(CN) – A divided D.C. Circuit rejected the Justice Department’s request for the full federal appeals court to review an August ruling requiring police to get a warrant before using GPS to track a suspect.
This summer, a three-judge panel cited the warrant requirement when it overturned the criminal conviction of Antoine Jones, who claimed FBI violated his Fourth Amendment rights by tracking his vehicle by GPS for about a month without a warrant.
The Justice Department asked the full D.C. Circuit to reconsider the case, but the judges declined on a 5-4 vote.
In the first of two dissenting opinions, Chief Judge David Sentelle said the panel 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. Knott.”
In Knotts, the high court upheld the constitutionally of electronically enhanced surveillance, writing that “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in the case.”
Police in the Knotts case had placed a radio transmitter, or beeper, in a container in a vehicle and used it to track the container’s interstate journey.
Judge Brett Kavanaugh agreed with Sentelle that the full court should have taken up the case, adding that the panel never addressed the potential Fourth Amendment violations caused by the actual installation of the GPS device on Jones’s car.
“As the defendant here rightly points out, the police not only engaged in surveillance by GPS but also intruded (albeit briefly and slightly) on the defendant’s personal property, namely his car, to install the GPS device on the vehicle,” Kavanaugh wrote.
Judges Janice Rogers Brown and Karen LeCraft Henderson joined Kavanaugh and Sentelle in dissent.
Judges Douglas Ginsburg, Judith Rogers, David Tatel, Merrick Garland and Thomas Griffith voted to deny a full court rehearing.