My Instincts Were Wrong — At Least I Now Think They Were — On Maynard

Thanks to Will’s excellent post below, I now think I was wrong before in my earlier approach to Maynard. My sense now is that the correct approach is to say that the Supreme Court didn’t reach the Maynard question of whether GPS tracking is a search under Katz. As a result, there is still a circuit split on the issue that Jones left unresolved. This means that Maynard is binding appellate precedent in the DC Circuit, and the cases on the other side of the split are binding in those other circuits. If the mosaic theory is litigated in circuits that had held pre-Jones that GPS tracking was not a search, district courts and circuit panels must defer to the pre-Jones circuit decisions still in place. And courts that are considering whether to adopt a mosaic approach where there is no binding precedent should see themselves as wading into a pre-existing circuit split, not venturing out into entirely new territory.

What makes the application of the principle particularly strange is that the Supreme Court bifurcated the doctrine in Jones to create a new doctrinal path, the trespass/physical intrusion theory of searches. That bifurcation allowed the Court to answer the question that was at issue in the case (“Is this a search?”) while formally leaving in place the circuit court precedents that had divided on that (because, post-bifurcation, the earlier circuit court precedents only answer “is this a search under Katz?”). So it’s a weird, counterintuitive result. But I now think it’s the correct one. Thanks to Will for the very helpful discussion.