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Petition en Banc

Petition en Banc

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Published by Joe Palazzolo
petition en banc
petition en banc

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Published by: Joe Palazzolo on Dec 04, 2013
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12/05/2013

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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA :  v. : No. 12-2548 HARRY KATZIN, : MICHAEL KATZIN, and MARK KATZIN :  APPELLANT’S PETITION FOR REHEARING EN BANC
The United States respectfully petitions for rehearing en banc of the divided panel’s decision, in which the panel rejected application of the good-faith doctrine — and thus rendered the exclusionary rule applicable — where out-of-circuit authority uniformly approved of the law enforcement practice at issue, on the basis of clear Supreme Court guidance; no binding precedent had been issued  by this Circuit; and only later did the Supreme Court find that the practice implicated the Fourth Amendment based on a “trespass” theory that fundamentally altered prior understandings. It is the belief of government counsel, based on a reasoned and studied professional judgment, that the panel’s decision cannot be reconciled with the Supreme Court’s articulation in cases such as
 Herring v. United States
, 555 U.S. 135 (2009), of the conditions for applying the exclusionary rule, and that this appeal involves a question of exceptional importance, given the frequency in which suppression motions are litigated and the good-faith doctrine is invoked.
Case: 12-2548 Document: 003111471524 Page: 1 Date Filed: 12/04/2013
 
- 2 - In this case, the district court suppressed GPS-surveillance evidence under
United States v. Jones
, 132 S. Ct. 945 (2012), which was decided after the law enforcement action at issue, and which held that the installation and use of a GPS device to track a vehicle on public streets is a “search” subject to the Fourth  Amendment. Before
 Jones,
no appellate court had suppressed evidence based on short-term GPS surveillance, and several appellate courts had affirmatively rejected suppression claims on directly analogous facts. Agents accordingly reasonably attached a GPS device to the appellees’ van and, through surveillance lasting only about two days, apprehended them immediately after a burglary, finding stolen merchandise in the van. The suppression ruling precluded the use of this critical evidence and effectively ended the prosecution. The panel affirmed the suppression ruling, holding unanimously that the installation and use of the GPS device required a judicial warrant. The government does not challenge that first-impression holding here.
 1
 But the Court’s further ruling, from which Judge  Van Antwerpen dissented at length – that the agents did not exhibit objective good faith in acting without a warrant before
 Jones
 – stands in sharp conflict  with the governing principles stated by the Supreme Court on the application of the good-faith doctrine. Under the principles announced by the Supreme Court,
1
 
The panel rejected the government’s arguments that a reasonable suspicion standard should apply, or, in the alternative, that a warrantless search on the basis of probable cause was allowed under the “automobile exception” to the warrant requirement (issues left open in
 Jones
). While the government respectfully disagrees with the Court’s requirement of a warrant to install and use a GPS device, it does not seek en banc review of that portion of the decision (nor the ruling that all three appellees had standing to challenge the stop of the  vehicle).
Case: 12-2548 Document: 003111471524 Page: 2 Date Filed: 12/04/2013
 
- 3 - the panel’s decision unjustifiably applies the “massive remedy” of suppressing reliable and probative evidence,
 Hudson
 v.
 Michigan
, 547 U.S. 586, 595 (2006),  without achieving appreciable deterrence — indeed, it produces no legitimate deterrent benefit at all. That holding warrants the full Court’s review. 1. In recent years, the Supreme Court has repeatedly emphasized that “[t]he fact that a Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies. Indeed, exclusion ‘has always been our last resort, not our first impulse,’ and our precedents establish important principles that constrain application of the exclusionary rule.”
 Herring
, 555 U.S. at 140 (citations omitted). The
 Herring
Court continued: “the exclusionary rule is not an individual right and applies only where it ‘result[s] in appreciable deterrence.’”
 Id.
 at 141 (citations omitted). “[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.”
 Id.
 at 141 (citations omitted). “The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free . . . .”
 Id.
 Therefore, the Court concluded, only “flagrant” official misconduct warrants suppression, which the Court further defined as “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”
 Id 
. at 144. In
 Davis v. United States
, 131 S. Ct. 2419 (2011), the Supreme Court held that when an officer conducts “a search in objectively reasonable reliance on  binding appellate precedent,” the police have no “culpability” and no basis exists
Case: 12-2548 Document: 003111471524 Page: 3 Date Filed: 12/04/2013

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