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
This article is presented for informational purposes only
and is not intended to constitute legal advice.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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