Whether the government’s acquisition of historical cell site records from a cellular telephone service provider pursuant to a court order authorized by the Stored Communications Act, 18 U.S.C. § 2703(c)(1)(B), (d), constitutes an unreasonable search or seizure in violation of the Fourth Amendment.Orin Kerr thinks that the panel got it wrong and that the Court should take the case en banc. I disagree with my old classmate. It will be interesting to see what the Court does here.
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I tend to agree that, legally, the Circuit got it wrong, especially given Smith v. Maryland and given that Scalia wrote Jones with an Originalist bent. He focused on the government's intrusion of "property." That said, fractured opinions, like Jones, cause ambiguities. Plus, Smith swerved from the Court's promise that the public's reasonable expectation of privacy would be protected by creating a bogus expectation.
ReplyDeleteThe panel had only one active judge, so it'll be interesting to see how the rehearing petition plays out.
If the full Eleventh Circuit agrees to rehear this case, it'll be the second en banc case in a row where the author of the panel opinion will not be present to defend it. Regardless of whether the panel opinion is wrongly decided, that places Judge Martin -- the only active judge of the original panel -- in an unenviable situation. I doubt whether Judge Dubina will go to bat for a decision that his conservative colleagues may view skeptically.
ReplyDeleteYawn - you know they will hear it, and you know they will reverse it.
ReplyDeleteI'm not quire sure they have enough judges for an en banc court.
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