Legal Commentary

DC Circuit Denies Rehearing in United States v. Maynard, the ?Mosaic Theory? Case, by 5?4 Vote

By Orin Kerr

The DC Circuit has just noted on its docket that it has denied rehearing in United States v. Maynard, the GPS case introducing a new ?mosaic? theory of the Fourth Amendment, by a 5?4 vote. According to the docket entry, there were two dissents from denial of rehearing. Judge Sentelle wrote one dissent that was joined by Judges Henderson, Brown, and Kavanaugh, and Judge Kavanaugh wrote a second dissent. In addition, the three judges on the original panel, Judges Ginsburg, Tatel, and Griffith, wrote a concurring opinion in support of the denial of rehearing. The various opinions haven?t been posted yet, but I?ll blog a link, and some commentary, when they are. [UPDATE: I have obtained a copy of the opinions and posted them here.]

While we?re waiting for the DC Circuit opinions, I wanted to point out what I thought was a superb opinion rejecting Maynard and holding that public GPS surveillance is not a search that was filed recently by Judge Wolf in the District of Massachusetts: United States v. Sparks, ? F.Supp.2d ?, 2010 WL 4595522 (D.Mass. Nov. 10, 2010).

UPDATE: I have now posted the opinions, and here?s a quick run-down:

(a) Judge Sentelle?s dissent argues that GPS surveillance is directly covered by the Supreme Court?s beeper case, United States v. Knotts, and therefore is not a search. He also suggests that the novel aggregation theory has far-reaching consequences (most obviously, to visual surveillance) and argues that even on its own terms it fails to work because Knotts said there is zero expectation of privacy as to movements on public highways: ?The reasonable expectation of privacy as to a person?s movements on the highway is, as concluded in Knotts, zero. The sum of an infinite number of zero-value parts is also zero.?

(b) Judge Kavanaugh?s dissent offers a cautionary point about the rules for GPS surveillance: Even if using the GPS device is not a search or seizure, it?s not at all clear that installing the device isn?t a search or seizure. (Other circuits have said that installing a locating device on a car is not a search, but the reasoning of those opinions is pretty weak. I agree with Kavanaugh that it?s the installation of the device that is the really tricky issue here ? and one not addressed at all in Knotts.)

(c) The Ginsburg/Tatel/Griffith opinion in support of the denial of rehearing makes a puzzling suggestion while noting the limits of its opinion: That the Maynard opinion doesn?t mean a warrant is required, or even that probable cause is required, to conduct long-term GPS surveillance even though that surveillance is a ?search?. If I understand the suggestion, the idea is that there may be a totally new category of Fourth Amendment searches, GPS-agggregation searches, and that some future panel of the DC Circuit will decide when the government can conduct them (but that a warrant isn?t necessary required.) It seems to me that this argument was rejected by the Supreme Court in Katz v. United States for audio bugging and then again rejected by the Supreme Court in Karo v. United States for radio beepers, so I?m not sure why Judges Ginsburg, Tatel, and Griffith think there is room for that argument here. But I suppose that if you?re going to go off revolutionizing Fourth Amendment law, you may as well let everything be up for grabs.

Full post as published by The Volokh Conspiracy on November 19, 2010 (boomark / email).