A divided federal appeals court in Washington this afternoon rejected the U.S. Justice Department's request that the full court overturn a ruling that requires law enforcement officials to get a warrant before using a GPS device to track a suspect.
This summer, three judges of the U.S. Court of Appeals for the D.C. Circuit in August struck down a defendant’s life sentence on the ground that the police unlawfully used a global-positioning device to follow the man 24 hours a day for a month. Prosecutors asked the full appeals court to overturn the panel decision. The case explores the extent to which a person has a reasonable expectation of privacy on public roads.
A 5-4 majority of the nine active judges of the appeals court denied the DOJ request for an en banc rehearing. Four D.C. Circuit judges—Chief Judge David Sentelle and judges Janice Rogers Brown, Brett Kavanaugh and Karen LeCraft Henderson—said they would grant the government’s request that the full court examine the dispute. The court's ruling is here.
Sentelle’s statement today said the earlier panel decision—by judges Douglas Ginsburg, David Tatel and Thomas Griffith—is “inconsistent not only with every other federal circuit which has considered the case, but more importantly, with controlling Supreme Court precedent” in U.S. v. Knotts (1983). The Knotts case involved police use of a beeper to track the movement of a container from one vehicle to another.
A person’s movement in public space over the period of a month is still "public" even if no particular individual sees all the movement, Sentelle said.
Ginsburg, Tatel and Griffith said in their own statement that the appeals court did not decide whether either reasonable suspicion or probable cause—absent a warrant—would be enough to make the use of GPS lawful. The panel decision overturned the conviction of a local man named Antoine Jones, co-owner of a nightclub in Washington who prosecutors alleged participated in a drug trafficking conspiracy.
The three judges also responded to a concern among prosecutors and law enforcement officials over whether prolonged visual surveillance would require a warrant. The three judges said the panel opinion explicitly didn’t decide whether a “hypothetical instance” of prolonged visual surveillance” would be a search requiring a warrant under the Fourth Amendment.
“We are pleased that the Court of Appeals has declined the Government’s request for en banc reconsideration and has reaffirmed the constitutional concerns identified by Judge Ginsburg and the other members of the panel, Judges Tatel and Griffith,” Jones’ appellate attorney, Stephen Leckar of Washington’s Shainis & Peltzman, said in an e-mail this afternoon.