Finger setting navigation system
(Igor Mojzes)

Evidence police collected from a GPS device they attached to a suspect’s vehicle without a warrant should be admissable because the officers relied in good faith on legal precedent at the time, the U.S. Attorney’s Office argued in front of an en banc panel of the Third Circuit on Wednesday.

Both the trial judge and the three-judge panel of the U.S. Court of Appeals for the Third Circuit that initially heard arguments had decided that the evidence should be suppressed, although the decision of the panel split on that issue.

“You’re asking for an extension of the good-faith doctrine,” Judge D. Brooks Smith said to Robert A. Zauzmer, the assistant U.S. attorney who was arguing the case. Smith sat on the original appeals court panel and joined the majority opinion to suppress the evidence.

“We’re asking for what I’ve described as a very, very slight extension of Davis,” said Zauzmer, who was accompanied by U.S. Attorney Zane Memeger of the Eastern District of Pennsylvania.

Zauzmer was referring to the U.S. Supreme Court’s 2011 opinion in Davis v. United States, in which the high court ruled that the fruits of searches that were conducted in good faith with reasonable reliance on available legal precedent at the time of the search can be used in court.

Chief Judge Theodore McKee commended Zauzmer for his candor, saying, “You conceded you were advocating a slight extension of Davis.”

However, Catherine Crump, of the American Civil Liberties Union, argued that Davis wouldn’t apply to this case.

Crump is representing the three brothers who allegedly burglarized area Rite Aid pharmacies in 2010 and were tracked by FBI agents.

Davis does not control the result here. The Supreme Court specifically limited Davis to situations where there is binding precedent on point,” according to the ACLU. There was no such precedent when the FBI attached a GPS tracker to the vehicle used by the Katzin brothers, the ACLU argued.

The year after the U.S. Supreme Court decided Davis, it decided United States v. Jones, in which it determined that the use of a GPS tracker would constitute a search under the Fourth Amendment. It didn’t, however, declare whether or not a warrant would be required for the use of a GPS.

In its earlier opinion on the Katzin brothers’ case, the Third Circuit decided that the use of a GPS tracker would require a warrant.

“Among the issues that Jones left open … was whether warrantless use of GPS devices would be ‘reasonable—and thus lawful—under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause’ to execute such searches. The instant case squarely presents this very issue for our consideration,” Judge Joseph Greenaway Jr. wrote on behalf of the majority in the first panel’s opinion.

The majority decided that there is no such exception and police must first get a warrant before attaching a GPS tracker.

Prosecutors had sought appeal on the issue of whether the police officers had shown objective good faith in their actions, which would allow the evidence they gathered through the GPS tracking to survive.

The officers investigating the Katzin brothers had consulted with an assistant U.S. attorney before deciding to attach the tracking device without seeking a warrant.

Crumb argued that the assistant U.S. attorney isn’t an impartial person to consult, since the prosecutors work with the investigating team.

One judge appeared to agree. When Zauzmer characterized the treatment of the officers in this case as having been condemned for doing their job, Judge Thomas L. Ambro suggested that they had done what they were supposed to do by asking somebody for advice. “They just didn’t ask a neutral person,” he said.

Crumb also noted the difference between GPS technology and the earlier “beeper” technology, on which much of the case law relied upon by the prosecution was based.

Allowing the government to use “beeper” cases to justify 24-hour GPS surveillance that can be conducted from afar is problematic, Crumb said.

“Here, law enforcement personnel made a deliberate decision to forgo securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice,” Greenaway had said in the initial opinion, issued last October. “Indeed, the police embarked on a long-term surveillance project using technology that allowed them to monitor a target vehicle’s movements using only a laptop, all before either this circuit or the Supreme Court had spoken on the constitutional propriety of such an endeavor.”

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.