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.
