The nation’s leading forum for conservative and libertarian legal scholarship.

My White Whale


Posted on October 23rd, by Jonathan Levy in Musings. 1 Comment

Studying the law is demanding.  meaningfulhumblingrewardingwearying.  complex.  Learning from some of the most famous, respected, and brilliant professors and practitioners on the planet can be surreal.  For many of these folks, any and all lulls in activity can be filled with the law.  Seriously.  One professors told my class that he cracked the Sixth Amendment while sitting in traffic.  Certain professors have a gift for making otherwise opaque concepts or complex theories into simple and unavoidable conclusions.  Yet when these legal theories encounter legal doctrines, the results can be frustrating. For me, the Third Circuit’s opinion in United States v. Katzin yesterday nicely highlights this dissonance.

In Katzin, the Third Circuit considered a question left open by the 2012 United States Supreme Court opinion in United States v. Jones:[1] whether the police may attach a GPS device to an automobile and use the device to track the car’s location with probable cause but lacking an official warrant.  After the FBI and local police in Pennsylvania, Maryland, Delaware, and New Jersey (collectively, “the police”) observed Harry Katzin and his brothers in the vicinity of recently robbed pharmacies, the police placed a GPS tracker on his van.  The police observed the van’s movements and eventually apprehended the defendants with stolen merchandise which the government sought to admit into evidence at the ensuing trial.

The Third Circuit affirmed the District Court’s decision to exclude the evidence because it resulted from an unconstitutional search.  Supreme Court precedent requires a warrant for this search.  But taking the Fourth Amendment seriously–as I was taught–the Third Circuit not only got the holding wrong, but asked the wrong question to get there.

Rewind: In the second semester of 1L, I found myself studying criminal procedure with the quippy and brilliant Akhil Reed Amar.  If you haven’t read him yet, I highly recommend it.  Even if you’re uninterested in Constitutional analysis or textualism, his style is something to be admired.  (Particularly this article on Double Jeopardy).  Substantively, his interpretation of the Fourth Amendment is truly convincing, especially to my impressionable 1L self.  So when we moved from his interpretation (namely that the two sentences of the Fourth Amendment are wholly distinct pieces, and warrantless search is not per se unreasonable) to the case law, I was mystified that more jurists did not agree with my Professor.  ’Amar’s interpretation is so clear,’ I thought, ‘why can’t the case law simply shift to this more elegant solution?’

Fast forward two years to when I am reading Katzin, asking the same question.

The Third Circuit had a two pronged discussion of  whether a warrant was required to attach a GPS monitor to Katzin’s van.  First, the court held that although the police had probable cause, “a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”  And second, GPS tracking does not fall into the automobile exception to the warrant requirement.  Thus, the warrant requirement reigns supreme.

The warrant requirement.  I was taught to cringe at this phrase as much as I cringe at the phrase “Separate but Equal.”[2]

As Professor Amar points out, “[T]he Fourth Amendment text most emphatically [does] not require warrants. . . .  The Warrant Clause says only when warrants may not issue, not when they may, or must. . . . In every state constitution prior to the federal Bill [of Rights], ‘the warrant is treated as an enemy, not a friend.’ No state convention proposes a warrant requirement for the federal Bill of Rights. And in early drafts of the federal Fourth, it is the loose warrant, not the warrantless intrusion, that is explicitly labeled ‘unreasonable.’” (footnotes omitted).  There is a probable cause requirement for the issuance of warrants, but the Fourth Amendment does not mandate that a magistrate sanction every search and seizure ex ante via a warrant.  Yet despite the elegance of Amar’s argument, and the trend of cutting back on the warrant requirement,[3] the warrant requirement is the law, and Professor Amar’s view is not.

After holding that the lack of warrant made the GPS tracking unreasonable, the Third Circuit went on (with Judge Van Antwerpen dissenting on this point) to exclude the apparently ill-gotten evidence under the Fourth Amendment’s exclusionary rule.  This rule was manufactured by the Supreme Court and applied against the States to deter Fourth Amendment violations.  The dissolution of this unnecessary and inefficient exclusionary rule is another of Professor Amar’s crusades.  “The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated,” he writes.  This goal, however, requires more systematic change,[4] so I have more sympathy for the reluctance of courts to do away with it entirely.

Most Roundtable Guests likely have many personal stories of frustration (please share them in the comments below!).  Practitioners among you may have had to eschew personal views before a judge or other adjudicative body.  As a law student, it can be frustrating when older theories outweigh more elegant approaches simply due to the precedential ossification of time.  On the other hand, having an idea of where I think the law ought to go creates a sense of purpose and duty.  So studying the law is…complex.


[1] In the simplest terms, the Court held in Jones that monitoring a car’s location through an external GPS device constituted a “search” under the Fourth Amendment due to the physical intrusion of the device.

[2] At least as applied from Plessy through Brown v. Board of Education.

[3] See, e.g., Terry v. Ohio.

[4] Professor Amar would rely on civil remedies to enforce the Fourth Amendment.  But, as he acknowledges, this would require changes to the current adjudication of § 1983 and Bivens suits:

“[Courts] need only interpret section 1983 to mean what it says—strict government-entity liability—and exercise their traditional remedial powers against federal officialdom. . . .  The deeply rooted power of judges to infer damage remedies for violations of constitutional norms was of course a strong theme of Justice Harlan’s careful and traditional concurring opinion in Bivens. . . .  Such actions enforce, rather than offend, the sovereignty of the People over officialdom.”





  • Efrem Weiss

    well done!