November 22, 2010
D.C. Circuit on Prolonged GPS Surveillance
A sharply divided D.C. Circuit voted to deny en banc review on Friday of a panel ruling that the government's prolonged, warrantless surveillance of an individual by GPS attached to his car was an unreasonable search in violation of the Fourth Amendment.
The three-judge panel earlier ruled in U.S. v. Maynard that the government's use of a GPS device attached to appellant Jones's car, without warrant, and used to track his movements 24-hours-a-day for four weeks violated Jones's Fourth Amendment rights. The panel distinguished U.S. v. Knotts, in which the Supreme Court held that the government's warrantless use of a beeper device to track Knotts to his secluded cabin was not a Fourth Amendment search:
The Court explicitly distinguished between the limited information discovered by use of the beeper--movements during a discrete journey--and more comprehensive or sustained monitoring of the sort at issue in this case. . . .
In short, Knotts held only that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end, as the Government would have it.
Op. at 17, 19.
Chief Judge Sentelle, joined by Judges Henderson, Brown, and Kavanaugh dissented from the decision denying rehearing en banc. They argued that the case is squarely governed by Knotts and that the panel ruling puts the D.C. Circuit at odds with the Seventh Circuit in U.S. v. Garcia, the Eighth Circuit in Marquez, and the Ninth Circuit in U.S. v. Pineda-Moreno (dissents on the denial of en banc review are here). (The panel held that the appellants in Pineda-Moreno and Garcia did not argue the issue and that Marquez addressed the issue only vaguely, and in an alternative holding.)
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