UNITED STATES of America, Appellant v. Harry KATZIN; Michael Katzin; Mark Louis Katzin, Sr.
No. 12-2548
United States Court of Appeals, Third Circuit
Oct. 1, 2014
Rehearing En Banc Ordered on Dec. 12, 2013
769 F.3d 163
Argued on March 19, 2013. Argued En Banc May 28, 2014.
However, the District Court selected neither
Rather than incorrectly sentencing Boney under
IV.
Boney‘s challenges to his conviction are meritless. However, we conclude that the District Court committed procedural error in its application of the Sentencing Guidelines on Counts II and IV. Thus, we will vacate the judgment in part and remand for resentencing consistent with this opinion.
Robert A. Zauzmer, Esq. [Argued], Emily McKillip, Esq., Zane D. Memeger, Esq., Thomas M. Zaleski, Esq., Office of United States Attorney, Philadelphia, PA, for Appellant United States of America.
Catherine N. Crump, Esq. [Argued], American Civil Liberties Union, New York, NY, Thomas A. Dreyer, Esq.,
William A. DeStefano, Esq., Stevens & Lee, Philadelphia, PA, for Appellee Michael Katzin.
Rocco C. Cipparone, Jr., Esq., Haddon Heights, NJ, for Appellee Mark Louis Katzin, Sr.
Brett G. Sweitzer, Esq., Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Amicus Appellee Federal Public & Community Defender Organization of the Third Circuit.
Catherine N. Crump, Esq. [Argued], Nathan Wessler, Esq., Benjamin E. Wizner, Esq., American Civil Liberties Union, National Security Project, New York, NY, for Amicus Appellee American Civil Liberties Union.
Catherine N. Crump, Esq. [Argued], American Civil Liberties Union, New York, NY, Sara J. Rose, Esq., Witold J. Walczak, Esq., American Civil Liberties Union, Pittsburgh, PA, for Amicus Appellee American Civil Liberties Union Foundation of Pennsylvania.
Catherine N. Crump, Esq. [Argued], American Civil Liberties Union, New York, NY, Hanni M. Fakhoury, Esq., Marcia Hoffman, Esq., San Francisco, CA, for Amicus Appellee Electronic Frontier Foundation.
Catherine N. Crump, Esq. [Argued], American Civil Liberties Union, New York, NY, Peter Goldberger, Esq., Ardmore, PA, for Appellee National Association of Criminal Defense Lawyers.
Before: McKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, and VAN ANTWERPEN, Circuit Judges.
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge, with whom RENDELL, FISHER, CHAGARES, JORDAN, HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges, join.
The instant appeal arises out of the warrantless installation of a Global Positioning System device (a “GPS” or “GPS device“) and subsequent surveillance by agents working for the Federal Bureau of Investigation (“FBI“) of a van while investigating multiple pharmacy burglaries. The warrantless surveillance led to evidence of the involvement of brothers Harry, Michael, and Mark Katzin (collectively, “Appellees“) in the burglaries. Slightly more than a year after the GPS installation and surveillance, the Supreme Court decided United States v. Jones, which held that the installation of a GPS device by government agents upon the exterior of a vehicle and subsequent use of that device to monitor the vehicle‘s movements is a Fourth Amendment “search.” 132 S.Ct. 945, 949 (2012). As a result, Appellees successfully moved prior to trial to suppress the evidence collected pursuant to the warrantless GPS surveillance, effectively ending the Government‘s prosecution. We conclude that the evidence is admissible under the good faith exception to the exclusionary rule and reverse the District Court‘s grant of Appellees’ suppression motions.
I. BACKGROUND
In 2009 and 2010, the FBI and local police officers were investigating a series of pharmacy burglaries occurring in the greater Philadelphia area, including Delaware, Maryland, and New Jersey. The modus operandi was consistent: the
Eventually, Harry Katzin emerged as a suspect. A local electrician, he had recently been arrested for attempting to burglarize a Rite Aid pharmacy, and he and his brothers had criminal histories involving arrests for burglary and theft. Increasingly, investigators received reports of Harry Katzin‘s involvement in suspicious activities in the vicinity of Rite Aid pharmacies.1 Their investigation revealed the make and model of Harry Katzin‘s van, as well as where he primarily parked it, and the agents sought to electronically surveil him. The agents conferred with an Assistant United States Attorney (“AUSA“) who advised them, in conformity with Department of Justice (“DOJ“) policy at the time, that installing a battery-powered GPS device upon Harry Katzin‘s van on a public street and tracking its movements on public thoroughfares would not require a warrant. Subsequently, on December 13, 2010, without a warrant, officers magnetically attached a battery powered “slap-on” GPS device2 onto the undercarriage of Harry Katzin‘s van while it was parked on a public street.
Two days later, at approximately 10:45 p.m. on December 15, 2010, the GPS device indicated that Harry Katzin‘s van had left Philadelphia and proceeded on public thoroughfares to the immediate vicinity of a Rite Aid in Hamburg, Pennsylvania. According to the GPS device, the van drove around the area before stopping and remaining stationary for over two hours. The agents contacted local police but instructed them to maintain a wide perimeter to avoid alerting the suspects. Consequently, the GPS provided the only evidence of the van‘s proximity to the Rite Aid. The van left its position at nearly 3:00 a.m. and state troopers followed. Meanwhile, local police confirmed that someone had burglarized the Rite Aid and relayed this information to the troopers, who pulled over the van. Troopers found Harry Katzin at the wheel with Michael and Mark as passengers. From outside the van, troopers observed items consistent with the burglary of a Rite Aid.3 They arrested Appellees and impounded the van. In all, the warrantless GPS surveillance lasted for two days and occurred only on public thoroughfares.
Appellees were indicted and each moved to suppress the evidence recovered from the van. They argued that the warrantless installation and monitoring of the GPS device violated their Fourth Amendment rights pursuant to Jones. The Government argued, inter alia, that even if Jones
The United States District Court for the Eastern District of Pennsylvania granted Appellees’ suppression motions. United States v. Katzin, No. 11-226, 2012 WL 1646894, at *11 (E.D.Pa. May 9, 2012). The District Court found that a warrant was required under Jones. Id. at *5-6. Relying on Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), it also rejected the Government‘s good faith argument, refusing to “extend the good faith exception to encompass the conduct in this case.” Id. at *10. Finally, it concluded that, contrary to the Government‘s contention, passengers Mark and Michael Katzin had standing to challenge the search of Harry Katzin‘s van. Id. at *11. The Government appealed.
A panel of this Court unanimously affirmed the District Court‘s conclusions that the agents’ conduct required a warrant and that all three brothers had standing. United States v. Katzin, 732 F.3d 187, 191 (3d Cir.2013), vacated by United States v. Katzin, No. 12-2548, 2013 WL 7033666 (3d Cir. Dec. 12, 2013) (granting rehearing en banc). However, the panel divided over whether the good faith exception applied and, consequently, whether suppression was appropriate. See id. at 216-41 (Van Antwerpen, J., dissenting). The Government petitioned for, and we granted, rehearing en banc on the singular issue of whether the evidence recovered from Harry Katzin‘s van should be shielded from suppression pursuant to the good faith exception to the exclusionary rule. Katzin, 2013 WL 7033666, at *1. We conducted the en banc rehearing on May 28, 2014.
II. DISCUSSION4
The Fourth Amendment mandates that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Consequently, we need not determine whether the agents’ conduct was an unreasonable search because, even assuming so, we conclude that the good faith exception applies, and that suppression is unwarranted.5 However, we caution that, after Jones, law enforcement should carefully consider that a warrant may be required when engaging in such installation and surveillance. We also need not reach the issue of whether Mark and Michael Katzin have standing to challenge the agents’ conduct because, even assuming so, the outcome—admission of the evidence at trial—would remain unchanged.6 See United States v. Stearn, 597 F.3d 540, 553 (3d Cir.2010) (noting that district court only needed to determine “standing” to the extent it held searches unreasonable); United States v. Varlack Ventures, Inc., 149 F.3d 212, 216 (3d Cir.1998) (declining to decide standing where court determined that law enforcement properly conducted warrantless search). We nevertheless acknowledge that, under the law of the Third Circuit, United States v. Mosley, 454 F.3d 249 (3d Cir.2006) appears to control.
A. The Exclusionary Rule and the Good Faith Exception
Whether to suppress evidence under the exclusionary rule is a separate question from whether the Government has violated an individual‘s Fourth Amendment rights. Hudson v. Michigan, 547 U.S. 586, 591-92 (2006). Despite its connection to the Fourth Amendment, there is no constitutional right to have the evidentiary fruits of an illegal search or seizure suppressed at trial. See, e.g., Davis, 131 S.Ct. at 2426 (noting that the Fourth Amendment “says nothing about suppressing evidence obtained in violation of [its] command“). The exclusionary rule is instead “a judicially created means of effectuating the rights secured by the Fourth Amendment.” Stone v. Powell, 428 U.S. 465, 482 (1976). Simply because a Fourth Amendment violation occurs does not mean that exclusion necessarily follows. E.g., Herring, 555 U.S. at 140. Rather, “exclusion ‘has always been our last resort, not our first impulse.’ ” Id. (quoting Hudson, 547 U.S. at 591).
Application of the exclusionary rule is instead limited to those “unusual cases” in which it may achieve its objective: to appreciably deter governmental violations of the Fourth Amendment. Leon, 468 U.S. at 909, 918; see also United States v. Duka, 671 F.3d 329, 346 (3d Cir.2011). To the extent the promise of admitting illegally seized evi-dence creates an incentive to disregard Fourth Amendment rights, the exclusionary rule removes that incentive by “forbid[ding] the use of improperly obtained
However, while “[r]eal deterrent value” is necessary for the exclusionary rule to apply, there are other considerations and it alone is not sufficient. Davis, 131 S.Ct. at 2427. Deterrence must also outweigh the “substantial social costs” of exclusion. Leon, 468 U.S. at 907. These costs often include omitting “reliable, trustworthy evidence” of a defendant‘s guilt, thereby “suppress[ing] the truth and set[ting] [a] criminal loose in the community without punishment.” Davis, 131 S.Ct. at 2427. As this result conflicts with the “truth-finding functions of judge and jury,” United States v. Payner, 447 U.S. 727, 734 (1980), exclusion is a “bitter pill,” Davis, 131 S.Ct. at 2427, swallowed only as a “last resort,” Hudson, 547 U.S. at 591. Accordingly, to warrant exclusion, the deterrent value of suppression must overcome the resulting social costs. Davis, 131 S.Ct. at 2427.
The good faith exception to the exclusionary rule was developed to effectuate this balance and has been applied “across a range of cases.”7 Id. at 2428. Where the particular facts of a case indicate that law enforcement officers “act[ed] with an objectively ‘reasonable good-faith belief that their conduct [was] lawful, or when their conduct involve[d] only simple, ‘isolated’ negligence,” there is no illicit con-duct to deter. Id. at 2427-28 (citations omitted) (quoting Leon, 468 U.S. at 909; Herring, 555 U.S. at 137). In such circumstances, “the deterrence rationale loses much of its force and exclusion cannot pay its way.” Id. at 2428 (quoting Leon, 468 U.S. at 907 n. 6, 919) (internal quotation marks omitted). Alternatively, where law enforcement conduct is “deliberate, reckless, or grossly negligent” or involves “recurring or systemic negligence,” deterrence holds greater value and often outweighs the associated costs. Id. at 2427-28 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Put differently, exclusion is appropriate only where law enforcement conduct is both “sufficiently deliberate” that deterrence is effective and “sufficiently culpable” that deterrence outweighs the costs of suppression. Herring, 555 U.S. at 144. Thus, determining whether the good faith exception applies requires courts to answer the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” Id. at 145 (quoting Leon, 468 U.S. at 922 n. 23) (internal quotation marks omitted).
1. Davis v. United States
In Davis, the Supreme Court applied the good faith exception in the context of law enforcement officers’ reliance on judicial decisions. 131 S.Ct. at 2423-24. Specifically, Davis held that “searches conducted in objectively reasonable reliance
In Belton, the Supreme Court announced a seemingly broad and permissive standard regarding searches incident to arrest. 453 U.S. at 460 (“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (footnote omitted)). It was widely understood that the Court had issued a bright-line rule, and that vehicle searches incident to the arrest of recent occupants were reasonable, regardless of whether the arrestee “was within reaching distance of the vehicle at the time of the search.” Davis, 131 S.Ct. at 2424. However, as Davis noted, the Supreme Court‘s subsequent decision in Gant upset this interpretation of Belton. Id. at 2425. After Gant, a vehicle search incident to a recent occupant‘s arrest was only constitutionally reasonable where (1) “the arrestee [was] within reaching distance of the vehicle during the search, or (2) . . . the police ha[d] reason to believe that the vehicle contain[ed] ‘evidence relevant to the crime of arrest.’ ” Id. (quoting Gant, 556 U.S. at 343).
Before Gant, the Eleventh Circuit had been one of many federal appeals courts to read Belton as establishing a permissive rule. See United States v. Gonzalez, 71 F.3d 819, 822 (11th Cir.1996) (upholding search of vehicle conducted after recent occupant was “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest“). After Belton and Gonzalez, but before Gant, police officers in a case arising in the Eleventh Circuit arrested both the driver of a vehicle and the vehicle‘s occupant, Willie Davis. 131 S.Ct. at 2425. After handcuffing and placing them in the back of separate patrol cars, officers searched the vehicle and found a revolver in Davis’ jacket. Id. The District Court denied Davis’ Fourth Amendment challenge, but during the pendency of his appeal from his conviction for possession of a firearm by a convicted felon, the Supreme Court decided Gant. Id. at 2426. Accordingly, when Davis reached the Supreme Court, it was necessary to address “whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent,” such as Gonzalez. Id. at 2428.
Crucial to Davis’ holding that suppression was not warranted was the “acknowledged absence of police culpability.” Id. The officers’ conduct was innocent because they “followed the Eleventh Circuit‘s Gonzalez precedent to the letter” and conducted themselves “in strict compliance with then-binding Circuit law.” Id. Because “well-trained officers will and should use” a law enforcement tactic that “binding appellate precedent specifically authorizes,” evidence suppression would only serve to deter what had been reasonable police work. Id. at 2429. As this outcome was inimical to the exclusionary rule‘s purpose, namely deterrence, the Supreme Court applied the good faith exception to the officers’ conduct, rendering suppression inappropriate. Id. (“About all that exclusion would deter in this case is conscientious police work.“).
B. The District Court‘s Reliance on Davis
In the case at bar, the District Court refused to “stray[] from the limitations set forth in Davis and expand[] the good faith
C. The agents acted in good faith under both Davis v. United States and the general good faith exception.
We disagree with the District Court in two respects. First, we conclude that the exclusionary rule should not apply because, at the time of the agents’ conduct in this case, the Supreme Court‘s decisions in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) were binding appellate precedent upon which the agents could reasonably have relied under Davis. In the alternative, we conclude that, under the Supreme Court‘s more general good faith test, the evidence should not be suppressed because the agents acted with a good faith belief in the lawfulness of their conduct that was “objectively reasonable.” Davis, 131 S.Ct. at 2427.
1. Knotts and Karo were binding appellate precedent upon which the agents could reasonably have relied under Davis.
As an initial matter, it is self-evident that Supreme Court decisions are binding precedent in every circuit. See, e.g., United States v. Aguiar, 737 F.3d 251, 260-61 (2d Cir.2013) (rejecting contention that “binding appellate precedent” must be in-circuit precedent). The question remains whether the agents’ reliance on Knotts and Karo was “objectively reasonable.” Davis, 131 S.Ct. at 2428. We believe it was. Although the underlying facts in the cases differed—which will nearly always be true—the rationale underpinning the Supreme Court‘s decisions
For a law enforcement officer‘s conduct to fall under the ambit of Davis, a court must answer in the affirmative that he or she has “conduct[ed] a search [or seizure] in objectively reasonable reliance on binding judicial precedent.” Id. If that is the case, this “absence of police culpability dooms” motions to suppress evidence gathered pursuant to an allegedly illegal search or seizure. Id. The concept of “objectively reasonable reliance” for good faith purposes has been in practice since long before Davis was decided and requires answering “whether a reasonably well trained officer would have known that [a] search was illegal . . . [under] all of the circumstances. . . .” Leon, 468 U.S. at 922 n. 23; see also Herring, 555 U.S. at 142 (noting that case law often refers to “objectively reasonable reliance” as “good faith“). The “circumstance” at the forefront of Davis’ analysis is the existence of binding appellate precedent, and the dispositive inquiry is whether reliance upon it is “objectively reasonable.” Davis, 131 S.Ct. at 2428.
As a threshold matter, we note that our inquiry is twofold. The agents magnetically attached a battery-operated GPS onto the undercarriage of Harry Katzin‘s van and tracked its movements for two days. Jones analyzed this kind of conduct as a singular act. 132 S.Ct. at 949 (installation of GPS and its use to track vehicle are a search). However, prior to Jones, GPS or GPS-like surveillance was, for Fourth Amendment purposes, often treated as two distinct acts: (1) installation of the surveillance device, and (2) use of the device to track suspects’ movements. See, e.g., Karo, 468 U.S. at 711-13 (analyzing Fourth Amendment implications of beeper installation); id. at 713-18 (analyzing Fourth Amendment implications of beeper surveillance); Knotts, 460 U.S. at 279 (granting certiorari on Fourth Amendment implications of beeper use, but passing on installation); United States v. Pineda-Moreno, 591 F.3d 1212, 1215-16 (9th Cir.2010) (analyzing GPS installation separately from use), vacated, 132 S.Ct. 1533 (2012), remanded to 688 F.3d 1087 (9th Cir.2012). Accordingly, we analyze the reasonableness of the agents’ reliance upon binding appellate precedent under Davis with respect to both of these Fourth Amendment acts.
It was objectively reasonable for the agents to rely upon Karo in concluding that the warrantless installation of the GPS device was legal. In Karo, an agent with the Drug Enforcement Agency (“DEA“) learned that James Karo and others had ordered, for use in cocaine smuggling, fifty gallons of ether from a government informant. 468 U.S. at 708. With the informant‘s consent, the Government substituted one of the informant‘s cans of ether with its own can, which contained a beeper. Id. Karo picked up the ether and took the “bugged” can into his car. Id. For over four months, DEA agents intermittently monitored the beeper to determine the location of the can. Id. at 708-10. The Government had obtained a court order authorizing this conduct, but it was subsequently invalidated, and, on appeal, the Government did not challenge its invalidation. Id. at 708, 710. Thus, when the case reached the Supreme Court, it presented the question whether the beeper‘s warrantless installation was legal. Id. at 711.
The Supreme Court affirmed the warrantless installation of the beeper, holding that it infringed no Fourth Amendment rights. Id. at 713. It
The magnetic attachment of an unmonitored GPS unit onto the exterior of Harry Katzin‘s vehicle, like the mere transfer of a can containing an unmonitored beeper, did not convey any information. It would have been objectively reasonable for a law enforcement officer to conclude, prior to Jones and in reliance on Karo, that such conduct was not a search because it infringed no privacy interest. The same result applies to the “trespass” of the GPS device (also an “unknown and unwanted foreign object“) upon Harry Katzin‘s vehicle. It would have been objectively reasonable for a law enforcement officer to conclude that Karo‘s sweeping rejection of the trespass theory applied not only the DEA agents’ elaborate ruse therein, but also to the unremarkable strategy of magnetically attaching a battery-operated GPS unit onto the exterior of a vehicle. In sum, although the facts of this case differ from Karo‘s, the Supreme Court‘s rationale was broad enough to embrace the agents’ conduct, and their reliance on this binding appellate precedent was objectively reasonable under Davis.
It was also objectively reasonable for the agents to rely upon Knotts and Karo in concluding that the warrantless monitoring of the GPS device was legal. In Knotts, like Karo, law enforcement arranged for a suspect to voluntarily take into his vehicle a container that, unbeknownst to him, contained a beeper. 460 U.S. at 278. The police thereby monitored his travels on public roads. Id. The Supreme Court rejected the defendant‘s Fourth Amendment challenge to the surveillance, holding that “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281; see also Karo, 468 U.S. at 713-16, 721 (reaffirming Knotts but clarifying that monitoring beeper inside private residence violates Fourth Amendment due to reasonable expectation of privacy enjoyed therein). This is so because a traveler on public streets “voluntarily convey[s]” to any observer the “particular roads” over which he travels, his “particular direction,” any stops he makes, and his “final destination.” 460 U.S. at 281-82. The Government‘s surveillance “amounted principally” to legal conduct: physically following a suspect on public roads. Id. at 281. The beeper‘s use changed little because “[n]othing in the Fourth Amendment prohibited the police from augmenting [their] sensory faculties . . . with such enhancement as science and technology afforded them in this case.” Id. at 282.
With respect to surveillance, the agents here engaged in nearly identical conduct to that authorized in Knotts. Appellees “voluntarily conveyed” their travels over public roads and the information gathered by the GPS device was indistinguishable from that which physical surveillance would have revealed. See id. at 281-82. Again, the breadth of the Supreme
We acknowledge, of course, that these cases are not factually identical to the agents’ conduct. The agents monitored Harry Katzin‘s van for two days by GPS, not beeper. They clandestinely installed a battery-operated GPS by magnetically attaching it onto the undercarriage of his van rather than clandestinely tricking him into unwittingly taking the GPS device into his vehicle. Otherwise their conduct echoed that in Knotts and Karo. No two cases will be factually identical. While the underlying facts of the cases are obviously relevant to determining whether reliance is objectively reasonable, the question is not answered simply by mechanically comparing the facts of cases and tallying their similarities and differences. Rather, Davis’ inquiry involves a holistic examination of whether a reasonable officer would believe in good faith that binding appellate precedent authorized certain conduct, which is a scenario-specific way of asking the broader question of whether the officer “act[ed] with an objectively ‘reasonable good-faith belief that [his] conduct [was] lawful.” Davis, 131 S.Ct. at 2427 (quoting Leon, 468 U.S. at 909).
Undoubtedly, certain language in Davis invites a narrow reading, but we are not persuaded this interpretation is true to Davis’ holding. For instance, Davis found exclusion inappropriate where “binding appellate precedent specifically authorize[d] a particular police practice.” Id. at 2429. We construe, arguendo, this language narrowly to mean that the relied-upon case must affirmatively authorize the precise conduct at issue in the case under consideration. Stated as a syllogism, if binding appellate precedent specifically authorizes the precise conduct under consideration, then it will likely be binding appellate precedent upon which police can reasonably rely under Davis. However, this does not make the reverse syllogism true, namely, that if a case is binding appellate precedent under Davis, then it must specifically authorize the precise conduct under consideration. Davis’ holding is broader: “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Id. While reliance is likely reasonable when the precise conduct under consideration has been affirmatively authorized by binding appellate precedent, it may be no less reasonable when the conduct under consideration clearly falls well within rationale espoused in binding appellate precedent, which authorizes nearly identical conduct.
Accordingly, what is far more important to our conclusion is that, despite these few dissimilarities, the agents’ nearly identical conduct fits squarely within the rationale of these decisions. We, therefore, believe
2. Suppression is inappropriate because the agents acted under an objectively reasonable good faith belief that their conduct was lawful.
a. The alleged inapplicability of Davis does not control the issue.
Alternatively, even if we were to accept Appellees’ argument that factual dissimilarities disqualify Knotts and Karo from being “binding appellate precedent” which could reasonably be relied on under Davis, our inquiry would not end there. In advancing their contrary position, the District Court and Appellees improperly elevate Davis’ holding above the general good faith analysis from whence it came. Davis is but one application of the good faith exception that applies when police “conduct a search in objectively reasonable reliance on binding judicial precedent.” Davis, 131 S.Ct. at 2428. Undoubtedly, Davis is the most analogous Supreme Court decision to the instant circumstances. However, even if Davis did not mandate the application of the good faith exception, we can still apply the exception for another good reason. Cf. United States v. Knights, 534 U.S. 112, 117, 122 (2001) (rejecting the “dubious logic . . . that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it“). The whole of our task is not to determine whether Davis applies, nor to “extend” either the good faith exception or Davis’ holding. Even where Davis does not control, it is our duty to consider the totality of the circumstances to answer the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal.”9 Leon, 468 U.S. at 906-07, 922 n. 23 (noting that exclusion inquiries “must be resolved, by weighing the costs and benefits of [suppression]” (emphasis added)). To exclude evidence simply because law enforcement fell short of relying on binding appellate precedent would impermissibly exceed the Supreme Court‘s mandate that suppression should occur in only “unusual” circumstances: when it
Davis supports this conclusion. In reaching its holding, Davis reiterates the analytical steps for evaluating suppression challenges. 131 S.Ct. at 2426-28. For example, we must limit operation of the exclusionary rule “to situations in which [its] purpose,” deterring future Fourth Amendment violations, is “most efficaciously served.” Id. at 2426 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). Our analysis must account for both “[r]eal deterrent value” and “substantial social costs,” and our inquiry must focus on the “flagrancy of the police misconduct” at issue. Id. at 2427 (quoting Leon, 468 U.S. at 907, 911). Only when, after a “rigorous weighing,” we conclude that “the deterrence benefits of suppression . . . outweigh its heavy costs,” is exclusion appropriate. Id. Importantly, we must be prepared to “appl[y] this ‘good-faith’ exception across a range of cases.”10 Id. at 2428.
Davis did not begin, nor end, with binding appellate precedent. Rather, binding appellate precedent informed—and ultimately determined—the Supreme Court‘s greater inquiry: whether the officers’ conduct was deliberate and culpable enough that application of the exclusionary rule would “yield meaningfu[l] deterrence,” and “be worth the price paid by the justice system.” Id. at 2428 (alteration in original) (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). We must conduct the same analysis on the facts before us, even in the absence of binding appellate precedent.11
The District Court acknowledged the argument that the “general good faith exception language” could permit an “individualized determination” of whether the agents’ conduct was objectively reasonable. Katzin, 2012 WL 1646894, at *8. This determination would have been properly informed by its conclusion that the agents’ inadvertent Fourth Amendment violation was neither “calculated” nor the result of a “deliberately cavalier or casual” attitude toward Appellees’ Fourth Amendment rights, and that the agents were likely “surprise[d]” by Jones. Id. at *10 n. 15; see also Davis, 131 S.Ct. at 2429 (noting that the Supreme Court has “never applied” the exclusionary rule to suppress evidence ob-
b. The Legal Landscape
In applying the good faith exception analysis to the agents’ conduct, we initially address the precise conduct at issue and the legal landscape at the time the agents acted. The agents magnetically attached a battery-operated GPS onto the undercarriage of Harry Katzin‘s van and tracked its movements for two days. As noted above, we analyze the reasonableness of the agents’ conduct as would a pre-Jones court, namely, by separately considering installation and surveillance. E.g., Karo, 468 U.S. at 711-18.
Application of the good faith exception turns on whether the agents, at the time they acted, would have or should have known their installation of the GPS and their subsequent monitoring of Harry Katzin‘s vehicle were unconstitutional. See Krull, 480 U.S. at 348-49. Relevant to this determination are the Supreme Court‘s case law dealing with electronic surveillance and general searches of automobiles, subsequent treatment of GPS or GPS-like surveillance across the federal courts, and other considerations.
i. Knotts and Karo
Until Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court‘s primary Fourth Amendment inquiry was whether the Government committed a physical trespass. See, e.g., id. at 352 (noting that the absence of trespass was once “thought to foreclose further Fourth Amendment inquiry“). Katz changed this, famously declaring that “the Fourth Amendment protects people, not places.” Id. at 351, 353 (“[T]he reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion—[T]he ‘trespass’ doctrine . . . can no longer be regarded as controlling.“). Subsequently, Katz was widely regarded as having jettisoned reliance on physical trespass in resolving Fourth Amendment challenges. See, e.g., United States v. Santillo, 507 F.2d 629, 632 (3d Cir.1975) (noting that the “trespassory concepts” relied upon in earlier Fourth Amendment cases have been “discredited“). After Katz, the dominant Fourth Amendment inquiry became whether the Government had intruded upon a person‘s reasonable expectation of privacy. See Katz, 389 U.S. at 360 (Harlan, J., concurring); see also, e.g., Rakas v. Illinois, 439 U.S. 128, 143 (1978) (noting that one‘s “capacity” to invoke Fourth Amendment protections depends upon whether one has a legitimate expectation of privacy, not a property right, in the invaded place).
In Knotts and Karo, the Supreme Court applied this rationale to electronic surveillance of vehicles. We incorporate our earlier discussion of these cases, pausing only to reiterate Knotts’ conclusion that “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” 460 U.S. at 281, as well as Karo‘s broad rejection of the trespass theory in the context of electronic surveillance of vehicles: “[A]
Also relevant to the installation question are the Supreme Court‘s conclusions that persons do not enjoy a reasonable expectation of privacy in the exterior of their vehicles. New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ “); Cardwell v. Lewis, 417 U.S. 583, 591-92 (1974) (plurality opinion) (no privacy interest infringed where search examined tire on wheel and took paint scrapings from exterior of vehicle in public parking lot).
Thus, at bottom, before Jones, Knotts and Karo established that no Fourth Amendment search occurred where officers used beeper-based electronics to monitor an automobile‘s movements on public roads because a person has no reasonable expectation of privacy with regard to that information. Additionally, the rationale they espoused informed the federal appeals courts’ subsequent treatment of direct installation of a GPS device onto the exterior of a vehicle.
ii. Out-of-Circuit Decisions
After Knotts and Karo, what resulted was a nearly uniform consensus across the federal courts of appeals that addressed the issue that the installation and subsequent use of a GPS or GPS-like device was not a search, or, at most, was a search but did not require a warrant. See, e.g., United States v. Marquez, 605 F.3d 604, 609-10 (8th Cir.2010) (reasoning that GPS installation and use requires only reasonable suspicion, since monitoring on public roads is not a search); Pineda-Moreno, 591 F.3d at 1215-16 (holding that mobile tracking device installation and use was not a search); United States v. Garcia, 474 F.3d 994, 997 (7th Cir.2007) (holding that GPS installation and use was not a search), abrogation recognized by United States v. Brown, 744 F.3d 474 (7th Cir.2014); United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir.1999) (holding that GPS installation was not a search); see also United States v. Michael, 645 F.2d 252, 256-58 (5th Cir.1981) (en banc) (holding that beeper installation and use requires only reasonable suspicion, since monitoring on public roads is not a search).12
The lone dissenting voice was United States v. Maynard, 615 F.3d 544 (D.C.Cir.2010), decided four months prior to the agents’ conduct here. Maynard (which became Jones on appeal to the Supreme Court) held that prolonged GPS surveillance of a vehicle “24 hours a day for four weeks” was a Fourth Amendment search because it invaded the defendant‘s reasonable expectation of privacy. Id. at 555. The D.C. Circuit reasoned that Knotts held only that a person travelling by vehicle on public roads had no reasonable expectation of privacy in his movements, not that “such a person has no reasonable expectation of privacy in his movements whatsoever, world without end.” Id. at 557. Maynard thus focused on the quality and quantity of information gathered during the extended surveillance. Id. at 562 (noting that prolonged surveillance, unlike short-term surveillance, exposes “what a person does repeatedly, what he does not do, and what he does ensemble,” thereby
Thus, at the time the agents acted, in addition to the “beeper” authority of Knotts and Karo, three circuit courts expressly approved their use of a GPS or GPS-like device, and the lone dissenting voice involved surveillance of a far longer duration.
iii. AUSA Consultation
Finally, the agents consulted with, and received approval from, an AUSA on their proposed conduct. It was DOJ policy at the time that a warrant was not required to install a battery-powered GPS on a vehicle parked on a public street and to surveil it on public roads. We have previously considered reliance on government attorneys in our good faith calculus and concluded that, based upon it in combination with other factors, “[a] reasonable officer would . . . have confidence in [a search‘s] validity.”13 United States v. Tracey, 597 F.3d 140, 153 (3d Cir.2010); see also United States v. Fama, 758 F.2d 834, 837 (2d Cir.1985) (same).
Jones fundamentally altered this legal landscape by reviving—after a forty-five year hibernation—the Supreme Court‘s prior trespass theory. 132 S.Ct. at 952 (declaring that reasonable expectation of privacy inquiry did not substitute for “common-law trespassory test“). As the Ninth Circuit recently stated: “The agents in Jones labored under the misconception that the ‘reasonable expectation of privacy’ test exclusively marked the [Fourth] Amendment‘s boundaries. Cases fostering that impression were ubiquitous.” United States v. Thomas, 726 F.3d 1086, 1094 n. 8 (9th Cir.2013) (citation omitted) (citing numerous Supreme Court cases).
With this legal landscape in mind, we turn now to our application of the good faith exception to the exclusionary rule.
c. Applying the Good Faith Exception
To reiterate, the exclusionary rule is a prudential doctrine designed solely to deter future Fourth Amendment violations. Davis, 131 S.Ct. at 2426. Marginal deterrence is, however, insufficient for suppression; rather, deterrence must be “appreciable,” Leon, 468 U.S. at 909, and outweigh the heavy social costs of suppressing reliable, probative evidence, Davis, 131 S.Ct. at 2427. This balancing act pivots upon the fulcrum of the “flagrancy of the police misconduct” at issue. Id. at 911. Thus, “[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Herring, 555 U.S. at 144. However, “when the police act with an objectively reasonable good-faith belief that their conduct is lawful . . . the deterrence rationale loses much of its force and exclusion cannot pay its way.” Davis, 131 S.Ct. at 2427-28 (quoting Leon, 468 U.S. at 907 n. 6, 909, 919) (internal quotation marks omitted).
We conclude that when the agents acted, they did so upon an objectively reasonable good faith belief in the legality of their conduct, and that the good faith exception to the exclusionary rule therefore applies. The constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy. Given this panoply of authority, we cannot say that a “reasonably well trained officer would have known that the search was illegal,” id., nor that the agents acted with “deliberate, reckless, or grossly negligent disregard for [Appellees‘] Fourth Amendment rights,” Davis, 131 S.Ct. at 2427 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Thus, suppression is inappropriate because it would not result in deterrence appreciable enough to outweigh the significant social costs of suppressing reliable, probative evidence, upon which the Government‘s entire case against Appellees turns. See Leon, 468 U.S. at 909.
i. Knotts and Karo
Knotts and Karo are seminal cases on the intersection of electronic surveillance of vehicles and the Fourth Amendment. Before Jones, their conclusion that the Fourth Amendment was not implicated by the installation and use of a beeper to surveil vehicles on public thoroughfares, and the rationale that supported it, was hornbook law. See, e.g., Aguiar, 737 F.3d at 261 (”Karo‘s brushing off of the potential trespass fits logically with earlier Supreme Court decisions concluding that ‘the physical characteristics of an automobile and its use result in a lessened expectation of privacy therein.’ ” (quoting Class, 475 U.S. at 112)); Sparks, 711 F.3d at 67 (”Knotts was widely and reasonably understood to stand for the proposition that the Fourth Amendment simply was not implicated by electronic surveillance of public automotive movements. . . .“). The agents would have been objectively reasonable to conclude that monitoring Harry Katzin‘s van was constitutional, in large part, because it fell squarely within Knotts and Karo‘s well-accepted rationale. Their targets were “person[s] travelling in an automobile on public thoroughfares,” who had “no reasonable expectation of privacy in [their] movements from one place to another.” Knotts, 460 U.S. at 281. It is undisputed that Appellees “voluntarily convey[ed]” to any observer the “particular roads” over which they traveled, their “particular direction,” their stops, and their “final destination.” Id. at 281-82. At no time did the GPS permit the agents to monitor inside “a private residence” or other area “not open to visual surveillance.” Karo, 468 U.S. at 714, 721.
Additionally, the agents would have been objectively reasonable to believe that installing the GPS device implicated no Fourth Amendment rights. The Supreme Court had repeatedly stated that persons do not enjoy a reasonable expectation of privacy in the exterior of their vehicles. Class, 475 U.S. at 114, 106 S.Ct. 960; see also Cardwell, 417 U.S. at 591, 94 S.Ct. 2464. It was also objectively reasonable for the agents to believe that installing a GPS was safe from a trespass challenge. Katz clearly stated thatThe agents also benefitted from Supreme Court precedent addressing trespass in the context of electronic surveillance of vehicles on public roads. Although Karo did not address direct installation, its renunciation of the trespass theory was broad enough for agents reasonably to conclude that the installation was “only marginally relevant” to Appellees’
ii. Out-of-Circuit Decisions
The agents’ conduct also conformed to practices authorized by a “uniform treatment” of “continuous judicial approval” of warrantless GPS installation and use across the federal courts. See Peltier, 422 U.S. at 540-42 & n. 8, 95 S.Ct. 2313 (holding exclusionary rule inapplicable where illegal search was conducted in good faith reliance on, in part, holdings and dicta of various courts of appeals).14 Specifically, when the agents acted, the Seventh,15 Eighth,16 and Ninth17 Circuits had all held that the installation of GPS or GPS-like devices upon the exterior of vehicles and their subsequent monitoring either was not a search or, at most, was a search but did not require a warrant.18 Their rationales were based on the same Supreme Court
By considering these non-binding decisions in our good faith analysis, we do no more than did the Supreme Court in Peltier. There, the Court considered the “constitutional norm” established by the courts of appeals when determining whether an officer “had knowledge, or [could] properly be charged with knowledge, that [a] search was unconstitutional under the
iii. AUSA Consultation
Finally, the agents’ consultation with the AUSA also supports our conclusion that a reasonable agent would have believed in good faith that the installation and surveillance of Harry Katzin‘s vehicle was legal. Of course, the AUSA approved their conduct. But more importantly, the AUSA‘s advice was given pursuant to a DOJ-wide policy—presumably based upon the legal landscape we describe above—that the agents’ conduct did not require a warrant. Prosecutors are, of course, not “neutral judicial officers.” Leon, 468 U.S. at 917, 104 S.Ct. 3405. We do not place undue weight on this factor, but we have previously considered it in our good faith analysis. Tracey, 597 F.3d at 153; see also United States v. Otero, 563 F.3d 1127, 1134-35 (10th Cir.2009).
In light of the aforementioned legal landscape, when the agents installed the GPS device onto the undercarriage of Harry Katzin‘s vehicle, and then used that device to monitor his vehicle‘s movements on public thoroughfares for two days, we believe those agents exhibited “an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427 (quoting Leon, 468 U.S. at 909, 104 S.Ct. 3405). Given the panoply of authority authorizing their actions, we cannot conclude that a “reasonably well trained officer would have known that the search was illegal,” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3430, nor that the agents acted with a “deliberate, reckless, or grossly negligent disregard for [Appellees‘]
d. Appellees’ Arguments
Appellees argue that excluding the evidence against them would achieve appreciable deterrence because it would prevent investigators and prosecutors from “engaging in overly aggressive readings of non-binding authority” and deter law enforcement from “act[ing] in a constitutionally reckless fashion by taking constitutional inquiries into their own hands.” (Appellee En Banc Br. at 5 (quoting Katzin, 732 F.3d at 212).) To so hold would lead to the same result as the District Court‘s erroneous application of Davis: the good faith exception would not apply unless our own Court had established binding appellate precedent directly on point and approving the officer‘s conduct. Put differently, all innocently (though later deemed illegally) gathered evidence would be excluded unless the police conduct discovering it was expressly permitted at the time the conduct occurred. But the purpose of the exclusionary rule is to deter “wrongful police conduct.” Herring, 555 U.S. at 137, 129 S.Ct. 695. And exclusion is only appropriate when doing so “most efficaciously serve[s]” that purpose. Calandra, 414 U.S. at 348, 94 S.Ct. 613. The mere act of deciding that conduct is lawful based upon a “constitutional norm” rather than binding appellate precedent is unlike the highly culpable conduct that helped establish the exclusionary rule. See, e.g., Herring, 555 U.S. at 143, 129 S.Ct. 695 (listing cases and noting that “the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional“).
No doubt, sometimes officers’ reliance on non-binding authorities will fall short of an “objectively reasonable” good faith belief in the legality of their conduct. Suppression may then be appropriate to deter such reliance. It is equally elementary that close cases will be difficult.21 But in many other cases, law enforcement will likely correctly conclude, based upon a panoply of non-binding authority establishing a “constitutional norm,” Peltier, 422 U.S. at 542, 95 S.Ct. 2313, that a particular police practice does not violate the
Because such a bright-line rule would supplant the required balancing act, we would have to be confident that in every conceivable future case, the substantial costs of suppression would be outweighed by the value of deterring police from relying on a “constitutional norm” simply because it had yet to be expressly established by precedential opinion in the Third Circuit. We have no such confidence and Appellees do little to assuage our concerns. Appellees’ good faith calculus conspicuously fails to confront the “cost” side of the equation, which they dismiss as “minimal.” (Appellee En Banc Br. at 8.) However, the Supreme Court has routinely stated the opposite; the cost of suppression is “substantial,” Leon, 468 U.S. at 907, 104 S.Ct. 3405, because it often excludes “reliable, trustworthy evidence” of a defendant‘s guilt, “suppress[es] the truth and set[s] [a] criminal loose in the community without punishment,” Davis, 131 S.Ct. at 2427. Here, by all appearances, the Government‘s evidence against Appellees is substantial, and it is uncontested that the Government would have no case without it. The costs of exclusion are high.
The boundaries of the good faith exception are a sufficient deterrent to the conduct Appellees find objectionable. Law enforcement personnel will either tread cautiously or risk suppression.22 The legal authority relied upon must support an “objectively reasonable good faith belief” that specific conduct is constitutional. Id. (quoting Leon, 468 U.S. at 909, 104 S.Ct. 3405) (internal quotation mark omitted). Consequently, nothing in our holding today conflicts with the Supreme Court‘s instructions to executive officers to “err on the side of constitutional behavior,” United States v. Johnson, 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), and in “doubtful or marginal case[s]” to obtain a warrant, Leon, 468 U.S. at 914, 104 S.Ct. 3405 (quoting United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). We do not believe this case to be either doubtful or marginal.23
In any event, just because law enforcement officers may one day unreasonably
III. CONCLUSION
For the foregoing reasons, we reverse the order of the District Court suppressing the evidence discovered in Harry Katzin‘s van and remand for further proceedings consistent with this opinion.
GREENAWAY, JR., Circuit Judge, dissenting, joined by McKEE, Chief Judge, and AMBRO, FUENTES, and SMITH, Circuit Judges.
Once touted as a way to ensure that the rights of citizens are protected from overzealous law enforcement, today the exclusionary rule‘s very existence, long eroding, is in serious doubt. Since the inception of 1 the exclusionary rule, critics have disputed its validity. In words often quoted, [then Judge] Cardozo questioned whether “[t]he criminal is to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587 (1926). Courts have given power to the words of the critics by using the good faith exception to chip away at the breadth of the rule. The majority, in its alternative holding, expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.
Law enforcement violated Katzin‘s
Law enforcement contends that they acted reasonably by consulting with their co-investigators at the U.S. Attorney‘s Office. However, what is missing here is neutral authorization of any sort for the conduct undertaken by the police. Consultation with the U.S. Attorney‘s Office is not a panacea for the constitutional issues raised here. Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized.“) (emphasis added). Even if the majority believes that this neutral authorization requirement (which admittedly pre-dates the good faith exception) has been undercut by subsequent Supreme Court decisions, we are still required to follow it. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.“). Neutral authorization for law enforcement‘s actions has been the hallmark of the good faith exception‘s application. Without this control, what is the fail-safe to preclude further erosion? I fear there is none. For these reasons, I respectfully dissent.
In its primary holding, the majority turns the rationale of Davis on its head and concludes that two disparate Supreme Court precedents—that the Government concedes do not constitute binding appellate precedent—now fit the bill.2 How does the majority justify the creation of such a notion? Such a leap constitutes willful disregard of the critical distinctions between this case on the one hand and United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) on the other. Further, this leap reveals the majority‘s true purpose: to accommodate the desires of law enforcement.
I. Expansion of the Good Faith Exception
The majority‘s alternative holding, that good faith should apply even if it does not fit the Davis paradigm, is troubling. The essence of the majority‘s holding is that any time a course of conduct by the police, particularly regarding technological advancements, has not been tested or breaks new ground, law enforcement will be enti-
I do not dispute the majority‘s contention that ”Davis is but one application of the good faith exception that applies when police ‘conduct a search in objectively reasonable reliance on binding judicial precedent.‘” Majority Op. at 177 (quoting Davis, 131 S.Ct. at 2428). Instead, my point goes to the manner in which the good faith exception is being expanded. It has everything to do with neutral authorization and with the ultimate decision-making not being in the hands of law enforcement. This is what the framers envisioned when they wrote the
Historically, the Supreme Court has held the good faith exception covers situations where law enforcement personnel have acted in objectively reasonable reliance on some seemingly immutable authority or information that justifies their course of action. See, e.g., United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (later-invalidated warrant); Massachusetts v. Sheppard, 468 U.S. 981, 990, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (exclusionary rule inapplicable when warrant is invalid due to judicial clerical error); Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (subsequently overturned statute); Davis, 131 S.Ct. 2419 (later-reversed binding appellate precedent); Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (undiscovered error in court-maintained database); Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (undiscovered error in police-maintained database).
It is clear from the line of good faith cases that the exception is limited to cases involving either: (a) nondeterrable, isolated mistakes, or (b) cases in which police officers rely upon a neutral third-party‘s
The majority argues that the purpose of the exclusionary rule is to deter wrongful conduct of law enforcement, and that here there is no wrongful conduct. As the Supreme Court has explained, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144, 129 S.Ct. 695; Davis, 131 S.Ct. at 2429 (cautioning courts not to discourage “the officer from doing his duty“) (alteration and internal quotation marks omitted). The majority determines that acting on a good-faith mistake about the law, without seeking a warrant even when there was time to get one, is not conduct which should be deterred. But Davis itself suggests that it is proper for the exclusionary rule to “punish” such an “error.” Davis, 131 S.Ct. at 2428.
Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding
True, the police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional predicament is nonetheless worrisome. In lieu of a binding proclamation from either this Circuit or the Supreme Court—and instead of seeking approval from a neutral magistrate—law enforcement personnel looked to other (non-binding or distinguishable) authorities like our sister circuits’ decisions. Essentially, they extrapolated their own constitutional rule, in consultation with the U.S. Attorney‘s Office, and applied it to this case. This
I do not believe that this intra-executive consultation absolves police personnel‘s behavior. Now, the assumption by law enforcement that their own self-derived rule sanctioned their conduct becomes true, thanks to the majority‘s analysis. Such decision-making is wrongful conduct that can and should be deterred—for that is the primary purpose of the exclusionary rule! The police practice at issue here effectively disregarded the possibility that we could find a GPS search constitutes a
Where we have not yet ruled on the constitutionality of a police tactic, law enforcement personnel have two choices: (a) assume that their conduct violates the
I would not hold, of course, that the police can never make assumptions about our future
Law enforcement personnel can rightly rely on a number of sources for
The legal landscape in this case predominantly consisted of the out-of-circuit GPS cases, the Supreme Court‘s beeper decisions, and the overarching privacy expectation framework for
My intention would not be to bind the hands of law enforcement. I merely believe that the investigatory process established by the Constitution is the proper one: that police officers get a warrant prior to conducting a search. This is also consistent with Karo, where the Court expressly rejected the Government‘s argument that requiring a warrant prior to beeper tracking would be too laborious and would substantially impede investigations. See Karo, 468 U.S. at 717, 104 S.Ct. 3296 (“The Government‘s contention that warrantless beeper searches should be deemed reasonable is based upon its deprecation of the benefits and exaggeration of the difficulties associated with procurement of a warrant. The Government argues that the traditional justifications for the warrant requirement are inapplicable in beeper cases, but to a large extent that argument is based upon the contention, rejected above, that the beeper constitutes only a minuscule intrusion on protected privacy interests.... Requiring a warrant will have the salutary effect of ensuring that use of beepers is not abused, by imposing upon agents the requirement that they demonstrate in advance their justification for the desired search.“) (emphasis added).
Thus, I conclude that in the absence of binding appellate precedent from the Supreme Court or this Court, law enforcement must—as it has been required to do since the founding of this country—comply with the warrant requirement of the
II. Why Knotts and Karo Do Not Constitute Binding Appellate Precedent
The majority elects to make an alternative holding: that Knotts and Karo are
The Supreme Court portended the exact case we have before us now. The Court astutely foretold that improvements in technology that would permit twenty-four hour surveillance (i.e., GPS) might indeed present “different constitutional principles.” Id. And now that this case is before us, the majority ignores this second, critical takeaway from Knotts and misrepresents that it constitutes binding appellate precedent for purposes of permitting a Davis-based good faith exception ruling.
In addition to Knotts’ warning about “dragnet type law enforcement practices,” discussed in more detail below, there are three additional reasons why Knotts and Karo are not binding appellate precedent, contrary to the majority‘s insistence: (1) the marked technological differences between beepers and GPS trackers, (2) the placement by police of the beepers inside containers with the consent of the owners in those cases, and (3) the uncertainty in this area of law created by the D.C. Circuit decision, United States v. Maynard, 615 F.3d 544 (D.C.Cir.2010), which preceded the application of the GPS device to the Katzin vehicle.
Technological Differences
Our case concerns a “slap-on” GPS tracker, so called because it magnetically attaches to the exterior of a target vehicle, is battery operated, and thereby requires no electronic connection to the automobile. The tracker uses the Global Positioning System—a network of satellites originally developed by the military—to determine its own location with a high degree of specificity and then sends this data to a central server. This check-and-report process repeats every few minutes (depending on the tracker), thereby generating a highly accurate record of the tracker‘s whereabouts throughout its period of operation. The great benefit of such a system—apart from its accuracy—is that anyone with access to the central server can analyze or monitor the location data remotely. These aspects make GPS trackers particularly appealing in law enforcement contexts, where the police can attach a tracker to some vehicle or other asset and then remotely monitor its location and movement.
GPS technology is vastly different from the more primitive tracking devices of yesteryear—“beepers.” Beepers are nothing more than “radio transmitter[s], usually battery operated, which emit[ ] periodic signals that can be picked up by a radio receiver.” Knotts, 460 U.S. at 277, 103 S.Ct. 1081. In contrast to GPS trackers, beepers do not independently ascertain their location—they only broadcast a signal that the police can then follow via a corresponding receiver. Moreover, beeper signals are range-limited: if the police move far enough away from the beeper,
In a Ninth Circuit denial of a petition for rehearing on the GPS question, Chief Judge Kozinski issued a fiery dissent from the denial, accusing the Pineda-Moreno majority of being “inclined to refuse nothing” to the needs of law enforcement. United States v. Pineda-Moreno, 617 F.3d 1120, 1121 (9th Cir.2010) (Kozinski, C.J., dissenting). In his dissent, the Chief Judge noted that GPS devices “have little in common with the primitive devices in Knotts,” in part because, unlike GPS devices, beepers “still require[ ] at least one officer—and usually many more—to follow the suspect.” Id. at 1124. Thus, the dissent noted, while “[y]ou can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed,” there is “no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention.” Id. at 1126.
As noted above, the Knotts Court specifically indicated that, in contrast to the officers’ limited use of the beeper in that case, more expansive monitoring, (e.g., a “twenty-four hour,” “dragnet type law enforcement practice! ]“) could implicate “different constitutional principles.” Knotts, 460 U.S. at 283-84, 103 S.Ct. 1081. The Supreme Court, in issuing Knotts, did not want the case to stand for the proposition that new technology that allows for more invasive surveillance would automatically be permissible for the same reasons as allowed in Knotts.
In fact, in numerous cases, the Supreme Court and Courts of Appeals have expressed caution about the extension of their holdings regarding the permissibility of certain law enforcement conduct to situations involving future technology. See, e.g., Kyllo v. United States, 533 U.S. 27, 36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.“);8 see also United States v. Garcia, 474 F.3d 994 (7th Cir.2007) (Posner, J.) (echoing the concern expressed in Knotts that it might need to reevaluate its conclusion if faced with a case concerning use of GPS technology for mass surveillance); United States v. Robinson, 903 F.Supp.2d 766, 785-87 (E.D.Mo.2012) (“The need for caution in this age of developing technology should be clear. Other Supreme Court cases,, by their rulings or their language, have given notice that earlier pronouncements may not control when the technology changes or the nature and degree of intrusion changes.“).
Even before Katz, when the Supreme Court articulated the “reasonable expectation of privacy” test, the Supreme Court was balancing the “need for effective law
Consent
Another critical difference between Knotts and Karo and Katzin is the presence or absence of consent. The majority derisively dismisses this issue as an “elaborate ruse.” Majority Op. at 175. However, the “elaborate ruse” enabled the law enforcement officers to place the beeper into a can of ether, with the can owner‘s consent. Karo, 468 U.S. at 708, 104 S.Ct. 3296 (“With Muehlenweg‘s consent, agents substituted their own can containing a beeper for one of the cans in the shipment....“). Similarly, consent was present in Knotts because law enforcement placed a beeper into a container of chloroform with the consent of the chemical manufacturing company where the suspect purchased the chloroform. Knotts, 460 U.S. at 278, 103 S.Ct. 1081 (“With the consent of the Hawkins Chemical Company, officers installed a beeper inside a five gallon container of chloroform....“).
It is true that both of these cases established the principle that no
This distinction is important, particularly in light of Jones‘s determination that GPS tracking abridges
Maynard Muddies the Waters
Finally, there is the Maynard decision, which, if the technological differences and consent distinctions were not enough, sufficiently muddied the waters so that law enforcement officers could not know whether the attachment of a GPS device to the undercarriage of a vehicle would violate the
At the same time, the court in Maynard rejected the applicability of the automobile exception to the warrant requirement, holding that while the exception “permits the police to search a car without a warrant if they have reason to believe it contains contraband[, it] does not authorize them to install a tracking device on a car without the approval of a neutral magistrate.” Id. at 567. A year later, the Supreme Court granted certiorari, under the name United States v. Jones, U.S. ___, 131 S.Ct. 3064, 180 L.Ed.2d 885 (2011) (Jones and Maynard were co-defendants). Maynard thus focused on the quality and quantity of information gathered during the extended surveillance. Maynard, 615 F.3d at 562 (noting that prolonged surveillance, unlike short-term surveillance, exposes “what a person does repeatedly, what he does not do, and what he does ensemble,” revealing more information than an isolated trip).
This case should have given law enforcement pause as to the applicability of Knotts and Karo to the new world of GPS. At the very least, they should have known that prolonged surveillance could be an issue and one that could be easily fixed by getting a search warrant from a neutral magistrate.
By its plain terms, the express holding in Davis is inapposite to this case because I believe that Knotts and Karo do not qualify as appropriate binding appellate precedent. Neither case involved a physical trespass onto the target vehicle; in both cases the police placed the beeper inside of a container which was then loaded into the target vehicle by the driver (all with the container owner‘s permission). See Karo, 468 U.S. at 708, 104 S.Ct. 3296; Knotts, 460 U.S. at 278, 103 S.Ct. 1081. Additionally, both Karo and Knotts addressed the use of beepers, which—as I have already explained—are markedly different from GPS trackers. See Maynard, 615 F.3d at 556-57.
III. Conclusion
The majority‘s good faith analysis is flawed because it finds that, where the law is unsettled, law enforcement may engage in constitutionally reckless conduct and still reap the benefits of the good faith exception.
SMITH, J., Circuit Judge, dissenting, joined by McKEE, Chief Judge, AMBRO, FUENTES, and GREENAWAY, JR., Circuit Judges.
I join Judge Greenaway‘s eloquent dissent in its entirety. There is little that can be added to Judge Greenaway‘s devastating critique. I write here only to expand on a worrisome facet of the majority‘s reasoning. Because Knotts1 and Karo2 are factually distinguishable and did not hold that the specific conduct engaged in here by government agents was permissible, i.e., attaching a GPS device to Harry Katzin‘s van, the majority is required to hold
I do see, however, considerable tension between an approach that permits law enforcement officers who invoke the good faith exception to take refuge in the rationale of certain Supreme Court cases, and the limiting language which the Supreme Court itself chose to employ in Davis which referred to binding precedent “specifically authoriz[ing]” a particular police practice. Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011). The majority‘s legal framework eliminates the objectively reasonable source underpinning the good faith exception: authorization from a neutral magistrate or binding judicial precedent. Id. at 2428. The law enforcement officers’ choice to commandeer the task of
For this reason, and for those so ably expressed by Judge Greenaway, I respectfully dissent.
UNITED STATES of America,
v.
Robert PALADINO, Appellant.
No. 13-3689.
United States Court of Appeals, Third Circuit.
Argued: June 24, 2014.
Filed: Oct. 8, 2014.
Notes
If, as the Government argues, all rulings resolving unsettled
Johnson, 457 U.S. at 561, 102 S.Ct. 2579 (footnote and internal quotation marks omitted).