As usual, sensationalist newpapers like the Times don't tell the whole story, but who cares about that? It's easier just to get all bent out of shape and see everything as a major crisis destined to wreck the country.
Y'all really should learn to look beyond the headlines.
First, you've got to understand how a Federal Circuit Court works.
When a case comes before the Court, it is normally heard by 3 Justices chosen at random. The Court has many more than 3 Justices and it's impractical for the whole Court to hear every case, so this is how it operates.
When a judgment has been rendered, either of the parties may request what's called an "en banc" hearing. That is, they ask that the case be considered by the full Court. The Court has the option to accept that request or reject it.
That's all this is here. A ruling was made and an en banc hearing requested. The Court declined and let the ruling by the 3 Justice panel stand as is.
The majority will offer their reasons for rejecting the appeal and other, dissenting Justice's may offer their dissent.
Here's the majority's reasoning for declining an en banc hearing for the decision in question:
GINSBURG, TATEL and GRIFFITH, Circuit Judges, concurring in the denial of
rehearing en banc: In response to the Government's petition, we underline two matters.
First, because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful; to the extent the Government invoked the automobile exception to the warrant requirement, as we pointed out, that exception applies only when “a car is readily mobile and probable cause exists to believe it contains contraband,” neither of which elements the Government satisfied.
Slip op. at 38 (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)).
Second, the Government's petition complains that the court's opinion “implicitly calls into question common and important practices such as sustained visual surveillance and photographic surveillance of public places,” Pet. at 2, but that is not correct. The court explicitly noted: “This case does not require us to, and therefore we do not, decide
whether a hypothetical instance of prolonged visual surveillance would be a search subject to the warrant requirement of the Fourth Amendment.” Slip op. at 37.
http://pacer.cadc.uscourts.gov/commo...34-1278562.pdf
Did you catch that first reason? During the original trial, the government "did not argue the points... whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful..." Consequently, since the government did not bring it up, "the court did not decide."
In other words, the Court HAS NOT ruled that a GPS system can't be used by law enforcement to track a person, with or without a warrant, because the government never even addressed that issue during trial and, having not done so, the Court was not required to make a ruling on the question!
Then, having not gotten the verdict they wanted, the government asked the Court to convene en banc and make a ruling which the government did not ask for in the original trial.
Who should be surprised that the Court declined to do so? In effect, the government was wanting the full Court to hear something different than was adjudicated during the original trial, when it SHOULD have been brought up.
This isn't a case of judicial over-reach, activist judges tying the hands of law enforcement or even denying the cops use of the same technologies available to individuals: It is a case of a poorly crafted and inadequately prosecuted federal case. The "fault" doesn't lie with the Court; it lies with the incompetence of the government lawyers during the original hearing.
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