11th Cir. upholds pre-Jones warrantless GPS under good faith exception; precedent was 1981 beeper case

Another circuit court (the 11th) has jumped on the good faith exception bandwagon and upheld pre-Jones warrantless GPS use, finding that law enforcement reasonably relied on "binding" precedent at the time the GPS tracker was installed. The case is United States v. Ransfer, __ F.3d __ (11th Cir. 2014).

--Note: While Ransfer was pending, the 11th Cir. decided United States v. Smith, __ F.3d__ (11th Cir. 2013), which involved Ransfer's co-defendants. The court upheld warrantless GPS under the good faith exception in that case, as well, with a much more detailed explanation.

The "binding precedent" the Ransfer court cites to justify warrantless GPS tracking is United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc) (when the 11th Cir. was created in 1981, it incorporated 5th Cir. precedent). The court also relied on United States v. Andres, 703 F.3d 828 (5th Cir. 2013), a similar warrantless GPS case holding that police reliance on Michael was reasonable (and thus the good faith exception applied). As noted by the Ransfer court:

The Fifth Circuit recently held police could rely on Michael “[d]espite any
possible technological differences between a 1981 ‘beeper’ and the GPS device
used in this case, [because] the functionality is sufficiently similar that the agents’
reliance on Michael to install a GPS device on the truck, in light of the reasonable
suspicion of drug trafficking, was objectively reasonable.” United States v. Andres,
703 F.3d 828, 835 (5th Cir. 2013) cert. denied, 133 S. Ct. 2814 (2013). We agree
with the Fifth Circuit that Michael was clear, binding precedent that holds the
electronic tracking of a vehicle without a warrant does not violate the Fourth
Amendment, particularly where officers had reasonable suspicion the vehicle was
involved in criminal activity.

The 11th Circuit distinguished Katzin -- the recent 3rd Cir. case rejecting a good faith exception argument (see my post: Third Circuit: Warrant required for GPS tracking (Katzin); answers what Sup. Ct. reserved in Jones) -- by pointing to the police's limited use of the GPS tracker. Namely, "the GPS tracker was not used to trace the movements of Defendants. The tracking device was not used until after an armed robbery was committed and the vehicle was used to flee the scene. Then the GPS tracking device was used for a very brief period of time after the robbery to pinpoint the location of the vehicle and to dispatch police to arrest Defendants..." As I see it, the court is stating that the way GPS tracking was used here was more analogous to tracking via beeper than extended electronic surveillance; therefore, the court notes:

the technological distinctions the Third Circuit found relevant in Katzin do not apply to the facts of this case: 'Unlike GPS trackers, beepers require that the police expend resources – time and manpower – to physically follow a target vehicle.' Katzin, 2013 WL 5716367 at *6. That is exactly what occurred in this case.

Of course, I am not surprised at the outcome, given that most other circuits have held similarly. However, I think the court's attempt to distinguish Katzin is clumsy and logically questionable. While I agree that the GPS tracker was used very minimally here, it still permitted the police to pinpoint the car without expending resources (i.e. having to follow the car); that is quite different than Knotts or Michael where police had to be in range of the beeper's radio signal and thus had to surveil to some extent. Katzin ("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 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.")

More fundamentally, though, I reiterate my distaste for outcomes like this that shift the Supreme Court's Davis/Leon opinions from requiring good faith to something more akin to blind faith. Many of these cases give a whiff of backward reasoning coupled with deference to police; to me, the constitutional protections of the Fourth Amendment should take precedence.

For example, to buy the good faith argument, here, you have to accept the following:

1. That police were aware of the Michael precedent from 1981 at the time of the GPS installation
2. That police knew 5th Circuit precedent was binding because it was incorporated by the 11th in 1981
3. That "Michael articulated clear, binding precedent that installation of a device permitting electronic surveillance of a vehicle does not violate the Fourth Amendment" Ransfer.
4. That Michael referred to a beeper as an electronic tracking device and it is commonly understood that "a GPS device is an 'electronic tracking device'"; thus, arguing a difference in kind between beepers and GPS trackers makes "too fine a distinction." Smith, __ F.3d __ (11th Cir. 2013) (slip op. at 20).
5. That the Michael beeper and Ransfer GPS are technologically analogous, as well, notwithstanding that "the precise technological capabilities of the beeper were not explained in the [Michael] opinion." Andres, slip op. at 10.
6. That when police installed the GPS tracker without a warrant they "'followed the Eleventh Circuit’s . . . precedent to the letter.'" Smith.

Side Note: With regard to the actual capabilities of the beeper in Michael, I went back to the panel decision of and it seems that the beeper was merely used to aid in visual surveillance of the van (i.e. to allow police to stay farther away) and not to track it somewhere without any effort at all. See United States v. Michael, 622 F.2d 744 (5th Cir. 1980) ("The warehouse was located four days after installation of the beeper through following Michael's van with [the beeper's] aid."). It seems odd, then, for the court in Smith to assert that an argument that beepers and GPS trackers are not functionally similar draws "too fine a distinction." The law has an open texture, to be sure, but distinctions must be made and analogies must have limits when technology is involved - the much maligned "tiny constable" in Jones epitomizes this point.

With that in mind, I don't know if I'm willing to believe all six arguments/premises above and conclude that the police in Ransfer were (using the language from Davis v. United States, 131 S. Ct. 2419 (2011)) "specifically authorized" by "unequivocal" precedent (as opposed to "interpret[ing] ambiguous precedent," a situation where the good faith exception does not apply), to place a GPS tracker on the defendant's car.

My main point is that the good faith exception is worthwhile when there is actually clear, binding precedent. Once you remove clarity (as is the case here), you begin making assumptions about individual knowledge, intent, logical extrapolation, analytical thinking, and various other mental processes. The end result is judicial deference to law enforcement at the expense of subverting constitutional protections.

This is especially true in cases where the good faith exception has been applied applied despite any appellate precedent authorizing the police activity in question. See, e.g., OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception.