Reasoning that because a local police department acted in “good faith,” the Justice Department is pushing to overturn a federal appeals court decision that would prohibit prosecutors from using evidence gathered without a warrant — a legal precedent of great concern to Fourth Amendment advocates and human rights groups alike.
Hoping to find the person responsible for a string of pharmacy robberies in the Philadelphia area in 2009 and 2010, the Philadelphia Police Department contacted their local FBI office and had agents place a GPS tracking device on suspect Harry Katzin’s Dodge Caravan without first obtaining a warrant.
According to court documents, within a matter of weeks, Katzin’s car was at a Rite Aid around the time a pharmacy was burglarized. Katzin and his two brothers, who were in the van at the time, were arrested after police found the car stockpiled with merchandise from the pharmacy, including pill bottles, cash and other store property.
Despite attempts from government prosecutors to prove that the law enforcement officials were acting in good faith, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that because investigators failed to obtain a warrant before they placed a GPS tracking device on Katzin’s vehicle, the evidence investigators gathered from the GPS and consequent arrest, are not admissible in court.
According to a report in the Wall Street Journal, the DOJ says it won’t challenge the ruling that police need a warrant before placing a GPS tracker on a suspect’s vehicle, but have asked the court to reverse their decision that the evidence gathered in this case is inadmissible.
In the ruling, Judge Joseph A. Greenaway wrote that a GPS tracker is different from human surveillance because “it creates a continuous police presence” meant to discover future evidence.
The ruling follows that of a January 2012 ruling by the U.S. Supreme Court, which found that installing a GPS tracker on a vehicle without first obtaining a warrant — unless there is an imminent danger — is a violation of a person’s Fourth Amendment rights that protect civilians from unreasonable search and seizure of their person and property.
“Where an officer decides to take the Fourth Amendment inquiry into his own hands, rather than to seek a warrant from a neutral magistrate— particularly where the law is as far from settled as it was in this case— he acts in a constitutionally reckless fashion,” the Supreme Court wrote in its decision.
“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… Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations.”
Catherine Crump, a lawyer who argued on behalf of the Katzin brothers for the American Civil Liberties Union, said the case is very significant.
“Where people go can reveal a great deal about them, from who their friends are, to what their daily routine is … to what doctors they visit. All of that information, especially when considered together, contains a detailed portrait of someone’s life,” Crump told The Associated Press.
She called the court’s decision “a victory for all Americans because it ensures that the police cannot use powerful tracking technology without court supervision.”
Dangerous precedent?
Because technology is changing faster than any privacy laws, the ACLU says that law enforcement officials are pushing the limits on when they can use cutting-edge surveillance technologies without first obtaining a warrant.
The group said that the DOJ is basically saying, “Ok, we won’t appeal the substance of your ruling — this warrantless GPS tracking violated the Fourth Amendment. But how could the police officers have known this at the time? We believe they acted in good faith, and therefore the GPS evidence against Katzin, even though we now know it was obtained illegally, should still be viable in court to use against him.”
No matter what the court decides, the ACLU says the ruling will set a precedent and a message to police departments and legislatures throughout the country, and encouraged the court to rule in a way that demonstrates that the “Fourth Amendment applies in the digital age, so if you want to spy on someone — no matter what new fancy tool you use — you’re gonna need a warrant for that.”
According to the ACLU, if the court does decide to leave the ruling as is, police departments may decide to implement policies that require officers to obtain warrants before conducting surveillance, so that the evidence isn’t thrown out due to a Fourth Amendment violation.
The Katzin brothers are reportedly the one’s who filed a motion to suppress the evidence. In response, the government argued that a warrant was not necessary since the car was searched on reasonable suspicion and if officers were required to obtain a warrant and probable cause before attaching a GPS, “officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.”
However, the 3rd Circuit justices told the government officials that a search cannot be conducted for the sole purpose of generating evidence for law enforcement purposes, and that “Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”
Pending decision
While it is not known whether the Katzins were responsible for robbing the pharmacies, a report from the AP said that a police raid at their home discovered that the three had more than $28,000 worth of prescription medications, including OxyContin, Xanax, Ritalin, morphine and amphetamines, which they were allegedly selling on the black market.
Assistant U.S. Attorney Robert Zauzmer, who represented the police officers, said that the police acted in good faith before the Supreme Court ruling was issued, and said that because of those factors the evidence in this case should not be suppressed, which is an argument at least one of the three circuit judges agrees with.
Even the Katzins’ lawyer, Rocco Cipparone, has expressed concern about the timing of the Supreme Court’s decision.
“When we started out, the Supreme Court hadn’t weighed in … and the majority of the law was actually contrary to our position,” Cipparone told the AP.
When the Supreme Court did rule in favor of privacy advocates in the United States v. Jones case in 2012, the decision was widely celebrated for those who were concerned their basic constitutional rights may not apply in the digital age, but the decision was not as widespread as many had hoped.
According to a privacy blog, the decision solely affected GPS tracking, meaning that other means of tracking a person, such as through their mobile phone, could still be done without a warrant, nor did the high court address whether or not a third party could lawfully disclose private information about an individual, as in the NSA scandal.
Vernon Herron, a former Maryland State Police commander who now works as a senior policy analyst at the Center for Health and Homeland Security, part of the University of Maryland, said that while he believes the evidence against the Katzins should not be thrown out, the police officers should have used the evidence they had gathered thus far in their investigation as probable cause to obtain a warrant before attaching the GPS.
“The rule of thumb is, if you have time to get a warrant, get a warrant,” Herron told the AP, adding that the technology that is available today is a law enforcement officer’s dream, since they now have the ability to follow someone’s every move from a laptop.