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Third Circuit Hears Warrantless GPS Tracking Arguments

By Robyn Hagan Cain | Last updated on

Do law enforcement agents need to obtain a warrant based on probable cause to track a vehicle's movements? Didn't we get an answer to this question last year in U.S. v. Jones? Are we stuck in a time warp?

Not quite.

Tuesday, lawyers for a trio of brothers accused of robbing Philadelphia-area pharmacies asked the Third Circuit Court of Appeals to decide whether warrantless GPS tracking constitutes an unreasonable search.

The issue is distinct from Jones because the Supreme Court's Jones decision merely held that physical trespass -- the act of placing the GPS tracker on the suspect's car -- triggered the unreasonable search. The Supreme Court didn't address whether warrantless GPS tracking itself was unreasonable. As Justices Alito and Sotomayor noted last year, the majority decision left the evolving, physical-trespass-free issue of warrantless tracking unresolved.

Finally, that issue is getting the attention it deserves.

Last year, a district judge granted Harry, Mark and Michael Katzin's motion to suppress evidence gathered during the traffic stop in which they were arrested, The Associated Press reports. (The stop was based on information from the tracker.) The district judge based his decision -- in part -- on Jones, but the judge noted that the 5-4 ruling didn't address the issue of warrantless long-term monitoring.

The Justice Department appealed that ruling to the Third Circuit.

The American Civil Liberties Union, which argued this week on the Katzin brothers' behalf, insists that warrants are essential for GPS tracking, particularly "because the technology is cheap, convenient, difficult to detect, and highly intrusive." The organization warns that, "given how easy and inexpensive it is to track a suspect using GPS, neither cost nor effort will stop the government from using it in cases where it isn't reasonable."

It seems like this case could be the resolution we've been waiting for in the GPS tracking debate. Regardless of the outcome at the appellate level, we're guessing that there will be a cert petition in the Katzin brothers' future.

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