UNITED STATES of America, Appellant v. Harry KATZIN; Michael Katzin; Mark Louis Katzin, Sr.
Argued March 19, 2013. -- October 22, 2013
Robert A. Zauzmer, Esq. [argued], Emily McKillip, Esq., Zane D. Memeger, Esq., Thomas M. Zaleski, Esq., Office of United States Attorney, Philadelphia, PA, for Appellant The United States of America.Thomas A. Dreyer, Esq. [argued], Chadds Ford, PA, for Appellee Harry Katzin.William A. DeStefano, Esq., Stevens & Lee, Philadelphia, PA, for Appellee Michael Katzin.Rocco C. Cipparone, Jr., Esq. [argued], Haddon Heights, NJ, for Appellee Mark Louis Katzin, Sr.Benjamin E. Wizner, Esq., Catherine N. Crump, Esq. [Argued], Nathan Wessler, Esq., American Civil Liberties Union, New York, NY, for Amicus Appellees the American Civil Liberties Union Foundation.Witold J. Walczak, Esq., Sara J. Rose, Esq., American Civil Liberties Union, Pittsburgh, PA, Catherine N. Crump, Esq. [argued], American Civil Liberties Union, New York, NY, for Amicus Appellees the American Civil Liberties Union Foundation of Pennsylvania.Catherine N. Crump, Esq. [argued], American Civil Liberties Union, New York, NY, Hanni M. Fakhoury, Esq., Marcia Hoffman, Esq., Electronic Frontier Foundation, San Francisco, CA, for Amicus Appellees the Electronic Frontier Foundation.Peter Goldberger, Esq., Ardmore, PA, Catherine N. Crump, Esq. [argued], American Civil Liberties Union, New York, NY, for Amicus Appellee the National Association of Criminal Defense Lawyers.
This appeal stems from the Government's warrantless installation of a Global Positioning System device (a “GPS device” or “GPS tracker”) to track the movements of Appellee Harry Katzin's van. Harry Katzin, along with his brothers Mark and Michael (collectively, “Appellees”), claims that attaching the GPS device without a warrant violated the Fourth Amendment. The United States Government (“Appellant” or “Government”) argues that: (a) a warrant is not required to install a GPS device; (b) even if a warrant were required, the police were acting in good faith; and (c) in any case, Mark and Michael lack standing to contest admissibility of evidence recovered from Harry Katzin's van.
The instant case therefore calls upon us to decide two novel issues of Fourth Amendment law: First, we are asked to decide whether the police are required to obtain a warrant prior to attaching a GPS device to an individual's vehicle for purposes of monitoring the vehicle's movements (conduct a “GPS search”). If so, we are then asked to consider whether the unconstitutionality of a warrantless GPS search may be excused for purposes of the exclusionary rule, where the police acted before the Supreme Court of the United States proclaimed that attaching a GPS device to a vehicle constituted a “search” under the Fourth Amendment. For the reasons discussed below, we hold that the police must obtain a warrant prior to a GPS search and that the conduct in this case cannot be excused on the basis of good faith. Furthermore, we hold that all three brothers had standing to suppress the evidence recovered from Harry Katzin's van. We therefore will affirm the District Court's decision to suppress all fruits of the unconstitutional GPS search.
I. FACTS AND PROCEDURAL HISTORY
Given that the issues in this matter touch upon several forms of electronic tracking devices, we feel it necessary—in service of our forthcoming analysis—to embark on a brief discussion of the relevant technology before delving into the specific circumstances surrounding Appellees.
A. Tracking Technology
This case concerns a “slap-on” GPS tracker, so called because it magnetically attaches to the exterior of a target vehicle, is battery operated, and thereby requires no electronic connection to the automobile. The tracker uses the Global Positioning System—a network of satellites originally developed by the military—to determine its own location with a high degree of specificity and then sends this data to a central server. This check-and-report process repeats every few minutes (depending on the tracker), thereby generating a highly accurate record of the tracker's whereabouts throughout its period of operation. The great benefit of such a system—apart from its accuracy—is that anyone with access to the central server can analyze or monitor the location data remotely. These aspects make GPS trackers particularly appealing in law enforcement contexts, where the police can attach a tracker to some vehicle or other asset and then remotely monitor its location and movement.
GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as “beepers.” Beepers are nothing more than “radio transmitted[s], usually battery operated, which emit[ ] periodic signals that can be picked up by a radio receiver.” United States v. Knotts, 460 U.S. 276, 277, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In contrast to GPS trackers, beepers do not independently ascertain their location—they only broadcast a signal that the police can then follow via a corresponding receiver. Moreover, beeper signals are range-limited: if the police move far enough away from the beeper, they will be unable to receive the signal that the unit broadcasts. At bottom, then, beepers are mere aids for police officers already performing surveillance of a target vehicle. Unlike GPS trackers, beepers require that the police expend resources—time and manpower—to physically follow a target vehicle.
B. The Brothers Katzin
A spectre was haunting Delaware, Maryland, and New Jersey in 2009 and 2010—the three states had been hit by a wave of pharmacy burglaries, many of which affected Rite Aid pharmacies. The method used in the various crimes was largely consistent: in many cases, the alarm systems for the pharmacies would be disabled by cutting the external phone lines. The local police approached the FBI for help (collectively, “the police”) and the hunt was on.
By mid-May 2010, a suspect emerged: a local electrician named Harry Katzin. Not only had he recently been caught burglarizing a Rite Aid pharmacy, but he and his brothers—Mark and Michael—had criminal histories that included arrests for burglary and theft. Over the course of the following months, the joint state and federal investigation began receiving reports of seeing Harry Katzin around Rite Aid pharmacies throughout the three states. For example, in late October 2010, local police in Pennsylvania encountered Harry Katzin crouching beside some bushes outside of a Rite Aid after responding to reports of suspicious activity. The police did not arrest him, but discovered the next day that the phone lines to the pharmacy had been cut. The next month, Harry Katzin, along with one of his brothers and one other individual, was approached by the police as he sat outside of a different Rite Aid in his Dodge Caravan. After Harry Katzin consented to a search, the police discovered electrical tools, gloves, and ski masks. Harry Katzin explained that these were tools of the electrician's trade and the police allowed the men to leave. The telephone lines to this Rite Aid had also been cut. Soon thereafter, the police obtained footage of another recently burglarized Rite Aid showing that a vehicle similar to Harry Katzin's van had been parked outside for a long period of time. As the pieces began falling into place, the police proceeded with their next step: electronic tracking. The police knew that Harry Katzin regularly parked his van on a particular street in Philadelphia. Thus, in the early hours of a mid-December morning, after consulting with the United States Attorney's office, but without obtaining a warrant, the FBI affixed a “slap-on” GPS tracker to the exterior of Harry Katzin's van.
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 in a neighboring town. Through use of the device, the police could see that the van had been driven around the 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 on the move, 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 closest 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 of the van, the troopers 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.
All three brothers moved to suppress the evidence discovered in the van. The Government opposed the motions, arguing: (a) that a warrant was not required for use of the GPS device; (b) that the police had acted in good faith when installing the GPS device; and (c) that Mark and Michael lacked standing to challenge the GPS search and therefore could not move to suppress any of the evidence. The District Court held in favor of the brothers and suppressed all of the evidence found in the van. United States v. Katzin, No. 11–226, 2012 WL 1646894, *11 (E.D.Pa. May 9, 2012). This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction to hear this case pursuant to 18 U.S.C. § 3231; our jurisdiction stems from 18 U.S.C. § 3731. In reviewing a district court's ruling on a motion to suppress, “we review [the] court's factual findings for clear error, and we exercise de novo review over its application of the law to those factual findings.” United States v. Pavulak, 700 F.3d 651, 660 (3d Cir.2012) (citing United States v. Coles, 437 F.3d 361, 365 (3d Cir.2006)).
III. GPS SEARCHES AND THE WARRANT REQUIREMENT
The Fourth Amendment mandates that
[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. Prior to 1967, the Supreme Court of the United States interpreted this language generally to mean that the Fourth Amendment prevented the police from physically intruding upon an individual's private property for purposes of conducting a search (the physical intrusion theory). See United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949–50, 181 L.Ed.2d 911 (2012); see also, e.g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (upholding the warrantless wiretapping of a target's telephone lines primarily because “[t]here was no entry of the houses or offices of the defendants”), overruled in part by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).1 A change came in 1967 with the decision in Katz v. United States, which involved the warrantless wiretapping of a public phone booth. 389 U.S. 347, 88 S.Ct. 507. In Katz, the Court announced that the Fourth Amendment “protects people, not places,” id. at 351, 88 S.Ct. 507, a principle that eventually became embodied in what Justice Harlan termed an individual's “reasonable expectation of privacy” (the privacy theory), id. at 360–61, 88 S.Ct. 507 (Harlan, J., concurring). In subsequent years, the privacy theory became the driving force behind Fourth Amendment jurisprudence, while the physical intrusion theory lay dormant. See, e.g., United States v. Santillo, 507 F.2d 629, 632 (3d Cir.1975) (noting that “the trespassory concepts [in early Fourth Amendment jurisprudence] ․ have since been discredited” (footnotes omitted) (citing Katz, 389 U.S. at 352–53, 88 S.Ct. 507)).
A. Beepers, GPS Devices, and the Fourth Amendment
It was in this context that courts began grappling with the constitutionality of using tracking devices. For purposes of our discussion, we begin with the Fifth Circuit's 1981 decision in United States v. Michael, 645 F.2d 252 (5th Cir.1981) (en banc), which considered the warrantless use of a beeper for surveillance of a suspected drug manufacturer. In Michael, the court assumed that installation of the beeper on the exterior of a van constituted a search before holding that the DEA agents' conduct was constitutional since they acted based on reasonable suspicion. Id. at 256–59 (holding that defendant had “reduced” privacy expectations in the movement of his automobile and that the use of a beeper was minimally intrusive). A pair of dissenting opinions argued that, among other things, the DEA agents were required to obtain a warrant because they physically intruded upon the defendant's property (i.e., his car). See, e.g., id. at 260–70 (Tate, J., dissenting).
Two years later, the Supreme Court took up the beeper issue, ultimately holding that concealing a beeper inside of a container that was then loaded onto a target's vehicle did not constitute a search, where the beeper's placement was accomplished with the container owner's consent. United States v. Knotts, 460 U.S. 276, 279–80, 285, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In so doing, the Supreme Court explained that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. 1081. Nonetheless, the Court's ruling was not unequivocal, with the Majority cautioning that twenty-four hour, “dragnet type law enforcement practices” could implicate “different constitutional principles.” Id. at 283–84, 103 S.Ct. 1081.
The Supreme Court returned to beepers the following year when it decided United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), which centered on the DEA's use of a beeper to collect information regarding the whereabouts of objects inside a private residence. In Karo, the DEA had once again secreted a beeper inside of a container—also with the container owner's consent—and ensured that the container would be loaded into the target's vehicle. Id. at 708–09, 104 S.Ct. 3296. The agents then used the beeper to track the vehicle to various locations and determined that the beeper-concealing container had been brought inside several residences (something that they could not verify with visual surveillance). Id. at 709–10, 104 S.Ct. 3296. In holding that use of the beeper was unconstitutional under those circumstances, the Court explained that, unlike in Knotts—where information was “voluntarily conveyed to anyone who wanted to look”—the information obtained by monitoring the beeper while inside a private residence gave the DEA information “that could not have been visually verified.” Id. at 715, 104 S.Ct. 3296 (internal quotation marks omitted). In a partial dissent, Justice Stevens (joined by Justices Brennan and Marshall) argued that placing the beeper inside a container, which was then loaded into the target's vehicle, implicated both a “seizure and a search within the meaning of the Fourth Amendment.” Id. at 728, 104 S.Ct. 3296 (Stevens, J., dissenting in part).
After the beeper-centered decisions in Michael, Knotts, and Karo, technological advances heralded the advent of a new electronic surveillance device: the GPS tracker. One of the first decisions to address the constitutionality of this new technology was United States v. McIver, 186 F.3d 1119 (9th Cir.1999). In McIver, the Ninth Circuit rejected defendant's argument that installing a GPS device (along with a beeper) on the “undercarriage of [the defendant's automobile]” constituted a “seizure of the vehicle.” Id. at 1127 (“McIver did not present any evidence that the placement of the magnetized tracking devices deprived him of dominion and control of his [vehicle], nor did he demonstrate that the presence of these objects caused any damage to the electronic components of the vehicle.”). The court also concluded that, because McIver could demonstrate no reasonable expectation of privacy in the exposed undercarriage of his car, the use of the electronic devices did not constitute a search under the Fourth Amendment. Id. at 1126–27.
The Seventh Circuit followed suit in 2007, with Judge Posner explaining that attaching a GPS device to a target vehicle did not constitute a search because such a device merely substitutes for “following a car on a public street,” an activity that “is unequivocally not a search within the meaning of the [Fourth Amendment].” United States v. Garcia, 474 F.3d 994, 997 (7th Cir.2007). However, echoing the Supreme Court's concerns in Knotts, the Seventh Circuit warned that it might need to reevaluate its conclusion if faced with a case concerning use of GPS technology for mass surveillance. Id. at 998.
Three years later, the Ninth Circuit returned to the topic of GPS tracking, reaffirming its conclusion that attaching a GPS tracker to the undercarriage of a vehicle did not constitute a search. United States v. Pineda–Moreno, 591 F.3d 1212, 1214–15 (9th Cir.2010). The appellant filed a petition for rehearing en banc, and though the Ninth Circuit denied the petition, Chief Judge Kozinski issued a fiery dissent from the denial, accusing the Pineda–Moreno majority of being “inclined to refuse nothing” to the needs of law enforcement. United States v. Pineda–Moreno, 617 F.3d 1120, 1121 (9th Cir.2010) (Kozinski, C.J., dissenting). In his dissent, the Chief Judge noted that GPS devices “have little in common with the primitive devices in Knotts,” in part because, unlike GPS devices, beepers “still require [ ] at least one officer—and usually many more—to follow the suspect.” Id. at 1124. Thus, the dissent noted, while “[y]ou can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed,” there is “no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, and never lose attention.” Id. at 1126.
That same year, the Eighth Circuit became the third of our sister courts to say that attaching a GPS device to a target car was not a constitutional violation. United States v. Marquez, 605 F.3d 604, 609–10 (8th Cir.2010). While the Marquez court based its ruling on standing grounds, it still announced—albeit in dicta—that “[w]hen electronic monitoring does not invade upon a legitimate expectation of privacy, no search has occurred.” Id. at 609 (“A person traveling via automobile on public streets has no reasonable expectation of privacy in his movements from one locale to another.” (citing Knotts, 460 U.S. at 281, 103 S.Ct. 1081)).
Later that year, the D.C. Circuit split from our sisters, holding that attaching a GPS device to a defendant's vehicle constituted a search under the Fourth Amendment that required the police to obtain a warrant. United States v. Maynard, 615 F.3d 544 (D.C.Cir.2010). In so doing, the court rejected the Knotts-based argument that a driver's movements are exposed to the public and therefore do not constitute information shielded by the Fourth Amendment. Id. at 560 (“[W]e hold the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”). At the same time, the court in Maynard rejected the applicability of the automobile exception to the warrant requirement, holding that while the exception “permits the police to search a car without a warrant if they have reason to believe it contains contraband[, it] ․ does not authorize them to install a tracking device on a car without the approval of a neutral magistrate.” Id. at 567. A year later, the Supreme Court granted certiorari, changing the name to United States v. Jones, ––– U.S. ––––, 131 S.Ct. 3064, 180 L.Ed.2d 885 (2011).
In reviewing the Maynard decision (now called Jones ), the Supreme Court held that magnetically attaching a GPS device to a suspect's automobile constituted a search for purposes of the Fourth Amendment. Jones, 132 S.Ct. at 949. Rather than focusing on whether the owner of the vehicle had a reasonable expectation of privacy while driving the car over public streets, the Court (with Justice Scalia writing for the majority) concluded that attaching a GPS device to a target car constituted a physical intrusion upon the vehicle owner's private property. Id. (“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.”).
Justice Alito concurred in the judgment, but did not join the majority's opinion. Id. at 957 (Alito, J., concurring). In his opinion—joined by Justices Ginsburg, Breyer, and Kagan—the appropriate Fourth Amendment analysis was the “reasonable expectation of privacy” inquiry under Katz. The outcome would be no different if the Court had applied Katz, the concurrence argued, because “society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period” of time. Id. at 964.
Justice Sotomayor, who joined the majority, also filed a concurrence. Id. at 954 (Sotomayor, J., concurring). And while she agreed with portions of Justice Alito's reasoning, she nonetheless rebuked the concurring Justices for potentially countermanding an “irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.” Id. at 955. Moreover, Justice Sotomayor argued that GPS devices present law-enforcement agencies with a low-cost, low-resource method of tracking citizens. As such, even short-term surveillance constituted an impermissible search under the Fourth Amendment. Id. at 955–57 (calling, also, for potentially reassessing the privacy interests individuals enjoy in information disclosed to third parties so as to account for the new realities of the digital age).
Among the issues that Jones left open, however, was whether warrantless use of GPS devices would be “reasonable—and thus lawful—under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause” to execute such searches. Id. at 954 (citation and internal quotation marks omitted). The instant case squarely presents this very issue for our consideration.2 We therefore turn now to a consideration of the Fourth Amendment's warrant requirement and the various—albeit circumscribed—exceptions thereto.
B. The Warrant Requirement and Its Exceptions
The Fourth Amendment does not protect individuals from all searches, just unreasonable ones. Indeed, as the Supreme Court has noted: “[T]he ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). “[W]hether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 652–53, 115 S.Ct. 2386 (internal quotation marks omitted). Under this “general ․ approach,” courts look to the “totality of the circumstances” in performing this balancing test. United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (internal quotation marks omitted).
More often than not, courts “strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment.” Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Thus, “[i]t remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” United States v. Harrison, 689 F.3d 301, 306 (3d Cir.2012) (internal quotation marks omitted). This protection applies to both “ ‘houses' and ‘effects,’ ” barring the presence of some “ ‘exceptional circumstances' ” that would permit an exception. See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)).
We therefore begin with the following observation: 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. In Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), the police, acting without a warrant, had surreptitiously driven a “spike mic” (a long spike capable of picking up sound) through the wall of a neighboring house and into the heating duct of the defendant's home. Id. at 506–07, 81 S.Ct. 679. The Court proclaimed this to be “beyond the pale of even those decisions in which a closely divided Court has held that eavesdropping accomplished by other than electronic means did not amount to an invasion of Fourth Amendment rights.” Id. at 509–10, 81 S.Ct. 679; id. at 511–12, 81 S.Ct. 679 (“This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.” (emphasis added)). While the Fourth Amendment recognizes a difference between the invasion of a “store, dwelling house, or other structure ․ of which a ․ warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile ․ where it is not practicable to secure a warrant,” that difference, on its own, still mandates that a warrantless search of a car be based on probable cause—and, even then, only in a highly circumscribed universe of cases. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925).3
We thus have no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court has compared to “a constable's concealing himself in the target's coach in order to track its movements.” Jones, 132 S.Ct. at 950 n. 3. In the following section, therefore, we analyze whether any additional considerations weigh in favor of finding warrantless GPS searches to be reasonable.
1. Valid, Warrantless Searches Based on Less than Probable Cause
The Government first argues that the warrantless use of a GPS device in this case constitutes a reasonable search because the police action was based on reasonable suspicion.4 In service of this argument, the Government posits that “[s]ince Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court has identified various law enforcement actions that qualify as Fourth Amendment searches or seizures, but that may nevertheless be conducted without a warrant or probable cause.” (Appellant Br. at 23.) This is true. The Government cites to three general categories of cases that permit warrantless searches based on less than probable cause: “special needs” cases, decisions addressing circumstances in which individuals have lessened privacy interests, and the progeny of Terry v. Ohio. We consider each category in turn and find that none apply to the instant matter.
a. The “Special Needs” Cases
As the Supreme Court has explained: “We have recognized exceptions to th[e Warrant Clause] when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Skinner, 489 U.S. at 619–20, 109 S.Ct. 1402 (internal quotation marks omitted) (collecting cases). Thus, so long as the “primary purpose” is not to “uncover evidence of ordinary criminal wrongdoing,” City of Indianapolis v. Edmond, 531 U.S. 32, 42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), courts should “balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context,” Skinner, 489 U.S. at 619, 109 S.Ct. 1402. See also United States v. Ward, 131 F.3d 335, 342 (3d Cir.1997). Such “special needs” cases, many of which permit searches without any particularized suspicion, constitute a “closely guarded category” of Fourth Amendment jurisprudence. Ferguson v. City of Charleston, 532 U.S. 67, 77, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (internal quotation marks omitted).
In the instant case, the reasoning behind the “special needs” doctrine is inapposite. The Government cannot articulate a particularized interest, other than a generalized interest in law enforcement. Indeed, the Government contends that if officers are required to obtain a warrant and have probable cause prior to executing a GPS search, “officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.” (Appellant Br. at 27 (emphasis added).) This statement—which wags the dog rather vigorously—runs headlong into Ferguson 's admonition that, to qualify for a “special needs” exception, the primary purpose of a search cannot be to “generate evidence for law enforcement purposes.” 532 U.S. at 83, 121 S.Ct. 1281 (emphasis omitted); Edmond, 531 U.S. at 48, 121 S.Ct. 447 (finding that a search did not qualify under the “special needs” doctrine where the “primary purpose of the [search] is ultimately indistinguishable from the general interest in crime control”).5
b. Cases of Diminished Privacy Expectations
Still, the “special needs” cases are not the only decisions to permit warrantless searches based on less than probable cause. The Government also cites a number of cases that address situations where the targets of a search enjoyed a lower expectation of privacy.6 See, e.g., United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (“When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.”). We do not think such reasoning is applicable to this case.
The police executed a GPS search against an individual—Harry Katzin—who, at least when the police attached the GPS device, enjoyed the full breadth of privacy interests owed to him under the Constitution. That the search was executed on a car is, likewise, unpersuasive. While the Supreme Court has acknowledged that individuals enjoy a lowered expectation of privacy in their cars, United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), absent circumstances that are not present in this case, the police must still have probable cause, Acevedo, 500 U.S. at 579–80, 111 S.Ct. 1982.
c. Terry and Its Progeny
In no small part, the Government argues that the warrantless use of slap-on GPS devices is permissible based on reasonable suspicion under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In Terry, the Supreme Court held that a police officer could “stop” an individual on the street for questioning and then “frisk” him to ascertain whether the individual was carrying weapons. Terry, 392 U.S. at 22–27, 88 S.Ct. 1868. More specifically, the Court held that a warrantless search—the stop—was permissible when based on less than probable cause if the “police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Id. at 30, 88 S.Ct. 1868. As for the search—the frisk—the Court explained that a search was permitted when the officer reasonably believed that “the person[ ] with whom he is dealing may be armed and presently dangerous ․ and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety.” Id. Such a search, given that it is performed without probable cause, “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search.” Id. at 26, 88 S.Ct. 1868. The Terry framework has since expanded to include situations where, for example, an automobile has been stopped. See, e.g., Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Yamba, 506 F.3d 251 (3d Cir.2007).
We find Terry and its progeny to be inapposite in this situation. While the frisk in Terry involved a pat-down of an individual, that search was limited to a specific instance in time (and limited to ascertaining whether the individual was armed or otherwise posed a danger to officer safety). A GPS search, in contrast, is an ongoing, vastly broader endeavor.7 Cf. Berger v. New York, 388 U.S. 41, 59, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (noting that “eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures”). Over the course of the GPS tracker's operation, the device 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 (Sotomayor, J., concurring).8
Ultimately, we disagree with the Government's arguments advocating a “reasonable suspicion” standard. While the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect. We are hard pressed to say, therefore, that the police can—without warrant or probable cause—embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizen's private property. Consequently, we hold that—absent some highly specific circumstances not present in this case—the police cannot justify a warrantless GPS search with reasonable suspicion alone.9
2. Valid, Warrantless Searches Based on Probable Cause
As an alternative, the Government suggests that warrantless GPS searches can be constitutional if the police have probable cause, pointing principally to a line of cases addressing the “automobile exception” to the warrant requirement.10 We do not agree.11
Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant. See Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); see also Johnson, 333 U.S. at 14, 68 S.Ct. 367 (“Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.”). However, under the “automobile exception,” we permit “warrantless searches of any part of a vehicle that may conceal evidence ․ where there is probable cause to believe that the vehicle contains evidence of a crime.” United States v. McGlory, 968 F.2d 309, 343 (3d Cir.1992) (internal quotation marks omitted); see also United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (“If probable cause justifies the search ․, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”); United States v. Burton, 288 F.3d 91, 100 (3d Cir.2002) (holding that warrantless searches of an automobile are permitted if “probable cause exists to believe it contains contraband” (internal quotation marks omitted)). That said, the Supreme Court has recognized that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461–62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (discussing the automobile exception in the context of exigent circumstances).12 Indeed, the automobile exception does not validate all warrantless automobile searches, but instead is “unquestionably [a] specifically established and well delineated” exception. Ross, 456 U.S. at 824, 102 S.Ct. 2157 (internal quotation marks omitted). Thus, “ ‘[t]he scope of a warrantless search of an automobile ․ is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ ” Acevedo, 500 U.S. at 579–80, 111 S.Ct. 1982 (quoting United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).
We hold that the automobile exception is inapplicable here. The key distinction in this case is the type of search at issue. While the Supreme Court has stated that the automobile exception permits a search that is “no broader and no narrower than a magistrate could legitimately authorize by warrant,” Ross, 456 U.S. at 825, 102 S.Ct. 2157, the search is still limited to a discreet moment in time. For example, the exception permits the police to enter upon and search a vehicle to ascertain whether it indeed contains the evidence that they suspect is inside. Thus, assuming—as we said we would—that the police had probable cause to believe that Harry Katzin's van contained some form of contraband, they would have been justified in entering “any part of [the] vehicle that may conceal evidence.” McGlory, 968 F.2d at 343 (emphasis added). Attaching and monitoring a GPS tracker is different: It creates a continuous police presence for the purpose of discovering evidence that may come into existence and/or be placed within the vehicle at some point in the future.
It is no argument, then, to say that a GPS search presents the type of circumstances that usually trigger the automobile exception. It does not. While the police are still physically intruding into a target vehicle for evidence-gathering purposes, a GPS search extends the police intrusion well past the time it would normally take officers to enter a target vehicle and locate, extract, or examine the then-existing evidence.13 For similar reasons, the case in favor of applying the automobile exception fares no better if we look to the “ready mobility” of the target vehicle. Burton, 288 F.3d at 100 (“[T]he ‘ready mobility’ of automobiles permits their search based only on probable cause.”); see also Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (noting that “the automobile does not have a separate exigency requirement,” partly because vehicles are “readily mobile”). Simply put: attaching and monitoring a GPS tracker does not serve the purposes animating the automobile exception. As has already been said: the automobile exception permits the police to intrude into a vehicle to retrieve or examine then-existing evidence. A GPS search does not deal with existing evidence, but with future evidence that the police suspect could come into being. That is a worthy goal, to be sure, but it cannot absolve law enforcement personnel of the warrant requirement. As the Government points out, the Supreme Court's automobile exception decisions are “ ‘based on the practicalities of the situations presented.’ ” (Appellant Br. at 40 (quoting Ross, 456 U.S. at 807 n. 9, 102 S.Ct. 2157).) However, the Government seems to overlook that the power to create an ongoing, near-invisible police presence via a GPS tracker skews the “realistic appraisal of the ․ protection that a contrary rule would provide” from the “relatively minor” to the decidedly major. (Id. (discussing protection for “privacy interests”).)
Additionally, we think that the “pervasive regulation of vehicles capable of traveling on the public roadways” is of no moment for purposes of the instant case. California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). True, such pervasive regulation gave rise to the understanding that an individual is “accorded less privacy in [his] automobile [ ].” Id. Indeed, this principle animated the Supreme Court's statement that “[e]ven in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception.” Id. at 391, 105 S.Ct. 2066. Nevertheless, we still hold that a GPS search is sufficiently different from the type of search sanctioned by the automobile exception jurisprudence—and that, as a consequence, even the extensive scheme of regulation now affecting motorists does not permit the government to dispense with asking for permission from a neutral magistrate when seeking to physically intrude upon a target vehicle for longer than is necessary to locate, remove, and/or verify the presence of already-existing evidence of criminal wrongdoing. Cf. Delaware v. Prouse, 440 U.S. 648, 662–63, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (noting, in the context of Terry stops, that “[w]ere the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed”).14
Ultimately, in executing a GPS search, the police were not attempting to recover or ascertain the presence of evidence already present in Harry Katzin's vehicle. If they were, the automobile exception would have sanctioned their search in so far as it allowed them to enter Harry Katzin's van and retrieve and/or verify the presence or absence of the sought-after evidence. It would not (and, indeed, did not) permit them to leave behind an ever-watchful electronic sentinel in order to collect future evidence. Were we to hold otherwise, we would unduly expand the scope of the automobile exception well past its “specifically established and well delineated” contours, Ross, 456 U.S. at 824, 102 S.Ct. 2157, permitting the police to intrude indefinitely upon a target vehicle based solely on the prospect that it will, in the future, contain some contraband or be used during the commission of a crime.
For these reasons we hold that the warrantless search in this case was not justifiable based solely on reasonable suspicion or probable cause, was thereby unreasonable, and consequently violated the Fourth Amendment.
IV. The Exclusionary Rule & the Good Faith Exception
Having held that the police were required to obtain a warrant prior to executing their GPS search of Harry Katzin's van, we now consider whether the evidence uncovered as a result of their unconstitutional actions should be suppressed. We hold that it should.
A. Exclusionary Rule Jurisprudence
While the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[, it] says nothing about suppressing evidence obtained in violation of this command.” Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (internal quotation marks omitted). Nevertheless, to “compel respect for the constitutional guaranty,” the Supreme Court created the exclusionary rule. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The rule mandates that evidence obtained in violation of the Fourth Amendment should not be available at trial. Herring v. United States, 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). However, “that a Fourth Amendment violation occurred ․ does not necessarily mean that the exclusionary rule applies.” Id. at 140, 129 S.Ct. 695.
As the Supreme Court has made plain, “exclusion has always been our last resort, not our first impulse.” Id. (internal quotation marks omitted). To that end, the Supreme Court has recognized the existence of a “good faith” exception to the exclusionary rule in cases where the police “act[ed] with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427 (internal quotation marks omitted).15 More specifically, the Supreme Court has held this exception to cover situations where law enforcement personnel have acted in objectively reasonable reliance on some seemingly immutable authority or information that justifies their course of action. See Davis, 131 S.Ct. 2419 (later-reversed binding appellate precedent); Herring, 555 U.S. 135, 129 S.Ct. 695 (undiscovered error in police-maintained database); Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (undiscovered error in court-maintained database); Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (subsequently overturned statute); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (later-invalidated warrant).
To determine whether a particular situation is covered under this good faith exception, the Supreme Court has directed courts to consider whether exclusion would serve “to deter future Fourth Amendment violations.” Davis, 131 S.Ct. at 2426; see also Leon, 468 U.S. at 918, 104 S.Ct. 3405 (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, ․ it must alter the behavior of individual law enforcement officers or the policies of their departments.”). Thus, in analyzing whether the good faith exception applies, the Court balances “the benefits of the rule's deterrent effects against the costs of exclusion, which include ‘letting guilty and possibly dangerous defendants go free.’ ” United States v. Tracey, 597 F.3d 140, 151 (3d Cir.2010) (quoting Herring, 555 U.S. at 141, 129 S.Ct. 695).
When considering the benefits gained from deterrence, we must necessarily consider the nature and culpability of the police conduct at issue. As the Supreme Court has explained, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144, 129 S.Ct. 695; Davis, 131 S.Ct. at 2429 (cautioning courts not to discourage “the officer from doing his duty” (alteration and internal quotation marks omitted)). Thus, “we apply the rule when police conduct is ‘deliberate, reckless, or grossly negligent,’ or when it will deter ‘recurring or systemic negligence.’ ” Tracey, 597 F.3d at 151 (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695). On the other hand, isolated or attenuated acts of negligence do not warrant the rule's application. Id.
In light of these principles, the Government argues that the police conduct at issue in this case does not rise to the level of culpability necessary for the exclusionary rule to apply and that, as a consequence, the balancing test outlined in Herring and Davis militates in favor of applying the good faith exception. In service of its argument, the Government urges that the police acted with an objectively reasonable good faith belief that their conduct was constitutional because “[b]efore Jones, every court of appeals to consider the question[, with the exception of one,] had concluded that, in light of the Supreme Court's decision in [Knotts ], police did not need to obtain a warrant to install a GPS tracking device on the exterior of a vehicle or to use that device to monitor the vehicle's movements on public roads.” (Appellant Br. at 48–49.) Indeed, the Government posits that this “consensus” among our sister circuits, coupled with the “guidance in Knotts and Katz,” absolves law enforcement personnel for purposes of the exclusionary rule. (Id. at 50, 55 n. 21; Oral Argument Tr. at 23.) We find the Government's position unpersuasive and therefore hold that the good faith exception does not apply here.
B. Reliance on Beeper Cases
The Government posits that law enforcement personnel acted in good faith because they relied on, among other things, the Supreme Court's “guidance” from Knotts that using an electronic tracking device does not violate the Fourth Amendment. (Appellant Br. at 55 n. 21.) Indeed, the Government observes that the reasoning from Knotts underpins the decision of “every court of appeals to consider” GPS tracking (save the D.C. Circuit). (Id. at 48–49.) We first ask ourselves, therefore, whether the Knotts decision—along with its sibling case, Karo—qualifies as binding precedent under Davis v. United States, wherein the Supreme Court held that the good faith exception covers police officers acting in reliance on later-invalidated binding appellate precedent. 131 S.Ct. 2419. As the forthcoming discussion demonstrates, we find that the explicit holding from Davis is inapposite because Knotts and Karo are both distinguishable given (1) the lack of a physical intrusion in those cases, (2) the placement by police of the beepers inside containers, and (3) the marked technological differences between beepers and GPS trackers.
In Davis, the police had executed a search of the defendant's car subsequent to his arrest. At the time of the search, prevailing Supreme Court and Eleventh Circuit precedent held that the police could lawfully search a suspect's car incident to his arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Gonzalez, 71 F.3d 819 (11th Cir.1996). The defendant unsuccessfully challenged the search. While the defendant's appeal was pending, the Supreme Court limited Belton, effectively restricting the areas of the car that the police were allowed to search after a suspect's arrest. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In deciding Davis, the Supreme Court reasoned that “[r]esponsible law-enforcement officers will take care to learn what is required of them under Fourth Amendment precedent and will conform their conduct to these rules.” 131 S.Ct. at 2429 (internal quotation marks omitted). According to the Court, the police in Davis merely behaved as “reasonable officer[s] would and should act.” Id. (internal quotation marks omitted). Consequently, the Court found that “[t]he deterrent effect of exclusion in such a case can only be to discourage the officer from do[ing] his duty,” which was not “the kind of deterrence the exclusionary rule seeks to foster.” Id. (internal quotation marks omitted). Ultimately, therefore, the Court deemed that the police in Davis were covered by the good faith exception to the exclusionary rule and evidence recovered pursuant to the search was not suppressed. Id.
Of great significance to the instant case is the fact that in Davis the police relied on binding appellate precedent that “specifically authorize [d the] particular police practice.” Id. at 2429 (first emphasis added). Indeed, as Justice Sotomayor noted in her concurrence, Davis did not “present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled.” Id. at 2435 (Sotomayor, J., concurring).16 By its plain terms, therefore, the express holding in Davis is inapposite to this case because Knotts and Karo do not qualify as appropriate binding appellate precedent: Neither case involved a physical trespass onto the target vehicle; in both cases the police placed the beeper inside of a container which was then loaded into the target vehicle by the driver (all with the container owner's permission). See Karo, 468 U.S. at 708, 104 S.Ct. 3296; Knotts, 460 U.S. at 278, 103 S.Ct. 1081. Additionally, both Karo and Knotts addressed the use of beepers, which—as we have already explained—are markedly different from GPS trackers. See Maynard, 615 F.3d at 556–57.
Davis extends good faith protection only to acts that are explicitly sanctioned by clear and well-settled precedent, and neither Knotts nor Karo sanction the type of intrusion at issue in this case. Consequently, we hold that law enforcement's reliance on the beeper cases, standing on its own, cannot sufficiently insulates the GPS search in this case from the exclusionary rule.
C. Reliance on Out–of–Circuit GPS Cases
We therefore consider the Government's contention that the good faith exception applies because the police acted in objectively reasonable reliance on out-of-circuit precedent sanctioning warrantless GPS surveillance. (Appellant Br. at 15–16 (“Before [Jones ], all but one of the courts of appeals to have addressed the issue had approved the warrantless installation and monitoring of a GPS device on a vehicle․ [T]he agents' reliance on this body of case law was objectively reasonable․”).) And while the Government relies, in no small part, on the reasoning in Davis for support, we think that reading Davis so broadly would strain its reasoning, to say nothing of its holding.17
The Davis decision hinged on the understanding that “[r]esponsible law-enforcement officers will take care to learn what is required of them under Fourth Amendment precedent and will conform their conduct to these rules.” Id. (internal quotation marks omitted). At the most basic level, then, the applicable body of “Fourth Amendment precedent” to which the responsible officer must conform consists of those decisions that are binding on the officer's jurisdiction. Accord Hudson v. Michigan, 547 U.S. 586, 599, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (noting that officers are expected to learn and abide by “what is required of them” by courts having jurisdiction over them).
Thus, as already stated, the Court in Davis recognized that the good faith exception applies to situations where the police “conducted a search in objectively reasonable reliance on binding appellate precedent,” 131 S.Ct. at 2434, because “[t]he deterrent effect ․ in such a case can only be to discourage the officer from do[ing] his duty,” which was not “the kind of deterrence the exclusionary rule seeks to foster,” id. at 2429 (internal quotation marks omitted). The same cannot be said where the law is unsettled in a particular jurisdiction, even where persuasive authority may exist in the form of decisions by other circuit courts.
Indeed, extending the rationale from Davis to cover reliance on out-of-circuit precedent would turn this principle on its head: Though our first and last word on the matter is that warrantless GPS searches are unconstitutional, in effect the Government argues that our sister circuits' decisions should control whether the evidence is excluded. This rule would eviscerate the notion that clear and well-settled precedent should control and thus contradicts the basic principles of stare decisis. We respect our sister circuits, but their decisions cannot dictate our conclusions. As such, any law enforcement officer who acts primarily in reliance on the Fourth Amendment proclamations of our sister circuits does so at his own peril for purposes of the exclusionary rule.
This is particularly true where, as in this case, our sister circuits are split on the relevant issue. The GPS search of Harry Katzin's van occurred in late 2010. By that time, four of our sister circuits—the Seventh, Eighth, Ninth, and D.C. Circuits—had addressed GPS surveillance. Of those, three circuits had held that GPS surveillance either did not constitute a search or, even if it did, that the police did not require a warrant. See McIver, 186 F.3d 1119; Garcia, 474 F.3d 994; Pineda–Moreno, 591 F.3d 1212; Marquez, 605 F.3d 604.
At the same time, the D.C. Circuit had held in United States v. Maynard (which became Jones on appeal to the Supreme Court) that GPS surveillance did constitute a search and that the police did require a warrant. Maynard, 615 F.3d 544. At bottom, then, the Government seems to argue that reliance on a majority of a minority of our sister circuits is sufficient to escape the exclusionary rule. This cannot be. Although we find it commendable that law enforcement personnel would take the time to pore over out-of-circuit decisions relating to police procedures, it is not their duty for purposes of the exclusionary rule to parse and weigh the decisions of our sister circuits in an attempt to predict what this Court (or even the Supreme Court) would say if faced with a similar case.18
Moreover, we cannot burden district courts with the type of case-by-case assessment that the Government's position would require. Unlike the archetypal situations in Leon or Davis, finding that the good faith exception applies in this case would, of necessity, require courts ruling on suppression motions to discern what amounts to sufficient out-of-circuit authority for purposes of an objectively reasonable good faith belief. Thus, district courts would need to consider how many circuits had addressed the police practice in question, what each one had said, whether the statements were mere dicta, and myriad other factors. Such an approach has no limiting principle and defies rational application. Surely police reliance on a single out-of-circuit decision could not support good faith, but what about two? If the circuits split two-to-one, that would present yet another problem. And what if our sister courts had all ruled in near-unanimity on a point, with one stalwart (perhaps, highly persuasive) holdout? Is the presence of good faith to be decided with an abacus or does the strength of each court's argument bear consideration? Because we foresee that it could lead to a sprawling, amorphous, and self-contradicting doctrine, we decline to adopt the Government's position and hold that reliance on out-of-circuit precedent (even where there is a so-called “consensus”) cannot, in and of itself, support application of the good faith exception.19
D. Exclusion based on Culpability and Deterrence
Up to this point we have considered only whether reliance by law enforcement personnel on out-of-circuit or distinguishable authority, by itself, suffices for purposes of the good faith exception. Per the previous discussion, we hold that such reliance is insufficient to support a per se finding of good faith.20 The Supreme Court in Herring and Davis, however, recognized that the good faith exception inquiry requires more. That is, in determining whether law enforcement personnel acted “with an objectively ‘reasonable good-faith belief that their conduct [was] lawful,” we must consider whether the totality of circumstances is greater than the sum of its attendant parts. See Davis, 131 S.Ct. at 2427 (quoting Leon, 468 U.S. at 909, 104 S.Ct. 3405). We therefore undertake the balancing test outlined in Herring and Davis, and ask whether—in light of all the circumstances—the police activity in this case rises to the level of a “deliberate, reckless, or grossly negligent” violation of the Fourth Amendment. See Herring, 555 U.S. at 144, 129 S.Ct. 695; Tracey, 597 F.3d at 151. We hold that it does.
Per the Government's argument, the legal landscape in this case predominantly consisted of the out-of-circuit GPS cases, the Supreme Court's beeper decisions, and the overarching privacy expectation framework for Fourth Amendment analysis adopted in Katz and deemed to be the sole rubric for analysis until Jones.21 (See, e.g., Appellant Br. at 44, 50, 55 n. 21; Oral Argument Tr. at 23.) Taken together, the Government contends, these sources of legal authority would lead a reasonable law enforcement officer to conclude that he was acting within the confines of the constitution when attaching a GPS tracker to the undercarriage of Harry Katzin's van. We find that, on balance, this collection of authority does not warrant applying the good faith exception. Try as we might to allay our concerns, we remain supremely discomfited by the lack of binding appellate guidance underlying the police action at issue in this case. Therefore, we hold that the police acted with sufficient constitutional culpability to require exclusion and, more importantly, that suppression in this case would help deter future Fourth Amendment violations.
Law enforcement personnel can rightly rely on a number of sources for Fourth Amendment guidance—including on-point decisions by the Supreme Court and this Circuit, warrants, and statutes. We, both as a Court and as a society, expect that law enforcement officers will consult these sources—it is a part of how we expect reasonable officers to act. Davis, 131 S.Ct. at 2429. Deterring such activity, therefore, would not serve the purposes of the exclusionary rule. Id. This case, as we have just mentioned, is different. Nothing in a law enforcement officer's duties forces him to either rely on non-binding precedent or to conduct the Fourth Amendment calculus himself by extrapolating from, or analogizing to, existing case law. 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.
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. Indeed, the police embarked on a long-term surveillance project using technology that allowed them to monitor a target vehicle's movements using only a laptop, all before either this Circuit or the Supreme Court had spoken on the constitutional propriety of such an endeavor. (That the surveillance lasted only a few days is mere coincidence.22 ) True, the police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional situation is nonetheless troubling: In lieu of a binding proclamation from either this Circuit or the Supreme Court—and instead of seeking approval from a neutral magistrate—law enforcement personnel looked to other (non-binding or distinguishable) authorities like our sister circuits' decisions. Essentially, they extrapolated their own constitutional rule and applied it to this case. We fail to see how this absolves their behavior. The assumption by law enforcement personnel that their own self-derived rule sanctioned their conduct—to say nothing of their unstated belief that this Circuit would automatically side with a majority of the minority of our sister circuits—was constitutionally culpable.23
The decisions in Knotts and Katz do not remedy the situation. The Government suggests that in this case law enforcement personnel properly reasoned that the GPS search did not require a warrant by analogizing to Knotts ' discussion of electronic tracking devices. Doing so, the Government adds, was imminently reasonable given the prevailing Fourth Amendment framework at the time—the privacy theory from Katz. That is, the Government contends that because law enforcement personnel were aware that a search occurs when the police intrude upon a target's reasonable expectation of privacy, they acted in good faith by relying on our sister circuits' GPS decisions as well as Knotts ' statement that, among other things, “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, 460 U.S. at 281, 103 S.Ct. 1081. We find such reasoning dangerous for the reasons already articulated above: Law enforcement can always derive some constitutional principle from existing decisions—which is particularly true when they also look directly to a generalized baseline case like Katz. It cannot be that the good faith exception applies in every instance when the police act in reliance on such a self-derived principle. If it did, then all Fourth Amendment protections would be rendered ineffective—the police could intrude upon anyone's Fourth Amendment rights without fear of suppression merely by relying on a particularly broad-sweeping, self-derived constitutional principle. We fear that accepting the Government's position, in effect, would lead to the good faith exception swallowing the exclusionary rule.24
Moreover, since such constitutionally reckless action was the Government's default choice in this case, we hold that applying the exclusionary rule aptly serves its intended purpose: to “deter future Fourth Amendment violations.” Davis, 131 S.Ct. at 2426; see also id. at 2435 (Sotomayor, J., concurring) (“[W]hen police decide to conduct a search or seizure in the absence of case law (or other authority) specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations․”). The police practice at issue here effectively disregarded the possibility that we could find a GPS search to constitute a Fourth Amendment violation requiring a warrant. But a Fourth Amendment violation is a Fourth Amendment violation. While the police may feel free to act with impunity, confident in the illusory protection of non-binding precedent, each search could still be violating the Constitution. Thus, where we have not yet ruled on the constitutionality of a police tactic, law enforcement personnel have two choices: (a) assume that their conduct violates the Fourth Amendment and that we will require them to obtain a warrant, or (b) gamble, at the risk of having evidence excluded, that we will find no Fourth Amendment violation in a particular situation.25 This is in line with the Supreme Court's suggestion that law enforcement officials should be incentivized to “err on the side of constitutional behavior.” United States v. Johnson, 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).26 Excluding the evidence in this case would incentivize just that and would therefore result in “appreciable deterrence” of future Fourth Amendment violations. Leon, 468 U.S. at 909, 104 S.Ct. 3405 (internal quotation marks omitted).
Thus, heeding the Supreme Court's views in Herring and Davis, and after considering the Government's various arguments, we find that the “deterrent effect of suppression [in this case is] substantial and outweigh[s] any harm to the justice system.” Herring, 555 U.S. at 147, 129 S.Ct. 695. The police acted in the face of unsettled law at a time when courts were becoming more attuned to the argument that warrantless GPS surveillance violated the Fourth Amendment. Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations. We therefore conclude that the police actions taken here do not qualify under the good faith exception and hold that the exclusionary rule should apply in this case.27
V. STANDING AND THE KATZIN BROTHERS
Fourth Amendment rights are personal rights, and a defendant seeking to suppress evidence must therefore demonstrate a violation of his own Fourth Amendment rights before he can be granted any form of relief. See Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); United States v. Mosley, 454 F.3d 249, 253 (3d Cir.2006). Thus, having held that the District Court rightly suppressed the evidence found in Harry Katzin's van, we must now consider whether all three of the brothers had standing to challenge the admissibility of this evidence. The Government would have us divide the stop into two distinct incidents: (1) the stop of Harry Katzin and (2) the stop of Mark and Michael Katzin, with each stop presenting a different constitutional situation. For the reasons discussed below, we hold that the stop of Harry Katzin's van must be treated as a single incident implicating the Fourth Amendment rights of all three brothers and, consequently, we find that all three had standing.
We begin by stating the obvious: There is not, nor can there be, any dispute as to whether Harry Katzin—as the owner of the van—has standing to challenge the constitutionality of the GPS search as well as the stop and subsequent search of his van, and to seek suppression of any evidence discovered within the vehicle. Indeed, the Government concedes as much. (Appellant Br. at 69.) Certainly, then, the District Court rightly suppressed the evidence as against Harry Katzin.
The Government does challenge the standing of Mark and Michael Katzin. (Id. at 67–74.) Since “a search of a car does not implicate the rights of non-owner passengers,” the Government contends that such passengers are “generally held to lack ‘standing’ to object to evidence discovered in a search of a vehicle.” Mosley, 454 F.3d at 253 (citing Rakas v. Illinois, 439 U.S. 128, 147, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). This much is true. However, we have also held that “when a vehicle is illegally stopped by the police, no evidence found during the stop may be used by the government against any occupant of the vehicle unless the government can show that the taint of the illegal stop was purged.” Id. at 251.28
This Court in United States v. Mosley considered the illegal stop and subsequent search of a vehicle carrying three individuals, during the course of which the police discovered several firearms from the car. We held that the stop and subsequent search of the car was to be treated as a single event, thereby rejecting an approach that would split the inquiry between several “individual constitutional violations, each with [its own] victim, each of whom may seek to suppress only the fruits of the violation of his individual rights.” Id. at 257–58. In part, this conclusion was occasioned by our holding that “[t]he relationship between the seizure of a passenger in a moving vehicle, which necessarily occurs when that vehicle is stopped by the police, and the subsequent discovery of evidence during that stop, is one of ineluctable and undeniable correlation.” Id. at 266. Additionally, while we acknowledged that “Fourth Amendment rights are personal rights,” we also expressly rejected “blind adherence to a phrase which at most has superficial clarity and which conceals underneath that thin veneer all of the problems of line drawing which must be faced in any conscientious effort to apply the Fourth Amendment.” Id. at 267 (quoting Rakas, 439 U.S. at 147, 99 S.Ct. 421). In light of our decision in Mosley, Mark and Michael Katzin argue that they have standing to challenge the admissibility of evidence seized from Harry Katzin's van by virtue of being subjected to an illegal stop that thereby rendered any evidence discovered in Harry Katzin's van fruit of the poisonous tree. Id. at 256 (“Where the traffic stop itself is illegal, it is simply impossible for the police to obtain the challenged evidence without violating the passenger's Fourth Amendment rights.”) We agree.29
True, precedent exists to support the proposition that an individual cannot challenge the legality of a search which was executed based on information obtained as a consequence of some illegal search or seizure of a third party. See, e.g., United States v. Chase, 692 F.2d 69, 70–71 (9th Cir.1982). Such holdings are premised on the principle underlying the Government's position: Fourth Amendment rights “are personal and may be enforced by exclusion of evidence only by one whose own legal rights and interests were infringed by the search and seizure.” Id. (discussing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421). The presence of Mosley, however, alters this analysis.
The Government effectively contends that we must treat the stop of Harry Katzin's van as constituting two stops: The first, a stop (i.e., seizure) of Harry Katzin himself as a result of the GPS search. The second, a stop of Mark and Michael Katzin based on the probable cause developed through use of information derived from the GPS search. The Government would have us evaluate the legality and attendant Fourth Amendment consequences (if any) of each stop individually. We rejected this individualized approach in Mosley, holding instead that “an illegal traffic stop of a car occupied by a driver and a passenger [constitutes] a single constitutional violation, with [multiple] victims, each of whom can seek to suppress all fruits of that violation.” Mosley, 454 F.3d at 257–58; id. at 267 (“It defies common sense and common experience to transmute one action into three, and we will not endorse a Fourth Amendment approach that relies on such a transmutation.”) In effect, then, the illegality of the stop as it related to Harry Katzin is extended to his brothers (passengers). Consequently, we hold that Mark and Michael had standing to contest the stop and that the District Court rightly suppressed the evidence as to all three brothers.
For the reasons discussed above, we will affirm the District Court's suppression of evidence discovered inside of Harry Katzin's van.
To briefly recap: In December 2010, law enforcement officers, after consulting an Assistant United States Attorney, and in accord with the general policy of the United States Department of Justice, magnetically attached an independently battery operated “slap on” Global Positioning System device (“GPS device” or “GPS”) upon the undercarriage of Harry Katzin's vehicle, while that vehicle was parked on a public street. It was conceded at argument that the officers had probable cause to do so, although they did not obtain a warrant. For two days, law enforcement used that GPS to track the vehicle's whereabouts on public roads. The vehicle never entered a private garage, never entered the curtilage of a home, nor did it enter a similarly private area. The information from that GPS then led to the seizure of evidence and the arrest of Harry Katzin and his two brothers, due to their involvement in a major ongoing scheme to steal drugs from Rite Aid pharmacies.
At that time, the Supreme Court, in cases involving electronic beepers in vehicles, had held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); see also United States v. Karo, 468 U.S. 705, 713–16, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). All but one of the United States Court of Appeals to have addressed the issue, in light of Knotts, Karo, and other general Fourth Amendment principles, held that GPS or similar electronic surveillance (“GPS-like device” or “GPS-like”) could be conducted in the same way that occurred here: without an authorizing warrant. This view was reflected in then-current Rule 41(b) of the Federal Rules of Criminal Procedure, the commentary to which stated that a warrant was not required to conduct electronic vehicle surveillance “[i]f ․ the officers intend to install and use [an electronic surveillance] device without implicating any Fourth Amendment rights.” Fed.R.Crim.P. 41(b) advisory comm. note (2006). No decision from our Circuit was on point. Then came United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).
In light of the Supreme Court's decision in Jones, and for the reasons discussed in the majority opinion, I agree that the Fourth Amendment now requires law enforcement officers to obtain a warrant, issued upon probable cause, before they install a GPS or a GPS-like device on a person's automobile, or other mobile property, and thereafter use that device to conduct continuing surveillance. See Majority Opinion (“Maj.Op.”) at ––––.1
I disagree, however, with the majority's conclusion that the District Court was correct to suppress the evidence obtained as a result of the warrantless GPS installation and subsequent surveillance. See Maj. Op. at –––– – ––––. Given pre-Jones Supreme Court precedent, the consensus regarding GPS and GPS-like use across the federal courts, and other relevant considerations, I would hold that the law enforcement officers here acted “with an objectively ‘reasonable good-faith belief that their conduct [was] lawful.” Davis v. United States, 564 U.S. ––––, 131 S.Ct. 2419, 2427, 180 L.Ed.2d 285 (2011) (quoting United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). For that reason, suppression in this case is unwarranted, and I would reverse the District Court.
It is indisputable that the installation and use of the GPS device in this case was a “search” under the Fourth Amendment. See Jones, 132 S.Ct. at 949. Furthermore, I agree with the majority that this particular search now requires a warrant, and that because the law enforcement officers here acted without a warrant a violation of the Fourth Amendment occurred. But “[t]he fact that a Fourth Amendment violation occurred ․ does not necessarily mean that the exclusionary rule applies.” Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009); United States v. Tracey, 597 F.3d 140, 151 (3d Cir.2010). See also Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“[W]hether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”).
The exclusionary rule “is a ‘prudential’ doctrine,” Davis, 131 S.Ct. at 2426 (quoting Pa. Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998)), utilized to “compel respect for the constitutional guaranty” embodied in the Fourth Amendment, id. (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). See also United States v. Brown, 631 F.3d 638, 646 (3d Cir.2011) ( “[T]he exclusionary rule is merely a ‘judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.’ ” (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974))). Suppression of evidence obtained through a violation of the Constitution is “ ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.” Davis, 131 S.Ct. at 2426 (quoting Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). And introduction of illegally obtained evidence at trial “work[s] no new Fourth Amendment wrong.” Calandra, 414 U.S. at 354, 94 S.Ct. 613. Instead, the exclusionary rule's “sole purpose ․ is to deter future Fourth Amendment violations.” Davis, 131 S.Ct. at 2426.
But application of the exclusionary rule is not warranted “in every circumstance in which it might provide marginal deterrence.” Herring, 555 U.S. at 141, 129 S.Ct. 695 (quoting Scott, 524 U.S. at 368, 118 S.Ct. 2014). Suppression is prudent only where it would “result in appreciable deterrence.” Leon, 468 U.S. at 909, 104 S.Ct. 3405 (emphasis added) (quoting United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)); see also Davis, 131 S.Ct. at 2426–27 (explaining that “[w]here suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly unwarranted’ ” (omission omitted) (quoting Janis, 428 U.S. at 454, 96 S.Ct. 3021)); Herring, 555 U.S. at 141, 129 S.Ct. 695 (same); Arizona v. Evans, 514 U.S. 1, 11, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (same); Virgin Islands v. John, 654 F.3d 412, 417 (3d Cir.2011) (same). In other words, suppression is warranted only where its deterrence benefits outweigh the substantial social costs inherent in “preclud[ing] consideration of reliable, probative evidence.” Scott, 524 U.S. at 364, 118 S.Ct. 2014; see also Davis, 131 S.Ct. at 2427 (“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.”); Tracey, 597 F.3d at 151 (“To determine whether to apply the rule in a particular case, we weigh the benefits of the rule's deterrent effects against the costs of exclusion․”).
The costs of suppression are substantial. “Exclusion exacts a heavy toll on both the judicial system and society at large.” Davis, 131 S.Ct. at 2427. “The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that ‘offends basic concepts of the criminal justice system.’ ” Herring, 555 U.S. at 141, 129 S.Ct. 695 (quoting Leon, 468 U.S. at 908, 104 S.Ct. 3405). But in addition to its “costly toll upon truth-seeking and law enforcement objectives,” Scott, 524 U.S. at 364–65, 118 S.Ct. 2014 (internal quotation mark omitted), “[i]ndiscriminate application of the exclusionary rule,” in some circumstances, “may well ‘generate disrespect for the law and administration of justice,’ ” Leon, 468 U.S. at 908, 104 S.Ct. 3405 (alteration omitted) (quoting Stone, 428 U.S. at 491, 96 S.Ct. 3037). Consequently, “[o]ur cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort.’ ” Davis, 131 S.Ct. at 2427 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)).
Against these costs, “we weigh the benefits of the rule's deterrent effects.” Tracey, 597 F.3d at 151. But we must fight any instinct to “ ‘reflexive[ly]’ appl[y]” the rule. Davis, 131 S.Ct. at 2427 (quoting Evans, 514 U.S. at 13, 115 S.Ct. 1185). The necessary analysis calls for a “rigorous weighing of [the] costs and deterrence benefits,” focusing primarily “on the ‘flagrancy of the police misconduct’ at issue.” Id. (quoting Leon, 468 U.S. at 911, 104 S.Ct. 3405). See also John, 654 F.3d at 417 (explaining that the exclusionary rule is “trigger[ed]” only where police conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system” (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695)).
Of course, “the deterrence benefits of exclusion ‘vary with the culpability of the law enforcement conduct’ at issue.” Davis, 131 S.Ct. at 2427 (alteration omitted) (quoting Herring, 555 U.S. at 143, 129 S.Ct. 695). On the one hand, “[w]hen the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id. (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695); see also John, 654 F.3d at 418 (condoning suppression where police conduct was “ ‘deliberate, reckless, or grossly negligent’ ” (quoting Tracey, 597 F.3d at 151)). But on the other hand, “when the police act with an objectively ‘reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, ‘isolated’ negligence, the deterrence rationale loses much of its force, and exclusion cannot ‘pay its way.’ ” Davis, 131 S.Ct. at 2427–28 (citations and internal quotation marks omitted) (quoting Herring, 555 U.S. at 137, 129 S.Ct. 695; Leon, 468 U.S. at 909, 908 n. 6, 919, 104 S.Ct. 3405).
Under this so-called “good-faith” exception to the exclusionary rule, beginning with United States v. Leon, the Supreme Court has consistently ruled that the costs of suppression are not outweighed by the little, if any, deterrent benefit of suppressing evidence obtained “in [a] reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” Leon, 468 U.S. at 909 (quoting Gates, 462 U.S. at 255, 103 S.Ct. 2317 (White, J., concurring)); see also Evans, 514 U.S. at 11–12, 115 S.Ct. 1185 (“[W]here the officer's conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way․” (alteration in original) (internal quotation mark omitted) (quoting Leon, 468 U.S. at 919–20, 104 S.Ct. 3405)); Illinois v. Krull, 480 U.S. 340, 348–49, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (“[E]vidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” (quoting United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975))); Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405 (“[O]ur good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal․”). Under such circumstances, “a reasonable officer cannot have been expected to know that what he was doing was unconstitutional,” and, as a result, “he is unlikely to be discouraged in his actions by the knowledge that the fruits of his unconstitutional searches will be suppressed.” John, 654 F.3d at 417. Thus, at bottom, “the harsh sanction of exclusion ‘should not be applied to deter objectively reasonable law enforcement activity.’ ” Davis, 131 S.Ct. at 2429 (quoting Leon, 468 U.S. at 919, 104 S.Ct. 3405).
Admittedly, the majority posits several pages focused on the balancing test outlined in Herring and Davis; the test which I describe at length above. See supra Part I. But while purporting to consider whether, “in light of all the circumstances in this case,” the law enforcement officers' conduct “rises to the level of a ‘deliberate, reckless, or grossly negligent’ violation of the Fourth Amendment,” Maj. Op. at ––––, the majority fragments its analysis by discussing whether Knotts and Karo and the cases from our sister circuits addressing GPS and GPS-like devices are “binding appellate precedent” under Davis.
Of course, the question of whether Davis 's specific holding—that is, that law enforcement reliance on “binding appellate precedent” qualifies as objective good-faith conduct—lingers in the background of this case. In the event the Government were arguing that the law enforcement officers here relied on “binding appellate precedent,” I would have no qualms with the majority addressing whether Knotts and Karo and the relevant cases from our sister courts properly qualified under that moniker. But, as the majority makes clear, that is not the Government's argument.
Furthermore, although a seemingly reasonable analytical choice, the majority's decision to first address whether those cases qualify as “binding appellate precedent” later infects the more general good-faith analysis. That is, the majority allows its conclusion that the “Beeper Cases” and the “Out–of–Circuit GPS Cases” are not “binding appellate precedent” to emaciate the weight given to law enforcement reliance thereon in the more general good-faith analysis.
In effect, the majority's search for Davis-like “binding appellate precedent” in this case places a heavy thumb on the scale in favor of suppression. Such an analysis does not comply with the Leon line of cases, which, since their inception, have time and again stated that the touchstone for the good-faith exception is “ ‘the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances,’ ” Herring, 555 U.S. at 145, 129 S.Ct. 695 (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405); not whether the officers relied upon “binding appellate precedent,” or “some seemingly immutable authority or information,” as the majority implies. See Maj. Op. at ––––; see also id. at –––– (“Try as we might to allay our concerns, we remain supremely discomfited by the lack of binding appellate guidance underlying the police action in this case.”).
At bottom, the majority claims that this case is “different.” The officers here acted “different[ly],” (and, thus, sufficiently culpable so as to justify application of the exclusionary rule), the majority concludes, because the officers relied on “non-binding precedent” from our sister circuits and “extrapolate[ed] from, or analogiz[ed] to, existing case law” rather than seeking a warrant. Maj. Op. at ––––. But the conclusion that this case is “different” results primarily from the majority's prior determinations that analogous and non-binding precedent are materially “different” from the “binding appellate precedent” dealt with in Davis; and, thus, without “binding appellate precedent,” the rationale of Davis and the other good-faith cases do not apply.
I do not think this case is “different” from other cases involving the good-faith exception, where courts are presented with specific facts and particularities and then asked whether “a reasonably well trained officer would have known that the search [conducted] was illegal in light of all the circumstances.” Herring, 555 U.S. at 145, 129 S.Ct. 695 (internal quotation marks omitted) (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405). Davis is obviously important because the facts in that case—officer reliance on “binding appellate precedent”—are the most analogous of the Supreme Court's several good-faith cases with which the Government, and we, have to work. Regardless, the predominant importance of Davis is its affirmation of deterrence and police culpability as the lynchpins of the exclusionary rule analysis. The majority thus erroneously elevates the “binding appellate precedent” language to its own good-faith test instead of treating it as a single consideration in the exclusionary rule analysis.
Nevertheless, “of great significance to the instant case,” the majority insists, “is the fact that in Davis the police relied on binding appellate precedent that ‘specifically authorize [d the] particular police practice.’ ” Maj. Op. at –––– (quoting Davis, 131 S.Ct. at 2429). Thus, the majority stresses, that Davis must be read as “extend[ing] good faith protection only to acts that are explicitly sanctioned by clear and well-settled precedent.” Maj. Op. at ––––. First, I take great issue with the majority's suggestion that the good-faith exception was “extend[ed]” by Davis, or any other case, “only” to the specific factual circumstances therein. Courts apply a single good-faith exception to either condone or condemn varying factual circumstances. See Davis, 131 S.Ct. at 2428 (“The Court has over time applied [the] ‘good-faith’ exception across a range of cases.”).
More importantly, the Davis dissent, other courts, and commentators do not read the Davis majority's articulation of the good-faith exception as limited to only “binding appellate precedent.” See Davis, 131 S.Ct. at 2439 (Breyer, J., dissenting) (“[A]n officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment's bounds is no more culpable than an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding,’ where it only describes how to treat roughly analogous instances, or where it just does not exist.”); United States v. Sparks, 711 F.3d 58, 63 (1st Cir.2013) (“The [Davis ] Court's emphasis on the absence of police culpability could be read to imply that good-faith reliance on out-of-circuit appellate precedent is also acceptable.”); United States v. Baez, 878 F.Supp.2d 288, 294–95 (D.Mass.2012) (“Baez argues that Davis should be limited to its precise holding․ [But] th[at] interpretation is entirely too static․ It is apparent that both the majority opinion and the concurring and dissenting opinions anticipated the principles of Davis would be worked out in subsequent cases raising themes and variations.”); Orin S. Kerr, Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, 2011 Cato Sup.Ct. Rev. 237, 255 (2011) (“If the exclusionary rule solely concerns culpability ․ its [sic] hard to see why binding precedent is required. Reliance on binding precedent seems inherently reasonable, but reliance is often reasonable without binding precedent. A local police officer who conducts a search widely upheld among the circuits but not yet addressed by the [U.S. Court of Appeals] in his jurisdiction is no more culpable than an officer who conducts a search upheld only by his regional circuit. If the former has acted reasonably, then surely so has the latter.”).2
Finally, the majority argues that Davis itself forecloses the conclusion that law enforcement reliance on analogous or non-binding out-of-circuit precedent could ever constitute good faith. Quoting language from Davis,3 the majority claims that the case explained that “its holding was limited to jurisdiction[s] where the law was clearly settled.” Maj. Op. at –––– n. 17. But the language to which the majority refers, quoted in full at footnote 3, supra, is pure dicta, responding not to an argument about what the good-faith exception should or should not apply to but to the policy concern that “applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law.” Davis, 131 S.Ct. at 2432; see also id. at 2433 (“[A]pplying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents.”).4 Furthermore, directly preceding this brief discussion, the Court reiterated that the sole focus of the exclusionary rule is “deterrence of culpable law-enforcement conduct.” Id. at 2432–33.
In short, I disagree with the way the majority's opinion reads to suggest that Davis alone answers the questions presented in this appeal. In Davis, the Court was presented with a unique set of facts to which its holding was expressly directed: officer reliance on “binding appellate precedent” later overruled. See Davis, 131 S.Ct. at 2429. Identified by both the concurrence and the dissent, Davis did not touch the questions of “whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled,” id. at 2435 (Sotomayor, J., concurring), or “where circuit precedent is simply suggestive rather than ‘binding,’ where it only describes how to treat roughly analogous instances, or where it just does not exist,” id. at 2439 (Breyer, J., dissenting).
Of paramount importance to this case is that the reasoning underlying Davis does address those questions. Davis and the Court's good-faith jurisprudence teach us that we must look at the totality of the circumstances and ask whether, in light of those circumstances, the officers were acting with “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” which would justify suppression, or, instead, whether they were acting “with an objectively reasonable good-faith belief that their conduct [was] lawful” or “involve[d] only simple, isolated negligence.” Davis, 131 S.Ct. at 2427–28 (citations and internal quotation marks omitted). For that reason, I disagree with the majority's conclusion that authority falling outside the specific semblance of Davis is “different” and thus always insufficient to support a finding of good-faith in every circumstance.
In Davis, the Court explained that Leon “imported” the reasoning of United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) “into the good-faith inquiry.” Davis, 131 S.Ct. at 2432. In Peltier, border patrol agents conducted a stop-and-search of an automobile “within a reasonable distance from” the Mexican border pursuant to a federal statute, federal regulations promulgated in accordance with that statute, and a “continuous judicial approval” of “the statute and the ․ policy” across the federal courts. Peltier, 422 U.S. at 540–42, 95 S.Ct. 2313. Although that statute and policy were overturned by the Court's decision in Almeida–Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Peltier Court refrained from applying the exclusionary rule. See id. at 542, 95 S.Ct. 2313.
Essential to the Peltier Court's decision was the now-familiar reasoning that “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. Especially relevant here, the Court stated that “unless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.” Id.
Thus, if the logic of Peltier was “imported ․ into the good-faith inquiry” as Davis states, 131 S.Ct. at 2432, then a “uniform treatment” of a particular law enforcement act by the federal judiciary or a “prevailing ․ norm” can, in the proper circumstances, support a finding of good faith. See Herring, 555 U.S. at 145, 129 S.Ct. 695 (“ ‘[O]ur good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all the circumstances.’ ” (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405)); cf. United States v. Duka, 671 F.3d 329, 347 n. 12 (3d Cir.2011) (noting that “[t]he objective reasonableness of the officers' reliance on the statute ․ is further bolstered by the fact that the particular provision at issue had been reviewed and declared constitutional by several [out-of-circuit] courts” (citing Davis, 131 S.Ct. at 2434)).
All in all, my problem with the method of the majority's good-faith analysis is that it myopically focuses too much on the facts and narrow holdings of Davis and other good-faith cases, and considers too little, if at all, the reasoning and principles of law underlying those decisions. The majority's analysis is a search for some sort of “immutable authority or information that justifies [the law enforcement officers'] course of action.” See Maj. Op. at ––––. But the good-faith exception to the exclusionary rule is not limited to those circumstances. The good-faith inquiry, like other Fourth Amendment analyses, requires us to “slosh our way through the factbound morass of ‘reasonableness.’ ” Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).5 The question is, and always has been, whether the officers acted with a “reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” Leon, 468 U.S. at 909, 104 S.Ct. 3405 (quoting Gates, 462 U.S. at 255, 103 S.Ct. 2317 (White, J., concurring)); see also Davis, 131 S.Ct. at 2427–28; Herring, 555 U.S. at 145, 129 S.Ct. 695; Evans, 514 U.S. at 11–12, 115 S.Ct. 1185; Krull, 480 U.S. at 348–49, 107 S.Ct. 1160. Davis answers “yes” to police actions taken in reliance on “binding appellate precedent.” Davis, 131 S.Ct. at 2429. See also Herring, 555 U.S. at 147–48, 129 S.Ct. 695 (answering “yes” where officers relied on an error in a police-maintained outstanding warrant database); Evans, 514 U.S. at 14–16, 115 S.Ct. 1185 (answering “yes” where officers relied on an error in court-maintained database); Krull, 480 U.S. at 349–50, 107 S.Ct. 1160 (answering “yes” where officers relied on a subsequently invalidated statute); Leon, 468 U.S. at 922, 104 S.Ct. 3405 (answering “yes” where officers relied on a subsequently invalidated warrant). What we are asked to answer is whether the result is the same when officers act in the circumstances in which they did here. As the following analysis shows, I answer that question in the affirmative.
Before determining if the officers in this case acted with an objectively reasonable belief that their conduct complied with the Fourth Amendment, we must first determine what, precisely, their conduct was. Jones lumps the police conduct that occurred here into a singular act, see Jones, 132 S.Ct. at 949 (installation of a GPS and its use to monitor a vehicle are a search), as does the majority. But before Jones, GPS or GPS-like surveillance was often treated as two distinct acts: (1) the installation of the GPS or GPS-like device, and (2) the subsequent surveillance of the automobile.6 Thus, for the purpose of my exclusionary rule analysis, I find it appropriate to similarly separate the officers' conduct here into those two distinct Fourth Amendment acts. See Sparks, 711 F.3d at 66–67 (bifurcating its exclusionary rule / good-faith exception analysis with regard to, first, the GPS's installation and, second, its subsequent monitoring).7
Application of the exclusionary rule depends on whether the officers, at the time they were acting, would have or should have known their installation of the GPS and their subsequent use of the GPS to track Harry Katzin's vehicle were unconstitutional. See Krull, 480 U.S. at 348–49, 107 S.Ct. 1160. Relevant to this determination are the Supreme Court's case law dealing with electronic surveillance and general searches of automobiles, subsequent treatment of GPS and GPS-like surveillance across the federal courts, and other considerations.
United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) are the authorities most relevant to our analysis. In Knotts, Minnesota law enforcement officers utilized an electronic beeper to conduct surveillance on a vehicle driven by a man suspected to be part of an illegal narcotics operation. 468 U.S. at 277–80, 104 S.Ct. 3049. In determining the Fourth Amendment implications of that activity, the Court determined that the alleged search “amounted principally to the following of an automobile on public streets and highways.” Id. at 281, 104 S.Ct. 3049. The Court rejected the argument that this constituted a search under the Fourth Amendment, and held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”8 Id. Because when one drives an automobile on public roads, he “voluntarily convey[s] to anyone who want[s] to look”9 his location, progress, and route, he has no reasonable privacy interest in “whatever stops he ma[kes]” nor his “final destination” or otherwise. Id. at 281–82, 104 S.Ct. 3049.10
A little over a year later, the Court reaffirmed this conclusion in Karo. But Karo clarified that the use of beepers to monitor cars and other objects was not without limits. Only in situations in which officers employ electronic devices to obtain information that could otherwise be obtained by visual surveillance in public places are officers able to rely upon Knotts 's holding. See Karo, 468 U.S. at 713–16, 104 S.Ct. 3296. Thus, the use of a beeper to monitor objects within private residences implicates the Fourth Amendment and requires a warrant. See id. at 714, 717–18, 104 S.Ct. 3296.
What Knotts initially left undecided, however, was whether the installation of the beeper was a search under the Fourth Amendment. See Knotts, 460 U.S. at 279 n. **, 103 S.Ct. 1081; id. at 286, 103 S.Ct. 1081 (Brennan, J., concurring). In both Knotts and Karo, the officers themselves neither installed nor placed the beepers onto or into the vehicles. In Knotts, the officers, with the consent of a chemical manufacturing company, installed a beeper inside a container for chemicals. The company agreed that the next time a suspected narcotics manufacturer came to purchase chemicals, they would put the chemicals he purchased in that particular container. After purchasing the chemicals, the suspect willingly placed the bugged container into his car, allowing the police to easily monitor his movements. 460 U.S. at 278, 103 S.Ct. 1081. In Karo, the officers cooperated with a government informant so as to ensure that Karo, who was suspected of manufacturing narcotics, was similarly duped into purchasing a container of chemicals containing a beeper. Once the purchase had occurred, and Karo placed the container in his car, the officers utilized the beeper to monitor his movements. 468 U.S. at 708, 104 S.Ct. 3296.
Karo held that where officers arrange for a suspect to obtain an item containing a beeper, even if the suspect has no knowledge of the item's foreign tenant, that transfer did not intrude upon that suspect's reasonable expectations of privacy. Id. at 712, 104 S.Ct. 3296. In short, the transfer “created a potential for an invasion of privacy,” but the mere fact that officers arranged for a beeper to come into the possession of an individual or into an individual's property “infringed no privacy interest.” Id. Moreover, Karo reasoned that “[a]t most, there was a technical trespass on the space occupied by the beeper.” Id. But the Court concluded that “[t]he existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated ․, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” Id. at 712–13, 104 S.Ct. 3296.11 As a result, the Court held that “any impairment of ․ privacy interests that may have occurred was occasioned by the monitoring of the beeper,” not its installation. Id. at 713, 104 S.Ct. 3296.12
Thus, at bottom, before Jones, Knotts and Karo established that no Fourth Amendment search occurred where officers use beeper-based electronics to monitor an automobile's movements on public roads because a person has no reasonable expectation of privacy with regard to that information. But, because the facts of Karo correspondingly limited its holding, those cases did not address whether installation of a beeper onto or into a vehicle, in all circumstances, was a search. Nonetheless, Karo 's reasoning regarding the Fourth Amendment implications of a beeper installation on an automobile is telling, and was certainly informative in the subsequent treatment of the issue throughout the federal courts.
Additionally, several other well settled Fourth Amendment principles are relevant. Before Jones, the Supreme Court had made perfectly clear that persons did not enjoy a reasonable expectation of privacy in the exterior of their automobiles. New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); see also Cardwell v. Lewis, 417 U.S. 583, 591, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). Similarly axiomatic were the principles that a simple “trespass” or “physical intrusion” alone, absent an infringement upon a reasonable expectation of privacy, was not a “search,” see supra Note 11; that information willingly conveyed to third parties, such as when a car “travels public thoroughfares where its occupants and its contents are in plain view,” Cardwell, 417 U.S. at 590, 94 S.Ct. 2464, retains no reasonable expectation of privacy, see supra Note 9; and that objects willingly placed or left in the “open fields,” regardless of whether those fields are trespassed upon, see Oliver, 466 U.S. at 177–80, 104 S.Ct. 1735, do not enjoy a reasonable expectation of privacy, see supra Note 10.
After Knotts and Karo, what resulted was a uniform consensus across the federal courts of appeals to address the issue that the installation and subsequent use of GPS or GPS-like device was not a search or, at most, was a search but did not require a warrant. See, e.g., United States v. Marquez, 605 F.3d 604, 609–10 (8th Cir.2010) (reasoning that installation and use of GPS requires only reasonable suspicion, since monitoring on public roads is not a search); United States v. Pineda–Moreno, 591 F.3d 1212, 1215–16 (9th Cir.2010) (holding that GPS installation and use was not a search); United States v. Garcia, 474 F.3d 994, 997–98 (7th Cir.2007) (same); United States v. McIver, 186 F.3d 1119, 1126–27 (9th Cir.1999) (same); see also United States v. Michael, 645 F.2d 252, 256–58 (5th Cir.1981) (en banc) (holding that installation and use of beeper requires only reasonable suspicion, since monitoring on public roads is not a search).13
Most federal district courts, including the Middle District of Pennsylvania, had reached the same result. United States v. Jesus–Nunez, No. 1:10–cr–00017–01, 2010 WL 2991229, **3–5 (M.D.Pa. July 27, 2010) (“Since there was no Fourth Amendment search or seizure by the Government's use of the GPS device, the court finds that the agents did not need probable cause or even reasonable suspicion to attach and monitor the [GPS] device to Defendant's cars.”); e.g., United States v. Burton, 698 F.Supp.2d 1303, 1307–08 (N.D.Fla.2010); United States v. Moran, 349 F.Supp.2d 425, 467–68 (N.D.N.Y.2005).
The only case to break from this consensus was United States v. Maynard, 615 F.3d 544 (D.C.Cir.2010). In Maynard, the D.C. Circuit held that prolonged use of a GPS device to monitor the movements of defendant Jones's vehicle “24 hours a day for four weeks,” was a “search” under the Fourth Amendment. 615 F.3d at 555. According to the D.C. Circuit, Knotts was not controlling of the question, as the court reasoned that Knotts 's holding endorsed only that “ ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,’ not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end.” Id. at 557 (alteration in original) (citation omitted) (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081). The court reasoned that the Supreme Court in Knotts, and the later cases across the courts of appeals, all “reserved” the issue of “whether ‘wholesale’ or ‘mass' electronic surveillance of many individuals requires a warrant.” Id. at 558.14
As a result, the court concluded that although it may be “one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” it is a whole other thing “for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.” Id. at 560. The court's analysis in Maynard, therefore, was focused not on the installation of the device but rather the prolonged use of the GPS and the quality and quantity of information obtained over an extended period of time. Id. at 562 (“Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation.”).15
Other than Maynard, only a handful of dissenting opinions questioned Knotts 's and Karo 's holdings or their applicability to GPS installation and subsequent surveillance. See Karo, 468 U.S. at 736, 104 S.Ct. 3296 (Stevens, J., dissenting) (“The impact of beeper surveillance upon interests protected by the Fourth Amendment leads me to what I regard as the perfectly sensible conclusion that absent exigent circumstances Government agents have a constitutional duty to obtain a warrant before they install an electronic device on a private citizen's property.”); United States v. Pineda–Moreno, 617 F.3d 1120, 1124–26 (9th Cir.2010) (Kozinski, C.J., dissenting from denial of rehearing en banc) (arguing that GPS surveillance is a search because GPS devices “have little in common with the primitive devices in Knotts,” and provide officers “the power to track the movements of every one of us, every day of our lives”); Michael, 645 F.2d at 260–70 (Tate, J., dissenting) (disagreeing with majority that “an individual living under our Constitution has no reasonable expectation of privacy such as would protect him from a trespass upon his property by governmental agents, a trespass that enables them to maintain continuous electronic surveillance over his movements twenty-four hours per day continuously and indefinitely”).
I also find several other considerations relevant. First, and most important, is Rule 41(b) of the Federal Rules of Criminal Procedure, which governs the issuance of warrants in all federal criminal proceedings. The 2006 Advisory Committee's Note explains that Rule 41(b) was amended, in part, to “address the use of tracking devices.” Fed.R.Crim.P. 41(b) advisory comm. note (2006). In describing the ideal procedure, the Note states that “[w]arrants may be required to monitor tracking devices when they are used to monitor persons or property in areas where there is a reasonable expectation of privacy.” Id. (citing Karo, 468 U.S. 705, 104 S.Ct. 3296). Elaborating, the note instructs that “if the officers intend to install or use the device in a constitutionally protected area, they must obtain judicial approval to do so.” Id. But, “[i]f, on the other hand, the officers intend to install and use the device without implicating any Fourth Amendment rights, there is no need to obtain the warrant.” Id. (citing Knotts, 460 U.S. 276, 103 S.Ct. 1081).
Moreover, the law enforcement officers consulted with an Assistant United States Attorney before conducting the installation of the GPS unit and the subsequent surveillance. (See Appellant Br. at 56.) I agree with the majority that “a government attorney's approval, standing alone, cannot and should not suffice to demonstrate good faith.” Maj. Op. at –––– n. 23. But, as Appellees' attorney conceded at oral argument, it is certainly another consideration to take into account in the good-faith analysis. (See Oral Arg. Trans. at 52: 4–6 (conceding that the officers' reliance on the opinion of an Assistant United States Attorney was “a factor to look at” in determining whether the officers acted in good faith).) See also Tracey, 597 F.3d at 153 (concluding that approval from a government attorney, inter alia, was one consideration evidencing that “[a] reasonable officer would ․ have confidence in the validity of the [search]”); United States v. Otero, 563 F.3d 1127, 1134 (10th Cir.2009) (same); United States v. Fama, 758 F.2d 834, 837 (2d Cir.1985) (same).
In my view, in light of the legal landscape discussed above, when the officers installed the GPS device16 upon the undercarriage of Harry Katzin's vehicle, and then used that device to monitor the vehicle's movements for two days while it traversed public thoroughfares, those officers were acting with “an objectively ‘reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427 (quoting Leon, 468 U.S. at 909, 104 S.Ct. 3405). I find that the officers' actions in this case do not “exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights,” id. (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695), and, thus, “the deterrent value” of excluding the evidence found pursuant to the officers' conduct would not “outweigh the resulting costs.” Id. Simply put, in this case, “exclusion cannot not ‘pay its way.’ ” Id. at 2428 (quoting Leon, 468 U.S. at 908 n. 6, 104 S.Ct. 3405).
The officers here were acting with an objectively reasonable good-faith belief that their warrantless installation of the GPS device upon the undercarriage of Harry Katzin's automobile did not run afoul of the Fourth Amendment.
Based on fundamental Fourth Amendment principles which would have been familiar to any reasonably well trained law enforcement officer, there was no possibility that the officers, at the time they installed the GPS upon Harry Katzin's vehicle, would have “had knowledge”—nor could we now “charge [ ] [them] with knowledge”—“that the search was unconstitutional under the Fourth Amendment.” Krull, 480 U.S. at 348–49, 107 S.Ct. 1160 (quoting Peltier, 422 U.S. at 542, 95 S.Ct. 2313).
Before Jones, the touchstone of any Fourth Amendment analysis was whether the Government had invaded upon a person's reasonable expectation of privacy. See Katz, 389 U.S. at 360, 88 S.Ct. 507 (Harlan, J., concurring); see also Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000); California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). “[A]n actual trespass [was] neither necessary nor sufficient to establish a constitutional violation.” Karo, 468 U.S. at 713, 104 S.Ct. 3296 (emphasis added); see also supra note 11. As a result, a reasonably well trained law enforcement officer would have known that the installation of the GPS unit upon the undercarriage of Harry Katzin's vehicle was a Fourth Amendment “search” only in the event that it was apparent that Harry Katzin had a reasonable expectation of privacy in that area.
Of course, Harry Katzin had a reasonable expectation of privacy with respect to the interior of his vehicle; even if that privacy interest was diminished. See Cardwell, 417 U.S. at 589–90, 94 S.Ct. 2464. But it would have been objectively reasonable for a law enforcement officer to conclude that he lacked a reasonable expectation of privacy in the exterior—specifically, the undercarriage—of the vehicle.
In Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) and again in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the Supreme Court made it quite clear that persons lack a reasonable expectation of privacy in the exterior of their automobiles. See Cardwell, 417 U.S. at 591–92, 94 S.Ct. 2464 (“With the search limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.”); Class, 475 U.S. at 114, 106 S.Ct. 960 (plurality opinion) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” (citing Cardwell, 417 U.S. at 588–89, 94 S.Ct. 2464)). In light of this long-standing Supreme Court precedent, the officers would have had an “objectively reasonable good-faith belief” that Harry Katzin lacked a reasonable expectation in the exterior of his vehicle, and thus that “their conduct was lawful” when they installed the GPS on the car's undercarriage. Davis, 131 S.Ct. at 2427 (internal quotation mark omitted).17
Again, I make no claim that Class or Cardwell qualify as “binding appellate precedent” under Davis. That does not end the inquiry, however. Instead, what resolves the inquiry is that, in light of the pre-Jones legal landscape, the law enforcement officers here could have reasonably concluded that Supreme Court precedent authorized, or at the very least affirmed the constitutionality of, their conduct. Regardless of the alternate facts in Class and Cardwell, those cases' holdings and principles of law, which would have been known by a reasonably well trained law enforcement officer, made it clear that before Jones a person lacked a reasonable expectation of privacy in the exterior of his automobile, and, thus, a simple trespass thereupon by law enforcement officers would not have constituted a “search.” As a result, I cannot conclude that the law enforcement officers' conduct in installing the GPS device to the undercarriage of Harry Kaztin's vehicle was a “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard of Fourth Amendment rights.” Davis, 131 S.Ct. at 2427 (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695).
Similarly, the officers here were acting with an objectively reasonable good-faith belief that their warrantless use of the GPS to monitor Harry Katzin's vehicle while it traversed public roads over the course of two days was constitutionally permissible.
First, the majority distinguishes, and thus dismisses, Knotts and Karo on their facts. Paramount, the majority says, are that facts that “[n]either case involved a physical trespass onto the target vehicle; in both cases the police placed the beeper inside of a container which was then loaded into the target vehicle by the driver․ [and] both Karo and Knotts addressed the use of beepers, which ․ are markedly different from GPS trackers.” Maj. Op. at ––––. True, these factual distinctions would matter much if the Government were arguing that Knotts and Karo qualified as “binding appellate precedent” under Davis. But, as discussed above, that is not the Government's argument. A reasonably well trained police officer, acting in December 2010, would have thought Knotts and Karo to have meant exactly what they said with regard to GPS and GPS-like surveillance. Those cases made absolutely clear that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” Knotts, 460 U.S. at 281, 103 S.Ct. 1081, because the “movements of the automobile” while on public roads “could have been observed by the naked eye.” See Karo, 468 U.S. at 713–14, 104 S.Ct. 3296. Thus, the Fourth Amendment simply was not implicated. See id.; see also Sparks, 711 F.3d at 65 (“After Knotts ․ [it was] settled ․ [that] using a beeper to monitor a person's movements in a car on public roads did not implicate the Fourth Amendment, because there was no privacy interest to be infringed.”). At the time the officers were acting, Knotts 's holding was familiar and sacrosanct. See, e.g., Marquez, 605 F.3d at 609; Garcia, 474 F.3d at 996; McIver, 186 F.3d at 1126.
This may well be enough to justify the officers' good faith in performing warrantless GPS surveillance of Harry Katzin's automobile. See Sparks, 711 F.3d at 66–67 (concluding good-faith exception applied to GPS surveillance because Knotts “clearly authorized the agents to use a GPS-based tracking device”). But I need not answer that question, because “good faith” is determined in light of “all of the circumstances.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405; see also Herring, 555 U.S. at 145, 129 S.Ct. 695. In this case, in addition to Knotts and Karo, the officers were also guided, and reasonably relied, upon a “uniform treatment” of “continuous judicial approval” across the federal courts with regard to the constitutionality of warrantless GPS use. See Peltier, 422 U.S. at 541–42, 95 S.Ct. 2313; see also Caleb Mason, New Police Surveillance Technologies and the Good–Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 NEV. L.J. 60, 65 (2012) (before Jones, “everyone thought” that the “key fact” from Knotts and Karo “was that the cars were being monitored while they were on public roads, where anyone could see them”). Specifically, nearly every federal court to consider the issue had concluded that a warrant was unnecessary to conduct GPS surveillance, the sole exception being Maynard.18
Consequently, in light of Knotts and Karo, and their subsequent treatment, it was “objectively reasonable” for the law enforcement officers to have believed that the use of the GPS device to conduct surveillance upon Harry Katzin's vehicle while it moved along public roadways was not a Fourth Amendment “search.” See Knotts, 460 U.S. at 282–83, 103 S.Ct. 1081 (explaining that where one “travel[s] over the public streets he voluntarily convey[s] to anyone who want[s] to look the fact that he [is] traveling over particular roads in a particular direction, the fact of whatever stops he ma [kes], and the fact of his final destination”); Ciraolo, 476 U.S. at 224, 106 S.Ct. 1809 (Powell, J., dissenting) (“Comings and goings on public streets are public matters, and the Constitution does not disable police from observing what every member of the public can see.”); id. at 215, 106 S.Ct. 1809 (majority opinion) (“The Fourth Amendment simply does not require the police traveling in the public ․ to obtain a warrant in order to observe what is visible to the naked eye.”).
Moreover, two additional considerations bolster my conclusion that the law enforcement officers here acted with “an objectively ‘reasonable good-faith belief that their conduct was lawful.’ ” Davis, 131 S.Ct. at 2427 (quoting Leon, 468 U.S. at 909, 104 S.Ct. 3405).
First is the fact that the warrantless installation of the GPS device and its subsequent surveillance complied with the commentary to Rule 41(b) of the Federal Rules of Criminal Procedure, which states that “[i]f ․ the officers intend to install and use [a GPS] device without implicating any Fourth Amendment rights, there is no need to obtain [a] warrant.” Fed.R.Crim.P. 41(b) advisory comm. note (2006). As discussed, it was objectively reasonable for the officers to have concluded that Harry Katzin lacked a reasonable expectation of privacy in the undercarriage of his automobile, and the GPS device was never used to conduct surveillance in any area but the public roadways upon which the car was traveling. Thus, a reasonable reading of this commentary would have led to the equally reasonable conclusion that the officers here did not require a warrant to act.19
Second, the law enforcement officers consulted with an Assistant United States Attorney before conducting the installation of the GPS unit and the subsequent surveillance. (See Appellant Br. at 56.) More than likely, that attorney's discussion with the officers about the constitutionality of their conduct proceeded along similar lines as my analysis above. But, important for our purposes, the fact that the officers consulted with a government attorney before acting, who then approved their desired course of action, although certainly not dispositive on its own, is a consideration weighing in favor of the conclusion that “[a] reasonable officer would ․ have confidence in the validity of the [search].” Tracey, 597 F.3d at 153; see also Otero, 563 F.3d at 1134; Fama, 758 F.2d at 837.
Thus, taking into consideration the Supreme Court jurisprudence, the near unanimous treatment by the federal courts to have addressed the issue, the commentary to Rule 41(b) of the Federal Rules of Criminal Procedure, and the fact the officers here consulted with an Assistant United States Attorney, it is clear that the officers were not acting with “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard of Fourth Amendment rights,” Davis, 131 S.Ct. at 2427 (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695), when they conducted the warrantless installation and subsequent surveillance of the GPS device upon Harry Katzin's automobile, but were instead acting with “an objectively ‘reasonable good-faith belief that their conduct [was] lawful.’ ” Id. (quoting Leon, 468 U.S. at 909, 104 S.Ct. 3405).
The majority holds otherwise, because, in its view, the difference between the beepers used in Knotts and Karo and the GPS device used in this case is “one of kind, not degree,” Maj. Op. at –––– n. 20, which makes all the “differen[ce].” Furthermore, the majority chides reliance on Knotts, Karo, and the relevant cases from our sister circuits because United States v. Maynard, which held that prolonged GPS surveillance was a search and did require a warrant, put the officers on notice “that such devices could ‘implicat[e] ․ Fourth Amendment rights.’ ” Maj. Op. at –––– n. 24. I disagree that these two considerations render the officers' conduct here objectively unreasonable and sufficiently culpable so as to incur the wrath of the exclusionary rule.
Certainly, the technological difference between the beepers of the 1980s and modern GPS devices is a consideration to take into account in determining whether the law enforcement officers were acting with an objectively reasonable belief their actions were lawful. Modern “GPS units do not require police to follow the suspect visually, do not allow the driver to detect tailing, and do not require an expensive deployment of equipment and manpower.” United States v. Hernandez, 647 F.3d 216, 221 (5th Cir.2011); see also Maynard, 615 F.3d at 565 (opining that “practical considerations prevent visual surveillance from lasing [as] long” as “the use of the GPS in [that] case”); Pineda–Moreno, 617 F.3d at 1126 (Kozinski, C.J., dissenting from denial of rehearing en banc) (“[T]here's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention.”).
Admittedly, this makes GPS devices different from the beepers used in Knotts and Karo. Beepers do not independently determine their geographic location, but, instead, “emit[ ] periodic signals that can be picked up by a radio receiver” within range of the beeper's radio transmitter. See Knotts, 460 U.S. at 277, 103 S.Ct. 1081. Beepers thus aid law enforcement by assisting officers in visual surveillance of a suspect, rather than doing the work of the officer altogether. See Pineda–Moreno, 617 F.3d at 1124 (Kozinski, C.J., dissenting from the denial of rehearing en banc) (“[M]odern [GPS] devices ․ can record the car's movements without human intervention—quietly, invisibly, with uncanny precision.”).
Notwithstanding these technological differences, “[i]t is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.” Karo, 468 U.S. at 712, 104 S.Ct. 3296. “Certainly, a GPS tracker is more capable than a beeper, ‘but nothing inheres in the technology to take it out of Knotts 's holding.’ ” Sparks, 711 F.3d at 66 (footnote omitted) (quoting United States v. Cuevas–Perez, 640 F.3d 272, 278 (7th Cir.2011) (Flaum J., concurring)); see also United States v. Andres, 703 F.3d 828, 835 (5th Cir.2013) (finding that “any possible technological differences between a 1981 ‘beeper’ and the GPS device” insufficient because the two devices' “functionality [were] sufficiently similar”); United States v. Jones, 625 F.3d 766, 768 (D.C.Cir.2010) (Sentelle, C.J., dissenting from the denial of rehearing en banc) (“There is no material difference between tracking the movements of the Knotts defendant with a beeper and tracking the Jones appellant with a GPS.”).
Regardless of the technological differences, the GPS reported to law enforcement no more information than that which the officers could have obtained through pure visual surveillance. Jesus–Nunez, No. 1:10–cr–00017–01, 2010 WL 2991229, at *3; see also Cuevas–Perez, 640 F.3d at 275 (dismissing as immaterial the increased accuracy of GPS devices since “real-time information is exactly the kind of information that drivers make available by traversing public roads”). Every piece of data the GPS unit provided law enforcement officers could have been otherwise obtained by a police officer tracking Harry Katzin's vehicle on foot or in his squad car on a public street;20 by an officer keeping an eye on the vehicle through use of a telescope or binoculars, or utilizing a flashlight or spotlight so as to not lose the car under the shadow of the night;21 or by an officer utilizing an airplane or a helicopter to follow the vehicle along the public roadways.22
The efficiency or efficacy of an officer's natural senses often benefit from advances in technology. See Dow Chem. Co. v. United States, 476 U.S. 227, 231, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (changes in technology not only “enhance[ ] industrial process, and indeed all areas of life,” but “they have also enhanced law enforcement techniques”). But “[t]he mere fact that human vision is enhanced” by some form of technological advance, by itself, “does not give rise to constitutional problems.” Id. at 238, 106 S.Ct. 1819; see also Silverman v. United States, 365 U.S. 505, 513, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (Douglas, J., concurring) (“[N]either should the command of the Fourth Amendment be limited by nice distinctions turning on the kind of electronic equipment employed.”). Again, “[i]t is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.” Karo, 468 U.S. at 712, 104 S.Ct. 3296. “Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory facilities bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Knotts, 460 U.S. at 282, 103 S.Ct. 1081. The information obtained through use of the GPS was information otherwise observable by the naked eye. See id. at 281–82, 103 S.Ct. 1081. The GPS unit simply made it easier for the law enforcement officers to obtain. See id. at 284, 103 S.Ct. 1081 (“Insofar as respondent's complaint appears to be simply that scientific devices such as beepers enabled police to be more effective in detecting crime, it simply has no constitutional foundation.”). And at the time the officers here acted, it was indubitable that Harry Katzin lacked any reasonable expectation of privacy in the information the GPS unit was procuring. See id at 281, 103 S.Ct. 1081.23 Thus, even taking into consideration the technological difference between the beepers used in Knotts and Karo and the GPS units used in this case, the officers were clearly not “exploit[ing]” GPS technology in a way so as to put them on notice that their actions were unconstitutional.24 See Cuevas–Perez, 640 F.3d at 279–80 (Flaum, J., concurring) (opining before Jones that “[t]he holding of Knotts is that a person has no expectation of privacy in movements from one place to another on public roads; by its terms, the holding is indifferent to the technology used to observe those movements”).
Nor does the existence of United States v. Maynard, 615 F.3d 544 (D.C.Cir.2010) affect the officers' reasonable belief that their conduct was lawful. First, the Maynard holding was based on the fact that the GPS surveillance conducted in that case lasted for four weeks, which allowed law enforcement to obtain “information not revealed by short-term surveillance.” See Maynard, 615 F.3d at 562; Cuevas–Perez, 640 F.3d at 274 (“[T]he Maynard court repeatedly distinguished the surveillance at issue there from surveillance during a single journey.”). Conversely, the GPS tracking in this case lasted for only two days, (see Appendix at 112–15, 143–50.), and Appellees make no argument that the information obtained by the GPS device “reveal[ed] more” about their personal lives “than does any individual trip viewed in isolation.” Maynard, 615 F.3d at 562.25 Besides, “Knotts gave scant reason to think that the duration of the tracking in that case was material to the Court's reasoning.” Sparks, 711 F.3d at 67.26
Furthermore, consider this hypothetical: Imagine, under facts identical to our case, the D.C. Circuit's Maynard decision was, instead, the only case holding that GPS use was not a search and did not require a warrant. If, under those circumstances, the officers claimed to rely only upon Maynard for a reasonable belief that their conduct complied with the Constitution, that consideration would weigh more toward a finding of law enforcement culpability. But, here, we are presented with the alternative, and Maynard was the only holding (i.e., not a dissent or concurring opinion) from any court at the time the officers executed the warrantless GPS surveillance that considered their conduct illegal. As a result, the fact that Appellees are pointing to Maynard as the only case that said the law enforcement officers could not do what they did is a consideration that weighs in the officers' favor.
Under the majority's rule, where law enforcement officers engage in “extrapolat[ion] [of] their own constitutional rule,” or where officers “assum [e] that their own self-derived rule sanction[s] their conduct,” those officers act with sufficient culpablity so as to justify application of the exclusionary rule. Maj. Op. at ––––. I agree that “[t]he justifications for the good-faith exception [may] not extend to situations in which police officers have interpreted ambiguous precedent.” Sparks, 711 F.3d at 67 (quoting Davis, 598 F.3d at 1267). But that is not the case here, “where new developments in the law have upended the settled rules on which police relied.” Id. at 68.
Before Jones, all but one federal court of appeals to address the issue unequivocally concluded that Knotts, Karo, and other relevant Supreme Court precedent sanctioned the law enforcement conduct that occurred here. These Fourth Amendment principles, upon which the law enforcement officers relied in this case, were settled maxims of constitutional jurisprudence, some of them governing law enforcement conduct for decades. The majority, viewing this case through Jones-colored lenses, rules with the benefit of a hindsight that was unavailable to the officers here.
United States v. Jones changed things; and changed them in a way very few—if any at all—predicted. The exclusionary rule does not require us to punish the law enforcement officers here for failing to predict that sea change.27 The District Court below put it quite aptly:
[T]he Court hastens to emphasize that it has no concern that the prosecutorial and law enforcement personnel here were undertaking their work in this investigation and prosecution in a calculated or otherwise deliberately cavalier or casual manner in the hopes of just meeting the outer limits of the constitutional contours of the Katzins' rights. Indeed, these actors could well profess surprise at the specific outcome of Jones.
United States v. Katzin, Crim. No. 11–226, 2012 WL 1646894, at *10 n. 15 (E.D.Pa. May 9, 2012). Regardless of this seemingly dispositive conclusion, the District Court found, and the majority now affirms, that the exclusionary rule requires suppression of the evidence obtained by such non-culpable law enforcement conduct.
Doing so renders the exclusionary rule a “strict-liability” regime, something which it emphatically is not. See Davis, 131 S.Ct. at 2429. The exclusionary rule is “a ‘prudential’ doctrine,” id. at 2426 (quoting Scott, 524 U.S. at 363, 118 S.Ct. 2014), which requires a “rigorous weighing of [the] costs and deterrence benefits,” id. at 2427, lest a “guilty and possibly dangerous defendant[ ] go[es] free,” Herring, 555 U.S. at 141, 129 S.Ct. 695. As a society, we willingly swallow that “bitter pill” when we must. Davis, 131 S.Ct. at 2427. But under the circumstances present in this case, I do not find the law enforcement conduct to be “sufficiently culpable” so that the benefit from deterring that conduct “is worth the price paid by the justice system,” John, 654 F.3d at 417, even if it might create a marginal incentive for officers to “err on the side of constitutional behavior.” United States v. Johnson, 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Marginal deterrence is not the trigger of the exclusionary rule, Herring, 555 U.S. at 141, 129 S.Ct. 695; law enforcement culpability, and, thus, the opportunity for appreciable deterrence is. Leon, 468 U.S. at 909, 104 S.Ct. 3405; John, 654 F.3d at 417. In consequence, because I find that the law enforcement officers here lacked the requisite culpability in their actions so as to justify application of the exclusionary rule, I respectfully dissent from the majority's conclusion to the alternative. I would reverse the District Court below.
GREENAWAY, JR., Circuit Judge.