Third Circuit considers GPS and 'good faith' exception

Evidence police collected from a GPS device they attached to a suspect's vehicle without a warrant should be admissable because the officers relied in good faith on legal precedent at the time, the U.S. Attorney's Office argued in front of an en banc panel of the Third Circuit, reported The Legal Intelligencer.
Both the trial judge and the three-judge panel of the U.S. Court of Appeals for the Third Circuit that initially heard arguments had decided that the evidence should be suppressed, although the decision of the panel split on that issue. "You're asking for an extension of the good-faith doctrine," Judge D. Brooks Smith said to Robert A. Zauzmer, the assistant U.S. attorney who was arguing the case. Smith sat on the original appeals court panel and joined the majority opinion to suppress the evidence.
"We're asking for what I've described as a very, very slight extension of Davis," said Zauzmer, who was accompanied by U.S. Attorney Zane Memeger of the Eastern District of Pennsylvania. Zauzmer was referring to the U.S. Supreme Court's 2011 opinion in Davis v. United States, in which the high court ruled that the fruits of searches that were conducted in good faith with reasonable reliance on available legal precedent at the time of the search can be used in court. Chief Judge Theodore McKee commended Zauzmer for his candor, saying, "You conceded you were advocating a slight extension of Davis."
However, Catherine Crump, of the American Civil Liberties Union, argued that Davis wouldn't apply to this case. Crump is representing the three brothers who allegedly burglarized area Rite Aid pharmacies in 2010 and were tracked by FBI agents. "Davis does not control the result here. The Supreme Court specifically limited Davis to situations where there is binding precedent on point," according to the ACLU.
There was no such precedent when the FBI attached a GPS tracker to the vehicle used by the Katzin brothers, the ACLU argued. The year after the U.S. Supreme Court decided Davis, it decided United States v. Jones, in which it determined that the use of a GPS tracker would constitute a search under the Fourth Amendment. It didn't, however, declare whether or not a warrant would be required for the use of a GPS.
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