DOJ Files Petition for Rehearing in the Fifth Circuit on Geofence Warrants

Filed this week in United States v. Smith.

Back in August, I had two very long posts about the Fifth Circuit's remarkable decision in United States v. Smith on geofence warrants, which ruled not only that geofencing requires a warrant but that geofencing warrants are categorically unconstitutional.   I had this post strongly criticizing the decision on August 13, and this follow-up debate with the ACLU on August 16th.

I thought I would flag that this week the Justice Department filed its petition for rehearing.   It begins:

The U.S. Attorney's Office for the Northern District of Mississippi seeks rehearing en banc because the panel's decision conflicts with the decisions of multiple other courts of appeals, misreads applicable Supreme Court precedent, and presents far-reaching implications that could prohibit the government's use of important investigative techniques. Every other U.S. Attorney's Office in the Fifth Circuit joins this petition.

As you might guess from my earlier posts, I hope rehearing en banc is granted. As always, stay tuned.

Comments

[Commenter_XY]

Professor Kerr, just as a citizen, I hope the 5th circuit does hear this case, en banc, and upholds it. I thought the ACLU had the better argument (from your second post). I don't want things easier for the federal government; I need protection from the federal government because enabling warrantless digital fishing expeditions is ripe for abuse (it already has been, and is - daily). I also want to say I laughed at the hopelessly pedantic point you made....and yes, we have been warned (see, I really did read it closely Professor, I am paying attention as a layman).

Which is worse? Allowing the federal government to perform digital fishing expeditions without any warrant or oversight; or, prohibiting the practice of warrantless digital fishing expeditions altogether by the federal government. Sorry, but I don't want a situation where the federal government is ever performing searches without oversight. That sure isn't consistent with my understanding of 4A.

When it goes to SCOTUS, how would Justice Thomas come out on this question? He seems a 'law and order' kind of Justice. Then again, maybe not. You never know.

[Noscitur a sociis]

enabling warrantless digital fishing

Again, the problem with this decision isn’t that it says a warrant is required to use this investigatory technique. The problem is that it says you can’t do it even with a warrant.

[Krayt]

We should not be looking to enable panopticons just because the technology is developed for other reasons for the convenience of We The People.

We should no more want this than “Eye in the Sky”. Which I am afraid may be being done in the US on the downlow anyway.

Or recording all calls, then only listening when they get a warrant.

[Commenter_XY]

Nas...Yes, I get it. I want that question adjudicated = The problem is that it says you can’t do it even with a warrant.

I don't want them doing that.

[Voize]

Google has announced plans to stop storing location data in Sensorvault and keep it in individual devices instead, with the result if not objective that it will be impossible for them to respond to a geofence warrant. Will the Court still want to take on a question with pending mootness?

[Noscitur a sociis]

I wouldn’t think so. This case has isn’t moot, obviously, and the holding would affect plenty of actual investigative techniques, even if this one isn’t going to be available going forward.