08 October 2010

Legality of long-term warrant-less GPS surveillance appears headed to the Supreme Court

Last month, I wrote about a decision by the United States Court of Appeals for the DC Circuit's decision in United States of America v. Lawrence Maynard that long term GPS surveillance required a warrant (see the full decision here).  Now compare and contrast that decision with the one in United States of America v. Juan Pinedo-Moreno in the United States Court of Appeals for the 9th Circuit.  A three judge panel of the 9th Circuit ruled in January that such surveillance did not require a warrant; and following an appeal from Pinedo-Moreno, the 9th Circuit voted to deny the petition for rehearing en banc.  According to the court, "[t]he full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration."

When courts in different districts disagree (and in this case, when two Courts of Appeal disagree), this tends to elevate the issue because effectively speaking, long-term warrant-less GPS surveillance is now legal in the 9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) but illegal in the District of Columbia (and legally ambiguous everywhere else).  The only way to resolve these conflicts is for the Supreme Court to accept one or both of these cases and ultimately decide the issue.  Expect to hear more on this issue soon.

Here is the original ruling from January:


Here is the court's decision to deny the petition for rehearing en banc.  The court denied the petition without comment, although Judge Kozinski did comment in a dissent.

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