Third Circuit Says Warrants Required for GPS Tracking

This post was written by Mark S. Melodia and Frederick Lah.

Earlier this month, the Third Circuit held in U.S. v. Katzin that a search warrant is required before the government may use a GPS tracking device. Katzin marks the first time a federal appellate court has ruled on the need for a warrant with respect to GPS trackers. The Third Circuit’s ruling is the latest development in an ever-evolving case-law dealing with the issue of whether warrants are required for location data collected from devices like GPS trackers and cell phones.

In Katzin, the FBI, without a search warrant, attached a “slap-on” GPS tracker to the suspect's van following a series of pharmacy burglaries. Using the results yielded from the GPS tracker, the FBI was able to eventually connect the suspect's location with the latest burglarized pharmacy. The suspect, along with his accomplices, moved to suppress the evidence discovered in the van. The government opposed the motions by arguing, inter alia, that a warrant was not required to use the GPS device based on the automobile exception to the warrant requirement. In rejecting the government's argument, the Third Circuit held that:

"The key distinction in this case is the type of search at issue. While the Supreme Court has stated that the automobile exception permits a search that is 'no broader and no narrower than a magistrate could legitimately authorize by warrant' [citation omitted], the search is still limited to a discreet moment in time... Attaching and monitoring a GPS tracker is different: 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 future."

The Third Circuit also rejected the government's argument that the good faith exception to the exclusionary rule should apply even if the search was unconstitutional. Other federal appellate courts have held that precedent involving the warrantless use of beepers sanctioned the warrantless use of GPS tracking, but the Third Circuit expressly disagreed with these courts based on how vastly different GPS trackers are from beepers.

Katzin follows the Supreme Court's January 2012 landmark ruling, U.S. v. Jones, where the Supreme Court held that the government's use of a GPS device constitutes a search under the Fourth Amendment. The Jones holding left unresolved the issue of whether the warrantless use of a GPS would be unlawful. Over the past few years, courts across the country have weighed in on the issue of whether warrants are required for the collection of location data from GPS trackers and cell phones. For example, in July 2013, the Fifth Circuit ruled that no warrant is needed for the collection of cell phone location data. This holding was in direct conflict with the New Jersey Supreme Court's ruling that warrants are required for cell phone location data, which we previously analyzed.

Katzin has the potential to affect companies that record location data about their consumers and employees. While the holding appears to be limited to the use of GPS trackers, companies should take steps to ensure that their employees understand the warrant requirement if and when law enforcement seeks this information. Any changes to a company’s policies and procedures should be done while keeping in mind the holdings from the Fifth Circuit and the New Jersey Supreme Court regarding cell phone location data. As courts across the country and Congress continue to grapple with these issues, we will continue to monitor this situation closely.

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