732 F.3d 187 (3rd Cir. 2013), 12-2548, United States v. Katzin

Docket Nº:12-2548.
Citation:732 F.3d 187
Opinion Judge:GREENAWAY, JR., Circuit Judge.
Party Name:UNITED STATES of America, Appellant v. Harry KATZIN; Michael Katzin; Mark Louis Katzin, Sr.
Attorney:Robert A. Zauzmer, Esq. [argued], Emily McKillip, Esq., Zane D. Memeger, Esq., Thomas M. Zaleski, Esq., Office of United States Attorney, Philadelphia, PA, for Appellant The United States of America. Thomas A. Dreyer, Esq. [argued], Chadds Ford, PA, for Appellee Harry Katzin. William A. DeStefano...
Judge Panel:Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges. VAN ANTWERPEN, Circuit Judge, concurring in part and dissenting in part.
Case Date:October 22, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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732 F.3d 187 (3rd Cir. 2013)

UNITED STATES of America, Appellant

v.

Harry KATZIN; Michael Katzin; Mark Louis Katzin, Sr.

No. 12-2548.

United States Court of Appeals, Third Circuit.

October 22, 2013

Argued March 19, 2013.

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Robert A. Zauzmer, Esq. [argued], Emily McKillip, Esq., Zane D. Memeger, Esq., Thomas M. Zaleski, Esq., Office of United States Attorney, Philadelphia, PA, for Appellant The United States of America.

Thomas A. Dreyer, Esq. [argued], Chadds Ford, PA, for Appellee Harry Katzin.

William A. DeStefano, Esq., Stevens & Lee, Philadelphia, PA, for Appellee Michael Katzin.

Rocco C. Cipparone, Jr., Esq. [argued], Haddon Heights, NJ, for Appellee Mark Louis Katzin, Sr.

Benjamin E. Wizner, Esq., Catherine N. Crump, Esq. [Argued], Nathan Wessler, Esq., American Civil Liberties Union, New York, NY, for Amicus Appellees the American Civil Liberties Union Foundation.

Witold J. Walczak, Esq., Sara J. Rose, Esq., American Civil Liberties Union, Pittsburgh, PA, Catherine N. Crump, Esq. [argued], American Civil Liberties Union, New York, NY, for Amicus Appellees the American Civil Liberties Union Foundation of Pennsylvania.

Catherine N. Crump, Esq. [argued], American Civil Liberties Union, New York, NY, Hanni M. Fakhoury, Esq., Marcia Hoffman, Esq., Electronic Frontier Foundation, San Francisco, CA, for Amicus Appellees the Electronic Frontier Foundation.

Peter Goldberger, Esq., Ardmore, PA, Catherine N. Crump, Esq. [argued], American Civil Liberties Union, New York, NY,

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for Amicus Appellee the National Association of Criminal Defense Lawyers.

Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

This appeal stems from the Government's warrantless installation of a Global Positioning System device (a " GPS device" or " GPS tracker" ) to track the movements of Appellee Harry Katzin's van. Harry Katzin, along with his brothers Mark and Michael (collectively, " Appellees" ), claims that attaching the GPS device without a warrant violated the Fourth Amendment. The United States Government (" Appellant" or " Government" ) argues that: (a) a warrant is not required to install a GPS device; (b) even if a warrant were required, the police were acting in good faith; and (c) in any case, Mark and Michael lack standing to contest admissibility of evidence recovered from Harry Katzin's van.

The instant case therefore calls upon us to decide two novel issues of Fourth Amendment law: First, we are asked to decide whether the police are required to obtain a warrant prior to attaching a GPS device to an individual's vehicle for purposes of monitoring the vehicle's movements (conduct a " GPS search" ). If so, we are then asked to consider whether the unconstitutionality of a warrantless GPS search may be excused for purposes of the exclusionary rule, where the police acted before the Supreme Court of the United States proclaimed that attaching a GPS device to a vehicle constituted a " search" under the Fourth Amendment. For the reasons discussed below, we hold that the police must obtain a warrant prior to a GPS search and that the conduct in this case cannot be excused on the basis of good faith. Furthermore, we hold that all three brothers had standing to suppress the evidence recovered from Harry Katzin's van. We therefore will affirm the District Court's decision to suppress all fruits of the unconstitutional GPS search.

I. FACTS AND PROCEDURAL HISTORY

Given that the issues in this matter touch upon several forms of electronic tracking devices, we feel it necessary— in service of our forthcoming analysis— to embark on a brief discussion of the relevant technology before delving into the specific circumstances surrounding Appellees.

A. Tracking Technology

This case concerns a " slap-on" GPS tracker, so called because it magnetically attaches to the exterior of a target vehicle, is battery operated, and thereby requires no electronic connection to the automobile. The tracker uses the Global Positioning System— a network of satellites originally developed by the military— to determine its own location with a high degree of specificity and then sends this data to a central server. This check-and-report process repeats every few minutes (depending on the tracker), thereby generating a highly accurate record of the tracker's whereabouts throughout its period of operation. The great benefit of such a system— apart from its accuracy— is that anyone with access to the central server can analyze or monitor the location data remotely. These aspects make GPS trackers particularly appealing in law enforcement contexts, where the police can attach a tracker to some vehicle or other asset and then remotely monitor its location and movement.

GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as " beepers." Beepers are nothing more than " radio transmitted[s], usually battery operated, which

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emit[ ] periodic signals that can be picked up by a radio receiver." United States v. Knotts, 460 U.S. 276, 277, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In contrast to GPS trackers, beepers do not independently ascertain their location— they only broadcast a signal that the police can then follow via a corresponding receiver. Moreover, beeper signals are range-limited: if the police move far enough away from the beeper, they will be unable to receive the signal that the unit broadcasts. At bottom, then, beepers are mere aids for police officers already performing surveillance of a target vehicle. Unlike GPS trackers, beepers require that the police expend resources— time and manpower— to physically follow a target vehicle.

B. The Brothers Katzin

A spectre was haunting Delaware, Maryland, and New Jersey in 2009 and 2010— the three states had been hit by a wave of pharmacy burglaries, many of which affected Rite Aid pharmacies. The method used in the various crimes was largely consistent: in many cases, the alarm systems for the pharmacies would be disabled by cutting the external phone lines. The local police approached the FBI for help (collectively, " the police" ) and the hunt was on.

By mid-May 2010, a suspect emerged: a local electrician named Harry Katzin. Not only had he recently been caught burglarizing a Rite Aid pharmacy, but he and his brothers— Mark and Michael— had criminal histories that included arrests for burglary and theft. Over the course of the following months, the joint state and federal investigation began receiving reports of seeing Harry Katzin around Rite Aid pharmacies throughout the three states. For example, in late October 2010, local police in Pennsylvania encountered Harry Katzin crouching beside some bushes outside of a Rite Aid after responding to reports of suspicious activity. The police did not arrest him, but discovered the next day that the phone lines to the pharmacy had been cut. The next month, Harry Katzin, along with one of his brothers and one other individual, was approached by the police as he sat outside of a different Rite Aid in his Dodge Caravan. After Harry Katzin consented to a search, the police discovered electrical tools, gloves, and ski masks. Harry Katzin explained that these were tools of the electrician's trade and the police allowed the men to leave. The telephone lines to this Rite Aid had also been cut. Soon thereafter, the police obtained footage of another recently burglarized Rite Aid showing that a vehicle similar to Harry Katzin's van had been parked outside for a long period of time. As the pieces began falling into place, the police proceeded with their next step: electronic tracking. The police knew that Harry Katzin regularly parked his van on a particular street in Philadelphia. Thus, in the early hours of a mid-December morning, after consulting with the United States Attorney's office, but without obtaining a warrant, the FBI affixed a " slap-on" GPS tracker to the exterior of Harry Katzin's van.

While the police do not appear to have set a time limit for using the GPS tracker, the device yielded the results they were after within several days. According to the tracker, Harry Katzin's van had left Philadelphia on the evening of December 15, 2010, and had traveled to the immediate vicinity of a Rite Aid in a neighboring town. Through use of the device, the police could see that the van had been driven around the town for several minutes before parking at a specific location for over two hours. That's when the FBI began to tighten the net. They alerted local police as to Harry Katzin's whereabouts, but cautioned them not to approach too closely for fear of tipping off either Harry Katzin or any individual he may have been traveling with. When the FBI noticed that the van

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was once again on the move, the call came in: the van was to be taken.

While state troopers stopped Harry Katzin's van on a Pennsylvania highway, a squad of local police officers investigated the Rite Aid closest to where Harry Katzin's van had been parked; they found that it had been burglarized and relayed this information to the troopers. Inside the van, troopers found Harry at the wheel, with Mark and Michael as passengers. From outside of the van, the troopers could see merchandise and equipment from the burglarized Rite Aid, including pill bottles and Rite Aid storage bins. The police impounded the van and arrested the Katzin brothers.

All three brothers moved to suppress the evidence discovered in the van. The Government opposed the motions, arguing: (a) that a warrant was not required for use of the...

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