DOJ Mulls Asking Justices to Take Case Involving Tracking Device
By David Stout | March 18, 2022 2:48 pm

The Department of Justice has four weeks to decide whether to ask the Supreme Court to take a case that could have far-reaching implications involving law enforcement’s use of modern tracking devices.

The defendant is Antoine Jones, one-time Washington, D.C., night club owner and, according to law enforcement people, a cocaine-trafficker. Last August, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit overturned Jones’ conviction and life sentence on grounds that the police unlawfully tracked his car’s movements by placing a global-positioning device on it without a warrant.

Three months later, the appeals court voted, 5-4, not to have the full court revisit the panel’s decision.  That left the DOJ to decide whether to appeal to the high court. Assistant U.S. Attorney Peter Smith said on Friday that any petition filed before the high court would present “a substantial question of law” and that he thinks there’s a “reasonable probability” that the justices will take the case, according to the Blog of Legal Times.

Arthur Spitzer, legal director of the American Civil Liberties Union National Capital Area, applauded the three-judge panel’s ruling last August, as recounted then by the BLT. “We’re gratified that a unanimous D.C. Circuit agreed that protecting civil liberties requires that the technology of the 21st Century be evaluated on its own terms, and not as if it were still the technology of past decades,” he said.

The current Supreme Court, under Chief Justice John G. Roberts Jr., is sometimes described as relatively conservative on law-and-order issues. But it is far from easy to predict how the justices would rule, should the DOJ go before them on the issue of the use of the GPS device in this case.

(Long-time high court watchers recall that a decade ago, when Chief Justice William H. Rehnquist was still on the bench, the court decisively upheld the Miranda ruling, the 1966 landmark that stated a defendant’s right to remain silent and be represented by a lawyer during police questioning.)


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