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D.C. Circuit denies en banc review in car GPS surveillance case, with concurring and dissenting opinions

Nov 22, 2010 D.C. Circuit denies en banc review in car GPS surveillance case, with concurring and dissenting opinions

In August 2010, I blogged that the D.C. Circuit had reversed a conviction that relied on information from a warrantless attachment of a GPS device to the defendant’s car. U.S. v. Maynard, 615 F.3d 544 (D.C. Circ., Aug. 6, 2010).

Today, the D.C. Circuit denied en banc review in Maynard. U.S. v. Jones, ___ F.3d ___ (D.C. Cir., Nov. 22, 2010). The cert. denial includes a brief concurring opinion by three judges, a three-judge dissent, and a one-judge dissent. The concurring opinion is the shortest, stating:

In response to the Government’s petition, we underline two matters. First, because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful; to the extent the Government invoked the automobile exception to the warrant requirement, as we pointed out, that exception applies only when “a car is readily mobile and probable cause exists to believe it contains contraband,” neither of which elements the Government satisfied. Slip op. at 38 (quoting Pennsylvania v. Labron,

518 U.S. 938, 940 (1996)). Second, the Government’s petition complains that the court’s opinion “implicitly calls into question common and important practices such as sustained visual surveillance and photographic surveillance of public places,” Pet. at 2, but that is not correct. The court explicitly noted: “This case does not require us to, and therefore we do not, decide whether a hypothetical instance of prolonged visual surveillance would be a search subject to the warrant requirement of the Fourth Amendment.” Slip op. at 37.

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