Monday, November 22, 2010

Circuit Split Watch: GPS Surveillance

On Friday, a federal appellate court kept a circuit split alive.

As Appellate Daily previously reported, the D.C. Circuit held in August that GPS surveillance of a vehicle required a warrant, departing from the Seventh, Eighth, and Ninth Circuits. Friday's D.C. Circuit ruling denied en banc rehearing.

Dissenting from that denial, Chief Judge David Sentelle, joined by three other judges, wrote that "the panel’s decision is inconsistent not only with every other federal circuit which has considered the case, but more importantly, with controlling Supreme Court precedent set forth in United States v. Knotts, 460 U.S. 276 (1983)." Knotts upheld use of a radio transmitter placed in a vehicle without a warrant.

Earlier this year, on the other coast, the Ninth Circuit came to a different conclusion, upholding warrantless GPS surveillance and then denying en banc rehearing. Dissenting from that denial, Chief Judge Alex Kozinski, joined by four other judges, called the upheld surveillance "creepy and un-American" and a far cry from the bygone technology at issue in Knotts

The Ninth Circuit case is now at the Supreme Court, with a recently filed petition for certiorari. A D.C. Circuit petition is sure to follow. Given the growing Fourth Amendment implications associated with technology, coupled with the circuit split, not to mention close votes and spirited dissents within those circuits, the Supreme Court will no doubt give these petitions close attention.

It should be noted that the Supreme Court, in 2007, denied certiorari in the Seventh Circuit case (written by Judge Richard Posner). PACER records do not show a cert petition in the Eighth Circuit case.

Appellate Daily, Judges Series: Chief Judge David Sentelle and Chief Judge Alex Kozinski.