The US Supreme Court in January laid down the final verdict that police may not install GPS tracking devices on automobiles without the sanction of a warrant signed by an independent magistrate. The issue remains far from settled, however. Two federal district courts last week issued contradictory rulings over whether police could get away with the results of warrantless GPS surveillance conducted prior to the US v. Jones ruling.

Prosecutors insist officers acting in "good faith" should not have their evidence excluded because their was not obviously illegal before the Supreme Court ruling was handed down. Prosecutors cited last year's Davis v. US high court case to argue the exclusionary rule is meant to deter bad conduct on the part of law enforcement, and that sanction ought not apply when the officers acted in accordance with the laws in effect at the time. In two separate cases, the US District Court for the District of Idaho sided with prosecutors last Monday and the US District Court for the Eastern District of Pennsylvania sided with the defense on Wednesday.

On October 28, 2011, Idaho State Police detectives placed a GPS tracker on Juan Aquilar's gray 2008 Chevrolet Impala. It was monitored until November 24, 2011. In Philadelphia, Pennsylvania on December 14, 2010, the Federal Bureau of Investigation installed a tracker on Harry Katzin's Dodge Caravan. The courts considered whether the evidence gathered from the device could be admitted in court given the Jones ruling.

"At the time the GPS devices were used in this case, binding precedent in the Ninth Circuit established that the warrantless attachment of GPS devices did not violate the Fourth Amendment," US District Court Chief Judge B. Lynn Winmill wrote in the Idaho case. "Thus, law enforcement officers, when they placed the GPS tracker on Mr. Aquilar's car in October and November of 2011, were acting in objectively reasonable reliance on the binding appellate precedent provided by McIver and Pineda-Morales. Accordingly, the exclusionary rule will not be applied here because suppression of the evidence obtained would do nothing to deter police misconduct."

The federal judge in Pennsylvania came to a different conclusion based on facts that were largely similar. The one distinction is that the Third Circuit, which covers Pennsylvania, had not ruled on the legality of warrantless GPS surveillance. The FBI insisted it acted in good faith reliance on a number of federal cases upholding GPS searches.

"In this case, at the time the GPS device was placed on the Dodge Caravan there were four circuit courts of appeals that arguably could have supported the government's conduct and one that would not have, meaning that fewer than half of the circuits had even weighed in on the question," US District Judge Gene E.K. Pratter wrote. "If law enforcement is permitted to rely on authority from a minority of other circuits to support the constitutionality of its investigatory practices, where does a district court draw the line when binding precedent later renders those practices unconstitutional? Is law enforcement reliance on a significant minority or, somewhat better, a bare majority of circuits to have addressed the topic enough, or is an overwhelming majority, if not unanimity, required? Does it matter which circuits (or which panels in which circuits) support or condemn the investigatory practice? Does it matter how many circuits have squarely addressed the issue? The difficulty presented by the dilemma ought to be manifest."

Judge Pratter went on to grant exclusion of the evidence gathered against Katzin without a warrant as a violation of the Fourth Amendment.

"Opening to the government the shelter of the good faith exception in this case would encourage law enforcement to beg forgiveness rather than ask permission in ambiguous situations involving the basic civil rights," Pratter concluded. "In the face of Jones, this the court will not do."

A copy of both decisions is available in a 280k PDF file at the source link below.