1 PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 12

- 2548

_____________
UNITED STATES OF AMERICA,

Appellant

v.

HARRY KATZIN; MICHAEL KATZIN; MARK LOUIS

KATZIN, SR.

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim . Action No. 5 : 11

- c r

- 00226 ) District Judge: Honorable Gene E.K. Pratter

______________ Argued March 19, 2013

______________

Before: S MITH, GREENAWAY, JR., and VAN ANTWERPEN

, Circuit Judges

.2 (Opinion Filed: October 22, 2013 )

______________ Robert A. Zauzmer, Esq. [ARGUED] Emily McKillip, Esq. Zane D. Memeger, Esq. Thomas M. Zaleski, Esq. Office of United States Attorney 615 Chestnut St reet Suite 1250 Philadelphia, PA 19106 Counsel for Appellant The United States of America

Thomas A. Dreyer, Esq. [ARGUED] 6 Dickinson Drive

, Building 100 Chadds Ford, PA 19317

- 0000 Counsel for Appellee Harry Katzin

William A. DeStef ano, Esq. Stevens & Lee 1818 Market Street, 29th Floor Philadelphia, PA 19103

- 0000 Counsel for Appellee Michael Katzin

Rocco C. Cipparone, Jr., Esq. [ARGUED] 205 Black Horse Pike Haddon Heights, NJ 08035

- 0000 Counsel for Appellee Mark Louis Katzin, Sr.

Benjamin E. Wizner, Esq. American Civil Liberties Union National Security Project 125 Broad Street, 18th Floor3 New York, NY 10004

Catherine N. Crump, Esq. [ARGUED] Nathan Wessler, Esq. American Civil Liberties Union 125 Broad Street, 17th Floor New York, NY 10004 Counsel f or Amicus Appellees the American Ci vil Liberties Union Foundation

Witold J. Walczak, Esq. Sara J. Rose, Esq. American Civil Liberties Union 313 Atwood Street Pittsburgh, PA 15213

- 0000

Catherine N. Crump, Esq. [ARGUED] American Civil Liberties Union 125 B road Street, 17th Floor New York, NY 10004 Counsel for Amicus Appellees the American Civil Liberties Un ion Foundation of Pennsylvania

Catherine N. Crump, Esq. [ARGUED] American Civil Liberties Union 125 Broad Street, 17th Floor New York, NY 10004

Hanni M. Fakhoury, Esq. Marcia Hoffman, Esq. Electronic Frontier Foundation 815 Eddy Street4 San Francisco, CA 94109 Counsel for Amicus Appellees the Electronic Frontier Foundation

Peter Goldberger, Esq. 50 Rittenhouse Place Ardmore, PA 19003

Catherine N. Crum p, Esq. [ARGUED] American Civil Liberties Union 125 Broad Street, 17th Floor New York, NY 10004 Counsel for Amicus Appellee the National Associati on of Criminal Defense Lawyers

______________

OPINION

______________
GREENAWAY, JR., Circuit Judge

.
This ap peal 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”), claim s 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 r equired, the police were acting in good faith; and (c) in any case, Mark and Michael lack standing to5 contest admissibility of evidence recovered from Harry Katzin‟s van

.

The instant case therefore calls upon us to decide two novel issues of Fourth Amendm ent 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 th at 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 thr ee brothers had standing to suppress the evidence recovered from Harry Katzin‟s van. W e 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 issu es in this matter touch upon several forms of electronic tracking devices, we f ee l 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

.6 A. Tracking Technology

This case concerns a “slap

- on” GPS tracker, so called because it magnetically attach es to the exterior of a target vehicle, is battery operated, and there by 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 send s this data to a central server

. This check

- and

- report process repeat s 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 c entral 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 l ocatio n and mo vement

.

GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as “beepers.” Beepers are nothing more than “radio transmitter[s], usually battery operated, which emit[] periodic signals that can be picked up by a r ad io receiver.” United States v. Knotts , 460 U.S. 276, 277 (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

. U nlike GPS trackers, beepers require that the police expend7 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 th e 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 A id 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 Katzi n around Rite Aid pharmacies throughout the three states. For example, in late October 2010, local police in Pennsylvania encountered Harry Katzin c rouching beside some bush es 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 Rite8 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 piece s 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 morni ng, after

consu lting with the United S tates 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 wh ereabouts, 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 take n

. 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 relay ed this informat ion to the troopers . Inside the van, troopers found Harry at the wheel, with Mark and Michael as9 passengers. From outside of the van, the troopers could see merchandise and equipment from the burglarized Rite Aid, including pill bottles and Rite Aid stor age 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 br others 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 t his case pursuant to 18 U.S.C. § 3231; o ur 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 applica tion 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 that10 [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 particularl y 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 f rom phy sically intruding upon an individual‟s private property for purposes of conducting a search (the physical intrusion theory). See United States v. Jones , 132 S. Ct. 945, 949

- 50 (2012); see also, e.g.

, Olmstead v. United States , 277 U.S. 438 (1928) (upholdi ng 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 (1967)

. 1 A

1 We note that, at times, the Supreme Court has referred to this theory in the language of “trespass” rather than physical intrusion. Compare Jones , 132 S. Ct. at 949

- 50, with Florida v. Jardines , 133 S. Ct. 1409, 1414 (2013). As the law currently stands, we think the latter term

— “physical intrusion”

— is the more appropriate. See Jardines , 133 S. Ct. at 1420

- 21 (Alito, J., dissenting) (crit icizing the Supreme Court‟s most recent application of the physical intrusion theory and noting that “trespass law provides no support for the Court‟s holding today”); Silverman v. United States , 365 U.S. 505, 511 (1961) (“[W]e need not pause to consider

w hether or not there was a technical trespass under the local11 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. In Katz , the Court announced that the Fourth Amendment “protects people, not places,” id. at 351, a principle that eventually became embodied in wha t Justice Harlan termed an individual ‟ s “reasonabl e expectation of privacy” (the privacy theory), id. at 360

- 61 (Harlan, J., concurring). In subsequent years, the privacy theory became the driving force behind Fourth Amendment jurisprudence

, while the phy s ical 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)).

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

property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law.” (footnote omitted)).12 movement of his automobile and th at 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 o nto 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 (1983). In so doing, the Supreme Court explained that “[a] person traveling in an automobile on public thoroughfares has no reasonable
expe ctation of privacy in his movements from one place to another.” Id. at 281. Nonetheless , the Court‟s ruling was not unequivocal, with the Majority cautioning that twenty

- four hour, “dragnet type law enforcement practices” could implicate “different const itutional principles.” Id. at 283

- 84.

The Supreme Court returned to beepers the following year when it decided United States v. Karo , 468 U.S. 705 (1984), which centered on the DEA‟s use of a beeper to collect information regarding the whereabouts of obj ects 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. 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. In holding that use of the beeper was unconstitutional under13 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 (internal quotation marks omitted) . In a partial dissent, Justice Stevens (joined by Justices Brennan and Marshall) argued that placing the beeper inside a contai ner, 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 (Ste v ens, J., dissenting in part).

After the beeper

- centered decisions in Michael

, Knotts

, and Karo , tec hnological 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 , th e 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 plac ement 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, beca use 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 target14 vehicle did not constitute a search because such a device merely substitutes for “following a car on a public street,” an activity that “i s 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 u se 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. Un ited 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 S t ates 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 i n 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 anon ymity 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 al l

- seeing network of GPS satellites that hover overhead, which never sleep, never blink, and never lose attention.” Id. at 1126.15 That same year, the Eight h Circuit became the third of our sister courts to say that attaching a GPS device to a target

car wa s 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)).

L ate r 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. C ir. 2010). In so doing, the

c ourt 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 movement s 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 a utomobile 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 belie ve 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 . 131 S. Ct. 3064 (2011).16 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 p rivacy while driving the car over public streets, the Court (with Justice Scalia writing for the

m ajority) concluded that attaching a GPS device to a target car constituted a physical intrusion upon the vehicle owner‟s private property. Id. (“The Governme nt 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 concu rred in the judgment, but did not join the m ajority‟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” inq uiry 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 monit or 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 m ajority, 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.17 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 95 5

- 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 issue s that Jones left open, however, was wheth er 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. I d. at 954 (citation and internal quotation marks omit ted) . The instant case squarely presents this very issue for our consideration. 2

2 At the tim e of this writing, we are not aware of

— nor has either party brought to our attention

— any decision by one of our sister circuits that directly and definitively resolves the matter. As our brethren in the First Circuit noted earlier this
year:

Few court s (and no circuits that we know of) have grappled with the warrant question so far, largely because the searches at issue in recent cases occurred pre

- Jones , allowing the government to argue, and a number of courts to find, that the good

- faith exception [t o the exclusionary rule] would apply even if the searches were unconstitutional.

United States v. Sparks , 711 F.3d 58, 62 (1st Cir. 2013). As we explain at greater length below, we do not believe that the good

- faith exception applies in this case and cons equently take on the warrant issue.18 We therefore turn now to a consideration of the Fourth Amendment‟s warrant requirement and the various

— albeit circumscribed

— exceptions thereto.

B. The Warrant Requir ement 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.‟” Ve r

n on i a Sch. Dist. 47J v. Acton , 515 U.S. 646, 65 2 (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 governme ntal interests.” Id. at 652

- 53 (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, 11 8 (2001) (internal
qu otation marks omitted)

. More often than not, c ourts “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 (1989). Thus, “[i]t remains a cardinal
pr inciple 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. J effers , 342 U.S.19 48, 51 (1951) ( quoting Johnson v. United States , 333 U.S. 10, 14 (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 ent ry 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 (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. 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; id. at 511

- 12 (“This Court has never held that a federal officer
may without warrant and without consent phy sically 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)). W hile the Fourth Amendment recognizes a difference between the invasion of a “sto re, dwe lling house, or other structure . . . of which a . . . warrant readily may be obtained and a search of a sh i p, 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 (1925). 3

3 We address the “automobile exception,” first recognized in Carroll , in greater detail below.20 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 sec tion, 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 us e 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 (1968), the Court has identified variou s law enforcement actions that qualif y 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 fin d that none apply to the instant matter

.

4 We assume, without deciding, that the police had reasonable suspicion for purposes of our analysis.21 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 pro bable

- cause requirement impracticable.” Skinner , 489 U.S. at 619

- 20 (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 (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. See also United States v. Ward , 131 F.3 d 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 (2001) ( internal quotation marks omitted)

. In the instant case, the reasoning behind the “special needs” doctrine is inapposite. The Government cannot articul ate a particularized interest, other than a general ized interest in law enforcement. Indeed, the Gove rnment contends that if officers are required to obtain a warrant and have probable cause prior to executing a GPS search, “officers could not us e 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 e vidence for law enforcement purposes.” 532 U.S. at 83 (emphasis omitted) ; Edmond , 53122 U.S. at 48 (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 case s that address situations where the targets of a search enjoyed a lower expectation of privacy. 6 See, e.g.

, United States v.

5 The Government conten ds that requiring a warrant prior to GPS searches would “seriously impede the government‟s ability to investigate drug trafficking, terrorism, and other crimes.” (Appellant Br. at 27.) We fail to see how such a conclusory assertion suffices to except GPS searches from the requirements of the Fourth Amendment‟s Warrant Clause. Doubtless, we are aware of the dangers posed by terrorism and comparably reprehensible criminal activity. However, we would work a great disservice by permitting the word “terroris m” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution.

6 The seemingly paradoxical exercise of analyzing a search based on physical intrusion under the rubric of privacy
exp ectations does not escape our notice. Still, as the Supreme Court noted in Jones : “The Katz reasonable

- expectation

- of

privacy test has been added to , not substituted for , the

common

- law trespassory test.” Jones , 132 S. Ct. at 952. Moreover, we note tha t even before Katz , the Supreme Court was balancing the “need for effective law enforcement23 Knights , 534 U.S. 112, 121 (2001) (“When an officer has reasonable suspicion that a probationer subject to a search condition is e ngaged 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 reasoni ng 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 (1977), abrogated by California v. Acevedo , 500 U.S. 565 (1991), absent circumstances that are not present in this case, the police must still have probable

cause, Acevedo , 500 U.S. at 579

- 80.

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 reason able suspicion under the principles of Terry v. Ohio

, 392 U.S. 1 . In Terry , the Supreme Court held that a police officer could “stop” an individual on the street for questioning

against the right of privacy” in considering whether a particular situation constituted an exception to the Fourth Amendment‟s warrant requirement. Johnson , 333 U. S. at 14

- 15 (considering warrantless searches based on probable cause).24 and then “frisk” him to ascertain whether the individual was carrying weapons

. Terry , 392 U.S. at 22

- 2 7 . More specifically, the Court held that a warrantless search

— the stop

— was permissible when based on less than probable cause if the “ police officer observe s unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Id. at 30. As for the search

— the frisk

— the Court explained that a search was permitted when the officer reasonably believed that “the person[] with who m he is dealing may be armed and presently da ngerous . . . 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 other s nearby, and may realistically be characterized as something less than a „full‟ search.” Id. at 26. The Terry framework has since expanded to include situations where, for exam ple, an automobile has been stopped. See, e.g.

, Michigan v. Long , 463 U.S. 1032 (1983) ; Pennsylvania v. Mimms , 434 U.S. 106 (1977); United States v. Yamba , 506 F.3d 251 (3d Cir. 2007).

We find Terry and its progeny to be inapposite in this situation. Wh ile 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

7 The Government argues that “[a] Terry search is the paradigmatic example of a law enforcement action, absent „special needs‟ . . . , in which the balancing of law25 Cf. Berger v. New York , 388 U.S. 41, 59 (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

movement s that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Jones , 132 S. Ct. at 9 5 5 (Sotomayor, J., concurr ing). 8

enforcement interes ts and privacy rights yields a standard less than probable cause.” (Appellant Br. at 33.) This is incorrect. While the Court found that the “stop” was permissible despite merely serving a “legitimate investigative function,” that same rationale did not apply to the “frisk.” Terry , 392 U.S. at 22

- 24. Rather, the Court explicitly noted, in evaluating the search of an individual‟s person, that it was “now concerned with more than the governmental interest in investigating crime .” Id. at 23 (emphasis adde d). Specifically, the Terry court looked to the “more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Id. The police, in attaching a GPS device to a car, are not looking for weapons and generally are not attempting to safeguard anyone‟s immediate safety

— they are attempting to investigate crime.

8 The Government also seems to suggest that our evaluation should turn on how long the GPS unit remained attached to Harry Katzin‟s van. (Appellant Br. at 25.) It is unclear, however, whether such a test would prove workable. It is not apparent whether, pursuant to such a test, the government would need to know how long a GPS search would last or26 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 physicall y 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 reason able suspicion alone. 9

whether they could, upon reaching some threshold duration, request a warrant from the courts for further GPS surveillance. We need not definitively resolve this question now, however. In this case, it was only by dint of coincidence that the GPS surveillance lasted for a mere handful of days.

9 In support of its position, the Government points to the Eighth Circuit‟s decision in Marquez and the Fifth Circuit‟s decision in Michael . In Marquez , the court suggested that “[w]hen electronic monitoring does not invade upon a legitimate expectation of privacy, no search has occurred.” 605 F.3d at 610 (“[W]hen police have reasonable suspicion that a particular vehicle is transporting drugs, a warrant is not required when, whi le the vehicle is parked in a public place, they install a non

- invasive GPS tracking device on it for a reasonable period of time.”). In Michael , the Fifth Circuit explained that the “reduced” expectation of privacy with respect to the movement of an auto mobile and the27 nonintrusive nature of the procedure permitted DEA agents to install a beeper on the defendant‟s car. 645 F.2d at 257

- 58 (“The actual installation of the beeper was much less intrusive than the typical stop and frisk. Michael . . . was not detained or questioned; he suffered no indignity; nothing from the interior of the van was seized or searched; indeed, nothing even from the van‟s exterior was removed.” (footnote omitted)).

The Government‟s reliance is misplaced. Both Michael and Marque z were decided prior to Jones , and thus did not have the benefit of: (a) the Court‟s reliance on the pre

- Katz trespass theory of the Fourth Amendment or (b) Justice Sotomayor‟s concurrence. Moreover, both cases are inapposite: In Marquez , the court found that the defendant lacked standing to challenge the use of the GPS device and therefore never reached the question of whether such use constituted an unreasonable search. 605 F.3d at 609. The Eighth Circuit‟s discussion of reasonable suspicion is theref ore dicta, coming only while the court was musing on what would happen “[e]ven if [the defendant] had standing.” Id. In Michael , the Fifth Circuit focused on a beeper

— which is markedly different from a GPS device

— and its decision is therefore disting uishable. 645 F.2d 256

- 59. Additionally, both decisions run up against the holding in Maynard , where the D.C. Circuit explained that warrantless installation of a GPS device by the police was per se unreasonable under the Fourth Amendment. 615 F.3d at 5 66

- 67.28 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

10 We note that a warrantless search based on probable cause is also reasonable in the presence of certain “exigent circumstances” that “make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the F ourth Amendment.” Kentucky v. King

, 131 S. Ct. 1849, 1856 (2011) (internal quotation marks omitted). Such exigent circumstances include, but are not limited to, “hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others.” United States v. Coles , 437 F.3d 361, 366 (3d Cir. 2006) (“In these limited situations, the need for effective law enforcement trumps the right of privacy and the requirement of a search warrant, thereby ex cusing an otherwise unconstitutional intrusion.” (footnote omitted)). In this case, we perceive (and the Government points to) no exigency that would have justified the police in immediately searching Harry Katzin‟s van. We do not discount, therefore, th e possibility that under highly specific circumstances

— such as where life is on the line, say

— the police can justify undertaking a warrantless GPS search based on probable

cause.

11 Here we also assume, without deciding, that the police had probable cau se for purposes of our analysis.29 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 (1970); se e also Johnson , 333 U.S. at 14 (“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

ve hicle 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 (1982) (“If probable cause justifies the search . . . , it jus tifies 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 exis ts 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 Hamp shire , 403 U.S. 443, 461

- 62 (1971) (discussing the automobile exception in the context of exigent circumstances). 12 Indeed, the automobile exception does not

12 The automobile exception began as part of the “exigent circumstances” jurisprudence. Carroll , 267 U.S. at 153 (noting that the Fourth Amendment made a distinction for searches of automobiles since “it is not practicable to secure a30 validate all warrantless automobile searches, but instead is “unquestionably [a] specifically esta blished and well delineated” exception. Ross , 456 U.S. at 824 (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 (quoting United States v. Ross , 456 U.S. 798, 824 (1982)).

We hold that the automobile exception is inapplicable here. The key distinction in this case is the type of search at issue. While t he 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 82 5 , the search is still limited to a

warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought”). Later cases expanded on this rationale, adding further justification for why the police need not obtain a search

warra nt for the car. Most significantly, after the Katz decision had given precedential imprimatur to the language of “privacy,” the Court explained in United States v. Chadwick

, that “„[o]ne has a lesser expectation of privacy in a motor vehicle because its f

unction is transportation and it seldom serves as one‟s residence or as the repository of personal effects.‟” 433 U.S. at 12 (quoting Cardwell v. Lewis , 417 U.S. 583, 590 (1974)). Finally, the Supreme Court severed the connection between the automobile e xception and exigent circumstances, holding that the exception “has no separate exigency requirement” at all. Maryland v. Dyson , 527 U.S. 465, 466 (1999).31 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 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 usua lly 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 ente r 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

13 We recognize that the Supreme Court has sanctioned warrantless searches under the automobile excep tion that, for example, have occurred some time after the police first impounded a vehicle. See, e.g.

, United States v. Johns , 469 U.S. 478, 485

- 88 (1985). We think this to be of no moment for our purposes. In cases such as Johns the search at issue sti ll occurs at a specific point in time and is specifically limited in its scope to “places in which there is probable cause to believe that [contraband] may be found.” Id. at 485

- 86 (internal quotation marks omitted)

.32 “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 (1999) (noting that “the automobile does not have a separate exigency requirement,” partly because vehicles are “rea dily 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).) However, the Government seems to overlook that th e 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 (1985). True, such pervasive

r egulation 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 less er expectation of privacy resulting from its33 use as a readily mobile vehicle justified application of the vehicular exception.” Id. at 391. 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 intr ude 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 (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

14 The Government also points to New Yo rk v. Class , 475 U.S. 106 (1986), for the proposition that a warrantless, minimally intrusive search of a vehicle is permitted where the police have probable cause. (Appellant Br. at 37). In Class , the police had stopped a car for various traffic violati ons. After the driver exited the vehicle of his own accord, an officer approached the vehicle in order to copy the VIN number on the dashboard. Finding his view obscured, the officer reached into the car to move some papers and, in the process, observed the handle of a gun. Inevitable results followed. Class , 475 U.S. at 107

- 09. A brief look at the underlying reasoning of Class , however, demonstrates that it is inapposite: the Court reasoned that the brief search served several important government nee ds beyond a basic interest in law enforcement, including “the governmental interest in34 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, permitting the police to intrude indefinitely upon a target vehicle based solely on the prospect that it will, in the future, contain some c ontraband 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

highway safety” and a “concern for the officers‟ safety.” Id. at 118. Here, neither of the interests is directly served. Accord Jones , 132 S. Ct. at 952 (holding that Class is inapplicable to GPS searches because “attaching [a] device to the [car]” may have resulted in a different outcome).35 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 unrea sonable searches and seizures[, it] says nothing about suppressing evidence obtained in violation of this command.” Davis v. United States , 131 S. Ct. 2419, 2426 (2011) (internal quotation marks omitted). Nevertheless, to “compel respect for the constitu tional guaranty,” the Supreme Court created the exclusionary rule. Elkins v. United States , 364 U.S. 206, 217 (1960). The rule mandates that evidence obtained in violation of the Fourth Amendment should not be available at trial. Herring v. United State s , 555 U.S. 135, 139 (2009). However, “that a Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies.” Id. at 140.

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

15 As the Supreme Court noted in Herring , “good faith exception” is somewhat of a misnomer. 555 U.S. at 142. The inquiry is not s ubjective at all, but instead looks to an officer‟s “objectively reasonable reliance.” Id. Nonetheless,36 Supreme Court has held this exception to cover situations where law enforcement personnel have acted in objectively reasonable relianc e 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 (undiscovered error in police

maintained database); Arizona v. Eva ns , 514 U.S. 1 (1995) (undiscovered error in court

- maintained database); Illinois v. Krull , 480 U.S. 340 (1987) (subsequently overturned statute); United States v. Leon , 468 U.S. 897 (1984) (later

- invalidated warrant).

To determine whether a particular si tuation 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 (“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 ex ception 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).

When considering the benefits gained from deterrence, we must necessarily consider the nature and culpability of the

because the Supreme Court (and our own decisions) use the terms interchangeably, we do so as well.37 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; Davis , 131 S. Ct. at 2429 (cautioning courts not to discourage “the officer from doing his d uty” (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 , 55 5 U.S. at 144). 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 culpa bility 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 acte d with an objectively reasonable good faith belief that their conduct was constitution al 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 position38 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” fro m 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 trackin g (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 fait h 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 bo th d istinguishable given (1) the lack of a physical intrusion in those cases, (2) the placement by police of the beepers inside container s , 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 (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 areas39 of the car that the po lice were allowed to search after a suspect‟s arrest. See Arizona v. Gant , 556 U.S. 332 (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 Amend ment 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

mar ks 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 t he 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 d id 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

16 We also note that the Eleventh Circuit‟s opinion in Davis was explicit on this point: “[We refuse] to apply the exclusionary rule when the police have reasonably relied on clear and well

- settled precedent. We stress, however, that our precedent on a given point must be unequivocal before we will suspen d the exclusionary rule‟s operation.” United40 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 contai ner 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; Knotts , 460 U.S. at 278. Additionally, both Karo and Knotts addressed the use of beepers, which

— as we have already e xplained

— 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 in trusion 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.

States v. Davis , 598 F.3d 1259, 1266 (11th Cir. 2010) (citations omitted) (emphasis added); see also United States v. Buford , 632 F.3d 264, 276 n.9 (6th Cir. 2011) (“Like the Eleventh Circuit, we also „stress, however, that our precedent on a given point must be unequivocal before we will suspend the exclusionary rule‟s operation.‟” (quoting Davis , 598 F.3d at 1266)); United States v. McCane , 573 F.3d 1037, 1045 n.6 (10th Cir. 2009) (finding that the good faith exception applied because “Tenth Circuit jurisprudence supporting the search was settled. Thus, there was no risk that law enforcement officers would engage in the type of complex legal research and analysis better left to the judiciary and members of the bar”).41 C. Reliance on Out

- of

- Circuit GPS Case s

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 . . . .”) .) An d 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

17 We note that the majority in Davis itself suggested that its holding is inapplicable to the situation presented in this case. While explaining that its ruling will not deter defendants from challenging existing Fourth Amendment doctrine, the Sup reme Court noted:

This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains

open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the development of Fourth Amendment law will in no way be stunted.42 The Davis decision hinged on the understanding that “[r]esponsible l aw

- 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 “Fourt h 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 (2006) (noting that officers are expected to learn and abide by “ what is required of them” by courts having jurisdiction over them).

Thus, a s 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 bindi ng 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 (inter nal quotation marks omitted) . The same cannot be said where the law is unsettl ed in a particular jurisdiction, even where persuasive authority may exist in the form of decisions by other circuit courts.

Indeed, e xtending 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

Davis , 131 S. Ct. at 2433 (emphasis added) (footnote omitted). Thus, the Court in Davis recognized that its holding was limited to jurisdictions where the law was clearly settled.43 should con trol 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 dicta te 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 th is 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 thos e, 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 th e 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 Go vernment 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 what44 this Court (or even the Supreme Court) would say if faced wit h a similar case. 18

18 The Government urges that our analysis in United States v. Duka , 671 F.3d 329, 347 (3d Cir. 2011) (addressing evidence obtained in a search pursuant to the Foreign Intelligent Surveillance Act (FISA)), supports the proposition that the reasoning from Davis is not limited to binding precedent. ( Appellant Br. at 61

- 62 (“[The] insistence on bindin g authority does not accord with this Court‟s approach following Davis . . . . [ Duka ] undermines the district court‟s position that reliance on non

- binding case law . . . is per se unreasonable.”).) This is not correct . Not only was the good faith discuss ion in Duka based on a different Supreme Court decision

— Krull , which addressed objectively reasonable reliance on a later

- invalidated statute

— but the entire discussion of the good faith exception is dicta. See Duka , 671 F.3d at 346 (discussing the “go od faith” exception only after noting that “[w]e are confident that FISA‟s „significant purpose‟ test satisfies the Fourth Amendment”). Moreover, the Government‟s argument seems to hinge on a footnote that contains the opinion‟s lone citation to Davis . I n that footnote, this Court stated that “[t]he objective reasonableness of the officers‟ reliance on the statute in this case is further bolstered by the fact that the particular provision at issue has been reviewed and declared constitutional by several c ourts, going as far back as 2002.” Id. at 347 n.12 (collecting cases). Since none of these “several courts” are the Third Circuit, the Government argues, Duka demonstrates our willingness to apply the rationale from Davis to non

- binding authority. We th ink this makes a mountain out of a molehill: this single45 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
suppress ion 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 circui ts 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

reference to Davis comes in dicta, in a footnote, as part of a “cf.” citation.

19 To see just how unwieldy the analysis could be, we need look no further than the Government‟s own arguments in this

ca se. At oral argument, the Government attempted to minimize the significance of Maynard , suggesting that this46 D. Exclusion based on Culpability and Deter rence
Up to this point we have considered only whether reliance by l aw 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 reli ance is insufficient to support a per se finding of good faith. 20 The Supreme Court in Herring and

single decision had come too late in the process and was, ultimately, distinguishable. Such arguments would be disastrously disruptive to lower c ourts if we were to hold that reliance on out

- of

- circuit authority could, by itself, suffice for purposes of the good faith exception. How up

- to

- date must law enforcement be regarding the state of relevant legal principles? What if a decision were issued but either (a) was late in being added to a reporter/electronic database or (b) did not get sufficiently wide

- spread exposure to bring it to the attention of police departments half

- way across the country? Not only would district courts be forced to tall y the authorities on either side of an issue like so many chit marks, but they would also have to decide whether decisions had come too late, or were perhaps too obscure.

20 We note that some of our sister circuits have ruled otherwise, holding that, per Da vis , pre

- Jones warrantless GPS searches qualify for protection under the good faith exception. See United States v. Sparks , 711 F.3d 58 (1st Cir. 2013); United States v. Andres , 703 F.3d 828 (5th Cir. 2013); United States v. Pineda

- Moreno , 688 F.3d 1087 ( 9th Cir. 2012). These cases, however, do not deter us from our conclusion.

To begin with, all three courts relied on binding precedent within their own circuits. The Ninth Circuit noted that the47 police could rely on, among other things, McIver for the
pr oposition that “placing an electronic tracking device on the undercarriage of a car was neither a search nor a seizure under the Fourth Amendment.” Pineda

- Moreno , 688 F.3d at 1090. The Fifth Circuit, which devoted a single paragraph to the discussion, ba sed its conclusion on the presence of Michael , and its holding that “„reasonable suspicion is adequate to support warrantless beeper installation‟ on a suspect‟s vehicle parked in a public space.” Andres , 703 F.3d at 835 (quoting Michael , 645 F.2d at 257) . Finally, the First Circuit based its decision to apply the good faith exception on the presence of “clear and apposite” authority, including a First Circuit decision that found “„the lessened expecta ncy of privacy associated with motor vehicles justifie s the use of beepers without a warrant to track vehicles . . . only if the officers have probable cause at the time.‟” Sparks , 711 F.3d at 65 (quoting United States v. Moore , 562 F.2d 106, 112

- 13 (1st Cir. 1977)). At the same time, however, the First Cir cuit was far from certain that out

- of

- circuit precedent could support a finding of good faith, noting that “the two appellate courts to consider the question since Davis have read Davis to require reliance on the case law of the jurisdiction.” Id. at 63

- 6 4 & 63 n.2 (internal quotation marks omitted).

Moreover, both the First and Fifth Circuits based their good faith exception determinations on cases dealing with beepers, with the First Circuit in Sparks going so far as to hold that Knotts was sufficiently “clear and apposite” so as to support a finding of good faith. Sparks , 711 F.3d at 65. As our foregoing discussion suggests: we disagree with this position. The difference between beepers and GPS trackers is one of kind, not degree. Any time technology shifts in this way,48 Davis , however, recognized that the good faith exception inquiry requires more. That is, in determining whether law enforcement personnel acted “with an obj ectively „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). We therefore u ndertake 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 H erring

, 555 U.S. at 144; 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 pri vacy 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.

courts should expect that law enforcement will tread lightly and will refrain from reasoning by (potentially ill

- fitting) analogy. Cf. Kyllo v. United States , 533 U.S. 27, 35

- 36 (2001) (discussing the Court‟s reticence to “leave the h omeowner at the mercy of advancing technology”).

21 Our dissenting colleague points to a number of other decisions and Fourth Amendment doctrines which add further sauce to the Government‟s good faith goose. ( See Dissent at 20

- 29 (discussing, for example, privacy considerations in the exterior of an automobile).) While we do not disagree that these too were part of the relevant legal landscape at the time the police executed their search, we nevertheless hold that

—49 at 44, 50, 55 n.21; Oral Argument Tr. at 23.) Taken together, the Government contends, these so urces 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 collect ion 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 t hat 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 source s 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

in light of our forthcoming discussion

— such authority gets further and further afield of the relevant police conduct and could only supply marginal support to justify the police action.

The only possible exception is the advisory commentary on Federal Rule of Crimin al Procedure 41. (Dissent at 32 .) However, for the reasons articulated below, see infra note 24 , we find that this commentary would not help the Government‟s position

— even assuming the Government had seen fit to cite (let alone mention) the language in its briefs or at oral argu ment.50 these sources

— it is a part of how we ex pect 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 dutie s 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 w arrant 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 monit or 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 )

22 We therefore reject the Government‟s attempts to distinguish Maynard . While it is true that the surveillance in Maynard lasted for nearly a month as compared to the several days in this case, it remains equally true that when the police attached t heir GPS device to Harry Katzin‟s van, they had no way of knowing when the next Rite Aid robbery would take place. We likewise disagree with our Dissenting colleague‟s assessment of Maynard . (Dissent at 29

- 31 .) The good faith51 True, the police did not act in a total vacuum, but their chosen course of action when presented with s uch 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

exception analysis cannot b e post

- hoc, and the police action at issue must be analyzed under the circumstances as they existed at the time the action was taken

— in this case, before the police knew when their GPS surveillance would end.

23 The Government suggests that the good faith exception should apply because the police sought confirmation from “experienced government attorneys.” (Appellant Br. at 56.) The Government cites Messerschmidt v. Millender , 132 S. Ct. 1235 (2012), for the proposition that it shows good faith on the pa rt of an officer if he obtains “approval of the warrant application from a superior and a prosecutor before submitting it to a magistrate.” (Appellant Br. at 57.) However, Messerschmidt is inapposite. That case considered good faith in the context of an officer relying on a warrant that had been based on an allegedly paltry affidavit. Thus, the opinion of a third party tended to demonstrate that the officer52 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 w arrant 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 conte nds that because law enforcement personnel were aware that a search occurs when the police intrude upon a target‟s reasonable expectation of privacy, they act ed in good faith by relying on our sister circuits‟ GPS decisions as well as Knotts ‟ statement tha t, 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. We find such reasoning

had not acted with knowledge of the affidavit‟s deficiency. In the instant case, the police lack even an affidavit. Moreover, a government attorney‟s approval, standing alone, cannot and should not suffice to demonstrate good faith. Cf. Leon , 468 U.S. at 914 (“[T]he courts must also insist that the magistrate purport to perform his neutral and deta ched function and not serve merely as a rubber stamp for the police. . . . [A magistrate] who acts instead as an adjunct law enforcement officer cannot provide valid authorization for an otherwise unconstitutional search.” (internal quotation marks omitted )). T hus, while we agree that it is another “ factor to consider,” (Oral Argument Tr. at 51

- 52; Dissent at 33 ), we nonetheless hold that, in this case, seeking the advice of a “government attorney[]” does not offer much support to the Government‟s position

.53 dangerous for the reasons already articulated above: Law enfo r cement 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 app lies 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 suppre ssion 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

24 The Dissent argues that Federal Rule of Criminal Procedure 41

— particularly the 2006 advisory committee notes to that rule

— further supports a finding that the law enforcement officers in this case acted with an objectively good faith belief that the ir conduct was constitutional. (Dissent at 32 .) In particular, the Dissent points to the following language from the 2006 advisory committee notes: “If . . . the officers intend to install and use [a tracking device] without implicating any Fourth Amend ment rights, there is no need to obtain a warrant.” Fed. R. Crim. P. 41(b) advisory committee‟s note (2006) (citing Knotts , 460 U.S. 276). This language, however, stands for nothing more than the unremarkable proposition that the police need not obtain a warrant if their action does not violate the Fourth Amendment. Without our (or the Supreme Court‟s) having ruled on the matter, however, the police could not reasonably say that the use of a GPS tracker would not “implicat[e] . . . Fourth Amendment right s.” Indeed, even under the most generous rationale, this54 Moreover, since such c onstitutionally 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

. . . .”). Th e 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

language could only have favored the Government‟s argument if the GPS search occurred prior to the Maynard decision ( i.e. , before any circuit had suggested that GPS searches violated the Fourth Amen dment). However, once the circuits split on the issue of whether using a GPS tracker constitutes a search, law enforcement officials were on notice that such devices could “implicat[e] . . . Fourth Amendment rights” and the commentary became borderline ir relevant for good faith purposes.55 a particular situat ion. 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 (1982). 26

25 We do not hold, of course, that the police can never make assumptions about our future Fourth Amendment rulings. We merely hold that where law enforcement personnel choose to take the constitutional analysis into their own hands, they effectively do so without a safety net: If their analysis is correct and we ultimately affirm the constitutionality of a search, then the police are rewarded with full use of any evidence derived from the search . If their analysis is wron g, however, and the search is ultimately held to be unconstitutional, then the police cannot avoid the cost of suppression by relying on the good faith exception. Just as the police enjoy the benefits when they are correct, so, too, do they bear the costs when they are wrong. Of course, the police can avoid this entire issue by requesting a warrant in the first instance.

26 Johnson addressed retroactive application of Fourth Amendment decisions. In discussing the matter, the Court stated:

If, as the Gover nment argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitivel y resolving56 Excluding the evidence in this case wou ld incentivize just that and would therefore result in “appreciable deterrence” of future Fourth Amendment violations. Leon , 468 U.S. at 909 (internal quotation marks omitted).

Thus, heeding the Supreme Court‟s views in Herring and Davis , and after consi dering 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. 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 Am endment 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

the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would encourage police or other courts to disregard the plain purport of our decisions and to adopt a let‟s

- wait

- until

- it‟s

- decided approach.

Johnson

, 457 U.S. at 561 (footnote and internal quotation marks omitted).

27 It bears noting that we do not deal here with a situation where some on

- point binding precedent exists. That is, we are not presented with a case wherein law enforcement personnel were as ked to apply on

- point binding appellate law to a new factual scenario. Indeed, we recognize that applying57 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 (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) t he 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 t hat 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, w e find that all three had standing

.

existing precedential frameworks to subtle factual permutations is something that police officers

— and other law enforcement personnel

— do all the time. We have no occasion (or desire) to curtail such practices in this opinion. Thus, for example, we do not purport to limit the ability of an officer to decide whether a particular situation gives rise to exigent circumstances while standing outside a n apartment door with suspicious sounds emanating from within. Such a case could lead to a different outcome under the Herring and Davis balancing test given that, unlike here, the officer would not be leaping recklessly into an unexplored constitutional situation

.58 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 vehicl e. 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.) Sin ce “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 R akas v. Illinois , 439 U.S. 128, 147 (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

28 We explicitly noted in Mosley that courts “should not be distracted by the fact that this case involves evidence found in a car.” Mosley , 454 F.3d at 253. As Mosley explained, the constitutional violation stems not from the “search of the ca r . . . [but] the seizure of [the passenger].” Id. at 253 & n.6 (“[A] Fourth Amendment seizure of every occupant occurs the moment that vehicle is pulled over by the police.”) The same is true of the case at bar: while the police did search Harry Katzin‟ s van, this was done only after pulling the van to the side of the road, thereby “seizing” all three brothers.59 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 d iscovered 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 wit h [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 movin g 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 Ame ndment 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 ef fort to apply the Fourth Amendment.” Id. at 267 (quoting Rakas , 439 U.S. at 147). 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 virtu e of be ing 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

29 It bears noting that Mark and Michael Katzin challenge the60 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
consequ ence 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 m ay 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). The presence of Mosley

, however, alters this analysis.

The Government e ffectively 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

stop of Harry Katzin‟s van, not the GPS search itself. That in the course of challe nging the stop this Court must necessarily consider the constitutionality of the GPS search is merely incidental: Mark and Michael seek to vindicate their own rights, not those of their brother.61 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 Harr y 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.

VI. CONCLUSION

For the reasons discu ssed above, we will affirm the District Court‟s suppression of evidence discovered inside of Harry Katzin‟s van.1 VAN ANTWERPEN, Circuit Judge

, concurring in part and dissenting in part

.
To briefly recap: In December 2010, law enforcement officers, after consulting an Assistant United State s 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 d evice (―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 Har ry 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 (1983) ; see also United States v. Karo , 468 U.S. 705, 713

– 16 (1984)

. A ll but one of the United States Court of Appeals to have addre ssed 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 warran t. This view was reflected in2 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 [a n electronic surveillance ] device without implicating any Fourth Amendment rights.‖ F ED

. R. C RIM

. 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 (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 Majori ty Opinion (―Maj. Op.‖) at 18

. 1

I disagree, however, with the majority‘s conclusion that the District Court w as correct to suppress the evidence obtained as a result of the warrantless GPS installation and subsequent surveillance. See Maj. Op. at 3 4

– 56

. Given pre

Jones Supreme Court precedent, the consensus regarding GPS and GPS

- like use across the federal cour ts, 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]

1 I also agree with the majority that, under our decision in United States v. Mosely , 454 F.3d 249 (3d Cir. 2006), each of the Katzin brothers ha s standing to seek suppression of the evidence obtained from Harry Katzin‘s vehicle.3 lawful.‖ Davis v. United States , 564 U.S. __, 131 S. Ct. 2419, 2427 (2011) (quoti ng United States v. Leon , 468 U.S. 897, 909 (1984)). For that reason, suppression in this case is unwarranted, and I would reverse the District Court.

I.

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 Ame ndment 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 (2009); United States v. Tracey , 5 97 F.3d 140, 151 (3d Cir. 2010)

. See also Illinois v. Gates , 462 U.S. 213, 223 (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 (1998)), utilized to ―compel respect for the consti tutional guaranty‖ embodied in the Fourth Amendment, id. (quoting Elkins v. United States

, 364 U.S. 206, 217 (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 design ed to safeguard Fourth Amendment rights generally through its deterrent4 effect.‘‖ (quoting United States v. Calandra , 414 U.S. 338, 348 (1974))). Suppression of evidence obtained through a violation of the Constitution is ― ̳not a personal constitutional

r ight,‘ 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 (1976)). And introduction of illegally obtained evidence at trial ―work[s] no new Fourth Am endment wrong.‖ Calandra , 414 U.S. at 354. 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 circumst ance in which it might provide marginal deterrence.‖ Herring , 555 U.S. at 141 (quoting Scott , 524 U.S. at 368). Suppression is prudent only where it would ―result in appreciable deterrence.‖ Leon , 468 U.S. at 909 (emphasis added) (quoting United States v. Janis , 428 U.S. 433, 454 (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)); Herring , 555 U.S. at 141 (same); Arizona v. Evans , 514 U.S. 1, 11 (1995) (same); Virgin Islands v. John , 654 F.3d 412, 417 (3d Cir. 2011) (same). In other words, suppression is

w arranted only where its deterrence benefits outweigh the substantial social costs inheren t in ―preclud [ ing ] consideration of reliable, probative evidence.‖ Scott , 524 U.S. at 364 ; 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 1 51 (―To determine whether to apply the rule in a5 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 judic ial 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.‘‖ Herrin g , 555 U.S. at 141 (quoting Leon , 468 U.S. at 908). But in addition to its ―costly toll upon truth

- seeking and law enforcement objectives,‖ Scott , 524 U.S. at 364

– 65 (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 (alteration omitted) (quoting Stone , 428 U.S. at 491). Consequently, ―[o]ur cases hold that society must swallow this bitter pill w hen necessary, but only as a  ̳last resort.‘‖ Davis , 131 S. Ct. at 2427 (quoting Hudson v. Michigan , 547 U.S. 586, 591 (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). 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) . 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 suffic iently culpable that such6 deterrence is worth the price paid by the justice system‖ (quoting Herring , 555 U.S. at 144) ).

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). 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); 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 w ay.‘‖ Davis

, 131 S. Ct. at 2427

– 28 (citations and internal quotation marks omitted) (quoting Herring , 555 U.S. at 137; Leon , 468 U.S. at 909, 908 n.6 , 919 ).

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

t he Fourth Amendment.‖ Leon , 468 U.S. at 909 (quoting Gates , 412 U.S. at 255 (White, J., concurring)) ; see also Evans , 514 U.S. at 11

– 12 (―[W]here the officer‘s conduct is objectively reasonable, excluding the evidence will not further the ends of the excl usionary rule in any appreciable7 way . . . .‖ (alteration in original) (internal quotation mark omitted) (quoting Leon , 468 U.S. at 919

– 20)) ; Illinois v. Krull , 480 U.S. 340, 348

– 49 (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 (1975))); Leon , 468 U.S. at 922 n.23 (―[O]ur good fait h 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 h e 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 ex clusion  ̳should not be applied to deter objectively reasonable law enforcement activity.‘‖ Davis , 131 S. Ct. at 2429 (quoting Leon , 468 U.S. at 919).

II.

Admittedly, the majority p osits several pages focused

on the balancing test outlined in Herring a nd 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 gr ossly negligent‘ violation of the Fourth Amendment,‖ Maj. Op. at 48 , the majority fragments its analysis by discussing whether Knotts and Karo and the cases from our sister circuits8 addressing GPS and GPS

- like devices are ―binding appellate precedent‖ unde r Davis

.
Of course, the question of whether Davis ‘s specific holding

— that is, that law enforcement reliance on ―binding appellate precede nt‖ qualifies as objective good

- faith conduct

— lingers in the background of this case. In the event the Government we re 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 enforc ement reliance thereon in the more gen eral 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 t heir 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 kn own that the search was illegal‘ in light of  ̳ all of the circumst ances , ‘ ‖ Herring , 555 U.S. at 145 (quoting Leon , 468 U.S. at 922 n.23) ; not whether the officers relied upon9 ―binding appellate precedent,‖ or ―some seemingly immutable authority or information,‖ as the majority implies. See Maj. Op. at 3 6 ; see also id. a t 49 (―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 50

. 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, withou t ―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 exc eption, 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 (int ernal quotation marks omitted) (quoting Leon , 468 U.S. at 922 n.23). Davis is obviously important because t he 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 its10 affirmation of deterrence and police culpability as the lynchpins of the exclusionary rule analysis. The majority thus erroneously elevates the ―binding ap pellate 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 pol ice relied on binding appellate precedent that  ̳ specifically authorize [ d the] particular police practice.‘ ‖ Maj. Op. at 3 9 ( quoting Davis , 131 S. Ct. at 2429). T hus, t he majority
stresses
, that Davis must be read as ―extend[ing] good faith protection onl y to acts that are explicitly sanctioned by clear and well

- settled precedent.‖ Maj. Op. at 40

. 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 fac tual 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.‖).

M ore importantly, t he 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 of

ficer 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 offic er more culpable where circuit precedent is simply suggestive rather than  ̳binding,‘ where it only describes how to treat11 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 it s precise holding. . . . [But] t h [ 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 C ATO S UP

. C T

. R EV

. 237, 255 (2011) (―If the exclusionary rule solely conc erns 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 uph eld 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 latte r.‖). 2

2 The majority supports its limiting reading of Davis by pointing to the opinion below from the Eleventh Circuit, and several similar cases from our sister circuits, where in
court s ―stress. . . that [the] precedent on a given point must be unequivocal before [ those court s would] suspend the exclusionary rule‘s operation.‖ United States v. Davis , 598 F.3d 1259, 1266 (11th Cir. 2010) ; s ee also United States v. McCane , 573 F.3 d 1037, 1045 (10th Cir. 2009) (―Relying12 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

upon the settled case law of a United States Court of Appeals certainly qualifies as an objectively reasonable law enforcement behavior.‖); United States v. Jackson , 825 F.2d 853, 866 (5th Cir. 1987) (―The exclusiona ry rule should not be applied to searches which relied on Fifth Circuit law prior to the change of that law . . . .‖); id. at 878 (Hill, J., concurring) (―Outside of situations where we have authorized the specific conduct undertaken and then later declare d it unconstitutional, I believe the analogy to Leon and Krull weakens and the exception should probably not be applied.‖). But the Supreme Court refrained from creating a similar restraint. See Davis , 131 S. Ct. at 2435

– 36 (Sotomayor, J., concurring) (n oting that Davis left ―the markedly different question [of] whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled . . . unanswered‖). I therefore hesitate before reading into Davis a limitat ion apparently at odds with its rationale. See Kerr, supra at 255.

3 The language quoted by the majority reads as follows: This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Colu mbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains open will still have an13 claims that the case explained that ―its holding was limited to jurisdiction[s] where the law was clearly settled.‖ Maj. Op. at 42 n. 17

. But the language to which the majority refe rs, quoted in full at footnote 3

, supra , is pure dicta, responding not to an argument abo ut 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

undiminished incentive to litigate the issue. This Court can then grant certiorari, and the development of Fourth Amendment law will in no way be stunted. Davis , 131 S. Ct. at 2433.

4 As an aside, I fail to see how allowing law enforcement reliance on analogous or non

- binding out

- of

circuit precedent to influence subst antially the good

- faith analysis would foreclose development of Fourth Amendment law. Leon made clear that ―[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers‘ conduct manifested objective good faith bef ore turning to the question [of] whether the Fourth Amendment has been violated.‖ 468 U.S. at 924. ―Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies‖ which federal courts are ―empower[ed] . . . to adjudicate‖; and ―courts have considerable discretion in conforming their14 preceding this brief discussion, the Court reiterated that the

so le 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 , t he 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  ̳bin ding,‘ 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. D avis 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 A mendment 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 (cit ations and

decisionmaking processes to the exigencies of particular cases.‖ Id. at 924

– 25.15 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 (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. Although that statute and policy were overturned by the Court‘s decision in Almeida

- Sanchez v. United States , 413 U.S. 266 (1973) , the Peltier Court refrained from applying the exclusionary rule. See id. at 542.

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 s earch 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 r egard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.‖ Id.16 Thus, if the logic of Peltier was ―imported . . . into the good

- faith inquiry‖ as Davis states, 131 S. Ct. at 2432, then a ―uniform tr eatment‖ 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 (― ̳ [O]ur good

- faith inquiry is confined to the objectively a scertainable 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)); cf. United States v. Duka , 671 F.3d 32 9, 347 n.12 (3d Cir. 2011) (not ing that ―[t]he objective reasonableness of the officers‘ reliance on the statute . . . is further bolstered by the fact that the par ticular 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

reaso ning 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 3 6

. But the good

- faith exce ption to the exclusionary rule is not limited to those circumstances. T he 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 (2007)

. 5 The question is,

5 The majority insinuates that my analysis would ―burden district courts w ith [an unwarranted] type of case

- by

-17 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 (quoting Gates , 462 U.S. at 255 (White, J., concurring)) ; se e also Davis , 131 S. Ct. at 2427

– 28; Herring , 555 U.S. at 145; Evans , 514 U.S. at 11

– 12; Krull , 480 U.S. at 348

– 49. 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 (answering ―yes‖ where officers relied on an error in a police

- maintained outstanding warrant database); Evans , 514 U.S. at 14

– 16 (answering ―yes‖ where officers relied on an error in court

- maintained database); Krull , 480 U.S. at 349

– 50 (a nswering ―yes‖ where officers relied on a subsequently invalidated statute); Leon , 468 U.S. at 922 (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 a ct in

case assessment,‖ and create ―a sprawling, amorphous, and self

- contradicting doctrine.‖ Maj. Op. at 45

. But all of the questions that the majority fears

— i.e., ―how many circuits had addressed the police practice in qu estion, what each one said, whether the statements were mere dicta‖; and ―what if our sister courts had all ruled in near

- unanimity on a point, with one stalwart (perhaps, highly persuasive) holdout?‖

— are exactly the sorts of questions we should be asking ; particularly where the Supreme Court instructs us to answer the good

- faith question by focusing on 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 (internal quotation marks omitted) (quoting Leon , 468 U.S. at 922 n.23).18 the circumstances in which they did here. As the following analysis shows, I answer that question in the affirmative.

III.

A.

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 searc h), 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 exclu sionary 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

6 See, e.g.

, Karo , 468 U.S. at 711

– 13 (analyzing Fourth Amendment implications of beeper installation); id. at 713

– 18 (analyzing Fourth Amendment implications of beeper survei llance); Knotts , 460 U.S. at 280 n.** (certiorari granted on Fourth Amendment implications of beeper use and ―pass[ing]‖ on the issue of beeper installation); United States v. Pineda

- Moreno , 591 F.3d 1212, 1215

– 16 (9th Cir. 2010) (analyzing GPS installatio n separately from GPS use); United States v. Moore , 562 F.2d 106, 111

– 12 (1st Cir. 1977) (same, but with beepers).19 its exclusionary rule / good

- faith exception analysis with regard to, f

irst, the GPS‘s installation and, second, its subsequent monitoring). 7

B.

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

7 I pause to note that separating GPS use into these two distinct Fourth Amendment acts is not appropriate for determining whether a Fourth Amendment search has occurred. The Jones majority clearly rejected the concurrence‘s suggestion that it do so. Compare Jones , 132 S. Ct. at 951 n.5 (finding the distinction between GPS ―installation‖ and ―use‖ irrelevant for determining whether a Fourth Amendment ―search‖ had occurred, reasoning ―[a] trespass on  ̳houses‘ or  ̳effects,‘ or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy‖), with id. at 958 (Alito, J., concurring) (finding it a ―questionable proposition that [the] two procedures cannot be separated for purposes of the Fourth Amendment analysis,‖ and reasoning that it is clear that bot h the ―installation‖ and ―use‖ of the GPS, on their own, do not constitute a search). But it is conceded that a search did occur in this case. My analysis focuses on an entirely different question; to wit: whether the officers would have known, at the ti me of their actions, that their conduct was a ―search.‖ Because, as discussed in supra note 6, this question was often bifurcated at the time, my analysis proceeds accordingly.20 subsequ ent use of the GPS to track Harry Katzin‘s vehicle were unconstitutional. See Krull , 480 U.S. at 348

– 49. 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.

1.

United States v. Knotts , 460 U.S. 276 (1983) and United States v. Karo , 468 U.S. 705 (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. In determining the Fourth Amendment implications of that

ac tivity, the Court determined that the alleged search ―amounted principally to the following of an automobile on public streets and highways.‖ Id. at 281. 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

8 At the time, this holding was in accord many of the courts of appeals to hav e addressed the issue. A compelling number of courts found beeper surveillance did not implicate the Fourth Amendment. See, e.g.

, United States v. Michael

, 645 F.2d 252, 257

– 58 (5th Cir. 1981) (en banc) (holding ―subsequent monitoring,‖ after installatio n of beeper upon reasonable suspicion, ―did not violate . . . reasonable21 expectation[s] of privacy‖); United States v. Hufford , 539 F.2d 32, 33

– 34 (9th Cir. 1976) (holding one‘s movements in his vehicle on a public road ―were knowingly exposed to the publi c, and therefore are not a subject of Fourth Amendment protection‖), partially overruled by Jones , 132 S. Ct. 945, as recognized by United States v. Pineda

- Moreno , 688 F.3d 1087, 1091 (9th Cir. 2012); cf. United States v. Bruneau , 594 F.2d 1190, 1196

– 97 (8 th Cir. 1979) (holding that ―monitoring the airborne location of an aircraft with a [beeper] is not a search within the fourth amendment‖); United States v. Clayborne , 584 F.2d 346, 350

– 51 (10th Cir. 1978) (holding use of beeper ―as a substitute for persis tent extensive visual‖ surveillance, when it enters a ―clandestine laboratory‖ exposed to ―outside viewing‖ and ―ingress and egress of the public‖ did not per se violate the Fourth Amendment).

Alternatively, some courts alluded that it implicated a
pers on‘s privacy interests, but did not hold such surveillance required a warrant. See, e.g.

, United States v. Moore , 562 F.2d 106, 111

– 12 (1st Cir. 1977) (holding beeper surveillance requires probable cause, but no warrant), abrogated by United States v. Kno tts , 460 U.S. 276, 286 (1983), as recognized by United States v. Sparks , 711 F.3d 58, 65 (1st Cir. 2013) (― Knotts . . . abrogated Moore ‘s probable cause requirement for beeper surveillance . . . .‖); cf. United States v. Shovea

, 580 F.2d 1382, 1387

– 88 (10t h Cir. 1978) (―The utilization of an electronic tracking device, without prior court approval, may be justified by probable cause and exigent circumstances.‖). Conversely, a few cases did require a formal warrant; but many of those cases involved installa tions and surveillance occurring in private areas. See, e.g.

, United22 public roads, he ―voluntarily convey[s] to anyone who want[s] to look‖ 9 his location, progress, and route, he has no

States v. Bailey , 628 F.2d 938, 944, 945

– 46 (6th Cir. 1980). That was not the case in Knotts , nor is it the case here.

The Fifth Circuit at one time held that beeper surveillance pla inly implicated the Fourth Amendment. See United States v. Holmes , 521 F.2d 859, 865

– 67 (5th Cir. 1975) (―A person has a right to expect that when he drives his car into the street, the police will not attach an electronic surveillance device to his car i n order to track him. Although he can anticipate visual surveillance, he can reasonably expect to be  ̳alone‘ in his car when he enters it and drives away. . . . The[] failure to obtain a warrant is fatal.‖). But that view seems to have been abrogated, if not overruled, by later
pre

- Knotts cases. See Michael

, supra

.

9 The proposition that one has no reasonable expectation of privacy in information willingly conveyed to third parties remains unquestioned. Smith v. Maryland , 442 U.S. 735, 743

– 44 (1979) (―T his Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.‖); see also, e.g.

, California v. Greenwood , 486 U.S. 35, 40

– 41 (1988) (no reasonable expectation of privacy in garbage bags willingly left on street curb for pick up by third party). But see Jones , 132 S. Ct. at 957 (Sotomayor, J., concurring) (―[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in informat ion voluntarily disclosed to third parties.‖).23 reasonable privacy interest in ―whatever stops he ma[kes]‖ nor his ―final destination‖ or otherwise. Id. at 281

– 82. 10

10 The Knotts Court also based its holding on the similarly well

- established ―open fields‖ doctrine, see Air Pollution Variance Bd. of Colo. v. W. Alfalfa Corp. , 416 U.S. 861, 864

– 65 (1974); United States v. L ee , 274 U.S. 559, 563 (1927); Hester v. United States , 265 U.S. 57, 59 (1924), stating the beeper‘s ability to enhance visual surveillance was of no consequence. Knotts , 460 U.S. at 282 (―Nothing in the Fourth Amendment prohibited the police from augmenti ng the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.‖); see also Boyd v. United States , 116 U.S. 616, 628 (1886) (― ̳The eye cannot . . . be guilty of a trespass . . . .‘‖ (quoting Entick v. Carrington , 95 Eng. Rep. 807 (K.B. 1765))). Technological enhancements of purely visual surveillance have, since Knotts , received similar treatment. See Florida v. Riley , 488 U.S. 445, 488

– 52 (1989) (aerial surveillance of interior of partially covered greenhouse from a helicopter 400 feet overhead is not a search); Dow Chem. Co. v. United States , 476 U.S. 227, 238

– 39 (1986) (aerial photographs taken from an airplane over an industrial complex are not searches); California v. Ciraolo , 476 U.S. 2 07, 211

– 14 (1986) (aerial surveillance of an open greenhouse from an airplane 1,000 feet overhead is not a search); Texas v. Brown , 460 U.S. 730, 739

– 40 (1983) (plurality opinion) (using flashlight to look into car interior and open glove compartment at ni ght is not a search). But see Kyllo v. United States , 533 U.S. 27, 33

– 34 (2001) (use of infrared light technology to detect heat waves radiating off a home is a search because that information ―could not otherwise have been obtained without physical intru sion into24 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 pla ces are officers able to rely upon Knotts ‘s holding. See Karo , 468 U.S. at 713

– 16. 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.

What Knotts initi ally left undecided, however, was whether the installation of the beeper was a search under the Fourth Amendment. See Knotts , 460 U.S. at 290 n.**; id. at 286 (Brennan, J., concurring). In both Knotts and Karo , the officers themselves neither installed n or 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. I n 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

a constitutionally protected area‖ and ―the technology in question [was] not in general public use‖ (internal quotation marks omitted) (quoting Silverman v. United States , 365 U.S. 505, 512 (1960))).25 containing a beeper. Once the purchase had occu rred, and Karo placed the container in his car, the officers utilized the beeper to monitor his movements. 468 U.S. at 708.

Karo held that where officers arrange for a suspect to obtain an item containing a beeper, even if the suspect has no knowledge o f the item‘s foreign tenant, that transfer did not intrude upon that suspect‘s reasonable expectations of privacy. Id. at 712. 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. 11 As a result, the Court held that ―any impairment of . . .

11 Karo ‘s conclusion that ―an actual trespass i s neither necessary nor sufficient to establish a constitutional violation‖ was, until Jones , sacrosanct in Fourth Amendment law. In Katz v. United States , 389 U.S. 347 (1967), the Supreme Court turned Fourth Amendment questions away from their

common

- law trespass foundation. See 389 U.S. at 353 (―[T]he trespass doctrine . . . can no longer be regarded as controlling.‖). Thereafter, the Fourth Amendment touchstone was whether the government had intruded upon a person‘s reasonable expectations of privacy. See id. at 360 (Harlan, J., concurring); see also Jones , 132 S. Ct. at 950; United States v. Mosley , 454 F.3d 249, 253 (3d Cir. 2006) (―[T]he Fourth26 Amendment‘s protection against unreasonable searches is predicated on the invasion by the government of a person‘s reasonable expectation of privacy . . . .‖). For instance, in Oliver v. United States , 466 U.S. 170 (1984), the police officers undoubtedly trespassed upon the petitioner‘s property. But, because it was found that the officers were trespassing upon only the ―open fields‖ of petitioner‘s property, he could not ―demand privacy‖ for activities conducted or incriminating evidence found upon that property. 466 U.S. at 177

– 78. The vast consensus was, then, that a physical ―trespass‖

— regardless of wh ether it would have been considered an actual ―trespass‖ under the common law

— became a ―search‖ only when that trespass infringed upon a person‘s reasonable expectation of privacy. See, e.g.

, Rakas v. Illinois , 439 U.S. 128, 143 (1978) (―[C]apacity to cl aim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.‖); United States v. Acost a , 965 F.2d 1248, 1256

– 57 (3d Cir. 1992). Indeed, the courts of appeals addressing the Fourth Amendment implications of GPS and GPS

- like installation after Knotts and Karo made little of the physical trespass that occurred when police installed devices di rectly upon automobiles, primarily because the invasion of privacy that occurred was minimal or non

- existent. See United States v. Marquez , 605 F.3d 604, 609

– 10 (8th Cir. 2010); United States v. Pineda

- Moreno , 591 F.3d 1212, 1215 (9th Cir. 2010); United S tates v. Garcia , 474 F.3d 994, 997 (7th Cir. 2007); United States v. McIver , 186 F.3d 1119, 1126

– 27 (9th Cir. 1999); see also United States v. Michael , 645 F.2d 252, 257

– 58 (5th Cir. 1981).27 privacy interests that may have occurred was occasioned by the monitoring of the beeper,‖ not its installation. Id. at 713. 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 i nstallation 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 insta llation 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

12 The Karo Court also rejected the argument that the transfer of the bugged container constituted a seizure, holding that no ―possessory interest was interfered with in a meaningful way.‖ Karo , 468 U.S. at 712; see also id. (―A  ̳seizure‘ of property occurs when  ̳there is some meaningful interference with an individual‘ s possessory interests in that property.‘‖ (quoting United States v. Jacobsen , 466 U.S. 109, 113 (1984)). Later cases did not disturb this holding, see, e.g. , United States v. Garcia , 474 F.3d 994, 996 (7th Cir. 2007), and Appellees here do not allege the GPS installation or subsequent surveillance was a seizure.28 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 (1986); see also Cardwell v. Lewis , 417 U.S. 583, 591 (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 pub lic thoroughfares where its occupants and its contents are in plain view,‖ Cardwell , 417 U.S. at 590, retains no reasonable expectation of privacy, see supra Note 9 ; and that objects willingly placed or left in the ―open fields,‖ regardle ss of whether thos e fields are trespassed upon, see Oliver , 466 U.S. at 177

– 80, do not enjoy a reasonable expectation of privacy

, see supra Note 10

.

2.

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 99 4, 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)29 (holding that installation and use of beeper requires only reasonabl e 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 Defenda nt‘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. C ir. 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. Circ uit, Knotts was not controlling of the question, as the court reasoned that Knotts ‘s holding endorsed only that

13 Michael was also the law in the Eleventh Circuit. See Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (decisions of the Fifth Circuit prior to October 1, 1981 are bin ding on the Eleventh Circuit); United States v. Smith , 387 F. App‘x 918, 920

– 21 (11th Cir. 2010) (unpublished) (citing United States v. Michael , 645 F.2d 252 (5th Cir. 1981) to support the proposition that GPS installation was not a search).30 ― ̳[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to anot her,‘ 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). 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 th e device but rather the prolonged use

14 The Suprem e Court in Knotts , in response to the argument that its holding would allow ―twenty

- four hour surveillance of any citizen of this country . . . without judicial knowledge or supervision,‖ opined that ―the  ̳reality hardly suggests abuse,‘‖ and suggested tha t ―if such dragnet

- type law enforcement practices . . . should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.‖ Knotts , 460 U.S. at 283

– 84 (quoting Zurcher v. Stanford Daily , 436 U.S. 547, 566 (1978)).31 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 quest ioned Knotts ‘s and Karo ‘s holding s or their applicability to GPS installation and subsequent surveillance. See Karo , 468 U.S. at 736 (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

- More no , 617 F.3d 1120, 1124

– 26 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc) ( arguing that

15 I pause here to note that t he majority characterize s Maynard as having held that the mere act of attaching a GPS device onto a person‘s vehicle for the purpose of conducting continual surveillance, alone, constituted a search

. S ee Maj. Op. at 16 ; see also id. at 27 n.9 (describing that Maynard ―explained that warrantless installation of a GPS device by the police was per se unreasonable unde r the Fourth Amendment‖). Such a characterization is unfaithful to the panel‘s opinion, w hich explicitly tailored its holdings to the fact that the surveillance conducted in that case lasted for a month. See Maynard , 615 F.3d at 558, 560.32 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 woul d 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‖).

3.

I also find several othe r 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 am ended, 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
per sons or property in areas where there is a reasonable expectation of privacy.‖ Id. (citing Karo , 468 U.S. 705). Elaborating, the note instructs that ―if the officers intend to install or use the device in a constitutionally protected area, they must obta in 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).33 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 approva l, standing alone, cannot and should not suffice to demonstrate good faith.‖ Maj. Op. at 52 n.2 3

. 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 th e opinion of an Assistant United States A ttorney 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 approva l 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. Fa ma , 758 F.2d 834, 837 (2d Cir. 1985) (same).

IV.

In my view, in light of the legal landscape discussed above, when the officers installed the GPS device 16 upon the undercarriage of Harry Katzin‘s vehicle, and then used that

16 By ―installed the GPS device,‖ of course, I mean that the officers magnetically attached the ―slap on‖ GPS device upon the undercarriage of Harry Katzin‘s vehicle. That device was totally independent of the car, operating under its own power. Also, it was not physically installed onto the car using screws, adhesives, or otherwise. Its attachment was occa sioned only magnetically. Thus, for the purpose of my analysis, I focus on those facts.34 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). I find that the o fficers‘ 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), 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).

A.

The officers here were acting with an objectively reasonable good

- f

aith 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 reaso nably 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 uncons titutional under the Fourth Amendment.‖ Krull

, 480 U.S. at 348

– 49 (quoting Peltier , 422 U.S. at 542).

Before Jones , the touchstone of any Fourth Amendment analysis was whether the Government had invaded upon a person‘s reasonable expectation of privacy.35 See Katz , 389 U.S. at 360 (Harlan, J., concurring); see also Bond v. United States , 529 U.S. 334, 338 (2000); California

v. Ciraolo , 476 U.S. 207, 211 (1986) . ―[A]n actual trespass [was] neither necessary nor sufficient to establish a constitutional viol ation.‖ Karo , 468 U.S. at 713 (emphasis added); see also supra note 1 1

. 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 Am endment ―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 priva cy interest was diminished. See Cardwell , 417 U.S.
at 589

– 90. 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 th e vehicle.

In Cardwell v. Lewis , 417 U.S. 583 (1974) and again in New York v. Class , 475 U.S. 106 (1986), the Supreme Court made it quite clear that persons lack a reasonable expectation of privacy in the exterior of their automobiles. See Cardwell , 41 7 U.S. at 591

– 92 (―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.‖); C lass , 475 U.S. at 114 (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)). In light of this long

- standing Supreme Court prece dent, the officers36 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 undercarriag e. 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

17 The majority is correct to point out, in its brief discussion of Class ‘s applicability to our warrant analysis, that Jones dismissed Class ‘s relevancy with regard to whether a search occurs where officers install and subsequently track a GPS device upon an automobile. See Maj. Op. at 34 n.14. That does not mean, however, that Class and Cardwell are similarly irrelevant to our good

- faith analysis. At the time the of ficers were acting, those two cases were generally understood to stand for the proposition that one lacks a reasonable expectation of privacy in the exterior of his automobile. See, e.g.

, Pineda

- Moreno , 591 F.3d at 1215 (―[T]he undercarriage of a vehicle , as part of its exterior, is not entitled to a reasonable expectation of privacy.‖); United States v. George , 971 F.2d 1113, 1119

– 20 (4th Cir. 1992) (―There is thus little question in the aftermath of Cardwell and Class that one does not have a reasonable expectation of privacy in the visible exterior parts of an automobile that travels the public roads and highways.‖).37 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 au tomobile, 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).

B.

Similarly , the officers here were acting with an objectively reasonable good

- fait h 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 40

. True, these factual distinctions would matter much if the Government were arguing that Knotts and Karo qualified as ―bin ding appellate precedent‖ under Davis . But, as discussed above, that is not the Government‘s argument. A reasonably well38 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, becaus e 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. Thus, the Fourth Amendment simply was not implicated. See id. ; see also Sparks , 711 F.3d at 65 (―After Knotts . . . [it w as] 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 f amiliar 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 S parks , 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; see also Herring , 555 U.S. at 145. 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‖ acr oss the federal courts with regard to the constitutionality of warrantless GPS use. See Peltier , 422 U.S. at 541

– 42; see also Caleb Mason, New Police39 Surveillance Technologies and the Good

- Faith Exception: Warrantless GPS Tracker Evidence After United Sta tes v. Jones, 13 N EV

. 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 l aw 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 (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‖); Cira olo , 476 U.S. at 224 (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 (majority opinion) (―The Fourth Amen dment simply does

18 The majority claims that, under the logic of my analysis, Maynard should have put the law enforcement officers ― on notice that [GPS] dev ices could implicate Fourth Amendment rights .‖ Maj. Op. at 54 n.24 ( alteration, omission, and internal quotation marks omitted). For the reasons set forth at infra Part V, I disagree

.40 not require the police traveling in the public . . . to obtain a warrant in order to observe what is visible to the naked eye.‖).

C.

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).

First is the fact that the warrantless installation of the GPS device and its subsequent surveillance com plied 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. ‖ F ED

. R. C RIM

. 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 wa s 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 t o act. 19

19 Although the Government neglected to argue this fact, similar argumen ts have been made in similar cases, including cases heard by District Courts in this Circuit. See,
e.g. , United States v. Lopez , __ F. Supp. 2d __, C.A. No. 10

-
cr

- 67(GMS), 2013 WL 3212347, at *3 (D. Del. June 26, 2013); United States v. Willford , __ F. Su pp. 2d __, Crim. No.41 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 w ith 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 desir ed 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

ELH

- 11

- 0258, 2013 WL 2552446, at *20 (D. Md. June 7, 2013). Furthermore, the majority claims this commentary is a codification of ―nothing more than the unremarkable proposition that the police need not obtain a warrant if their actio n does not violate the Fourth Amendment.‖ Since Maynard put law enforcement ―on notice‖ that GPS use could affect Fourth Amendment rights, the majority reasons, the Rule has no substantive effect on the good

- faith analysis. Maj. Op. at 54 n.24. Again, a s I discuss at infra Part V, I do not read Maynard to have such an effect, and, thus, I am at a loss to see how a reasonably well trained law enforcement officer, acting at the time the officers did in this case, could have known that their actions ―implic at[ed] . . . the Fourth Amendment.‖42 courts to have addressed the issue, the commentary to Rule 41(b) of the Federal Rules of Criminal Proced ure, 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 (q uoting Herring , 555 U.S. at 144), 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).

V.

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 4 7 n. 2 0 , 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 54 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 w ith an objectively43 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.‖ Unit ed 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 mak es 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 trans mitter. See Knotts , 460 U.S. at 277. Beepers thus aid law enforcement by assisting officers in visual surveillance of a suspect, rather than doing the work of the officer altogether. See Pined

a

- Moreno , 617 F.3d at 1124 (Kozinski, C.J., dissenting from t he 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 technolo gical advances that implicates the Fourth Amendment, not their mere existence.‖ Karo , 468 U.S. at 712 . ―Certainly, a GPS tracker is more capable than a beeper,  ̳but nothing inheres in the technology to take it out of44 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 n o 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 whic h the officers could have obtained through pure visual surveillance. Jesus

- Nunez , No. 1:10

- cr

- 00017

- 01, 2010 WL 2991229, at *3; see also Cueva s

- Perez , 640 F.3d at 275 (dismissing as immaterial the increased accuracy of GPS devices since ―real

- time informa tion 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 poli ce 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

20 See California v. Greenwood , 486 U.S. 35, 41 (1988) (―[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.‖); Tex as v. Brown , 460 U.S. 730, 740 (1983) (plurality opinion) (―The general public could peer into the interior of Brown‘s automobile from any number of angles; there is no reason45 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 officer] should be precluded from observing as an officer what would be ent irely visible to him as a private citizen.‖); Katz v. United States , 389 U.S. 347, 351 (1967) (―What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.‖).

21 See Brown , 460 U.S. at 739

– 40 (plurality opinion) (―I t is . . . beyond dispute that [the officer‘s] action in shining his flashlight to illuminate the interior of Brown‘s car trenched upon no right secured to the latter by the Fourth Amendment.‖); United States v. Lee , 274 U.S. 559, 563 (1927) (―For aught th at appears, the cases of liquor were on deck and, like the defendants, were discovered before the motorboat was boarded. Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.‖).

22 See Florida v. Riley , 488 U.S. 445, 448

– 449, 451

– 52 (1989) (an officer ―circl[ing] twice over respondent's property in a helicopter at the height of 400 feet‖ was not a search because ―the police may see what may be seen from a public vantage point where they have a right to be‖ (alteration and internal quotation marks omitted)); California v. Ciraolo , 476 U.S. 207, 213

– 14 (1986) (― Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.‖).46 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 (1986) (changes in

t echnology 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 giv e rise to constitutional problems.‖ Id. at 238; see also Silverman v. United States , 365 U.S. 505, 513 (1961) (Douglas, J., concurring) (―[N]either should the command of the Fourth Amendment be limited by nice distinctions turning on the kind of electroni c 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 . ―Nothing in the Fourth Amendment prohibit[s] the police from augmenting the senso ry facilities bestowed upon them at birth with such enhancement as scien ce and technology afforded them in this

case. ‖ Knotts , 460 U.S. at 282. The information obtained through use of the GPS was information otherwise observable by the naked eye. See id

. at 281

– 82. The GPS unit simply made it easier for the law enforcement officers to obtain. See id. at 284 (―Insofar as respondent‘s complaint appears to be simply that scientific devices such as beepers enabled police to be more effective in detecting c rime, 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. 23 Thus, even tak ing into

23 Today, the question remains open as to whether Jones effectually abrogated Knotts ‘s conclusion that persons lack any reasonable expectation of privacy in the information47 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

the GPS unit was procuring. The only question answered in Jones was whether a se arch had occurred through the installation and subsequent use of the GPS device. Thus, the Fourth Amendment implications of the information obtained by the GPS surveillance, alone, were not discussed. Jones did state that ― Knotts noted the  ̳limited use w hich the government made of the signals from [that] particular beeper; and reserved the question whether  ̳different constitutional principles may be applicable‘ to  ̳dragnet

- type law enforcement practices‘ of the type that GPS tracking made possible [in tha t case].‖ Jones , 132 S. Ct. at 952 n.6 (citations omitted). But Justice Scalia‘s opinion for the majority refrained from altering Knotts ‘s conclusion that ―the information obtained

— the location of the automobile carrying the [beeper] on public roads . .

. —had been voluntarily conveyed to the public,‖ and was therefore not a search. Id. at 951

– 52. Nonetheless, five justices wrote or joined the concurring opinions in Jones , all of which seemed to endorse the so

- called ―mosaic‖ theory expressed in Maynard

— which would unequivocally limit the holding in Knotts to apply in only short

- term surveillance. See Orin Kerr, The Mosaic Theory of the Fourth Amendment , 111 M ICH

. L. R EV

. 311, 326 (2012). This question does not need to be answered today; but emphasizes the major shift caused by Jones in Fourth Amendment law, and the vastly different legal regime under which the law enforcement officers here were acting.48 actions were un constitutional. 24 See Cuevas

- Perez , 640 F.3d at 27 9

– 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

24 The majority concludes otherwise, alluding that my preferred disposition would ―leave [persons] at the mercy of advancing technology .‖ Maj. Op. at 48 n.20 (citing Kyllo v. United States , 533 U.S. 27, 35

– 36 (2001)). This case is categorically distinct from Kyllo . In Kyllo , the officers utilized technology to observe infrared radiation, which is otherw ise invisible to the naked eye. 533 U.S. at 29. Furthermore, the officers utilized that technology in order to determine the relative temperature of the interior of a home, an area entitled to almost absolute protection under the Fourth Amendment. Id. a t 29

– 30; see also Florida v. Jardines , 569 U.S. __, 133 S. Ct. 1409, 1414 (2013) (―[W]hen it comes to the Fourth Amendment, the home is first among equals.‖). In contrast, the use of the GPS device in this case provided information otherwise observable by the naked eye on a public street. What is more, although the Court found it ―foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology,‖ Kyllo made much of the fact that the technology used in that case was ―not in general public use.‖ 533 U.S. at 33

– 34. Alternatively, GPS technology is widespread, and one need look only on the dashboard of his vehicle or the screen of his cellular telephone to spot one. Kyllo ‘s c oncerns, of course, arise in all Fourth Amendment cases dealing with advanced technology. But it is safe to say that those concerns are not implicated by out facts.49 roads; by its terms, the hold ing 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 wa s 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,

25 The majority claims this is a distinction without a point, because ―when the police att ached their GPS device to Harry Katzin‘s van, they had no way of knowing when the next Rite Aid robbery would take place‖; thus characterizing the GPS tracking here as ―a long

- term surveillance project .‖ See Maj. Op. at 50 & n.22 . But for purposes of whe ther a Fourth Amendment violation occurred it matters not what law enforcement officers could have done but what they did do

. See Dow Chem. Co. , 476 U.S. at 238 n.5 (― Fourth Amendment cases must be decided on the facts of each case, not by extravagant gen eralizations.  ̳[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.‘‖ (alteration in original) (quoting Karo , 468 U.S. at 712)); cf.50 ― 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

United States v. Jacobsen , 466 U.S. 10 9, 122 (1984) (―The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of t he authorities.‖).

26 The Knotts Court did say, however, that ―if dragnet

type law enforcement practices‖ such as ―twenty

- four hour surveillance of any citizen of this country . . . without judicial knowledge or supervision,‖ ―should eventually occur, ther e will be time enough then to determine whether different constitutional principles may be applicable.‖ Knotts , 460 U.S. at 283

– 84. But merely acknowledging that ―different constitutional principles may be applicable‖ does not imply what those principles may be and how they impact the relevant analysis. See Shelby Cnty. v. Holder , 570 U.S. __, 133 S. Ct. 2612, 2637 n.3 (2013) (Ginsburg, J., dissenting) (―Acknowledging the existence of  ̳serious constitutional questions‘ does not suggest how those questions should be answered.‖ (citation omitted)). Nonetheless, I seriously doubt that the ―dragnet

- type law enforcement practices‖ referred to by the Knotts Court, whatever they may be, are akin to what occurred in this case, where law enforcement officers had

e vidence to suggest that Harry Katzin was a serious criminal; evidence his attorney admitted at argument gave rise to probable cause. ( See Oral Arg. Trans. at 43:7

– 16.)51 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

sear ch 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 enforcem ent 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 c onsidered 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 e nforcement 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 e xclusionary rule . Maj. Op. at 51

. 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). B ut that is not the case here, ―where new developments in the law have upended the settled rules on which police relied.‖ Id. at 68.52 Before Jones , all but one federal court of appeals to address the issue unequivocally concluded that Knotts

, Karo

, and ot her relevant Supreme Court precedent sanctioned the law enforcement conduct th at occurred here . These Fourth Amendment principles, upon which the law enforcement officers relied in this case, were settled maxims of constitutional jurisprudence, some of th em 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 T he District Court below put it quite aptly:

27 I have serious reservations about the implications of the majority‘s ruling in thi s case. Nevertheless, I admit my position might encourage some law enforcement officers to bend and twist existing precedent and legal principles to their breaking point s . In some cases, law enforcement ―reliance‖ could be marginal at best.

But I have confidence that courts are aptly suited to discern the true ―good

- faith actors‖ from the bad; and that, in circumstances such as those presented in this case, we will be able to definitively answer the question of whether law enforcement officers were acti ng with objectively reasonable good faith. Rulings that officers come up short will help deter undesirable law enforcement conduct.53 [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

The majority recognizes that ―applying existing precedential framework to subtle factual permutations is something that p olice officers

— and other law enforcement personnel

— d o all the time.‖ Maj. Op. at 57 n.27 . But while insisting that its opinion does not ―curtail such practices,‖ the majority punishes the law enforcement officers in this case for performing that exact pr actice . There may not have been a case from our Circuit or the Supreme Court specifically detailing what the officers should have done in the particular circumstances present ed here. But there were cases from the Supreme Court that came very close; close enough, in fact, that some of our sister courts found them to be controlling as precedents in situations similar to the case at bar.

Obviously there is not enough time, history, or reporter space to answer every single Fourth Amendment question. As a result, the exclusionary rule has developed to provide a remedy on the backend. Often the hurried judgments of an officer, however well intentioned, simply do not comply with constitutional rights. But as a matter of Fourth Amendment policy, I would ra ther allow the officer more freedom in performing his job

— particularly where the answer to the ―appl[ication of] existing precedential framework to subtle factual permutations‖ is so readily apparent as it was in this

case

— than protect courts from overly b urdensome suppression motions. Ruling on suppression motions is part of our job.54 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 see mingly 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), 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. 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 (1982). Marginal deterrence is not the trigger of the exclusionary rule, Herring , 555 U.S. at 141; law enforcement culpability, and, thus, the opportunity for a ppreciable deterrence is. Leon , 468 U.S. at 909; John , 654 F.3d at 417. In consequence, because I find that the law enforcement55 officers here lacked the requisite culpability in their actions so as to justify application of the exclusionary rule, I respe ctfully dissent from the majority‘s conclusion to the alternative. I would reverse the District C ourt below.