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PHILADELPHIA – The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement's failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.

The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called "good-faith exception" to the Fourth Amendment's exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive "beeper" tracking technology in concluding that no warrant was required for sophisticated GPS tracking.

Police used a GPS tracker on Harry Katzin's car prior to a Supreme Court decision in January 2012, holding that attaching a GPS device to car and tracking its movements is a "search" under the Fourth Amendment. The decision in that case, U.S. v. Jones, left open whether it is the type of search that requires a warrant and probable cause.

A three-judge panel of the Third Circuit Court of Appeals ruled in October 2013 – after the Jones ruling – that attaching a GPS device to a car and tracking its movements requires a warrant, and had ordered the GPS evidence to be suppressed. The government sought review by the en banc Third Circuit, and the American Civil Liberties Union represented Katzin before the en banc court in May.

"The exclusion of evidence is a crucial tool because it means there is a penalty when agents violate constitutional rights," said Catherine Crump, who argued the case for the ACLU. "It's disappointing that today's decision lets law enforcement agents off the hook in a broader range of circumstances." Crump is now Assistant Clinical Professor of Law at the University of California, Berkeley.

Although the court allowed the use of the GPS evidence in this case, the majority opinion said, "[W]e caution that, after Jones, law enforcement should carefully consider that a warrant may be required when engaging in such installation and surveillance." The dissent said, "Law enforcement violated [the defendants'] Fourth Amendment rights," and therefore that the evidence should be suppressed.

"When the police use powerful electronic surveillance equipment like GPS trackers, they should not be able to avoid the requirements of the Fourth Amendment by hiding behind outdated cases addressing obsolete technology," said ACLU Staff Attorney Nathan Freed Wessler. "The court did a disservice to our system of constitutional rights by letting police make an end run around the Fourth Amendment's warrant requirement."

The ACLU has submitted amicus briefs in three other pending courts of appeals cases raising similar issues: United States v. Stephens (4th Circuit), United States v. Robinson (8th Circuit), and United States v. Hohn (10th Circuit). Petitions for certiorari in similar cases from other circuits are now pending at the Supreme Court.