Legal Commentary

DOJ Petitions for Rehearing in DC Circuit ?Mosaic Theory? GPS Surveillance Case

By Orin Kerr

The Department of Justice has filed this petition for rehearing en banc in United States v. Maynard, the case adopting a ?mosaic? theory of the Fourth Amendment to hold that long-term public GPS monitoring requires a warrant. 

As you might case from my earlier post on this, I think DOJ has a very strong case for en banc review. It seems to me that if the DC Circuit is willing to grant en banc review to determine the largely inconsequential matter of when lowering a zipper on a jacket violates the Fourth Amendment, presumably they would want to review a panel decision that articulates an entirely new theory of Fourth Amendment protection that the panel conjured up and that wasn?t even briefed by the parties. 

One interesting aspect of Maynard is that DOJ has a strong case for en banc review but a significantly weaker case for a cert petition. On its terms, the DC Circuit?s opinion denies that it creates a circuit split. And even if you don?t buy that, circuit splits in Fourth Amendment cases between the DC Circuit and other courts just aren?t all that important: The effect of any split is narrow because DC Circuit opinions are binding only here in the District of Columbia. So en banc review may be the end of the Maynard road: As always, stay tuned.

Full post as published by The Volokh Conspiracy on September 22, 2010 (boomark / email).