THEY FINALLY GET ONE RIGHT:
U.S. Circuit Court Decision Broadens Requirement for Warrants in GPS-Aided Searches
Fourth Amendment protection against unreasonable search and seizure at stake once again.
Quote:May add to pressure for more definitive Supreme Court guidance.
November 1, 2013
A Third Circuit U.S. Court of Appeals recent decision to suppress
evidence in a criminal case obtained by placing a GPS-based tracking
unit on a suspect’s van appears to strengthen the requirement for police
to obtain warrants before taking such measures.
Written by Judge Joseph A. Greenaway, Jr., the decision in the case of
three Maryland brothers arrested in connection with burglaries of local
pharmacies could put the issue back in the lap of the U.S. Supreme
Court, which only last year address the issue of GPS-aided tracking in United States v. Jones.
In the Jones case, the Supreme Court unanimously overturned the
conviction of a suspected drug dealer based on evidence obtained by
without a valid warrant as contravening the U.S. Constitution's Fourth
Amendment protection against searches of persons or property without a
warrant. But the justices split five to four over the legal principle on
which their decision was based. The majority argued more narrow
decision that the search represented a trespass while the others
concluded that the 28 days of GPS-aided surveillance violated the
suspect’s “reasonable expectations of privacy.”
However, the case decided by the Third Circuit Court located in
Philadelphia involved only a short-term surveillance and law
enforcement authorities’ assertion that they acted on probable cause in
“good faith” based on previous decisions by other courts.
“Among the issues that Jones left open,” the Third Circuit justices
said in their opinon, “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.”
In a split decision — two judges in favor, one dissenting — the court
ruled definitively and broadly against police use of GPS technology
without a warrant.
The court appeared to distinguish between a “search” and ongoing
“surveillance” designed to discover evidence of a crime, deciding that
the Maryland case represented the latter. Even though the police acted
soon after the tracking unit was placed on the suspect’s vehicle, the
judges said that police had no idea how long it would actually remain in
place before they had cause to stop and search the vehicle.
“We are hard pressed to say, therefore, that the police can — without
warrant or probable cause — embark on a lengthy program of remote
electronic surveillance that requires almost no law enforcement
resources and physically intrudes upon an ordinary citizen’s private
property,” the judges wrote in their opinion. “Consequently, we hold
that — absent some highly specific circumstances not present in this
case — the police cannot justify a warrantless GPS search with
reasonable suspicion alone.”
Attaching and monitoring a “GPS tracker” is different than a specific
search for evidence, the judges wrote. “It creates a continuous police
presence for the purpose of discovering evidence that may come into
existence and/or be placed within the vehicle at some point in the
The decision also concluded that GPS technology is different in
“kind, not degree” from another form of electronic tracking involving
radio transmitters — so-called beepers — and, therefore, Fourth
Amendment–related court rulings on evidence gathered by the latter means
did not apply to GPS-related searches.
“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,” the majority argued. “Moreover,
beeper signals are range-limited: if the police move far enough away
from the beeper, they will be unable to receive the signal that the unit
broadcasts. At bottom, then, beepers are mere aids for police officers
already performing surveillance of a target vehicle. Unlike GPS
trackers, beepers require that the police expend resources — time and
manpower — to physically follow a target vehicle.”
In a later footnote, the justices added, “Any time technology shifts
in this way, courts should expect that law enforcement will tread
lightly and will refrain from reasoning by (potentially ill-fitting)
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