White Collar Alert

“As you’re walking past the car, you look down, ‘Oh, hey, darn, my shoe’s untied.’ Okay? Now, when you bend down to tie your shoe, you stick this up into the wheel well.”

-Hank Schrader to Walter White in Breaking Bad

In the Fourth Season of Breaking Bad, Hank asks Walt to help him in the parking lot of a local fast food chicken joint, Los Pollos Hermanos.  He tells Walt to put a GPS tracker on Gus Fring’s Volvo because Hank believes that Gus is a major distributor for the meth trade.

That evidence wouldn’t be admissible in the Third Circuit.  Last week in a 2 to 1 decision, the Third Circuit held that the police needed a warrant before attaching a GPS tracker to a suspect’s van in a case where three brothers allegedly burglarized Rite Aid pharmacies in Delaware, Maryland and New Jersey in 2009 and 2010.  United States v. Katzin, No. 12-2548, 2013 WL 5716367 (3d Cir. Oct. 22, 2013).   All three brothers moved to suppress the evidence from the van, and the District Court granted the request.  United States v. Katzin, No. 11-226, 2012 WL 1646894, at *11 (E.D. Pa. May 9, 2012).

Last year, the Supreme Court held that attaching a GPS tracker to a suspect’s car constituted a search under the Fourth Amendment.  United States v. Jones, 132 S. Ct. 945, 949 (2012).  But one question left open by the Supreme Court in that case was whether warrantless use of GPS trackers would be reasonable and thus lawful if the police have reasonable suspicion and probable cause to execute the searches.  Jones, 132 S. Ct. at 954.  United States v. Katzin,the first Circuit case to specifically address this specific Fourth Amendment issue since United States v. Jones, answered this question decisively:  reasonable suspicion and probable cause do not vitiate the warrant requirement for GPS trackers.

Judge Joseph Greenaway Jr., wrote on behalf of the majority and expressed concerns over the privacy interests at stake and noted that “under the physical intrusion theory of the Fourth Amendment, the police actions in this case—i.e., physical entry upon and occupation of an individual’s house or effects for purposes of ongoing GPS tracking—are highly disconcerting.”  Katzin, 2013 WL 5716367, at *8.  Additionally, the Third Circuit quoted Justice Sotomayer’s concurrence in United States v. Jones that a GPS tracker can “generate a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”  Jones, 132 S. Ct. at 955.  Despite the government’s contention that the FBI agents were acting in good faith at the time of their decision based on ruling in other circuits, as well as the fact that it was prior to the Supreme Court’s decision in Jones, the Court refused to allow a “good faith exception” and stated that “law enforcement personnel made a deliberate decision to forego securing a warrant…in the absence of binding Fourth Amendment precedent authorizing such a practice.”  Katzin, 2013 WL 5716367, at *18.

Even if such a good faith exception existed, it would have been a tough road for Hank to defend his actions—he orders Walt to put the GPS on the car after the DEA calls Gus in for some questions and ultimately sends him away, satisfied with his explanations.  Only Hank believes that his hunch about the seemingly upstanding citizen could be correct.  For all the would-be Hanks out there in law enforcement in the Third Circuit, the new bright line rule for GPS trackers is best summed up by Jay-Z:  “You gonna need a warrant for that.”