Finger setting navigation system
Finger setting navigation system (Igor Mojzes)

The U.S. Court of Appeals for the Third Circuit has granted rehearing en banc in a case decided two months ago establishing that police need a warrant before attaching a GPS tracker to a suspect’s vehicle.

Prosecutors 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 case involved three brothers who allegedly burglarized area Rite Aid pharmacies and the split three-judge panel of the Third Circuit that issued an opinion in October ultimately agreed with the district court to suppress the evidence gathered through the warrantless GPS device.

The initial Third Circuit panel had split only on the issue of whether the evidence should be suppressed, not over establishing the precedent requiring a warrant before using a GPS tracking device.

“Under the principles announced by the Supreme Court, the panel’s decision unjustifiably applies the ‘massive remedy’ of suppressing reliable and probative evidence,” prosecutors argued in their brief asking for rehearing, citing to the U.S. Supreme Court’s 2006 opinion in Hudson v. Michigan, “without achieving appreciable deterrence—indeed, it produces no legitimate deterrent benefit at all. That holding warrants the full court’s review.”

The Third Circuit has scheduled arguments before the en banc bench for May.

A majority of the appeals court’s active judges voted to rehear the case within just over a week after getting the petition from prosecutors.

The case is captioned United States v. Katzin.

In the October opinion, Judge D. Brooks Smith joined Judge Joseph Greenaway Jr.’s majority opinion, while Senior Judge Franklin S. Van Antwerpen dissented.

Van Antwerpen had agreed with the majority’s application of the U.S. Supreme Court’s 2012 opinion in United States v. Jones, which held that GPS tracking devices attached to vehicles by police constitute a search under the Fourth Amendment.

But, he said in his 55-page dissent, “given pre-Jones Supreme Court precedent, the consensus regarding GPS and GPS-like use across the federal courts, and other relevant considerations, I would hold that the law enforcement officers here acted ‘with an objectively “reasonable good-faith belief” that their conduct [was] lawful.’” Van Antwerpen cited to the high court’s 2011 opinion in Davis v. United States, which quoted from its 1984 opinion in United States v. Leon.

The majority had held that the so-called “exclusionary rule” announced by the Supreme Court in its 1960 opinion in Elkins v. United States, which says that evidence gathered in violation of the Fourth Amendment can’t be used at trial, would apply to this case.

Since its opinion in Elkins, the high court has recognized a good-faith exception to the exclusionary rule in order to allow the use of evidence if it was gathered by police who acted with a good-faith belief that their conduct was legal.

The majority did not find that the good-faith exception should apply in this case. Van Antwerpen, however, disagreed.

The majority’s opinion “stands in sharp conflict with the governing principles stated by the Supreme Court on the application of the good-faith doctrine,” prosecutors argued in their petition for rehearing.

“It is the belief of government counsel, based on a reasoned and studied professional judgment, that the panel’s decision cannot be reconciled with the Supreme Court’s articulation in cases such as Herring v. United States … of the conditions for applying the exclusionary rule, and that this appeal involves a question of exceptional importance, given the frequency in which suppression motions are litigated and the good-faith doctrine is invoked,” prosecutors argued in their brief, citing the U.S. Supreme Court’s 2009 opinion in Herring.

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