Remember how cool it was when the Third Circuit ruled in United States v. Katzin that GPS tracking by law enforcement required a warrant?  Good times. Heady days. Was it possible that Justice Alito’s old stomping grounds would be the court that righted the craziness?  It surely looked that way.

But the court did one thing more, one thing that was critical to its ruling in light of the Supreme Court’s ill-conceived Herring decision.  The panel held that the use of GPS tracking wasn’t saved by the good faith exception under the Supremes’ similarly ill-conceived Davis decision.  Orin Kerr explains:

The Third Circuit disagrees, concluding that officers should know that GPS devices are so different from beepers that the beeper cases can’t apply to GPS surveillance:

As our foregoing discussion suggests: we disagree with this position. The difference between beepers and GPS trackers is one of kind, not degree. Any time technology shifts in this way, courts should expect that law enforcement will tread lightly and will refrain from reasoning by (potentially ill-fitting) analogy.

Third, the court holds that the good-faith exception shouldn’t apply under the broader Herring/Davis culpability standard:

[T]he police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional situation is nonetheless troubling: In lieu of a binding proclamation from either this Circuit or the Supreme Court — and instead of seeking approval from a neutral magistrate — law enforcement personnel looked to other (non-binding or distinguishable) authorities like our sister circuits’ decisions. Essentially, they extrapolated their own constitutional rule and applied it to this case. We fail to see how this absolves their behavior. The assumption by law enforcement personnel that their own self-derived rule sanctioned their conduct — to say nothing of their unstated belief that this Circuit would automatically side with a majority of the minority of our sister circuits — was constitutionally culpable.

It was a blunt admonition, it’s not allowed because you chose to create your own constitutional rule, apply it, and see how it shakes out later.  Awesomesauce.

But those happy, heady days have ended, with the Third Circuit’s en banc decision in Katzin.

The constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy. Given this panoply of authority, we cannot say that a “reasonably well trained officer would have known that the search was illegal,” id., nor that the agents acted with “deliberate, reckless, or grossly negligent disregard for [Appellees’] Fourth Amendment rights,” Davis, 131 S. Ct. at 2427 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted).

Whenever an opinion uses words like “constellation” or “panoply,” you can bet it’s not going to be good for the Constitution.  This harkens to the government’s beloved “totality of the circumstances” test, where if they can artfully manufacture enough illusory or trivial excuses to create the impression that a violation of the Constitution isn’t completely outrageous, they get a free ride.  And so it was.

The Circuit’s en banc ruling isn’t that the government was necessarily right, or even rational, in its fabrication of a rule that permitted the warrantless use of GPS, but that they had enough basis, a panoply if you will, to make it inadequately wrong so that the remedy of suppression wouldn’t apply.

Thus, suppression is inappropriate because it would not result in deterrence appreciable enough to outweigh the significant social costs of suppressing reliable, probative evidence, upon which the Government’s entire case against Appellees turns.

After all, why should the criminal go free because the constable blundered?  Orin raises a red flag about the court’s reliance on the “advice of counsel” point made by the court:

In this case, defense counsel conceded the relevance of the agent consulting with a prosecutor about the legality of the practice as part of the exclusionary rule calculus. See Slip Op at 34, n.13. There’s some precedential support for that, I recognize. At the same time, it strikes me as a really problematic rule.

Think of the incentives it creates. First, agents have an incentive to ask the most aggressive prosecutor they know. Agents won’t ask for legal advice from Cautious Cathy; instead they’ll run it by Aggressive Andy. Second, the rule gives prosecutors an incentive to give out aggressive advice. If you’re a prosecutor and agents ask for your legal advice, you will know that by approving a questionable practice, the mere fact of your approval becomes an argument against the exclusionary rule applying if you turn out to be wrong. The exclusionary rule becomes narrower as the prosecutors become more aggressive.

Despite his offensive alliterative sexist use of “Cautious Cathy” rather than “Cowardly Clarence,” the point is important. I would take it a step farther, that while the court had no business engaging in a subjective balancing test where the popular vote en banc came out opposite the original panel vote, if it’s going to weigh the benefits of deterrence against letting the slimebag criminal get away with it, the court must include in its balancing the deterrence of Aggressive Alexis telling her agents they don’t need no stinkin’ warrant.

Of course, the upshot is that the remedy of the exclusionary rule is justified not because a person’s constitutional rights are violated, though that’s a requisite holding, but that it also serves the “deliberate, reckless, or grossly negligent disregard for [defendant’s] Fourth Amendment rights.” In other words, per Davis, the decision to override or circumvent the 4th Amendment has to be really malevolent before the court needs to give a damn about deterrence.

If it’s just another law enforcement “oopsy,” then what possible purpose would be served by letting the bad guy go free.  After all, it’s not like it’s a requirement of the Constitution or anything, right? Oh wait.