Warrant Based Upon Probable Cause Is Required to Issue GPS Tracking Device

State v. Liebl, Minn.Ct.App., 10/17/2016.  The DNR had a bad week, from both the court of appeals and the supreme court.  Here, the DNR invoked a statute, Minn.Stat. 626A,37, which said that a judge could issue an order authorizing the DNR to covertly install a GPS tracking device on a showing of "reason to believe" that the data obtained from the GPS device would be relevant to an ongoing criminal investigation.  The DNR suspected that Mr. Liebl was hunting deer in violation of various gaming statutes.  Eventually, the state obtained a search warrant for Mr. Liebl's home and truck, where evidence of such unlawful gaming was found.  The search warrant application relied, at least in part, on the data obtained from the GPS tracking device.

Back in 2012, SCOTUS said that installation of a GPS tracking device was a "search" within the meaning of the Fourth Amendment.  United States v. Jones, ___ U.S. ___, 132 S.Ct. 949 (2012).  It necessarily follows that the court could authorize the DNR to install the GPS only upon a warrant application supported by probable cause, or if there were some exception to the warrant requirement.The DNR did not even suggest to the district court that there was probable cause, relying instead on the statutory standard of "reason to believe," so the authorization was invalid.

The state's fallback position was to argue for an extension of Minnesota's limited adoption of the good faith exception to the warrant requirement.  The court of appeals rejects this attempt, pointing out that Jones had been good law for quite some time; the state could point to no cases that applied a good faith exception  to preserve the admissibility of evidence that had been obtained through a post-Jones, warrantless GPS tracking device:

In sum, Officer Picht lacked an objectively reasonable basis for his belief that warrantless GPS tracking of Liebl’s truck was constitutionally permissible after Jones. We believe that the exclusionary rule’s deterrence rationale was served here, because law enforcement has a duty to stay abreast of changes in the law.