More Fourth Amendment/ GPS Fun

One area of law that seems to always raise an array of questions is the Fourth Amendment.  On paper, the Fourth Amendment is relatively straightforward: it prohibits the government from conducting unreasonable searches and seizures, as well as requiring a warrant (supported by probable cause) describing the search and what the police intend to seize.  The march of technology creates a number of interesting wrinkles in what constitutes a search, as far as the Fourth Amendment is concerned.  As law enforcement’s technological tools grow more sophisticated, courts must wrestle with how these new technologies fit into our constitutional scheme.

The Third Circuit (based in New York City) recently ruled on a case (US v. Katzin) dealing with whether police need a warrant to conduct a GPS search of a suspect.  In this case, the FBI installed a GPS tracker on the Katzin brothers’ van without seeking a warrant.  The tracker in question was a “slap-on” tracker, meaning that the FBI attached the device to the exterior of the car (which then sent information regarding the vehicle’s GPS coordinates back to the FBI).  The Katzin brothers then moved to throw the evidence obtained from the van out.

The Supreme Court recently heard a case dealing with whether using a GPS tracker constituted a search at all in US v. Jones. While that case held that using a GPS tracker is a search under the Fourth Amendment, they did not decide whether such a search was reasonable.  Why is this important?  Law enforcement only requires a warrant when the search is “unreasonable.”  If a search is reasonable, law enforcement only needs to have reasonable suspicion and probable cause for the search to be lawful (since the Fourth Amendment only protects citizens from unreasonable searches and seizures).  The reasonableness is often tied to the scope of the search and whether the individual has a “reasonable expectation of privacy” in the area being searched.  The Third Circuit, in this case, uses a physical intrusion theory to determine reasonableness.  This theory requires some kind of physical entry onto the physical property of the defendant.  If such an intrusion exists, then law enforcement needs a warrant (since the search would be unreasonable).  The Court then rejected certain “special needs” scenarios (such as exigent circumstances and the automobile exception that sometimes permits searches of cars based only on probable cause).  The logic for rejecting the automobile exception is particularly interesting.  The Third Circuit states that law enforcement must limit warrantless search of a car under the automobile exception to a discreet moment in time.  GPS searches, by their nature, are not limited to certain moments in time (since they send information back to the police over an extended period), thus eliminating the automobile exception as a legal option.

Finally, I find this case particularly interesting since it represents the first major case commenting on US v. Jones.  The Jones case left a number of unanswered questions about the implications of holding that using a GPS tracker constituted a constitutional search, the most nagging of which was whether the search was reasonable.  While the Third Circuit’s holding only applies to their particular circuit, the Third Circuit made the first major effort to deal with the reasonableness issue (and dealt with it well in my opinion).  The question now is whether other circuits opt to incorporate the Third Circuit’s logic when dealing with other GPS tracker cases.    

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