Court ruled GPS tracker evidence police gathered without a warrant must be suppressed
Evidence from a GPS tracker that police installed without a warrant before the law clearly required one must be suppressed, a divided panel of the 3rd Circuit ruled.
The case involves the 2010 investigation into a wave of Rite Aid pharmacy burglaries that hit Delaware, Maryland and New Jersey. Circumstantial evidence led police to suspect Harry Katzin and his brothers, Michael and Mark Katzin.
After consulting with the U.S. Attorney's Office, but without getting a warrant, the FBI affixed a "slap-on" Global Positioning System (GPS) tracker to Harry Katzin's van.
Within several days, the tracker yielded the evidence needed to arrest the brothers. It showed the van parked at a Rite Aid for two hours, after which local police stopped the van and found it full of stolen merchandise from the pharmacy.
A federal judge in Philadelphia suppressed the evidence discovered in the van for lack of a warrant, however, and a divided three-judge panel of the 3rd Circuit affirmed last week.
"We have no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court has compared to 'a constable's concealing himself in the target's coach in order to track its movements,'" Judge Joseph Greenaway Jr. wrote for the majority, citing the Supreme Court's 2012 ruling in U.S. v. Jones that said police need a warrant before using a GPS device to track a suspect.
Greenaway rejected the government's arguments that this was a "special needs" case, or that reasonable suspicion absolved the officers of the need to obtain a warrant for GPS surveillance.
"While the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect," Greenaway wrote.
"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. 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."
The automobile warrant exception is also inapplicable here, the 61-page opinion states.
While a normal vehicle search is limited to one discrete moment in time, a GPS tracker is a far greater intrusion into privacy, creating "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 future," Greenaway said.
The court found that the officers' alleged good faith intentions, and the lack of appellate guidance in 2010 on the constitutionality of such searches, does not absolve them of their duties under the 4th Amendment.
"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 Fourth Amendment precedent authorizing such a practice," Greenaway wrote. "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."
He added: "Essentially, the officers extrapolated their own constitutional rule and applied it to this case. We fail to see how this absolves their behavior. The assumption by law enforcement personnel that their own self-derived rule sanctioned their conduct - to say nothing of their unstated belief that this Circuit would automatically side with a majority of the minority of our sister circuits - was constitutionally culpable."
Judge Franklin Van Antwerpen dissented from the majority's good-faith ruling, finding that the officers' should not be held accountable for failing to predict the outcome of Jones.
"United States v. Jones changed things; and changed them in a way very few - if any at all - predicted," Van Antwerpen wrote. "The exclusionary rule does not require us to punish the law enforcement officers here for failing to predict that sea change."
He concluded: "Under the circumstances present in this case, I do not find the law enforcement conduct to be 'sufficiently culpable' so that the benefit from deterring that conduct 'is worth the price paid by the justice system,' even if it might create a marginal incentive for officers to 'err on the side of constitutional behavior.'"
http://www.courthousenews.com/2013/10/28/62416.htm
U.S. v. Harry Katzin ruling:
http://www.courthousenews.com/2013/10/28/gps%20warrant.pdf
Massachusetts case tests whether police need warrant for cellphone location data:
Shabazz Augustine stands accused of murdering a former girlfriend nine years ago. Massachusetts state prosecutors want to use information they got about the location of his cellphone at the time.
Matt Segal, legal director of the ACLU of Massachusetts, told the state's high court that the evidence should be thrown out, because police got it using a simple subpoena, not a search warrant.
"All the government has to show is that the information they're requesting is relevant and material to an ongoing investigation," Segal says.
That standard is too low, he says, and encourages searches before a crime is committed — like the collection of nearly all the nation's phone traffic by the NSA. The government relies on that same relevance standard to justify collecting bulk phone records.
Now, groups like the ACLU are arguing in court that widespread use of cell location data shows that digital information needs stronger protections. Segal says it should be released only when it meets a higher standard: probable cause to show someone has committed a crime.
"What we're focused on is the possibility that governments are obtaining this kind of location information on many people who have not committed crimes," Segal says.
http://www.npr.org/blogs/alltechconsidered/2013/10/29/241415668/who-has-the-right-to-know-where-your-phone-has-been
How authorities mislead the Supreme Court so they could receive a key warrantless wiretapping ruling:
The New York Times reported that the Department of Justice recently changed policies, and will be notifying a criminal defendant that the evidence being used against them came from a warrantless wiretap. Just one problem: Justice told the Supreme Court that was standard policy already earlier this year.
According to the Times, prosecutors filed such a notice for the first time late on Friday. It was in the case of Jamshid Muhtorov, who is accused of providing material support to the Islamic Jihad Union, a designated terrorist organization. The government alleges he was planning to travel abroad to join the group, but he has pleaded not guilty. According to the criminal complaint, much of the government's case was based on intercepted calls and e-mails. By giving him notice that some of that evidence was derived from warrantless surveillance, prosecutors have set him up to be able to challenge the constitutionality of those programs.
In February, the Supreme Court dismissed a challenge to FISA Amendments Act (FAA) surveillance programs brought by Amnesty International on standing grounds -- agreeing with the government that since Amnesty International could not prove that it was the victim surveillance at the time, it had no right to sue. That 5-4 decision at least partially relied on an argument made by Solicitor General Donald B. Verrilli Jr. that while Amnesty International did not have grounds to sue, others might because "the government must provide advance notice of its intent to use information obtained or derived" from the laws. In fact, the Supreme Court mirrors that language fairly explicitly in its ruling, saying that "if the government intends to use or disclose information obtained or derived from” surveillance authorized by FAA “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition."
The Times reports Verrilli discovered that Justice's National Security Division had actually not been notifying criminal defendants when evidence used against them was derived from warrantless snooping early in the investigative chain. This set off a months-long internal policy debate over whether or not Justice should be doing what they told the Supreme Court they were already doing.
It's obviously problematic that Justice misled the Supreme Court about how the agency was handling the law in practice. But the implications of that practice are even more troubling. Patrick Toomey, the American Civil Liberties Union attorney who represented plaintiffs in Amnesty International case, said in a statement to the Times "by withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”
http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/28/how-the-feds-won-a-key-warrantless-wiretapping-ruling-by-misleading-the-supreme-court/