Yesterday, the Third Circuit in an 8-5 en banc decision determined that evidence collected without a warrant by police officers through a GPS tracker can still be used at trial United States v. Katzin, No. 12-2548, 2014 WL 4851779 (3d Cir. Oct. 1, 2014). This decision reversed the earlier decision of the three-judge panel, which upheld the District Court’s suppression of the evidence that we blogged about here. The Third Circuit had previously held that the police needed a warrant before attaching a GPS tracker to a suspect’s van in a case where three brothers allegedly burglarized Rite Aid pharmacies in Delaware, Maryland and New Jersey in 2009 and 2010 and further found that the good faith exception did not apply. United States v. Katzin, No. 12-2548, 2013 WL 5716367 (3d Cir. Oct. 22, 2013).

Senior Judge Franklin Van Antwerpen, writing for the majority, explained that the agents’ “objectively reasonable good-faith belief in the legality of their conduct” means that the “good-faith exception to the exclusionary rule therefore applies.” And, “[t]he 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.”

Judge Joseph Greenaway, Jr.’s dissent questions the reasoning of the majority opinion and bluntly writes that “[w]hen the law is unsettled, law enforcement should not travel the road of speculation, but rather they should demonstrate respect for the constitutional mandate—obtain a warrant” and “[a]nything less would require suppression.” He cautions that “law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”

The good-faith exception to the warrant requirement has never made much logical sense to me because no Fourth Amendment protections should be granted for what is an essence, a preventable law enforcement mistake. Except in a few limited circumstances–and “good faith” shouldn’t be one–police officers should obtain a warrant, and if they do not, the evidence should be suppressed.

It is interesting to think about the good-faith exception when you think of those charged with strict liability offenses under the law. If you examine the plain language of the good-faith exception rule, all that is required is that the law enforcement officers acted with an objectively reasonable good-faith belief that their conduct was lawful. Rendering this rule into a defense for a strict liability crime would look like this: for a 21 year old client charged in Pennsylvania with statutory sexual assault of a 15 year old minor after they met in a bar, he could claim that his consensual sexual encounter was objectively reasonable based on his good-faith belief that because they met in a bar and she was drinking alcohol. Thus, he believed that she wouldn’t be present or served if she was in fact underage, and the bar’s actions in regards to her “sanctioned” his own subsequent conduct.

This defense to this hypothetical statutory assault case wouldn’t work in court. Why should our Fourth Amendment Constitutional protections be granted such leeway to excuse police conduct when persons charged criminally with strict liability offenses have no such safety net?