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No GPS tracking without warrant, ACLU demands

NBC News file

The ACLU is in federal appeals court Tuesday, arguing that law enforcement should be required to obtain a warrant from a judge before attaching a GPS tracking device to a suspect's car. The Department of Justice says that the case in question didn't merit a warrant because there was more than enough "reasonable suspicion" and "probable cause" about the suspects for the device to be attached to the vehicle.

A warrant "is particularly important when it comes to GPS tracking because the technology is cheap, convenient, difficult to detect, and highly intrusive," writes Catherine Crump, the ACLU attorney expected to speak before the U.S. Court of Appeals for the Third Circuit on Tuesday, on the ACLU blog.

"Given how easy and inexpensive it is to track a suspect using GPS, neither cost nor effort will stop the government from using it in cases where it isn’t reasonable. The courts must impose strict limitations on the use of this technology in order to protect the right of all Americans to go about their daily lives without being tracked by the government."

The case centers around a string of pharmacy break-ins in 2009 and 2010 in the greater Philadelphia area in which drugs were stolen. The three men, all brothers, "had criminal histories that included arrests for burglary and theft," the DOJ says in its appeal brief, and were suspected of being behind the burglaries. That's why the FBI decided to attach a battery-operated, GPS tracking device to the outside of the car the men used.

When the device was activated, it sent a signal every two minutes to a computer monitored by an FBI agent, according to the DOJ's brief.

And the tracker worked. In 2011, Harry Katzin, Michael Katzin and Mark Lewis Katzin Jr. were indicted on one count of pharmacy burglary and one count of possession with the intent to distribute controlled substances.

But all three asked the U.S. District Court to suppress the GPS evidence, and a first hearing on that request was held in September 2011. Months later, in January 2012, the U.S. Supreme Court ruled in an unrelated case that GPS monitoring data obtained secretly without court authorization violated the Constitution's Fourth Amendment's protection against unreasonable search and seizure.

After further hearings on the GPS evidence in the Katzins' case, in May 2012, the district court granted the brothers' request to suppress the evidence, and the U.S. Attorney's Office appealed the decision.

The government is arguing that in addition to reasonable suspicion and probable cause, the GPS evidence should be allowed without a warrant because of what's known as the "vehicle exception to the warrant requirement."

That exception basically says a warrant isn't needed because in a car, there's a "reduced expectation of privacy," and "no warrant is required," the DOJ contends in its brief.

The ACLU, Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers Amicus Committee, in a friend-of-the-court brief, argue the "vehicle exception" has run off the road in this case.

"The government claims the 'automobile exception' applies, but that exception was created to ensure that contraband concealed in cars would not escape detection, not to permit tracking of individuals," writes Crump.

"The automobile exception was also created because of the practical difficulty of securing a warrant before the car drives away, and that purpose for the exception also does not apply to GPS tracking," she said.

"Just because a technology wasn't around when the Constitution was written doesn't mean that it's not covered," Crump said in a separate statement. "The 'automobile exception' was created so police could find contraband hidden in cars, not so they could monitor a person's movements nonstop for days or even months on end."

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