The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Fourth Circuit handed down a new Fourth Amendment decision last week, United States v. Terry, that raises fascinating questions about the law of installing GPS devices, the role of warrants, and the exclusionary rule. The court ruled for the defendant and suppressed the evidence, but I'm not sure the court was correct. I thought I would explain my thinking.
I. The Facts
Terry was suspected of being involved in the drug trade. The police saw Terry and followed him to a parking lot, where they had a conversation with him. Having identified Terry's car, an officer secretly placed a GPS device on the car. Later that day, the officers applied for and obtained tracking warrants to "ping" Terry's phone and to place the GPS on his car. The warrant application did not tell the magistrate judge that the officers had already installed the GPS device earlier that day.
Two days later, officers used the GPS data they were receiving to track Terry and to follow him on the highway. Noting that Terry was speeding 5 miles per hour, the officers decided to pull over Terry. The traffic stop led to the discovery of drugs on Terry. Terry was charged with drug trafficking based on that discovery, and he moved to suppress the evidence. During the suppression hearing, the officer testified that he knew that he needed a warrant to place the GPS device and that he "had affixed GPS trackers to cars without first obtaining a warrant in other instances as well." The trial court ruled the drugs admissible, and Terry was convicted by a jury and sentenced to a long prison sentence.
II. The Fourth Circuit's Ruling
On appeal, the Fourth Circuit overturned the conviction. According to the court, the officers had installed the GPS device in "flagrant disregard for the well-established warrant requirement set forth by the Supreme Court in United States v. Jones. See 565 U.S. 400, 404 (2012)." They knew they needed a warrant to install the GPS, but they installed the GPS device without a warrant. That made the discovery of the drugs a fruit of the poisonous tree of the unlawful GPS installation.
The government argued that Terry's speeding was an intervening cause of the stop so that the exclusionary rule should not apply under Utah v. Strieff. The court disagreed, and reasoned that even if the speeding was an intervening cause, the flagrancy of the violation made the exclusionary rule appropriate: "The agents' purposeful disregard for the warrant requirement in this case renders wholly unavailing the government's attempts to reframe the agents' misconduct as justified by exigency or mere mistake"
III. Why I'm Not Sure the Decision is Correct
I'm not sure what to make of the Fourth Circuit's decision. I should stress that most of my concerns go beyond the briefs filed in the case (or at least not well-developed in them). The briefs were narrowly focused, and the court largely stuck to the narrow issues raised. But there was a lot going on in this case that the briefs didn't address, and it seems worth flagging those issues to get a sense of why I'm not sure I'm persuaded by the court's opinion based on the facts.
1. It's not obvious to me that the Fourth Amendment was violated at all. Assuming that the government needs a warrant to install a GPS device, I'm not sure why the Fourth Amendment doesn't permit the governemnt to install a GPS device on an exigent circumstances theory without a warrant when the government knows the location of the car as long as the government has probable cause and gets a warrant right away to allow its use. In the context of seizures, for example, the government has well-established powers to detain a package in the mail for a few hours without a warrant if they quickly go get a warrant to open the package. Given that, it's not obvious to me why there isn't an analogous power to put on a GPS without a warrant if the officers quickly get a warrant to track its location. In both cases, you could argue, the government has to search/seize without a warrant temporarily before it then gets a warrant authorizing obtaining information from the property initially search/seized. Not sure where I come out on that theory, but I'm not sure why it is wrong.
The Fourth Circuit reasons that the government flagrantly disregarded the rule in Jones that a warrant was required to install a GPS device on a car. But putting aside the possible exigent circumstances exception to that rule above, it's worth noting that Jones did not actually announce such a holding. Jones held that installing the GPS device was a search. But Jones did not rule on whether a warrant was required for that search. The government briefed reasonableness, but the Supreme Court did not address that argument because it was not raised below and was therefore forfeited. Granted, some circuit courts have held that a warrant is required—see, for example, this post from 2013 about the Third Circuit's ruling on this issue. But just based on a quick Westlaw skim, I'm not sure the Fourth Circuit has ruled on the question. I found a 2014 case, United States v. Stephens, that notes the government's argument that no warrant was needed (footnote 8) but does not reach it. So at least as of 2014 the issue was open, and I don't know of cases that settled it before the 2016 events in this case.
It's true that the officers obtained a warrant to install the GPS device and did not tell the magistrate that the GPS had already been installed. But it's somewhat hard to know what to make of that under existing Fourth Amendment precedents. The lack of candor is certainly troubling. But note that in Franks v. Delaware, which deals with false statements in warrant affidavits, the Supreme Court seemed mostly focused on when a lack of candor rose to the level of defeating probable cause. Here there doesn't seem to be a claim that the lack of candor had any effect at all on probable cause. So I'm not sure how this fits under Franks.
2. Assuming the Fourth Amendment was violated by the installation of the device, what's the remedy here? It does seem that under the flagrancy analysis in Strieff that the officer's subjective intent is important. It seems that the officer here had a subjective belief that he was violating the Fourth Amendment. He seems to have thought he needed a warrant, and he seems to have had a regular practice of installing GPS devices first and then getting warrants—what he thought was unconstitutional. Strieff suggests that the subjective view of the officer is relevant, making this focus on the subjective fair as a matter of precedent if you believe the Fourth Amendment was vioalted.
3. At the same time, it also seems relevant that the officers actually did have a warrant for the GPS device at the time the location tracking occurred. They installed the GPS and obtained the warrant on April 18th, and they tracked the car and made the traffic stop on April 20th. The court seems to ignore this part; the court seems to treat the warrant as a nullity. But I'm not sure why. Why isn't the attenuating circumstance here the obtaining of the warrant? As far as I can tell, the only difference that the "install first, warrant second" strategy made to the April 20th tracking is that it ensured that the officers had a chance to install the GPS device. If the officers had obtained the warrant first, they might not have found the car and been able to install the GPS device by April 20th to track its location then. Other than that, the officers did the same tracking they would have done with the same warrant. And that difference cuts both ways, too. Although the court seems to view that as a reason to suppress (the violation caused the tracking information to exist), it is also the basis for the exigent circumstances argument that there was no violaton at all (the idea being the officers needed to track to ensure they could find the car to install the GPS).
4. I wonder if what you make of the case depends on what the warrant said or what particular kind of warrant is required. GPS tracking with a physical device has two stages: Installing the device first and using it second. If a warrant is required to install and use the device, it may be important in this case to break down the particular role of the warrant. Is the warrant required only for the installation? Is the warrant required only for the use? You could imagine a rule that installation is a search but that the warrant requirement is only for the use under the Jones concurences (as implicitly adopted, to some degree, in Carpenter). If so, you'd want to know what exactly this warrant permitted, and whether possible deviations from what the warrant authorized and what the officers did made the execution of the warrant the kind of flagrant disregard of the warrant's terms that tends to lead to suppression.
5. Finally, as I said, I'm not necessarily blaming the Fourth Circuit for not getting into all of these issues. The briefs in the case didn't address most of the issues I raised above, at least well, and the Fourth Circuit stuck with the narrow framing of the issues by the parties. But I think this is a case where I'm not sure the result is correct based on the facts.