Petition for Rehearing of Maynard GPS Case Denied

The petition for rehearing the GPS issues from the DC Maynard case was denied this past November.

It was a close decision with 4 of the 9 judges dissenting. Two dissenting opinions were issued. The first, drafted by Chief Judge Sentelle and also signed by Judges Henderson, Brown, and Kavanaugh, argued that Maynard was not distinguishable from the Knotts case, and therefore there was no reason to have decided Maynard differently than Knotts. The opinion also took issue with the theory that aggregation of information could amount to violation of the Fourth Amendment, which the original decision appeared to promote. It expressed concern that this line of reasoning would mean that other forms of surveillance—including personally conducted visual surveillance—could be held to violate the Fourth Amendment when done on a prolonged basis. Citing an opinion from the Seventh Circuit, it also suggested that GPS tracking should perhaps not even be considered a search within the meaning of the Fourth Amendment.

The second dissenting opinion, drafted by Judge Kavanaugh, pointed out that the appellant had also asserted a Fourth Amendment violation on the basis of the interference with personal property through the installation of the GPS tracking device on the appellant’s automobile. Thus, Judge Kavanaugh opined that a rehearing was additionally warranted in order to adjudicate this question.

The order, a concurring opinion, and the two dissenting opinions are available here thanks to courtlistener.com.