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Warrant Required Before Attaching GPS Tracking Device
Last year the U.S. Supreme Court in United States v. Jones held that attaching a magnetic GPA tracking device to the exterior of a vehicle constituted a “search” within the meaning of the Fourth Amendment. Saying that attaching such a device is an intrusion on an individual’s private property, Justice Antonin Scalia put it this way: “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
Today’s law enforcement routinely use what is called a “slap-on” GPS tracker—a magnetic device attached to an exterior area of a suspect’s vehicle. The battery operated device uses the Global Positioning System, which is a network of satellites, to track a vehicle with a high degree of accuracy and sends this data to a central server. This allows law enforcement to compile a very specific record of the vehicle’s whereabouts during a given period of surveillance. Besides its accuracy, this surveillance technique allows anyone with access to the central server to remotely track and even analyze the data—a boon to law enforcement operating with limited manpower. They do not have to set up surveillance teams in separate vehicles to keep tabs on either the movements or location of the target vehicle.
While the Fourth Amendment offers protection against unreasonable searches, whether a given search is unreasonable requires a court to balance the intrusion on an individual’s Fourth Amendment rights against legitimate governmental interests in conducting the search. To reach a proper determination under this general standard, the court is required to consider the “totality of the circumstances” surrounding the search. Courts generally strike the balance in favor of long established Fourth Amendment jurisprudence that a search is per se unreasonable unless approved by a magistrate or judge with a showing of probable cause to obtain a warrant. This jurisprudence, however, distinguishes the difference between the search of a dwelling and a vehicle. This distinction notwithstanding, the Supreme Court has held since 1925 that a warrantless search of a vehicle must be based on probable cause.
Because the Court in the Jones decision focused on the trespassory nature of attaching the GPS device, it left open the question of whether the warrantless use of GPS devices is reasonable under the Fourth Amendment where law enforcement officers have reasonable suspicion and/or probable cause to execute such a search.
This is a thorny issue because an en banc decision by the Fifth Circuit in 1981, and in a pair of decisions by the Supreme Court in 1983 and 1984, held in “beeper” cases that an individual does not enjoy a Fourth Amendment “expectation of privacy” in a vehicle on a public thoroughfare. This led the Seventh, Eighth, and Ninth Circuits between 1999 and 2010 to hold that attaching a GPS tracking device was not a constitutional violation because no expectation of privacy existed. Late in 2010, the D.C. Circuit refused to follow the lead of these three sister circuits saying that the warrantless vehicle search exception (a search based solely on the reasonable suspicion that a vehicle contains contraband) does not extend to the attachment of a “tracking device” on a vehicle without the approval of a judge or magistrate.
This D.C. Circuit case arrived at the Supreme Court under Jones’s name. The Jones court, however, did not focus on the privacy issue. Instead the majority opinion confined itself to the physical intrusion on property issue. The court left unanswered the critical question of whether the warrantless use of a GPS tracking device would be “reasonable” under the Fourth Amendment when officers have a reasonable suspicion, even probable cause, to execute such a search. This question has not been squarely addressed by the federal circuits because most GPS tracking device cases occurred pre-Jones which allowed the government to argue in these cases that even such searches were unconstitutional, they were permissible under the “good-faith exception” to the exclusionary rule.
The Third Circuit on October 22, 2013, in United States v. Katzin, became the first federal circuit to reject the good-faith exception defense and find that a warrant based on probable cause is required before law enforcement can attach a GPS tracking device to a vehicle. The facts of the Katzin case were outlined by the appeals court: Between 2009 and 2010 a wave of pharmacy burglaries occurred in Delaware, Maryland and New Jersey. At the behest of the local authorities, the FBI joined the investigation. A local electrician named Harry Katzin was identified as a main suspect. He and his two brothers, Mark and Michael, had extended criminal histories for burglary and theft with Harry having been caught committing a pharmacy burglary. The joint state and federal investigation began to receive tips that Harry was seen around pharmacies in the tri-state area. In November 2010, the police approached a vehicle occupied by Harry, one of his brothers, and another individual parked outside a pharmacy. Harry consented to a vehicle search during which electrical tools, gloves and ski masks were discovered. Harry explained these were tools used in an electrician’s trade. The police allowed them to leave. Further investigation revealed that the telephone lines to this pharmacy had been cut and security video surveillance had captured a vehicle similar to Harry’s parked outside another pharmacy.
Based on this information, law enforcement decided to resort to GPS tracking. In mid-December, the FBI consulted with the local U.S. Attorney’s office about their plans but did not request, or receive, a warrant before they attached a “slap-on” GPS tracker to the exterior of Harry’s vehicle. The Third Circuit explained what happened next: “While the police do not appear to have set a time limit for using the GPS tracker, the device yielded the results they were after within several days. According to the tracker, Harry Katzin’s van had left Philadelphia on the evening of December 15, 2010, and had traveled to the immediate vicinity of a Rite Aid [pharmacy] in neighboring town. Through use of the device, the police could see that the van had been driven around town for several minutes before parking at a specific location for over two hours. That’s when the FBI began to tighten the net. They alerted local police as to Harry Katzin’s whereabouts, but cautioned them not to approach too closely for fear of tipping off either Harry Katzin or any individual he may have been traveling with. When the FBI noticed that the van was once again traveling, the call came in: the van was to be taken.
“While state troopers stopped Harry Katzin’s van on a Pennsylvania highway, a squad of local police officers investigated the Rite Aid close to where Harry Katzin’s van had been parked; they found that it had been burglarized and relayed this information to the troopers. Inside the van, troopers found Harry at the wheel, with Mark and Michael as passengers. From outside the van the trooper could see merchandise and equipment from the burglarized Rite Aid, including pill bottles and Rite Aid storage bins. The police impounded the van and arrested the Katzin brothers.”
The brothers moved to have the evidence discovered in the van suppressed because the police did not have a warrant for the GPS device. In suppressing the evidence, the U.S. District Court rebuffed the government’s arguments that (1) a warrant was not required for use of a GPS device, and (2) the police acted in good faith when they installed the GPS device. The Third Circuit agreed with the trial court, finding without hesitation that “the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court [in Jones] has compared to ‘a constable’s concealing himself in the target’s coach in order to track its movements.’”
What the other federal circuits will do on this issue is unclear. The Ninth Circuit has given off some signals that it is receptive to an approach similar to the Third Circuit. The Seventh and Eighth Circuits would have to overturn prior precedents applying the good faith exception to reach the conclusion drawn by the Third Circuit. The other circuits haven’t spoken yet. In the end, we expect the GPS tracking device issue to traverse itself back to the Supreme Court.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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