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Rehearing En Banc Granted in Warrantless GPS Case

By Gabriella Khorasanee, JD on December 18, 2013 | Last updated on March 21, 2019

The year is not quite over, but if we were doing a "hot issues of 2013" this one would definitely be on the list: warrantless GPS searches.

In early 2012, the Supreme Court of the United States decided United States v. Jones, where it held that the Government's attachment of a GPS device to a vehicle, and the subsequent tracking of the "device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment."

While the court held that the use of GPS tracking constitutes a search, the court left open the issue of whether warrantless use of GPS is permissible where there is probable cause or reasonable suspicion.

Circuit Split -- First and Second Circuits

Both the First and Second Circuits had the opportunity to address the issue this year, but declined to do so. In each case, the circuits held that the Government's conduct fell within the good faith exception to the exclusionary rule, so they did not have to decide the larger issue.

Circuit Split -- Third Circuit

The Third Circuit squarely addressed this issue in October, and held that the Government could have, and should have, obtained a warrant before using a "slap-on" GPS tracking device. The court noted that using GPS tracking "is an ongoing, vastly broader endeavor" than actions associated with "stop and frisk." The ACLU lauded the Third Circuit's opinion, stating: "Today's decision is a victory for all Americans because it ensures that the police cannot use powerful tracking technology without court supervision and a good reason to believe it will turn up evidence of wrongdoing," reports Ars Technica.

Rehearing En Banc

Before you stand up and cheer for the Third Circuit, wait a moment.

Last week, the Third Circuit vacated its opinion, and a majority of the active judges voted to grant the Government's petition for rehearing en banc. While we can't foresee what the court will decide we know it is going to make a big statement. Either it will come out in full force in support of the Fourth Amendment, or it may take a step back and come out to wholly different outcome, or skirt the issue entirely the way the First and Second Circuits did. In any case, we'll have to wait for the rehearing on May 28, 2014.

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