions in Leon or finding that or, did, if police search even it that the did good faith exception applies in this case McIver, require a warrant. See 186 would, necessity, require ruling courts 1119; Garcia, 994; F.3d 474 F.3d Pineda- on suppression motions to discern whаt Moreno, 1212; 591 F.3d Marquez, 605 amounts to sufficient out-of-circuit authori- F.3d 604. ty for purposes of an objectively reason- good able time, Thus, faith belief.

At the district same the D.C. Circuit had (which courts would need to consider many held United States v. how Maynard circuits had became on addressed the appeal practice Jones to the Supreme Court) question, said, what each one had surveillance did consti- dicta, tute a search and that whether the statements did re- were mere quire myriad Maynard, warrant. other ap- 615 F.3d 544. factors. Such an bottom, then, At proach limiting principle Government seems to has no and defies argue that majority reliance on a rational application. Surely police reliance minority of our sister on a single circuits is sufficient out-of-circuit decision could not escape exclusionary support faith, rule. This can- good but what about two? not be. Although we find it If two-to-one, commendable split circuits that would urges 18. The analysis only Government that our noting after are "[w]e confident Duka, in United States 671 F.3d 'significant purpose’ that FISA's test satisfies (3d Cir.2011) (addressing Amendment”). Moreover, evidence obtained the Fourth pursuant Foreign in a search argument Intelli- hinge Government's seems to on a (FISA)), gent Act supports Surveillance opinion's footnote that contains the lone cita- proposition reasoning footnote, that the from Davis is tion to Davis. In that this Court binding precedent. not limited (Appellant objective stated that "[t]he reasonableness of ("[The] binding Br. at 61-62 insistence on the officers' reliance statute in this authority does not accord with by this Court’s case is further bolstered the fact that the approach following particular Davis .... provision [Duka ] under- at issue has been re- position mines the district court’s that reli- viewed and declared constitutional several non-binding courts, ance on per going case law ... se far as back as 2002.” Id. at unreasonable.”).) cases). This is not (collecting correct. Not n. Since none of only good Circuit, was the faith discussion in Duka these "several courts” are the Third based on a different argues, Court deci- the Government Duka demonstrates Krull, objectively which willingness apply addressed rea- our the rationale from sion— sonable reliance on a non-binding later-invalidated stat- authority. Davis to We think ute—but the entire good discussion of the this makes a mountain out of a molehill: this Duka, exception dicta, faith is dicta. single See reference to Davis comes in in a footnote, (discussing "good exception part faith” of a "cf." citation. itself, support application And what if problem. yet another present good exception.19 in near- faith all ruled courts had our sister point, with one stalwart unanimity on Culpability D. Exclusion based on persuasive) holdout? Is highly (perhaps, Deterrence good faith to be decided presence of strength Up point or does the consid an abacus whether bear consideration? ered reliance enforce argument court’s each personnel it could lead to a ment on out-of-circuit distin foresee that Because we itself, suffices guishable authority, by amorphous, and self-contradict- sprawling, doctrine, good exception. the Gov- faith Per adopt purposes we decline to discussion, we hold that previous and hold reliance such position ernment’s (even per precedent support where reliance is insufficient to se out-of-cireuit on “consensus”) cannot, finding good Supreme in of faith.20 The a so-called there is unwieldy analysis just how a search nor a under the Fourth 19. To see seizure Pineda-Moreno, be, than the we need lоok no further Amendment.” F.3d at could Circuit, arguments in this The which own case. Fifth devoted Government’s discussion, attempted single paragraph argument, the At oral Government to the based its Michael, significance Maynard, sug- presence conclusion on the of and its to minimize " single holding suspicion gesting that this decision had come too ‘reasonable is ade was, support ultimately, quate beeper to process and distin- warrantless installa late in the suspect's public arguments parked on a in a guishable. Such would be disas- tion' vehicle Andres, space.” (quoting at 835 disruptive to we 703 F.3d trously lower courts if were Michael, 257). Finally, F.2d at First reliance on out-of-circuit authori- to hold that itself, could, apply good its Circuit based decision to by purposes of ty suffice for exception presence "clear faith on the and exception. up-to-date good faith How must apposite” authority, including a First Circuit regarding law enforcement the state of " expectancy decision that found 'the lessened principles? legal What if a relevant decision jus associated with motor vehicles (a) being were issued but either was late in beepers tifies the use of without a (b) warrant to reporter/electronic to a database or added only track vehicles ... if the officers have get sufficiently wide-spread exposure did not probable Sparks, cause at the time.'” bring police depart- it to the attention of to Moore, (quoting F.3d at 65 United States v. half-way country? across the Not ments (1st Cir.1977)). 562 F.2d 112-13 At the tally courts to would district be forced time, however, same the First Circuit was far like authorities on either side of an issue so precedent certain from that out-of-circuit marks, many chit but would also have to faith, support finding good noting could late, decide whether decisions had come too appellate that "the two courts to consider the perhaps too or were obscure. question since have read Davis re Davis 20. We note that some of our sister circuits quire jurisdic reliance on the law of the case otherwise, that, Davis, per holding have ruled (internal quota Id. at tion.” 63-64 & 63 n. 2 qualify pre-Jones warrantless GPS searches omitted). tion marks exception. protection good under Moreover, faith both the First and Fifth Circuits (1st Sparks, See United States 711 F.3d 58 good exception their based faith determina- Andres, Cir.2013); United States v. beepers, dealing tions on cases with the Cir.2013); (5th United States Pineda- Sparks going in First Circuit so far as hold Moreno, Cir.2012). (9th 688 F.3d 1087 These sufficiently appo- "clear and that Knotts cases, however, do not deter us from our finding good support so as to site” faith. conclusion. Sparlcs, foregoing 711 F.3d at 65. As our with, suggests: begin disagree with To all three courts relied on bind discussion we this beepers ing precedent position. within circuits. The their own difference between kind, rely degree. police Any Ninth Circuit noted that the could GPS trackers one of not on, way, propo technology among things, other in this courts Mclver for time shifts "placing tracking expect will sition that an electronic de that law enforcement tread should by undercarriage lightly reasoning and will vice on the of a car was neither refrain Davis, however, undercarriage Herring rec- van. in Katzin’s that, balance, in- good exception faith We find ognized that this collection of is, more. That quiry authority determin- does warrant requires applying personnel good exception. Try law enforcement faith might whether as we concerns, allay an objectively ‘reasonable our we remain supremely acted “with good-faith appel- [was] belief their conduct discomfited the lack of binding lawful,” the to- guidance underlying poliсe we must consider whether late action Therefore, than the case. tality greater of circumstances is issue this hold Davis, parts. attendant 131 that the acted with sum of its See sufficient consti- Leon, (quoting culpability require at 2427 tutional exclusion 3405). and, under- importantly, suppression We therefore more balancing Herring help test this take the outlined case would deter future Fourth Davis, of all light and ask whether —in Amendment violations. activity in the circumstances —the personnel rightly Law enforcement can “deliberate, of a this case rises level rely on a number of sources for Fourth reckless, grossly negligent” violation on-point guidance including — Herring, 555 the Fourth Amendment. See decisions Court and 695; Tracey, U.S. at warrants, Circuit, We, both statutes. We hold that it F.3d at 151. does. as a society, expect as a Court and that the le- argument, Per the Government’s law enforcement officers will consult these landscape part expect in this a gal predominantly case sources—it is of how we cases, Davis, of the out-of-circuit to act. consisted GPS reasonable officers decisions, Supreme beeper Deterring activity, the Court’s and S.Ct. at 2429. such therefore, overarching privacy frame- not serve expectation purposes the would the exclusionary ease, analysis work the rule. as we for Amendment This mentioned, Katz the adopted just Nothing and deemed to be sole have is different. (See, analysis e.g., rubric for until Jones.21 in a law officer’s forces enforcement duties 21; rely Br. at Oral him on Appellant non-binding prece- 55 n. to either 23.) Tr. at the the Argument together, Taken dent or to conduct Fourth Amendment contends, from, by these sources of le- calculus or extrapolating Government himself to, authority existing would law gal analogizing lead a reasonable case law. Where enforcement officer to conclude he an officer decides to take the Fourth hands, inquiry within the the con- into acting confines of his own attaching stitution a to rather to seek a warrant a when GPS tracker than (potentially ill-fitting) analogy. Kyllo light ertheless hold that —in of our forthcom- Cf. States, 27, 35-36, ing authority gets further discussion—such (2001) (discussing police L.Ed.2d 94 con- and further afield of relevant only supply marginal support reticence to “leave the Court's homeowner duct and could advancing mercy technology”). justify police action. dissenting exception advisory colleague points only possible a num- The Our commentary on Federal Pro- ber of other decisions and Fourth Amendment Rule of Criminal However, (Dissent 230-31.) which add further the Gov- cedure 41. doctrines sauce to below, (See good goose. faith articulated ernment's Dissent for the reasons see infra (discussing, example, privacy ‍​​‌​‌​​‌​​‌‌​​​​‌‌‌‌‌​​​‌​​‌​​‌​​​​​​‌​​‌‌‌‌‌​‌‌‍commentary 225-29 con- note we find this automobile).) help position in the as- exterior of an not the Government’s siderations —even disagree suming had cite While we do not that these too were the Government seen fit to mention) (let part legal language briefs landscape of the relevant alone in its search, argument. we nev- time the executed their or at oral from either this Circuit proclamation where the magistrate particularly neutral — Supreme or instead of as it was in this Court —and far from settled law as constitutionally approval magis- from a neutral seeking in a reckless acts case —he personnel trate —law enforcement looked fashion. (non-binding distinguishable) other Here, personnel made law enforcement like deci- authorities our sister circuits’ forego securing decision deliberate Essentially, extrapolated sions. attaching GPS device warrant before applied rule their own constitutional directly target absence to a vehicle fail to this to this case. see how We precedent binding Fourth Amendment assumption their The absolves behavior. Indeed, authorizing practice. such their personnel law enforcement long-term on a surveil- police embarked own rule sanctioned their self-derived using technology al- lance project say nothing of their unstated conduct —to target lowed to monitor a vehicle’s them would automatical- belief Circuit using only laptop, all before movements ly majority minority with a side either or the this Circuit constitutionally our sister circuits —was spoken propri- had constitutional culpable.23 (That ety the sur- of such an endeavor. days not a few is mere The decisions in Knotts Katz do veillance lasted coincidence.22) True, remedy did situation. Government vacuum, their that in suggests act in a total but chosen this case enforcement presented personnel that the properly course of action when reasoned require constitutional situation is search did not a warrant analo- such a novel troubling: gizing In lieu of a bind- to Knotts’ discussion nonetheless of electronic 22. reject mitting magistrate.” (Appellant at- it to a We therefore Government’s Br. However, tempts distinguish Maynard. 57.) it is inapposite. While Messerschmidt is Maynard true that the surveillance in lasted good faith That case considered in the context compared as nearly for a month to the several relying of an officer on warrant that had case, days equally it remains in this true allegedly paltry been based an affidavit. police when attached their GPS device to Thus, opinion party of a third tended to van, way they no Katzin’s had of know- demonstrate the officer acted had not robbery the next Rite Aid would when knowledge deficiency. of the affidavit’s disagree place. take We likewise with our case, police the instant even an lack colleague’s Dissenting May- assessment of Moreover, government attorney’s affidavit. 229-30.) (Dissent good nard. faith alone, approval, standing and should cannot exception analysis post-hoc, cannot be good not suffice to demonstrate faith. Cf. police analyzed action at must be issue Leon, (“[T]he 468 U.S. at 104 S.Ct. 3430 they under the circumstances as existed at the magistrate courts must insist that also case, was time the action taken —in this be- purport perform his neutral and detached police fore knew when their GPS surveil- merely function and not a rubber serve lance end. would stamp police.... magistrate] for the who [A adjunct instead as acts enforcement suggests good The Government provide cannot valid officer authorization apply po faith exception should because the (inter an otherwise unconstitutional search.” sought "experienced lice from confirmation Thus, omitted)). quotation nal while marks government attorneys.” (Appellant Br. at agree that it is another "factor to consid 56.) The Government cites Messerschmidt er,” 51-52; (Oral Argument Tr. at Dissent Millender, - U.S. -, that, case, 33), we nonetheless hold in this (2012), proposition L.Ed.2d 47 for the that it seeking “government the advice of a attor good part faith on of an he shows officer if ney[]” support does not offer much "approval application the warrant obtains superior position. from prosecutor and a sub before Government’s so, Doing principle. the Govern- tutional tracking devices. We fear that accepting adds, imminently giv- ment reasonable position, effect, the Government’s prevailing en the Fourth Amendment good lead to the faith exception swallowing theory time—the privacy framework at the exclusionary rule.24 is, from Katz. That the Government con- Moreover, since such constitutionally enforcement per- tends because law reckless action was the Government’s de- sonnel that a search were aware occurs case, choice we hold that fault police target’s when the intrude applying exclusionary aptly rule serves expectation of privacy, they its purpose: intended to “deter future in good by relying acted faith on our sister Davis, Fourth Amendment violations.” ’ circuits’ decisions as well as Knotts 2426; 131 S.Ct. at see also id. at 2435 that, among things, statement other “[a] J., (“[W]hen (Sotomayor, concurring) po- person travelling in an automobile on pub- lice decide to conduct a search or seizure thoroughfares lic expec- has no reasonable (or in the absence of ease law other au- tation of in his movements from thority) specifically sanctioning such ac- Knotts, place one to another.” 460 U.S. at tion, exclusion of the evidence obtained 281, 103 S.Ct. 1081. find such reason- We may deter Fourth Amendment viola- ing dangerous for already the reasons ar- tions----”). The police practice at issue ticulated above: Law enforcement can al- effectively here disregarded the possibility ways derive some constitutional principle that we could find a GPS search to consti- existing particu- decisions—which is tute a Fourth requir- Amendment violation larly directly true when also look to a ing warrant. But a Fourth Amendment generalized baseline case like It can- Katz. violation is a Fourth Amendment violation. good exception applies be that the faith police may While the feel free to act with in every instance when the act in impunity, confident in illusory protec- principle. reliance on such a self-derived non-binding precedent, tion of each search did, If it all pro- then Fourth Amendment could still violating the Constitution. tections would be rendered ineffective— Thus, yet where we have not ruled on the could upon anyone’s intrude tactic, constitutionality of a police law en- rights Fourth Amendment without fear of (a) suppression merely by personnel forcement relying partic- on a two choices: ularly broad-sweeping, self-derived consti- assume that their conduct violates the argues 24. The Dissent that Federal Rule of tion does not violate the Fourth Amendment. (or particularly Court’s) Supreme having Criminal Procedure the 2006 Without our 41— matter, however, advisory police committee notes to that rule—fur- ruled on the could supports finding reasonably say ther a that the law enforce- that the use of a GPS objec- "implicate] ment officers in this case acted with an tracker would not ... Fourth Indeed, tively good rights.” faith belief that their conduct was Amendment even under the (Dissent 230-31.) rationale, par- generous language constitutional. most could ticular, points following only argu- the Dissent to the have favored the Government’s language advisory from the prior committee ment if the GPS search occurred (i.e., Maynard any notes: "If ... the officers intend to install and decision before circuit had tracking implicating suggested use [a device] without that GPS searches violated the However, Amendment). any rights, Fourth Amendment there is no Fourth once the cir- split need to obtain a warrant.” using Fed.R.Crim.P. cuits on the issue of whether 41(b) search, advisory (citing committee’s note GPS tracker constitutes a law enforce- Knotts, 1081). 460 U.S. This ment officials were on notice that such de- however, language, nothing “implicatfe] stands for more vices could ... Fourth Amend- proposition rights” commentary than the unremarkable that the ment and the became police good need not purposes. obtain a warrant if their ac- borderline irrelevant faith ar- various considering the Government’s will re- and that we Amendment Fourth (b) warrant, or effect to obtain that the “deterrent quire guments, them we find having evidence risk of gamble, this case substantial suppression is] [in excluded, find no Fourth that we will justice any harm to the outweigh[s] situa- particular in a violation 147, 129 system.” Herring, in line with the This is tion.25 face of acted police 695. The law enforcement suggestion Court’s courts were law at a time when unsettled to “err on incentivized should be officials argument attuned to the becoming more behavior.” Unit- of constitutional the side violated GPS surveillance that warrantless Johnson, ed States Excluding the Amendment. the Fourth (1982).26 73 L.Ed.2d police evidence here will incentivize in this case would Excluding the evidence behavior of constitutional err on the side just that and would therefore incentivize Fourth Amend- help prevent future of fu- deterrence” “appreciable result conclude therefore Leon, violations. We ment Amendment violations. ture (internal do not 104 S.Ct. 3405 actions taken here police omitted). marks quotation exception and good under the faith qualify exclusionary ap- rule should hold that Thus, Supreme Court’s heeding the Davis, in this case.27 ply and after Herring views course, definitively hold, re- in the one case police excluded that the 25. We do not solving question. Failure to ac- assumptions about our future the unsettled can never make rulings. merely any We hold Amend- Fourth Amendment retroactive effect to Fourth cord personnel choose encourage police that where law enforcement or other rulings would ment analysis into their to take the constitutional plain purport disregard the of our courts to hands, they effectively do so without own adopt a decisions and to let’s-wait-until-it's- analysis we safety is correct and net: If their approach. decided constitutionality ultimately affirm Johnson, S.Ct. 2579 457 U.S. at search, police with full then the are rewarded (footnote quotation omit- and internal marks from the search. use of evidence derived ted). however, wrong, analysis and the If their ultimately search is held to be unconstitution- noting we do not deal here 27.It bears al, police the cost of then the cannot avoid binding on-point where some with situation good ex- suppression relying on the faith is, present- precedent That we are not exists. enjoy ception. the benefits Just as the per- a case wherein law enforcement ed with correct, so, too, they they do bear when are on-point binding apply were asked to sonnel course, wrong. Of the costs when are In- appellate to a new factual scenario. law re- can avoid this entire issue deed, existing applying recognize questing a warrant in the first instance. per- precedential to subtle factual frameworks something police officers— mutations is application addressed retroactive Johnson personnel all and other enforcement —do of Fourth Amendment decisions. In discuss- (or desire) We occasion the time. have no matter, the Court stated: Thus, opinion. practices in this curtail such If, argues, rulings re- as the all Government example, purport to limit the we do not ques- solving unsettled Fourth Amendment par- ability whether a of an officer to decide nonretroactive, then, in close tions should be exigent gives circum- rise to ticular situation cases, law enforcement officials would standing apartment outside an stances while little incentive err on the side of constitu- to emanating suspicious sounds door awareness of the tional behavior. Official a diffеrent could lead to within. Such a case constitutionality practice would dubious Herring that, and Davis balanc- under the outcome certainty by be counterbalanced official here, that, the officer given unlike test long law in the so as the Fourth Amendment leaping recklessly into an unex- unsettled, would not be area evidence obtained remained plored situation. constitutional through questionable practice would be the AND THE KATZIN V. STANDING The Government challenge does the standing of Mark BROTHERS and Michael Katzin. (Id. 67-74.) Since “a search of a car rights Fourth Amendment are implicate does not rights of non-owner personal rights, seeking and a defendant passengers,” the Government contends suppress evidence must therefore dem that such passengers “generally are held onstrate a violation of his own Fourth to lack ‘standing’ object to evidence rights grant before he can be discovered in a search of vehicle.” Mos any ed form of relief. See Minnesota v. ley, (citing 454 F.3d at 253 Rakas v. Illi Carter, 83, 88, nois, (1998); L.Ed.2d 373 United States v. Mos (1978)). L.Ed.2d 387 This much is true. (3d Cir.2006). Thus, ley, 454 F.3d However, we have also held that “when a having rightly held that the District Court illegally vehicle is stopped by police, no suppressed the evidence in Harry found evidence during stop may found van, Katzin’s we must now consider wheth by government used against any occu er all standing three of the brothers had pant the vehicle government unless the challenge admissibility of this evidence. can show that the taint illegal stop The Government would have us divide the was purged.” Id. at 251.28 (1) stop into two distinct incidents: This Court in Mosley United States v. stop Harry Katzin stop considered illegal subsequent stop Katzin, Mark and Michael stop with each search carrying of a vehicle three individu- presenting a different constitutional situa als, during the course of which the below, tion. For the reasons discussed discovered several firearms from the car. stop Harry hold that the Katzin’s van stop We held that and subsequent must be treated as a single imph incident search of the car was to be treated as a eating the rights Fourth Amendment of all event, single thereby rejecting ap- and, consequently, three brothers we find proach that split inquiry be- that all three had standing. tween several “individual constitutional vi- begin by stating We the obvious: There olations, victim, each with [its each of own] not, be, nor can any dispute there as to may whom seek to suppress the fruits Harry whether Katzin —as the owner of of rights.” the violation of his individual standing challenge the van—has Id. at In part, 257-58. this conclusion was constitutionality of the GPS search as well by occasioned holding our rela- “[t]he the stop subsequent search of his tionship passen- between the seizure of a van, and to suppression seek evi- vehicle, ger moving necessarily which dence discovered within the vehicle. In- stopped by occurs when that vehicle is deed, the Government concedes as much. police, subsequent discovery and the 69.) (Appellant then, Br. Certainly, during stop, evidence is one of ineluct- rightly suppressed District Court the evi- able and undeniable correlation.” Id. at against Harry dence as Katzin. Additionally, acknowledged while we explicitly Mosley 28. We noted in every occupant that courts Amendment seizure of occurs pulled “should not be distracted the fact that the moment that vehicle is over police.”) case involves evidence found in a car.” Mos- The same is true of the case at bar: ley, Mosley explained, 454 F.3d at 253. As while the did search Katzin’s van, pulling constitutional violation stems not from the this was done after the van road, thereby “seizing” "search of the car ... the seizure of [but] [the to the side of the all ("[A] passenger].” Id. at 253 & n. 6 Fourth three brothers. search. a result of the GPS himself as per- are rights Amendment “Fourth second, Michael rejected stop of Mark and expressly also The we rights,” sonal which cause devel- phrase probable to a on the Katzin based “blind adherence clarity and which con- superficial derived through most has use of information oped veneer all of the that thin underneath ceals The Government the GPS search. from must be drawing which of line problems legality have us evaluate apply effort to in conscientious faced Amendment conse- Fourth attendant at 267 Id. Amendment.” the Fourth' (if individually. any) stop of each quences Rakas, (quoting in rejected approach this individualized We 421). Mosley, in decision light In of our illegal that “an Mosley, holding instead argue that Katzin and Michael Mark occupied by a driver stop of a car traffic challenge the admissibili- standing to single con- passenger [constitutes] and a Harry Katzin’s seized ty of evidence violation, [multiple] vic- stitutional subjected to an being van virtue suppress tims, of whom can seek each any evi- thereby rendered stop that illegal Mosley, 454 that violation.” all fruits of Harry Katzin’s van dence discovered (“It 257-58; com- at 267 defies id. F.3d at 256 tree. Id. poisonous fruit of the experience common sense and mon (“Where illegal, stop traffic itself three, into and we one action transmute ob- for the simply impossible ap- Amendment not endorse a Fourth will without violat- challenged tain the evidence a transmuta- that relies on such proach passenger’s tion.”) then, effect, illegality of the rights.”) agree.29 We Harry Katzin is ex- stop as it related to True, support exists to precedent (passengers). brothers Con- tended to his an individual cannot proposition that Mark and Michael sequently, we hold of a search which challenge legality stop standing had to contest information ob based on was executed rightly suppressed the the District Court illegal consequence of some tained as to all three evidence as brothers. See, party. third of a search seizure Chase, F.2d e.g., United States VI. CONCLUSION (9th Cir.1982). holdings are 70-71 Such above, will discussed For the reasons underlying the principle on the premised suppression of affirm the District Court’s Fourth Amend position: Government’s Kat- Harry inside of discovered evidence may rights personal ment “are zin’s van. only by of evidence enforced exclusion legal rights and interests one whose own ANTWERPEN, Judge, Circuit VAN by the search and seizure.” infringed were dissenting part. concurring part and Illinois, (discussing Rakas 421). presence The of Mos In December briefly recap: To however, analysis. ley, alters officers, consulting after an enforcement Attorney, and Assistant United States effectively contends The Government of the Unit- general policy with the accord Harry Kat- stop of that we must treat the Justice, magneti- Department ed States constituting stops: two zin’s van as battery seizure) independently (i.e., cally attached first, Harry Katzin stop constitutionality necessarily consider the noting and Michael that Mark It bears merely incidental: Mark the GPS search is challenge stop Katzin’s Katzin own van, to vindicate their and Michael seek itself. That in the not the GPS search rights, not those of their brother. stop must challenging the this Court course of operated “slap Positioning Sys- 41(b) on” Global rights.” Fed.R.Crim.P. comm, (“GPS “GPS”) device device” or tem (2006). advisory note No decision undercarriage Harry Katzin’s vehi- from our point. Circuit was on Then came cle, parked while vehicle was on a Jones, U.S. -, United States v. public argu- street. It was conceded at 945, 181 (2012). L.Ed.2d 911 probable ment that the officers had cause light Court’s decision so, they to do although did not obtain a Jones, in and for the reasons discussed in days, warrant. For two law enforcement majority opinion, I agree that used that to track GPS the vehicle’s Fourth Amendment requires now law en- public whereabouts on roads. The vehicle forcement officers warrant, to obtain a is- never private garage, entered a never en- upon probable cause, sued before in- home, tered the curtilage of a nor did stall a a GPS-like device on a similarly enter a private area. The infor- automobile, person’s or other mobile prop- mation from that GPS then led to the erty, and thereafter use that device to seizure of evidence Harry and the arrest of continuing conduct surveillance. See Ma- brothers, Katzin and his two due to their jority Opinion (“Maj.Op.”) at 197.1 major involvement in a ongoing scheme to drugs pharmacies. steal from Rite Aid disagree, however, I majority’s with the conclusion that the time, District Court was At cor- Supreme Court, in rect suppress the evidence involving cases electronic obtained as a beepers vehi- cles, result of the person had held that warrantless traveling “[a] GPS installation public automobile on thoroughfares subsequent Maj. has surveillance. See Op. no expectation his 204-14. Given pre-Jones Supreme movements from place one to another.” precedent, regarding consensus Knotts, 276, 281, United States v. 460 U.S. GPS and GPS-like use across the federal (1983); 103 S.Ct. 75 L.Ed.2d 55 see courts, considerations, and other relevant I Karo, also United States v. would hold that the law enforcement offi- 104 S.Ct. 82 L.Ed.2d 530 cers here acted “with an objectively ‘rea- (1984). All but one of the United States good-faith sonable belief that their conduct Appeals Court of to have addressed the States, [was] lawful.” Davis v. United issue, Knotts, Karo, light and other -, 2419, 2427, general Fourth Amendment principles, L.Ed.2d 285 (quoting United States held that GPS or similar electronic surveil- Leon, (“GPS-like “GPS-like”) lance device” or (1984)). reason, 82 L.Ed.2d 677 For that could be conducted in the way same suppression unwarranted, in this case is occurred here: without an authorizing and I would reverse the District Court. warrant. This view was reflected in then- 41(b) current Rule of the Federal Rules of I. Procedure, Criminal commentary It indisputable the installation which stated that a warrant was not re- and use of the GPS device in quired this case to conduct electronic vehicle sur- ... a “search” under the veillance Fourth Amendment. “[i]f officers intend to Jones, Furthermore, install and use electronic [an See 132 S.Ct. at 949. surveillance] device implicating any without agree majority I with the particu- that this that, agree majority I also with the standing under suppression brothers has to seek Mosley, our decision in United States v. the evidence obtained from Katzin’s (3d Cir.2006), F.3d 249 each of the Katzin vehicle.

218 warrant, viola requires a deter future Fourth Amendment now

lar search Davis, officers enforcement at that because tions.” 131 S.Ct. a a violation of without warrant here acted exclusionary But rule application of occurred. But Amendment the Fourth every is not warranted “in circumstance Fourth Amendment viola- fact that “[t]he might marginal which it deter- provide necessarily ... does not tion occurred 141, Herring, rence.” 555 U.S. at 129 exclusionary rule applies.” mean that the Scott, 368, S.Ct. 524 at (quoting 695 U.S. States, 135, 555 U.S.

Herring v. United 2014). Suppression prudent 118 is S.Ct. 695, (2009); 496 140, 172 L.Ed.2d 129 S.Ct. only in appreciable where would “result 140, Tracey, 597 F.3d 151 v. United States Leon, 909, 104 deterrence.” 468 U.S. at Gates, (3d Cir.2010). v. See also Illinois added) (emphasis (quoting S.Ct. 3405 223, 2317, 213, S.Ct. 76 103 462 U.S. Janis, 433, 454, v. United States 428 U.S. (“[W]hether (1983) the exclu- L.Ed.2d 527 (1976)); 3021, 96 49 L.Ed.2d 1046 see S.Ct. in a sionary remedy appropriate rule’s Davis, (explain- also 131 at 2426-27 S.Ct. long regarded been particular context has “[wjhere ing suppression yield fails to from the separate question as an issue deterrence,’ ‘appreciable exclusion is rights whethеr the Fourth ” (omission omitted) ‘clearly unwarranted’ seeking to invoke the rule were party conduct.”). Janis, 454, at (quoting 428 U.S. 96 S.Ct. violated 3021)); Herring, 141, at 555 U.S. 129 S.Ct. exclusionary ‘prudential’ rule “is Evans, (same); 1, 695 Arizona v. 514 U.S. Davis, at doctrine,” (quot 131 S.Ct. 2426 11, 1185, 115 S.Ct. 131 L.Ed.2d 34 Pa. and Parole v. Bd. Probation (same); John, Virgin v. F.3d Islands 654 357, Scott, 363, 2014, 118 S.Ct. 524 U.S. (3d Cir.2011) (same). 412, 417 (1998)), In other 141 utilized to “com L.Ed.2d 344 words, guaranty” suppression is warranted pel respect for the constitutional Amendment, in the Fourth id. outweigh embodied where its deterrence benefits States, v. (quoting Elkins United 364 U.S. “pre- substantial social costs inherent 206, 1437, 217, 4 L.Ed.2d 1669 80 S.Ct. reliable, cluding] proba- consideration of (1960)). Brown, v. See also United States Scott, tive evidence.” 118 at Cir.2011) (3d (“[T]he 638, 646 Davis, 2014; S.Ct. see at also 131 S.Ct. exclusionary merely ‘judicially rule is (“For appropriate, 2427 exclusion to be remedy designed safeguard created suppression must deterrence benefits of generally rights Fourth Amendment costs.”); outweigh its heavy Tracey, 597 ” through (quoting its deterrent effect.’ (“To F.3d at 151 determine whether Calandra, 414 United States case, apply particular the rule in a (1974))). 561 L.Ed.2d S.Ct. weigh the benefits rule’s deterrent Suppression through of evidence obtained ”). against effects costs of exclusion.... “ violation of Constitution ‘not The costs of are suppression substantial. nor personal right,’ constitutional is it de heavy “Exclusion exacts a toll on both the injury’ signed ‘redress occasioned judicial system society large.” at Davis, search.” unconstitutional Davis, principal 131 S.Ct. at 2427. “The Powell, (quoting Stone is, course, applying cost of the rule 96 S.Ct. L.Ed.2d letting guilty possibly dangerous de- (1976)). of illegally And introduction something go fendants that ‘offends “work[s] trial no new obtained evidence free — sys- concepts justice basic of the criminal Calandra, wrong.” Fourth Amendment ” Herring, Instead, tem.’ 129 S.Ct. 414 U.S. at 94 S.Ct. 613. Leon, exclusionary purpose (quoting rule’s “sole ... is to 468 U.S. at 3405). “costly But in addition to its 695); U.S. at see also John, upon truth-seeking toll and law enforce- F.3d 418 (condoning suppres “ Scott, objectives,” ment 524 U.S. at sion where conduct was ‘deliber ” (internal quotation ate, mark reckless, grossly negligent’ (quot “[¡Indiscriminate omitted), application of 151)). ing Tracey, 597 F.3d at But on the rule,” exclusionary in some circum- hand, other “when police act with an stances, “may ‘generate disrespect well for objectively good-faith ‘reasonable belief ” justice,’ the law and administration of lawful, that their conduct is or when their Leon, (al- 908, 468 U.S. at 104 S.Ct. 3405 conduct only involves simple, ‘isolated’ omitted) Stone, (quoting teration 428 U.S. negligence, the deterrence rationale loses 3037). 491, at 96 Consequently, S.Ct. much force, of its and exclusion cannot ” that society “[o]ur cases hold must swallow Davis, ‘pay way.’ its 131 S.Ct. at 2427-28 pill necessary, bitter when but as (citations and quotation internal marks ” Davis, a ‘last resort.’ 131 S.Ct. at 2427 omitted) (quoting Herring, 137, 555 U.S. at (quoting Michigan, Hudson v. 695; Leon, 129 909, S.Ct. 468 U.S. at 908 586, 591, 2159, 126 S.Ct. 165 L.Ed.2d 56 6, 919, 104 3405). n. S.Ct. (2006)). Under “good-faith” this so-called excep costs, Against these weigh “we the bene- rule, tion to the exclusionary beginning fits of the rule’s deterrent effects.” Tra- Leon, with United States v. cey, 597 F.3d at But fight we must consistently Court has ruled that the costs “ any ‘reflexive[ly]’ instinct to appl[y]” the of suppression outweighed are not by the Davis, rule. (quoting 131 S.Ct. at 2427 little, if any, deterrent benefit of suppress Evans, 1185). 13, 514 at U.S. 115 S.Ct. ing evidence obtained “in [a] reasonable necessary analysis “rigor- calls for a good-faith belief that a search or seizure weighing ous of [the] costs and deterrence was in accord with the Fourth Amend benefits,” focusing primarily “on the ‘fla- Leon, ment.” at (quoting U.S. grancy police of the misconduct’ at issue.” Gates, 462 U.S. at 103 S.Ct. 2317 Leon, Id. (quoting at U.S. 104 (White, J., Evans, concurring)); see also 3405). John, S.Ct. See also 654 F.3d at 11-12, 514 U.S. at 115 S.Ct. 1185 417 (explaining that the exclusionary rule (“[W]here the objec officer’s conduct is is “trigger[ed]” only where conduct reasonable, tively excluding the evidence “sufficiently deliberate that exclusion will not further the ends of the exclusion meaningfully it, can deter and sufficiently (al ary rule in appreciable way____” culpable that such deterrence is worth the (internal original) teration in quotation price paid by justice system” (quoting omitted) Leon, mark (quoting 468 U.S. at 695)). Herring, 555 U.S. at 3405)); Krull, Illinois v. course, Of U.S. “the deterrence benefits of 348— (1987) (“[E]vidence L.Ed.2d 364 ‘vary exclusion with be culpability should suppressed ‘only if it law enforcement conduct’ can be said that the issue.” Davis, (alteration enforcement officer had or knowledge, S.Ct. at 2427 omit- ted) may (quoting properly charged Herring, knowledge, 695). hand, that the search On the one was unconstitutional under “[w]hen ” ‘deliberate,’ ‘reckless,’ exhibit the Fourth (quoting Amendment.’ ‘grossly negligent’ Peltier, disregard for Fourth States v. rights, (1975))); Leon, the deterrent value of S.Ct. 45 L.Ed.2d 374 strong

exclusion is outweigh and tends to 922 n. 104 S.Ct. 3405 (“[O]ur the resulting costs.” (quoting Herring, good inquiry faith is confined to Furthermore, although question seemingly rea- ascertainable objectively choice, reasonably analytical majority’s well trained officer sonable whether was known search first decision to address whether those circumstances, such “binding illegal____”). qualify appellate prece- Under cases as cannot have been ex officer good- “a reasonable later general dent” infects more doing that what he was is, to know pected analysis. majority faith That allows result, and, unconstitutional,” “he “Beeper its conclusion that the Cases” and discouraged in his unlikely actions to be are the “OuNof-Cireuit GPS Cases” knowledge that the fruits his by the “binding appellate precedent” to emaciate be sup searches will unconstitutional weight to law given enforcement reli- Thus, John, F.3d at 417. pressed.” general good- ance thereon in the more bottom, of exclusion harsh sanction “the analysis. faith objectively applied not deter ‘should effect, In the majority’s search for ” activity.’ law enforcement appellate “binding precedent” Davis-like Davis, Leon, 2429 (quoting case on places heavy this thumb 3405). 919, 104 suppression. scale favor of Such an analysis not comply does with Leon II. cases, which, inception, line since their majority posits several Admittedly, the again have time and that the stated touch- balancing test out- pages focused on “ good-faith exception stone for the ‘the Davis; which Herring lined in the test objectively question ascertainable whether length supra I describe at above. See reasonably well officer trained would purporting Part I. But consider while illegal’ have known that the search was whether, all light “in the circumstances ” circumstances,’ light ‘all of the Her- case,” the law enforcement officers’ this (quot- ring, U.S. at 129 S.Ct. 695 ‘deliberate, to the level of a conduct “rises Leon, at 922 n. reckless, negligent’ or violation of grossly 3405); whether officers relied Amendment,” Maj. Op. at the Fourth “binding precedent,” appellate or “some its majority fragments analysis dis- seemingly authority immutable or informa- cussing Knotts and Karo and the whether tion,” majority implies. Maj. as the See addressing from sister circuits cases our 205; Op. (“Try see also id. at 211 as we are “binding GPS and devices GPS-like concerns, might allay our we remain appellate precedent” under Davis. supremely discomfited the lack of bind- course, question of Of whether ing appellate guidance underlying the po- is, specific holding that law Davis’s —that case.”). lice action in this “binding appellate enforcement reliance bottom, At majority claims this objective precedent” good-faith as qualifies case is “different.” officers here act- background in the lingers conduct— case. (and, thus, “differently],” sufficiently ed the event Government were justify culpable application so as to arguing that the enforcement officers rule), concludes, majority exclusionary “binding prece- appellate here relied on “non-binding because the officers relied on dent,” I have no qualms with the precedent” from our circuits sister majority addressing whether Knotts and from, to, “extrapolatefed] analogized] from our Karo and the relevant cases sis- seeking existing law” rather than case qualified ter courts under that properly Maj. Op. at But the But, warrant. con- majority moniker. makes clear, argu- clusion that this case “different” results that is not Government’s primarily majority’s prior ment. from the deter- analogous non-binding minations circumstances therein. apply Courts precedent materially single good-faith are “different” from exception to either con- done or “binding appellate precedent” condemn varying dealt factual circum- Davis; and, Davis, thus, stances. See with in without “binding S.Ct. at 2428 (“The Court has over time appellate precedent,” applied the rationale [the] ‘good-faith’ exception across range good-faith Davis and the other cases do cases.”). not apply. More importantly, dissent, the Davis

I think do not this case is “different” courts, other and commentators do not involving good-faith other cases read the majority’s Davis articulation of exception, where presented courts are good-faith exception as limited to specific particularities facts and and then “binding appellate precedent.” Davis, See reasonably asked whether “a well trained J., (Breyer, S.Ct. at 2439 dissenting) officer would have known that the search (“[A]n officer who conducts a search that illegal in light [conducted] of all the he believes complies with the Constitution Herring, circumstances.” 555 U.S. at which, out, but it ultimately turns just falls (internal quotation 129 S.Ct. 695 marks outside the Fourth Amendment’s bounds is omitted) Leon, (quoting 468 U.S. at 922 n. no more culpable than an officer who fol 3405). 23, 104 S.Ct. obviously Davis is lows erroneous ‘binding precedent.’ Nor important because the facts in that case- is an officer more culpable where circuit officer “binding reliance on appellate prec- precedent simply suggestive is rather than edent” —are the most analogous of the Su- ‘binding,’ only where it describes how to preme Court’s several good-faith cases roughly instances, treat analogous or Government, we, with which the and just exist.”); where it does not United Regardless, predominant work. im- (1st Sparks, States v. 711 F.3d Cir. portance of Davis is its affirmation of de- 2013) (“The emphasis [Davis ] Court’s on police terrence culpability and as the police the absence of culpability could be lynchpins of the exclusionary analysis. rule imply good-faith read to that reliance on majority thus erroneously elevates the appellate out-of-circuit precedent is also “binding appellate precedent” language to acceptable.”); Baez, v. States good-faith its own test instead of treating (D.Mass.2012) F.Supp.2d 294-95 single as a consideration in the exclu- (“Baez argues that Davis should be limited sionary analysis. rule precise to its holding____ in [But] th[at] Nevertheless, great “of significance to terpretation entirely is too static.... It is case,” insists, the instant majority “is apparent majority opinion both the the fact that in Davis the relied on and the concurring dissenting opinions binding appellate precedent ‘specifi- anticipated the principles of Davis would cally authorize particular police [d the] be subsequent worked out in raising cases ” practice.’ Maj. Op. Davis, (quoting at 207 variations.”); Kerr, themes and Orin S. 2429). Thus, majority Fourth Amendment Remedies and Devel stresses, that Davis must read as “ex- opment the Law: A Comment on Cam tending] good protection faith only to acts Statеs, reta v. Greene and Davis United that are explicitly by sanctioned clear and (“If 2011 Cato Sup.Ct. Rev. precedent.” Maj. well-settled Op. at 207. exclusionary solely rule concerns cul First, I great take majori- issue with the pability ... its hard to why [sic] see bind ty’s suggestion that good-faith excep- ing precedent required. Reliance on Davis, tion was by “extended]” binding precedent inherently seems rea case, “only” sonable, other specific factual but reliance is often reasonable jurisdiction^] the law A ed to where precedent. local binding without widely up clearly Maj. Op. a search at 208 n. But who conducts settled.” officer ad yet but not among the circuits majority refers, held language to which the Appeals] in [U.S. Court dressed swpra, pure in full at footnote quoted than culpable is no more jurisdiction his dicta, responding argument to an not upheld a search who conducts officer good-faith exception what the should about If the former has regional his circuit. apply policy to but to the or should reasonably, surely so has the then acted good-faith ex “applying concern that latter.”).2 to searches conducted reliance ception the devel binding precedent will stunt on argues that Davis Finally, majority law.” of Fourth Amendment opment forecloses the conclusion itself Davis, id. see also 2432; 131 S.Ct. at analogous or non reliance on enforcement exception (“[A]pplying good-faith could ever binding precedent out-of-circuit judicial prevent in this context will not language good Quoting faith. constitute Amend prior reconsideration majority claims from Davis3 Furthermore, direct holding precedents.”).4 was limit ment explained that “its case limiting reading majority supports This Court reviews criminal convictions 2. The its opinion by pointing below from Davis Appeals, from 12 Federal 50 state Courts Circuit, several similar cases the Eleventh resort, of last the District courts circuits, wherein courts from our sister Appeals. one or Columbia If even given precedent ... [the] "stress many uphold particular of these courts point unequivocal before [those must be seizure, type of search or defendants in suspend exclusionary would] courts rule's jurisdictions question in which the remains Davis, operation.” United States open will still have an undiminished incen- 1259, (11th Cir.2010); see also United litigate tive to This Court the issue. can McCane, (10th F.3d States certiorari, grant development then and the Cir.2009) ‍​​‌​‌​​‌​​‌‌​​​​‌‌‌‌‌​​​‌​​‌​​‌​​​​​​‌​​‌‌‌‌‌​‌‌‍("Relying upon the settled case law way of Fourth Amendment law will in no be certainly Appeals a United States qualifies objectively law en- as an stunted. behavior.”); v. Jack- Davis, forcement United States 131 S.Ct at 2433. son, (5th Cir.1987) ("The exclusionary applied rule not be should aside, allowing I 4.As fail to see how which relied on Fifth Circuit law searches analogous reliance or non- enforcement law....”); change id. prior binding precedent out-of-circuit to influence J., ("Outside (Hill, concurring) of situa- substantially good-faith analysis specific we have authorized the tions where development foreclose of Fourth declared conduct undertaken and then later made is no need "[t]here law. Leon clear that unconstitutional, analogy I believe the to Leon adopt practice courts to inflexible exception weakens should and Krull and the always deciding whether the officers' conduct probably applied.”). not be But objective good turning before manifested faith creating re- Court refrained from a similar Davis, (So- question whether the Fourth [of] at 2435-36 straint. See 131 S.Ct. X, tomayor, concurring) (noting that Davis Amendment has violated.” 468 U.S. at been markedly question left “the different [of] seeking 104 S.Ct. 3430. “Defendants exclusionary applies whether the rule when allegedly suppression of the unconsti- fruits of governing constitutionality the law of a undoubtedly tutional searches or seizures particular search unsettled ... unan- federal live controversies” which courts raise swered”). reading I before therefore hesitate "empowered] adjudicate”; and are ... apparently into Davis limitation odds “courts have considerable discretion con- Kerr, supra at 255. with its rationale. See forming decisionmaking processes to the their particular Id. at 924- exigencies of cases.” language quoted by majority 3. The reads 3430. as follows: 104 S.Ct. discussion, Davis, ly preceding this In explained brief the Court that Leon Court reiterated that the sole focus of the “imported” the reasoning of United States exclusionary culpa rule is “deterrence of Peltier, 95 S.Ct.

ble law-enforcement conduct.” Id. at L.Ed.2d 374 “into the good-faith 2432-38. Davis, inquiry.” 131 S.Ct. at 2432. In Peltier, patrol agents border short, conducted

In I disagree way with the stop-and-search of an automobile “within majority’s opinion suggest reads to reasonable distance from” questions pre- Davis alone answers the the Mexican Davis, pursuant statute, sented in border appeal. the Court to a federal feder- presented with a unique regulations set of facts to al promulgated in accordance holding which its was expressly directed: statute, with that and a judi- “continuous “binding appellate officer reliance on prec- approval” cial of “the statute and the ... Davis, edent” later overruled. See 131 policy” Peltier, across the federal courts. 2429. Identified both the con- 422 U.S. at 95 S.Ct. 2313. Al- dissent, currence and the Davis did not though that policy statute and were over- touch the questions of “whether the exclu- turned the Court’s decision in Almei- sionary rule applies govern- when the law States, da-Sanchez v. ing the constitutionality particular of a (1973), 37 L.Ed.2d 596 unsettled,” (Sotoma- search is id. at 2435 Peltier Court refrained from applying the J., yor, concurring), or “where prec- circuit exclusionary rule. See id. simply edent suggestive rather than ‘binding,’ where it describes how to Essential to the Peltier Court’s decision roughly instances, treat analogous was the reasoning now-familiar that “evi- just exist,” where it does not id. at 2439 dence obtained from a search should be J., (Breyer, dissenting). suppressed only if it can be said that the paramount Of importance to this case is law enforcement officer had knowledge, or that the reasoning underlying Davis does may properly charged knowledge, questions. address those Davis and the that the search was unconstitutional under good-faith Court’s jurisprudence teach us the Fourth Amendment.” Especially that we must totality look at the here, relevant the Court stated “un- whether, circumstances and light ask less we are to hold parties may that circumstances, those the officers were act- reasonably rely upon any legal pronounce- ing “deliberate, reckless, with grossly or emanating ment from sources other than negligent disregard for Fourth Amend- Court, regard we cannot as blamewor- rights,” ment justify which would suppres- thy parties those who conform their con- sion, or, instead, they acting whether were duct to the prevailing statutory or consti- “with an objectively good-faith reasonable tutional norm.” Id. belief that their conduct lawful” or [was] Thus, logic if the “import- of Peltier was only simple, negli- “involve[d] isolated ... good-faith ed into the inquiry” Davis, (cita- gence.” 131 S.Ct. at 2427-28 states, 2432, Davis 131 S.Ct. at then a quotation tions and internal marks omit- ted). “uniform treatment” of a reason, particular For that I law disagree with the enforcement act majority’s judiciary the federal conclusion that authority falling can, a ... specific “prevailing outside the norm” in proper semblance of Davis is circumstances, always “different” and thus support finding good insufficient to support a finding good-faith every 145, in faith. Herring, See 555 U.S. at 129 (“ circumstance. good-faith inquiry S.Ct. 695 ‘[0]ur 224 Gates, (quoting 104 S.Ct. 462 objectively ascertainable 3405

confined J., reasonably (White, well trained at 2317 question whether U.S. 103 S.Ct. Davis, that the search concurring)); have known 131 see also S.Ct. at officer light 2427-28; in of ‘all the circum illegal’ at Herring, 555 U.S. 129 ” Leon, at 922 (quoting 468 U.S. 695; Evans, 11-12, stances.’ at 514 U.S. S.Ct. 3405)); 104 S.Ct. United States n. 1185; Krull, 348-49, at S.Ct. 480 U.S. cf. (3d Duka, F.3d n. Cir. “yes” to police 1160. Davis answers 2011) objective reason (noting “[t]he “binding taken appel actions reliance of the reliance on the officers’ ableness Davis, S.Ct. at precedent.” late 2429. by the ... is further bolstered fact statute 147-48, at Herring, also 555 U.S. See at issue particular provision had “yes” where (answering S.Ct. 695 officers reviewed and constitutional been declared police-maintained relied on an error in a courts” (citing several [out-of-circuit] database); Evans, outstanding warrant 2434)). Davis, at (answer 14-16, at 115 S.Ct. 1185 514 U.S. all, my problem “yes” All in method where relied on officers error majority’s good-faith analysis database); Krull, is that in court-maintained focuses much on the facts myopically too (answering holdings and narrow of Davis other “yes” where relied on subse officers cases, little, and considers too if good-faith statute); Leon, quently invalidated all, reasoning principles law (answering 104 S.Ct. 3405 underlying majori- those The decisions. “yes” where relied on a officers subse sort ty’s analysis is search for some warrant). What quently invalidated we “immutable information authority or are asked answer is whether result justifies [the enforcement officers’] is the same officers act the cir when Maj. action.” atOp. course of See cumstances which did here. As good-faith exception But the exclu- shows, following I answer analysis sionary rule is not to those circum- limited question the affirmative. good-faith inquiry, The like other stances. analyses, requires Fourth Amendment us III. way through

to “slosh our the factbound ” A. morass of Scott v. Har- ‘reasonableness.’ ris, determining Before if the officers in this (2007).5 is, objectively case acted with an question L.Ed.2d been, complied that them belief conduct with the always has the officers act- whether Amendment, must first belief Fourth deter- good-faith ed with “reasonable what, mine their conduct precisely, a search or seizure was in accord with the was. Leon, lumps Amendment.” conduct Jones that oc- majority my analysis highly persuasive) (perhaps, 5. The insinuates stalwart hold- questions exactly with of [an would "burden district courts un- out?” —are the sorts assessment,” type case-by-case asking; where particularly should be the Su- warranted] sprawling, amorphous, preme good- "a and create and Court instructs us to answer self-contradicting Maj. Op. question focusing at whether doctrine.” 210. faith on "a rea- questions majority sonably well But all of the trained officer have i.e., many illegal was [conducted] "how circuits had addressed known that search fears— the light Herring, police practice what of all question, each one the circumstances.” 145, said, (internal quo- whether the were mere 555 U.S. at S.Ct. 695 statements dic- 129 Leon, ta”; omitted) (quoting and "what if courts had all tation marks 468 U.S. our sister 23, 3405). point, near-unanimity ruled in with at 922 n. on one act, Jones, dealing see with singular curred here into a electronic surveillance and (installation of a S.Ct. at 949 GPS and automobiles, general searches of subse- search), are a use to monitor a vehicle its quent treatment of and GPS GPS-like sur- Jones, But before majority. does the courts, veillance across federal and or GPS-like surveillance was often GPS other considerations. (1) as two distinct acts: the instal- treated device, of the GPS or and lation GPS-like 1. (2) subsequent of the au- surveillance Knotts, United States v. 460 U.S. Thus, purpose my for the tomobile.6 (1983) 75 L.Ed.2d 55 I exclusionary analysis, appro- rule find it Karo, United States v. similarly priate separate officers’ S.Ct. 82 L.Ed.2d 530 are the two conduct here into those distinct authorities most analysis. relevant our Sparks, Fourth Amendment acts. See Knotts, Minnesota enforcement offi- (bifurcating exclusionary 66-67 its F.3d cers utilized an beeper electronic to con- good-faith exception analysis rule with / duct surveillance on a vehicle driven by a to, first, and, regard installation GPS’s suspected part man to be of an illegal second, subsequent monitoring).7 its 277-80, operation. narcotics 104 S.Ct. 3049. In determining the B. implications Fourth Amendment of that Application exclusionary of the rule de- activity, the Court determined officers, pends on whether at the time alleged search principally “amounted they were acting, would or should following of an public automobile on have known their installation of the GPS Id. at highways.” streets subsequent their use GPS to rejected 3049. S.Ct. The Court the argu- track Katzin’s vehicle were uncon- ment that this constituted search Krull, under 348-49, stitutional. See Amendment, Fourth and held that 107 S.Ct. 1160. Relevant to this determi- “[a] traveling nation are the Court’s case law in an person public automobile on See, Karo, 711-13, e.g., determining 6. "use” irrelevant for whether occurred, (analyzing implica- Fourth Amendment Fourth "search” had Amendment installation); beeper reasoning trespass id. at tions on 'houses' "[a] or 'ef- fects,' (analyzing privacy, Amendment or a invasion is not Katz surveillance); Knotts, implications beeper alone a search it is done unless to obtain * (certio- information; obtaining 460 U.S. at 103 S.Ct. 1081 n.* and the of informa- granted implica- tion rari Fourth Amendment is not alone a search unless it is achieved beeper “pass[ing]” trespass privacy”), tions of use and on the such a invasion installation); J., (Alito, beeper concurring) (finding with id. at issue States v. Pineda-Moreno, (9th "questionable proposition 1215-16 it a that [the] two Cir.2010) (analyzing sepa- procedures separated GPS installation purposes cannot be for Moore, use); rately from analysis,” United States of the Fourth Amendment and rea- (1st Cir.1977) (same, F.2d 111-12 soning that it is clear that both the “installa- beepers). GPS, own, but tion” and "use” of the on their do search). not constitute a But it is conceded pause My that a separating I search did occur this case. note that GPS use into analysis entirely ques- two focuses on an different these distinct Fourth acts is tion; appropriate determining whether a to wit: whether officers would have known, actions, has at the their Fourth Amendment search occurred. time of that their Because, clearly rejected majority Jones the con- conduct was a "search.” as dis- suggestion Compare supra question currence’s do so. cussed in note Jones, time, (finding my analysis pro- 132 5 often S.Ct. at 951 n. the dis- bifurcated at the accordingly. between "installation” ceeds tinction and

226 location, progress, look”9 no to his expecta- want[s] has reasonable thoroughfares route, privacy one and he has no reasonable in his movements from privacy tion of stops in he ma[kes]” Id. Because when one interest “whatever to another.”8 place roads, nor “final otherwise. he his destination” or public on an automobile drives 281-82,104 anyone 3049.10 convey[s] to who S.Ct. “voluntarily Knotts, time, holding was in was not nor is it accord That the case 8.At appeals to ad many of the courts of case here. compelling A number of issue. dressed the beep- at one time The Fifth Circuit held beeper did not im surveillance courts found implicated plainly the Fourth er surveillance See, e.g., Amendment. plicate the Fourth Holmes, See United States v. Amendment. Michael, 252, 645 F.2d 257- v. United States 859, (5th Cir.1975) ("A per- F.2d 865-67 521 banc) Cir.1981) (en (5th (holding “subse 58 right expect a he son has when drives beeper monitoring,” of quent after installation street, police will car into the not his suspicion, "did not violate reasonable an device to his attach electronic surveillance privacy”); expectation[s] of ... reasonable Although in order to track him. he can car 32, Hufford, F.2d 33-34 v. 539 United States surveillance, anticipate reason- visual he can 1976) (9th (holding movements in one's Cir. ably expect to when be 'alone' his car he knowingly public “were a road his vehicle on away.... it and failure The[] enters drives public, therefore are not a exposed and fatal.”). a that view obtain warrant But protection”), subject Fourth Amendment abrogated, seems to have been if not over- Jones, 945, by S.Ct. partially 132 as overruled ruled, Michael, pre-Knotts later cases. See Pineda-Moreno, recognized v. by United States supra. 1087, (9th Cir.2012); Unit 688 F.3d 1091 cf. Bruneau, 1190, F.2d 1196-97 ed States v. 594 proposition 9. The that one has no reasonable (8th Cir.1979) (holding “monitoring willing expectation privacy in information [beep aircraft airborne location ly unques conveyed parties to third remains fourth amend within the er] not search 735, Maryland, Smith tioned. v. 442 U.S. ment”); Clayborne, F.2d States v. 584 United 743-44, 2577, 346, Cir.1978) 61 L.Ed.2d 220 (10th (holding use of 350-51 (“This consistently per has held that beeper persistent exten a substitute for “as surveillance, legitimate expectation privacy it when enters son has no sive visual” laboratory” exposed to voluntarily “outside “clandestine in information turns over he pub viewing” “ingress egress also, parties.”); e.g., third see v. California per Fourth Amend Greenwood, 35, lic” did ment). se violate the 486 U.S. S.Ct. 1625, (1988) (no 100 L.Ed.2d 30 alluded that Alternatively, some courts expectation privacy garbage bags will interests, implicated person’s privacy but ingly pick up by left on street curb for third required a war did not hold such surveillance Jones, (Sotomayor, party). But see 132 S.Ct. at 957 Moore, See, e.g., rant. United States , ("[I]t concurring) may necessary be J. to reconsider the (1st 1977) 106, (holding Cir. F.2d 111-12 premise that an individual cause, probable beeper requires surveillance expectation has no reasonable warrant), abrogated by but United States v. no voluntarily par information to third disclosed Knotts, 276, 286, 1081, S.Ct. 460 U.S. ties.”). (1983), recognized United L.Ed.2d 55 (1st States v. 711 F.3d Cir. Sparks, holding 10. The Knotts Court also based its 2013) ("Knotts abrogated proba ... Moore’s similarly "open fields” well-established beeper requirement ble surveillance cause doctrine, see Air Pollution Variance Bd. of Shovea, ....”); F.2d States v. United cf. Corp., v. W. 416 U.S. 864- Colo. Alfalfa Cir.1978) (“The (10th utiliza 1387-88 (1974); S.Ct. L.Ed.2d 607 device, tracking tion of without an electronic 559, 563, Lee, States v. United prior justified by approval, may court (1927); Hester L.Ed. circumstances.”). probable exigent cause States, 59, 44 require Conversely, a few did a formal cases (1924), stating beeper’s abili 68 L.Ed. warrant; many cases but of those involved ty to enhance visual surveillance was no occurring in installations and surveillance Knotts, See, consequence. 460 U.S. at private e.g., v. Bai areas. United States (6th 1980). ley, (“Nothing in the Amend Cir. S.Ct. 1081 945-46

227 later, year purchased over a the Court chemicals he that particular A little in Karo. But this conclusion reaffirmed container. purchasing After the chemi- of beepers clarified that the use to cals, Karo the suspect willingly placed the objects cars and was not monitor other bugged car, his container into allowing the Only limits. in situations which without to easily monitor his movements. employ electronic devices to obtain officers 278, Karo, 460 U.S. at 1081. In 103 S.Ct. information that could otherwise be ob cooperated the officers with a government by visual in public tained surveillance Karo, informant so as to ensure that who rely are places upon officers able suspected narcotics, manufacturing was Karo, holding. at Knotts’s See 468 U.S. similarly duped was into purchasing a con- Thus, 713-16, 104 of a S.Ct. use tainer of containing chemicals a beeper. objects private to monitor within beeper purchase occurred, Once had and Karo implicates residences Amend car, placed the container in his the officers requires a ment warrant. See id. beeper utilized the monitor his move- 714, 717-18, 104 S.Ct. 3296. 708, ments. 468 U.S. at S.Ct. 3296. undecided, initially Knotts left What Karo held that where officers arrange however, was whether the installation of suspect a for to obtain item containing a beeper a search under the Fourth beeper, suspect if even has no knowl- Knotts, 460 Amendment. See U.S. at 279 edge tenant, foreign the item’s **, 1081; 286, n. 103 S.Ct. id. 103 S.Ct. transfer upon did not intrude that sus- (Brennan, J., concurring). In both pect’s expectations of privacy. Karo, the officers Knotts themselves 712, short, Id. 3296. In S.Ct. placed beepers neither installed nor transfer a potential “created an inva- Knotts, onto or into the vehicles. privacy,” sion but mere fact that officers, with the of a consent chemical arranged beeper officers for a to come into manufacturing company, beeper installed possession of an individual or into an inside container for chemicals. The property “infringed individual’s no company agreed that next time a sus- Moreover, interest.” pected narcotics manufacturer Karo reasoned came to chemicals, most, purchase put was a “[a]t there technical tres- 1809, 211-14, prohibited augmenting ment from 106 S.Ct. 90 L.Ed.2d 210 (1986) (aerial sensory open green faculties bestowed them at of an surveillance 1,000 airplane birth such enhancement as science and house from an feet overhead is Brown, case.”); search); 730, technology afforded them in this see not a v. 460 U.S. Texas States, 739-40, 1535, Boyd v. United also 116 U.S. 103 S.Ct. 75 L.Ed.2d 502 (1886) (" eye (using (plurality opinion) flashlight 6 S.Ct. 29 L.Ed. 746 ‘The guilty open glove ... be trespass(quot cannot of a look into car interior com search). Carrington, Eng. Rep. partment night Entick is not But see States, (K.B.1765))). Technological Kyllo v. U.S. enhancements of United have, Knotts, (2001) (use purely visual surveillance since 150 L.Ed.2d light technology received similar See infrared treatment. Florida v. detect heat waves 445, 488-52, Riley, radiating off a home search because that (1989) (aerial 102 L.Ed.2d 835 surveillance of information “could otherwise have been partially greenhouse physical interior of obtained covered without intrusion into a helicopter constitutionally protected 400 feet overhead is not a area” and “the search); States, technology question general Dow Chem. [was] Co. v. not in 227, 238-39, (internal public quotation L.Ed.2d use” marks omit (1986) (aerial ted) States, photographs (quoting taken v. United from an Silverman airplane complex over an industrial are not 5 L.Ed.2d 734 Ciraolo, searches); (1960))). California 228 Jones, Knotts Thus, bottom, at before occupied beeper.” the by space on the

pass Karo that no Fourth established that “[t]he concluded But the Court occurred where offi- Amendment search trespass only physical of a existence to moni- beeper-based cers use electronics question of the marginally relevant public an movements on tor automobile’s has Amendment been Fourth whether the a no reasonable person roads because has is nei- ..., trespass an actual violated expectation privacy regard of to establish a nor sufficient necessary ther But, the facts information. because of 712-13, Id. at violation.” constitutional Karo holding, limited its correspondingly result, a the Court As 104 S.Ct. 3296.11 cases not whether instal- those did address privacy of ... “any impairment held that vehicle, of a onto or into a in beeper lation have occurred was occa- may interests that circumstances, a Nonethe- all search. monitoring beeper,” the sioned the less, reasoning regarding the Karo’s 713, 104 Id. implications of a beep- not its installation. Fourth Amendment telling, er installation on automobile 3296.12 trespass protection claim the of the Fourth Amend that "an actual 11. Karo's conclusion necessary right depends upon property nor sufficient to establish a is neither ment was, Jones, violation” until upon per a constitutional place but whether the the invaded law. Fourth Amendment sacrosanct protection son who claims the of the Amend States, 347, 88 v. 389 U.S. United Katz legitimate expectation privacy ment has a 507, (1967), the 19 576 L.Ed.2d place.”); v. invaded United States Acos questions Fourth Amendment turned ta, 1248, (3d Cir.1992). 965 F.2d 1256-57 trespass away their common-law foun- Indeed, addressing appeals the courts of 353, S.Ct. 507 dation. 88 See 389 implications Fourth of GPS and ("[T]he longer no trespass doctrine ... can GPS-like after installation Knotts Karo Thereafter, controlling.”). regarded physical trespass that made little of the oc touchstone was whether Fourth Amendment directly curred when installed devices upon person's government intruded had automobiles, upon primarily because in expectations privacy. See id. at reasonable vasion of that occurred was minimal 360, L, (Harlan, concurring); see 88 S.Ct. 507 Marquez, or non-existent. See United States 950; Jones, United States v. also 132 S.Ct. 604, (8th Cir.2010); 605 F.3d 609-10 United 249, (3d Cir.2006) Mosley, 454 F.3d Pineda-Moreno, 1212, States v. 591 F.3d (“[T]he protection Amendment’s Garcia, (9th Cir.2010); United States v. predicated against searches is unreasonable 994, (7th Cir.2007); F.3d United States v. per- government on the invasion 1119, McIver, (9th 186 F.3d 1126-27 Cir. privacy....”). expectation son’s reasonable Michael, 1999); see also United States v. States, instance, For in Oliver United 252, (5th Cir.1981). F.2d 257-58 80 L.Ed.2d 214 104 S.Ct. (1984), undoubtedly tres- officers rejected argument The also Karo Court But, passed upon petitioner's property. bugged transfer of container con- because officers were it was found seizure, holding "possessory stituted that no "open trespassing upon only fields” of meaningful in a interest was interfered with petitioner’s property, not "demand he could 3296; Karo, way.” 468 U.S. 104 S.Ct. privacy” conducted or incrimi- for activities ("A property also 'seizure' occurs see id. nating property. evidence found meaningful when 'there is some interference 466 U.S. at 104 S.Ct. 1735. vast possessory with an individual’s interests in then, was, physical consensus that a "tres- ”) (quoting property.' States v. Ja- United pass” regardless of whether it would have — cobsen, "trespass” been an actual under considered (1984)). L.Ed.2d Later cases did not dis- a "search” law—became common see, e.g., holding, States v. turb this infringed upon person’s trespass when that Garcia, Cir.2007), (7th See, F.3d expectation privacy. e.g., allege Illinois, Appellees do not the GPS installa- here Rakas v. subsequent (“[Cjapacity tion or surveillance was seizure. L.Ed.2d certainly monitoring and was informative the subse- public roads is not a quent search); treatment of the throughout issue Pineda-Moreno, United States v. the federal courts. (9th Cir.2010) 1215-16 (holding that GPS installation and use was

Additionally, several other well settled search); Garcia, not a United States 474 principles are rele- (7th 994, Cir.2007) F.3d (same); 997-98 Jones, vant. Supreme Before Court McIver, 1119, United States v. 186 F.3d perfectly had made clear that persons did (9th Cir.1999) (same); 1126-27 see also enjoy expectation not a reasonable pri- of Michael, vacy 252, States v. 645 the exterior of their F.2d automobiles. (5th Cir.1981) (en Class, banc) 106, 114, 256-58 New York v. 475 (holding U.S. 960, (1986); S.Ct. 89 L.Ed.2d 81 see also installation and use of beeper requires Lewis, Cardwell only suspicion, reasonable since monitoring (1974). 2464, S.Ct. 41 L.Ed.2d 325 search).13 Simi- public roads is not a larly axiomatic were principles that a courts, Most federal distriсt including simple “trespass” “physical or intrusion” Pennsylvania, Middle District of had alone, infringement absent an upon a rea- reached the same result. United States v. expectation privacy, sonable of was not a Jesus-Nunez, 1:10-cr-00017-01, No. “search,” 11; supra see Note that informa- (M.D.Pa. 2991229, WL July 27, **3-5 tion willingly conveyed to parties, third 2010) (“Since there was no Fourth Amend such as when a car “travels public thor- ment search or seizure the Govern oughfares occupants where its and its con- device, ment’s use of the GPS the court view,” Cardwell, tents are in plain agents finds that the did not need probable 2464, retains no reasonable cause or even reasonable suspicion to at expectation privacy, 9; of supra see Note tach and monitor the device to [GPS] De objects and that willingly placed or left in cars.”); fendant’s e.g., United States v. fields,” “open regardless of whether Burton, 698 F.Supp.2d 1307-08 trespassed those fields are upon, see Oli- (N.D.Fla.2010); Moran, United States v. ver, do (N.D.N.Y.2005). 349 F.Supp.2d 467-68 enjoy not expectation reasonable pri- of only The case to break from this consen- vacy, supra see Note 10. sus Maynard, was United States v. (D.C.Cir.2010). 2. F.3d 544 In Maynard, D.C. Circuit that prolonged held use of a Karo, After Knotts and what resulted GPS device to monitor the movements awas uniform consensus across the federal defendant Jones’s vehicle “24 day hours a appeals courts of to address the issue weeks,” for four was a “search” under the subsequent installation and use of GPS Fourth Amendment. 615 F.3d at or, or GPS-like device was not a search most, Circuit, According to the was a search but D.C. Knotts was require did not See, e.g., controlling question, warrant. United States v. Mar- as the court (8th quez, Cir.2010) 609-10 reasoned that holding Knotts’s endorsed “ (reasoning that installation person and use of GPS traveling ‘[a] an auto- requires only suspicion, public since mobile on thoroughfares has no rea- Smith, 13. Michael was also the law in the Fed.Appx. Eleventh United States v. Prichard, (11th Cir.2010) City Circuit. See Bonner v. (unpublished) (citing 920-21 (11th Cir.1981) (en banc) Michael, (5th F.2d United States v. 645 F.2d 252 (decisions prior Cir.1981) of the Fifth Circuit support proposition to October that GPS Circuit); binding search). 1981 are on the Eleventh installation was not types ensemble. These in move- what he does privacy his expectation sonable another,’ can each reveal more about not that information place ments one trip does individual expecta- person than no reasonable person has such isolation.”).15 viewed in movements whatsoev- in ‍​​‌​‌​​‌​​‌‌​​​​‌‌‌‌‌​​​‌​​‌​​‌​​​​​​‌​​‌‌‌‌‌​‌‌‍his tion (altera- Id. at er, end.” world without Maynard only a handful Other than omitted) (citation (quoting original) tion opinions questioned Knotts’s dissenting 1081). Knotts, 460 U.S. at applicability holdings their Karo’s court reasoned subsequent surveil GPS installation Knotts, the later across cases Karo, 736, 104 lance. See all “reserved” appeals, the courts (“The J., (Stevens, impact dissenting) or ‘mass’ of “whether ‘wholesale’ issue pro interests beeper of surveillance many of individuals electronic surveillance me by tected leads the at 558.14 a requires warrant.” regard perfectly to what I as sensible circum exigent that that absent result, court concluded conclusion As a agents a consti thing for stances have although may passer- “one Government be duty to obtain a warrant before to follow tutional by to observe or even someone they pri on a goes as he install an electronic device single journey during work,” States property.”); home from it is a vate citizen’s United market or returns Pineda-Moreno, 1120, 1124-26 that thing stranger “for F.3d whole other (9th Cir.2010) C.J., (Kozinski, dissenting day again next and pick up scent banc) out, that, rehearing (arguing in and day after week denial of en week until he has all that surveillance a search because dogging prey his identified amusements, “have little in common with and GPS devices places, people, Knotts,” in person’s primitive pro that hitherto devices and up chores that make power the move Id at 560. The court’s vide officers “the to track private routine.” us, therefore, every every day in ments one of of our analysis Maynard, was fo- of (Tate, lives”); at 260-70 not on installation the device F.2d cused Michael J., majority dissenting) (disagreeing use but rather the of the GPS prolonged living of information that “an individual under our Consti quality quantity and the period expectation time. tution no obtained over an extended has protect would him from a (“Prolonged Id. at 562 surveillance reveals such as trespass upon property by governmen not revealed short- his types information surveillance, agents, trespass tal them to person term such as what a that enables do, he does and maintain continuous electronic surveillance repeatedly, does what Knotts, majority response pause in I here to note that 14. in 15. Maynard having characterizes held that holding argument its allow to the that attaching a onto a mere act of GPS device “twenty-four hour surveillance citizen conducting person's purpose vehicle for the judicial knowledge country without of this ... surveillance, alone, continual constituted supervision,” opined 'reality that or "the 196-97; Maj. Op. at id. ” search. See see also abuse,' hardly suggests suggested (describing Maynard "ex- n. 9 dragnet-type prac- "if such enforcement plained a GPS that warrantless installation of occur, eventually tices ... should there will police was per device se unreasonable enough be time then to determine whether Amendment”). Such under the Fourth principles may ap- different be constitutional panel’s characterization is unfaithful Knotts, plicable.” holdings opinion, explicitly its which tailored (quoting Daily, S.Ct. 1081 Zurcher v. in that the surveillance conducted the fact Stanford Maynard, 56 L.Ed.2d for a See case lasted month. (1978)). 560. F.3d at Trans, twenty-four per faith analysis. Arg. {See hours Oral at 52: over his movements continuously indefinitely”). day (conceding 4-6 the officers’ reliance opinion of an Assistant United Attorney States was “a factor to look at” I find several other also considerations determining whether the acted officers First, and most important, relevant. faith).) good See also Tracey, 597 F.3d 41(b) of the Federal Crimi- Rule Rules of (concluding that approval from a Procedure, governs nal which the issuance alia, government attorney, inter was one in all federal criminal proceed- warrants evidencing consideration that “[a] reason- Advisory ings. The Committee’s able ... officer would confidence 41(b) amend- explains Note Rule [search]”); validity ed, tracking “address the use of part, Otero, (10th States v. 563 F.3d 41(b) advisory devices.” Fed.R.Crim.P. Cir.2009) (same); Fama, United States v. comm, (2006). In describing note the ideal (2d Cir.1985) (same). procedure, the Note “[war- states that required may tracking rants to monitor devices when are used to monitor IV.

persons property in areas where there expectation is a reasonable of privacy.” view, my light of legal the land- Karo, Id. 468 (citing U.S. 104 S.Ct. above, scape discussed when the officers 3296). Elaborating, the note instructs upon installed the GPS device16 under- the “if intend to use the the officers install or carriage Harry vehicle, of Katzin’s afea, constitutionally device in a protected then device to used that monitor vehi- the they judicial obtain approval must do cle’s for two days movements while it tra- But, “[i]f, hand, so.” Id. on the the other public thoroughfares, versed those officers officers intend to install and use the device were with “an acting objectively ‘reason- implicating any without Amend- Fourth good-faith able belief that their conduct rights, ment there is no need to obtain Davis, [was] lawful.” 131 S.Ct. at 2427 Knotts, (citing warrant.” Id. Leon, (quoting 468 U.S. at S.Ct. 104 1081). 103 S.Ct. 3405). I that the find officers’ actions Moreover, the law officers enforcement ‘deliberate,’ this case do not “exhibit ‘reck- an Assistant consulted with States less,’ negligent’ ‘grossly disregard or for Attorney conducting before the installation rights,” (quoting id. of unit and subsequent the GPS sur- 695), Herring, U.S. at 555 129 S.Ct. 56.) Appellant veillance. Br. I {See at and, thus, deterrent value” “the of exclud- govern- agree majority with that “a pursuant the evidence found alone, attorney’s approval, ment standing “outweigh officers’ conduct would not should cannot and not suffice to demon- resulting Simply put, in this costs.” good Maj. strate faith.” at 212 n. 23. Op. ” case, way.’ cannot ‘pay “exclusion its But, Appellees’ attorney at conceded Leon, (quoting Id. at 2428 at 908 it U.S. argument, certainly oral another con- 3405). good- sideration to take into account in n. 104 S.Ct. device,” course, Also, By power. physi-

16. "installed of I under its own it was not screws, magnetically cally using mean that the officers attached onto the car ad- installed hesives, "slap upon on" GPS device otherwise. Its attachment was undercar- Thus, Harry riage magnetically. Katzin’s of vehicle. That device occasioned car, independent totally operating purpose my analysis, of the of I focus on those facts. expectation Harry Katzin a reasonable had

A. privacy that area. acting here with an were The officers course, Harry Katzin had reason- Of belief good-faith reasonable objectively with expectation privacy respect able of the installation their warrantless vehicle; even interior of his if that undercarriage upon the GPS device diminished. See privacy interest was run did not Katzin’s automobile Cardwell, 589-90, at S.Ct. U.S. the Fourth Amendment. afoul of objectively But it have been would Fourth Amend- on fundamental Based for a enforcement officer to reasonable law have been which would principles ment lacked reasonable ex- conclude he trained any reasonably well familiar pectation privacy spe- in the exterior — officer, possibili- no there was enforcement undercarriage cifically, the vehicle. —of officers, the time in- ty that Lewis, In Cardwell v. U.S. Katzin’s upon Harry vehi- the GPS stalled 2464, 41 L.Ed.2d knowledge” cle, have “had —nor Class, again New York v. U.S. “charge[ [them] now ] could we (1986), 89 L.Ed.2d was uncon- the search knowledge”—“that quite clear that Supreme Court made the Fourth Amendment.” stitutional under expectation lack persons 348-49, Krull, 107 S.Ct. 1160 in the of their automo- exterior Peltier, (quoting Cardwell, biles. See 2313). (“With the search limited to the Jones, the touchstone Before examination of the tire on the wheel and analysis was whether Fourth Amendment taking scrapings from the paint per- had invaded the Government left in the public exterior vehicle of privacy. expectation son’s reasonable lot, comprehend parking fail to what 360, Katz, 88 S.Ct. 507 See 389 U.S. at of expectation privacy infringed.”); was (Harlan, J., Bond also concurring); see Class, 114, (plu- U.S. at 106 S.Ct. 960 States, 338, 120 S.Ct. U.S. (“The car, a rality opinion) exterior of of (2000); L.Ed.2d California course, eye, public is thrust into the and Ciraolo, 106 S.Ct. thus to not constitute a examine does ” (1986). actual “[A]n 90 L.Ed.2d Cardwell, 417 (citing ‘search.’ necessary nor trespass neither [was] 2464)). suffi- 588-89, light of this a viola- cient to establish constitutional long-standing precedent, Supreme Court Karo, 468 tion.” “objectively the officers would have had an added); supra see also (emphasis good-faith Harry reasonable belief’ result, reasonably a well note 11. As a expectation in Katzin lacked a reasonable officer would have vеhicle, trained law enforcement the exterior of his and thus that of the GPS unit known that the installation “their conduct when in- was lawful” Katzin’s upon undercarriage undercarriage. the GPS car’s stalled on the (internal Davis, quotation “search” vehicle a Fourth Amendment 131 S.Ct. at 2427 was omitted).17 apparent in that mark the event that it was out, analysis. ly good-faith in At majority point 17. The its irrelevant our correct to applicability acting, brief discussion of our Class 's the time the were those two officers analysis, warrant dismissed Class's that Jones generally cases were understood to stand for relevancy regard a to whether search proposition a that one lacks reasonable subsequently occurs where officers install expectation privacy in the exterior his a track GPS device an automobile. See Pineda-Moreno, See, e.g., automobile. mean, Maj. Op. at 204 n. does not 14. That ("[T]he undercarriage F.3d at 1215 of a vehi- however, that Class Cardwell are similar- Again, I make no claim that Class or inside of a container which was then load “binding appellate ed qualify target by Cardwell as into the vehicle the driv under That does not er.... precedent” Davis. both Karo and [and] Knotts ad Instead, inquiry, beepers, end the however. what dressed the use of which ... are that, inquiry light in of the markedly resolves the different from GPS trackers.” Maj. True, pre-Jones legal landscape, Op. enforce at 207. these factual dis reasonably ment officers here could have tinctions would matter much if the Govern precedent arguing concluded ment were that Knotts and Karo authorized, very or at qualified “binding appellate least affirmed precedent” of, constitutionality But, their above, conduct. Re under Davis. as discussed gardless of the alternate facts in Class and is not the argument. Government’s A Cardwell, holdings princi those reasonably police officer, eases’ well trained act law, ples which would have in been known December thought would have reasonably a well trained law enforce Knotts and Karo to have exactly meant officer, ment made it clear that what they regard before said with to GPS and GPS-like person expec Jones lacked reasonable surveillance. Those cases made absolutely tation clear privacy person traveling the exterior of his that “[a] automobile, and, thus, public an automobile on simple trespass thoroughfares has no expectation thereupon by law enforcement officers another,” his movements from one place would not have constituted a “search.” As Knotts, result, 460 U.S. at I S.Ct. cannot conclude that the law because the “movements of the automo in installing enforcement officers’ conduct bile” public while on roads “could have undercarriage the GPS device to the “ been eye.” observed the naked ‘deliberate,’ See Harry Kaztin’s vehicle was a Karo, 468 U.S. at ‘reckless,’ S.Ct. 3296. ‘grossly negligent’ disregard Thus, the Fourth Davis, simply rights.” of Fourth Amendment id.; implicated. Sparks, See see also (quoting Herring, 555 U.S. at (“After 695). F.3d at 65 Knotts ... 144, 129 [it was] settled ... using beeper to moni [that] B. tor a person’s movements a car on Similarly, acting the officers here were public implicate roads did not the Fourth Amendment, objectively good-faith with an privacy reasonable because there was no belief that infringed.”). their warrantless use of the interest to be At the time the Harry GPS to monitor acting, Katzin’s vehicle officers were holding Knotts’s was See, public while it e.g., traversed roads over the familiar and Mar sacrosanct. Garcia, days constitutionally 609; course of two was quez, 605 F.3d at at F.3d permissible. 996; McIver, 186 F.3d at 1126.

First, majority distinguishes, may enough justify and This well be dismisses, thus Knotts and Kаro on their in good performing officers’ faith warrant- Paramount, facts. majority says, are of Harry less GPS surveillance Katzin’s “[njeither that facts that case involved a automobile. at Sparks, See F.3d 66-67 vehicle; physical trespass target onto the (concluding good-faith exception applied to in police placed beeper “clearly both cases the GPS surveillance because Knotts ele, exterior, part of its is not entitled to a aftermath of Cardwell and that one does Class expectation privacy.”); expectation privacy reasonable United not have a reasonable (4th George, parts

States v. 1119-20 in the visible exterior of an automobile Cir.1992) ("There question public highways.”). is thus little in the that and travels the roads 224, 106 Ciraolo, destination”); at 476 U.S. a GPS-based to use agents authorized (“Com J., (Powell, dissenting) device”). answer S.Ct. 1809 But I need not

tracking pub are goings public streets ings faith” is de “good because question, that matters, does the circum and the Constitution “all of lic light in termined every observing n. what Leon, at 922 disable 468 U.S. stances.” see.”); can id. Herring, public 555 U.S. member of the 3405; also see case, opinion) (majority in addi In this 106 S.Ct. 1809 (“The Karo, does not simply were Amendment the officers Fourth to Knotts tion relied, public traveling reasonably require guided, also judicial in order to observe ... to obtain a warrant of “continuous treatment” “uniform eye.”). courts with to the naked the federal what is visible across approval” constitutionality of warrant- regard C. Peltier, GPS use. See less Moreover, additional considerations two 2313; Ma also Caleb see that the law enforce- my conclusion bolster Technologies son, New Police Surveillance objec- “an here acted with ment officers Warrant Exception: and the Good-Faith belief tively good-faith ‘reasonable Evidence Tracker less GPS After ” Davis, lawful.’ their conduct was Jones, L.J. 13 NEV. States v. Leon, 468 U.S. at (quoting at 2427 (before Jones, thought” that the “everyone 3405). 909, 104 S.Ct. “was that and Karo “key fact” from Knotts while being monitored the cars were the warrantless First is the fact roads, anyone could where on public were and its sub- installation of the GPS device them”). every fed nearly Specifically, see complied with the sequent surveillance con had the issue eral court to consider 41(b) of the Federal commentary to Rule unnecessary to was cluded that a warrant Procedure, states Rules of Criminal which surveillance, excep the sole conduct GPS ... intend to install the officers “[i]f being Maynard 18 tion implicating without GPS] and use device [a no rights, there is any Fourth Amendment Knotts and light Consequently, warrant.” treatment, [a] need to obtain Karo, subsequent Fed. and their comm, 41(b) advisory note for the law “objectively was reasonable” R.CrimP. (2006). discussed, objectively it was As to have believed enforcement officers conclud- for the officers to have to conduct sur device the use of the GPS Katzin lacked a reasonable ed that Katzin’s vehicle while upon Harry veillance undercarriage expectation roadways was not along public it moved automobile, Knotts, and the GPS device of his See “search.” surveillance never used conduct 282-83, 103 (explain S.Ct. 1081 roadways upon which public area but the pub over “travel[s] that where one Thus, traveling. a reasonable the car was convey[s] any voluntarily lic streets he commentary have led reading of this the fact he one who to look want[s] conclusion that equally in a roads traveling particular over [is] a warrant require the officers here did not direction, particular the fact of whatever act.19 ma[kes], fact of his final stops he and the omitted). that, at lоgic the reasons set forth For majority

18. The under claims infra V, my put disagree. analysis, Maynard should have Part I "on notice law enforcement officers neglected 19. Although to ar- the Government Amend- implicate Fourth [GPS] devices could fact, (altera- arguments have been gue this similar rights.” Maj. Op. n. 24 ment at 213 cases, tion, including omission, cases heard made in similar quotation marks and internal ” Second, Leon, the law enforcement [was] officers lawful.’ (quoting 3405). consulted with an Assistant 909,104 United States U.S. at Attorney conducting before the installation V. subsequent

of the GPS unit and the sur- (See 56.) Appellant veillance. Br. at otherwise, The majority because, holds likely, than that attorney’s More discussion view, in its the difference between the about constitutionality with the officers beepers used in Knotts and Karo and the proceeded of their conduct along similar GPS device used this case is “one of But, my analysis lines as above. impor- kind, degree,” not Maj. Op. at 210 n. purposes, tant for our the fact that the which all makes Fur- “difference].” government officers consulted with a attor- thermore, majority chides reliance on ney acting, approved before who then their Knotts, Karo, and the relevant cases from action, although certainly desired course of our sister circuits because United States v. own, dispositive not on its is a consider- Maynard, which held that prolonged GPS weighing ation in favor of the conclusion surveillance was a require search and did reasonable officer ... “[a] have warrant, put the officers on notice “that validity confidence of the [search].” such devices ‘implicate] could ... Fourth 153; Otero, Tracey, 597 F.3d at see also ” Maj. Amendment rights.’ Op. at 213 n. 1134; Fama, F.3d 758 F.2d at 837. I disagree these two consider- Thus, taking into consideration the Su- ations render the officers’ conduct here preme jurisprudence, the near unan- objectively sufficiently unreasonable and imous treatment the federal courts to so as to incur culpable the wrath of the issue, commentary addressed the exclusionary rule. 41(b) to Rule of the Federal Rules of Certainly, the technological difference Procedure, Criminal and the fact the offi- beepers between the of the 1980s and mod- cers here consulted with an Assistant ern GPS devices is a consideration to take Attorney, United States it is clear that the “ into in determining account whether the ‘deliberate,’ acting officers were not with law enforcement officers were acting with ‘reckless,’ ‘grossly negligent’ disregard an objectively reasonable belief their ac- Davis, of Fourth rights,” tions were lawful. Modern “GPS units do (quoting S.Ct. at 2427 Herring, 555 require suspect to follow 695), when conducted visually, do not allow the driver to detect the warrantless installation and subse- tailing, and quent require expensive do not surveillance of the GPS device automobile, deployment Katzin’s of equipment manpower.” but were in- acting Hernandez, stead “an objectively United States v. ‘reason- (5th able good-faith Cir.2011); belief that their conduct 221 Maynard, see also See, e.g., District Courts in Maynard this Circuit. the Fourth put Amendment.” Since -, law enforcement “on notice” that GPS use Lopez, - F.Supp.2d United States v. rights, could affect Fourth Amendment -, 10-cr-67(GMS), C.A. No. 2013 WL reasons, majority the Rule has no substantive (D.Del. 26, 2013); at *3 June good-faith analysis. Maj. Op. effect on the — -, -, Wilford, F.Supp.2d States v. V, Again, 213 n. 24. as I discuss Part I infra ELH-11-0258, Crim. No. 2013 WL effect, Maynard do not read to have such an (D.Md. 7, 2013). Furthermore, at *20 June and, thus, I am at a loss to see how a reason- majority commentary claims this is a cod officer, ably well trained law enforcement act- "nothing ification of more than unremark case, ing at the time the did in officers proposition police able that the nеed not ob "impli- could have known that their actions tain a warrant if their action does not violate ... cat[ed] the Fourth Amendment.” 236 omitted) (quoting v. Cuevas- “practical that consid- United States (opining

F.3d 565 Cir.2011) (7th Perez, 640 278 from F.3d visual surveillance prevent erations (Flaum J., concurring)); see also United “the use of the GPS in lasing long” as [as] (5th Andres, v. 703 F.3d States Pineda-Moreno, case”); 617 F.3d at [that] Cir.2013) “any possible tech (finding C.J., (Kozinski, from denial dissenting ‘beep a nological differences between banc) (“[T]here’s no hiding rehearing of en er’ and device” insufficient be the GPS satel- all-seeing network of GPS from the “functionality [were] cause two devices’ overhead, which never lites hover similar”); sufficiently States v. blink, never confused get sleep, never (D.C.Cir.2010) Jones, 766, 768 attention.”). never lose (Sentelle, C.J., dissenting the denial from makes devices dif Admittedly, this GPS banc) (“There of en is no materi rehearing beepers used Knotts ferent from the move tracking al difference between independently do not Beepers and Karo. ments of the Knotts defendant with location, but, geographic determine their beeper tracking appellant Jones instead, periodic signals can “emit[] GPS.”). with a by a radio within picked up be receiver” Regardless technological differ- beeper’s of radio transmitter. range ences, reported enforce- GPS to law Knotts, 277, 103 S.Ct. 1081. See 460 U.S. information ment no that which more than by Beepers aid law enforcement as thus through have the officers could obtained sisting in visual surveillance officers Jesus-Nunez, visual pure surveillance. suspect, than the work of the doing rather 1:10-cr-00017-01, No. 2010 WL Pineda-Moreno, See altogether. officer *3; Cuevas-Perez, see F.3d at also (Kozinski, C.J., dissenting 617 F.3d at 1124 in- (dismissing as immaterial banc) rehearing en from denial accuracy creased of GPS devices since (“[M]odern ... can record devices [GPS] exactly “real-time is the kind information human the car’s inter movements without of information that drivers make available uncanny quietly, invisibly, with vention— roads”). by Every piece traversing public precision.”). provided of data the unit law enforce- GPS technological these dif- Notwithstanding ment officers could been otherwise ferences, exploitation of is the techno- “[i]t by obtained officer tracking logical implicates advances Fourth squad Katzin’s vehicle on foot or in car his Amendment, their mere existence.” street;20 by public keeping on a an officer Karo, 104 S.Ct. 3296. 468 U.S. eye on through an the vehicle use of a “Certainly, capable tracker is more binoculars, telescope utilizing or or a flash- than a inheres beeper, nothing ‘but light spotlight or so as to not lose the car it out technology to take of Knotts’s hold- night;21 under shadow of the an ” (footnote ing.’ Sparks, airplane helicopter F.3d at 66 utilizing officer an or a Greenwood, citizen.”); entirely private 20. See as a visible to him California States, 347, 351, (1988) v. United Katz L.Ed.2d ("What (1967) L.Ed.2d 576 ("[T]he reasonably expected be cannot person exposes knowingly public ... eyes to avert their from evidence criminal subject protec- not a activity by any that could have been observed tion.”). Brown, public.”); member Texas 75 L.Ed.2d 502 Brown, 21. See 460 U.S. at ("The opinion) general pub- (plurality ("It beyond (plurality opinion) ... peer lic could into interior Brown’s dispute shining officer’s] action in [the angles; there automobile from number flashlight his to illuminate the interior of precluded is no officer] reason be [the should right Brown's trenched no secured car observing officer what Amendment.”); to the latter the Fourth

237 712, “Nothing road- at 104 S.Ct. 3296. along public the vehicle U.S. to follow in Amendment prohibit[s] the Fourth ways.22 police augmenting sensory facili- efficiency efficacy of an officer’s The ties bestowed them at birth with such advаnces senses often benefit from natural as enhancement science and af- technology Co. v. See Dow Chem. technology. in Knotts, forded them this case.” States, 227, 231, 106 S.Ct. United U.S. 282, at 103 S.Ct. U.S. 1081. The informa- (1986) 1819, (changes in L.Ed.2d 226 through tion obtained use of the GPS was technology only not industrial “enhanee[] by information otherwise observable life,” all but process, and indeed areas of id. See 281-82, eye. naked 103 S.Ct. also “they have enhanced law enforcement unit simply 1081. The made it easier But fact techniques”). “[t]he mere for the law enforcement officers to obtain. form by human vision is enhanced” some (“Insofar See id. 103 S.Ct. itself, technological advance, by “does complaint respondent’s appears to be sim- rise to give problems.” not constitutional ply that beepers scientific devices such as Silver 1819; see also 106 S.Ct. to be enabled more effective in de- States, 505, 513, man v. United crime, simply tecting has no constitu- (1961) (Douglas, L.Ed.2d 734 foundation.”). tional And at the time the (“[NJeither J., concurring) the com should acted, it officers here was indubitable that the Fourth limited mand of Amendment be any lacked expec- Katzin reasonable distinctions kind of turning nice on the tation in the privacy information the equipment employed.”). Again, electronic See id procuring. GPS unit was exploitation technological ad “[i]t Thus, into taking 103 S.Ct. 1081.23 even that implicates the Amend vances technological consideration the difference Karo, ment, used in Knotts beepers their mere existence.” between the Lee, States v. was answered in Jones whether a search had (1927) ("For aught through 71 L.Ed. 1202 occurred installation and subse- Thus, appears, liquor the cases of on deck quent were use of GPS device. and, defendants, be implications like were discovered Fourth Amendment of the infor- surveillance, fore the motorboat was boarded. Such use of mation obtained the GPS searchlight comparable alone, use of a to the were not discussed. Jones did state glass glass. prohib or a held marine It is not that "Knotts noted 'limited use which the Constitution.”). by the ited government signals of the from [that] made beeper; particular question and reserved the Riley, 22. See Florida v. 448- principles constitutional whether 'different 102 L.Ed.2d may applicable’ 'dragnet-type en- (an "circling] officer over re- twice practices’ type forcement that GPS property spondent's helicopter in a at the Jones, possible tracking [in case].” made height feet” of 400 was not a search because (citations omitted). n. 6 But 132 S.Ct. at 952 may may “the see what from a be seen opinion majority Justice Scalia’s for the re- vantage point right public where altering frained from Knotts's conclusion that (alteration quotation to be” internal "the information obtained—the location Ciraolo, omitted)); marks California carrying [beeper] pub- the automobile 207, 213-14, L.Ed.2d voluntarily conveyed been lic roads ...—had (1986) ("Any flying public member of the public,” and was therefore not airspace glanced who could have in this down Nonetheless, jus- 951-52. five search. Id. at everything that ob- seen served."). these officers joined concurring opinions tices wrote or Jones, all which seemed to endorse the May- theory expressed so-called "mosaic” Today, question open as to remains unequivocally limit the effectually abrogated nard —which whether Jones Knotts's holding apply only persons in Knotts short-term conclusion lack Kerr, See Orín expectation surveillance. The Mosaic The- in the information Amendment, question ory procuring. the Fourth 111 Mich. GPS unit 238 case, in used in this the surveillance conducted that

Karo the GPS units GPS weeks, clearly “exploit[ing]” not case for four which allowed officers were lasted the to way put so as them technology in law enforcement to obtain “information not GPS were actions unconsti- short-term surveillance.” See notice that their by on revealed Cuevas-Perez, 640 F.3d at 562; Cuevas-Perez, See Maynard, tutional.24 615 F.3d at (Flaum, J., concurring) (opining be- (“[T]he 279-80 Maynard 640 274 F.3d at court Knotts holding of is fore Jones that “[t]he repeatedly distinguished the surveillance person expectation privacy no of that has at from during issue there surveillance place one to another in movements from single journey.”). Conversely, the GPS roads; terms, holding public by its only in this case for tracking lasted two technology used to is indifferent (see 112-15, 143-50.), days, Appendix at movements”). observe those that argument make no Appellees by information obtained the GPS device United States Nor does existence (D.C.Cir.2010) personal more” their about Maynard, “reveal[ed] v. F.3d 544 615 trip lives “than does individual viewed that affect the officers’ reasonable belief Maynard, First, in at May- isolation.” 562.25 conduct lawful. their “Knotts Besides, nard holding gave on the fact that scant reason to was based (2012). question technology widespread, This does is and one need L.Rev. 326 GPS today; empha- not need to be answered but look on the of his vehicle or dashboard major by caused in sizes the shift Jones telephone spot his to screen of cellular law, course, vastly concerns, and the differ- Fourth Amendment Kyllo's, one. arise all in legal regime ent under which law enforce- dealing with Fourth Amendment cases ad- acting. were ment officers here technology. say vanced it is safe to But that by implicated are those concerns not out otherwise, majority alluding concludes 24. The facts. my preferred disposition that would "leave [persons] mercy advancing at technolo majority 25. The this is a claims distinction Op. gy.” Maj. (citing Kyllo n. 20 at 211 point, without a because "when States, 27, 35-36, S.Ct. attached their GPS device to Katzin’s (2001)). 150 L.Ed.2d 94 case is This van, way they knowing no when had Kyllo. Kyllo, categorically distinct In robbery place”; next Rite Aid would take thus technology to the officers utilized observe in characterizing tracking here as “a radiation, frared which is otherwise invisible long-term Maj. project.” Op. surveillance See eye. the naked U.S. at to 121 S.Ct. purposes 22. But 212 & n. for of whether a Furthermore, 2038. the officers utilized Fourth Amendment occurred it violation mat- technology in order to determine the relative what law officers ters not enforcement could home, temperature of the interior of a an area what See have done but did do. Dow protection entitled to almost absolute under Co., Chem. 476 U.S. at 238 n. 29-30, the Fourth Id. at Amendment. ("Fourth must be Amendment cases de- 2038; Jardines, S.Ct. see also Florida case, by cided on the facts of each extrav- U.S. -, 1409, 1414, 185 L.Ed.2d agant generalizations. have never held '[W]e (2013) ("[W]hen it comes the Fourth actual, opposed potential, as invasions Amendment, among the home first purposes privacy constitute searches contrast, equals.”). the use of the GPS ” (alteration origi- the Fourth Amendment.’ provided device in this oth case information Karo, nal) (quoting eye by pub erwise observable the naked on a Jacobsen, 3296)); more, United States v. although lic street. What is the Court cf. 80 L.Ed.2d degree found "foolish to contend (1984) (“The concept privacy of an interest by secured to citizens the Fourth recognize society prepared entirely rea- been unaffected has is, nature, very critically Kyllo its differ- technology,” the advance of sonable made much technology ent however expectation, fact from the mere well that the used in that justified, general public “not that certain will not come сase was use.” 533 facts authorities.”). Alternatively, U.S. at 121 S.Ct. 2038. attention of tracking justify think that the duration of the so as to application of the exclusion- ary Maj. Op. rule. agree that case was material to the Court’s rea- I justifications for good-faith “[t]he ex- soning.” Sparks, F.3d 67.26 ception [may] not extend to situations in Furthermore, hypothetical: consider this which interpreted officers have am- case, Imagine, under facts identical to our biguous precedent.” Sparks, 711 F.3d at was, Maynard the D.C. Circuit’s decision Davis, 1267). (quoting 598 F.3d at But instead, only holding case that GPS here, that is not the case “where new use was require search and did not developments in the law have upended the If, circumstances, warrant. under those settled rules on which relied.” Id. rely the officers claimed to only upon at 68. Maynard for a reasonable belief that their Jones, Before all but one federal court Constitution, complied conduct with the appeals to address the unequivo- issue weigh consideration would more to- cally Knotts, Karo, concluded that and oth- a finding ward of law culpa- enforcement er relevant Supreme precedent Court But, here, bility. presented we are sanctioned the law enforcement conduct alternative, Maynard only and was the that occurred here. These Fourth Amend- (i.e., holding not a dissent or concurring principles, ment upon which the law en- opinion) any court at the time the case, forcement officers relied in this were officers executed the warrantless GPS sur- settled maxims of constitutional jurispru- veillance that considered their conduct ille- dence, some of them governing law en- result, gal. As a Appellees the fact that forcement conduct for decades. The ma- are pointing Maynard as the case jority, viewing through this case Jones- that said the law enforcement officers lenses, colored rules with the benefit of a could they not do what did is a consider- hindsight that was unavailable to the offi- ation that weighs in the officers’ favor. cers here. changed States things; Jones rule, majority’s Under the where law changed and way very them in a few—if enforcement engage “extrapo- officers any predicted. at exclusionary all— rule,” their own

lation] [of] constitutional rule require punish does not us to the law or where officers that their own “assum[e] enforcement failing officers here for conduct,” self-derived rule their sanctions] predict change.27 that sea The District those officers act with sufficient culpablity put quite Court below aptly: however, 26. say, The Knotts Court did suggest that “if questions how those should be an dragnet-type practices” (citation Nonetheless, law omitted)). enforcement such swered.” I “twenty-four hour surveillance of citi seriously “dragnet-type doubt country judicial zen of this ... without practices” enforcement referred to knowledge supervision,” Court, be, "should eventual they may Knotts whatever are akin occur, ly enough there will be time then to case, to what occurred in this where law determine whether different constitutional suggest enforcement officers had evidence to Knotts, principles may applicable.” be criminal; Katzin was a serious merely 103 S.Ct. 1081. But attorney argument evidence his admitted at acknowledging that “different constitutional (See gave probable Arg. rise to cause. Oral Trans, principles may applicable” imply does not 43:7-16.) principles may what those be and how impact analysis. Shelby the relevant See I have serious the im- reservations about Holder, U.S. -, Cnty. v. plications majority’s ruling in this case. Nevertheless, (Ginsburg, 2637 n. my position might L.Ed.2d 651 I admit en- J., dissenting) ("Acknowledging courage the existence some lаw enforcement officers to questions’ existing of 'serious constitutional precedent legal does not bend and twist and requires “rigorous emphasize weighing it which hastens [T]he benefits,” id. costs and deterrence [the] prosecutorial concern that has no possibly lest a “guilty dangerous personnel here law enforcement free,” Herring, go[es] ] defendant undertaking in this in- their work were a society, 695. As in a prosecution calculat- vestigation pill” willingly we swallow that “bitter when deliberately cavalier or ed or otherwise Davis, must. 131 S.Ct. at 2427. But just hopes manner in meet- casual present under in this circumstances of the constitutional ing the outer limits case, I do not the law find enforcement Indeed, rights. contours of Katzins’ “sufficiently culpable” conduct to be so surprise profess actors could well these deterring benefit from that con- outcome of Jones. specific at paid by justice worth price duct “is John, Katzin, No. at United States system,” Crim. even if (E.D.Pa. might marginal create incentive offi- for at *10 n. 15 2012 WL to “err on cers the side constitutional 2012). Regardless of this May seeming- Johnson, behavior.” United States v. conclusion, the District Court ly dispositive 2579, 73 102 S.Ct. L.Ed.2d affirms, found, majority now and the that (1982). Marginal deterrence not the exclusionary suppression rule requires rule, Herring, trigger exclusionary of the evidence obtained such non-cul- 695; law en- pable conduct. law enforcement thus, and, culpability, forcement the oppor- exclusionary rule Doing renders so tunity appreciable deterrence is. “strict-liability” regime, something which it Leon, 3405; 468 U.S. at 104 S.Ct. Davis, not. John, See emphatically is 417. In consequence, F.3d at ‘pru- “a exclusionary 2429. The rule is I find because law enforcement doctrine,” id. 2426 (quoting dential’ requisite culpabili- officers here lacked the Scott, 2014), ty justify in their applica- actions so as to principles breaking points. presented their some circumstances here. But there cases, could law enforcement "reliance” Supreme were cases Court that marginal at best. close; fact, very enough, came close aptly are But I have confidence that courts of our courts found some sister them to be "good-faith to discern the true suited actors” controlling precedents in situations similar bad; that, from the in circumstances to the case at bar. case, presented those in this will such as time, Obviously enough history, there is not definitively question be able to answer space reporter every single to answer acting whether were law enforcement officers result, question. Fourth As a Amendment objectively good faith. Rul- exclusionary developed provide rule has ings up help will that officers short come remedy on the Often the backend. hurried deter undesirable law enforcement conduct. officer, judgments of an however well inten- majority recognizes "applying ex- tioned, simply comply do not with constitu- isting precedential to subtle factu- framework rights. tional But as matter permutations something al offi- policy, I would rather allow the personnel— cers—and other law enforcement performing job— officer more freedom his Op. do all the n. 27. Maj. time." at 214 But particularly answer where insisting opinion

while not its does "cur- "application existing precedential of] frame- punishes practices,” majority tail such permutations” work to subtle factual is so per- law enforcement this case for officers in readily apparent as it was in this case—than forming practice. may that exact There ‍​​‌​‌​​‌​​‌‌​​​​‌‌‌‌‌​​​‌​​‌​​‌​​​​​​‌​​‌‌‌‌‌​‌‌‍protect overly sup- courts from burdensome have been a case Circuit or from our pression Ruling suppression detailing mo- specifically Court what motions. particular part job. officers should done in the tions is our rule, exclusionary respectfully I tion of the majority’s

dissent from the conclusion to I would reverse the Dis-

the alternative.

trict below.

UNITED STATES of America TYLER, Appellant.

Willie

No. 12-1975. Appeals,

United States Court

Third Circuit.

Argued May

Opinion Filed: Oct.

Case Details

Case Name: United States v. Harry Katzin

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 22, 2013

Citation: 732 F.3d 187

Docket Number: 12-2548

Court Abbreviation: 3rd Cir.