Updated 2:12 p.m.
Justice Department lawyers continue weighing whether to ask the U.S. Supreme Court to pick up a controversial decision involving law enforcement’s warrantless use of GPS devices to track criminal suspects.
The U.S. Court of Appeals for the D.C. Circuit in August vacated the life sentence of a man named Antoine Jones, saying investigators should have obtained a warrant to install a global positioning device on Jones’ vehicle to follow him during a drug trafficking investigation.
The appeals court said the warrantless use of the tracking device, which produced thousands of pages of data and allegedly linked Jones to a drug stash house in Maryland, violated his Fourth Amendment rights. In November, the D.C. Circuit voted 5-4 to refuse to allow the full court to rehear the dispute.
Ever since then, DOJ lawyers have been mulling a Supreme Court petition. The deadline to file a petition, which had been today, was recently extended to April 15, Assistant U.S. Attorney Peter Smith said in court papers filed in the D.C. Circuit this morning.
Smith said any certiorari petition filed in the high court would present a substantial question of law. In the court papers (PDF) filed today, Smith noted that Chief Judge David Sentelle of the D.C. Circuit, who voted in favor of the full-court rehearing, said the panel decision conflicts with Supreme Court precedent.
Smith said there’s a “reasonable probability” that four Supreme Court justices will vote for certiorari.
A lawyer for Jones, Stephen Leckar of Washington’s Shainis & Peltzman, did not take a position on the government’s request that the D.C. Circuit stay the issuance of its mandate.
Leckar this afternoon said in an e-mail: “There is something incongruous with the Obama Administration’s calling for national privacy legislation to prevent retailers and others from compiling massive, exquisitely detailed dossiers on individuals’ buying habits on the Internet while arguing that its agents ought to be free to use GPS devices to track and compile similar dossiers on individual’s travel without the approval of a judge.”
Jones remains in federal custody pending a new trial in U.S. District Court for the District of Columbia.