United States v. Jones

major changes activity generally the FDA “activi- followed changes readily ty-based” five-year that are not to drug approach exclusivity predicted.... contrast to most under the Hatch-Waxman Amendments. changes necessary go the covalent structure of a We do not consider it to into molecule, the of a salt prior formation or these details of decisions. None ester, is not complex, or of an intended grant them rendered the FDA’s of ex- cannot, generally alter the clusivity Vyvanse basic to arbitrary capri- toxicologic or pharmacologic properties cious. of molecule.... grant summary The district court’s pressed are to We hard second- judgment to the FDA Shire and to view, especially guess the FDA’s since it affirmed. agency’s “rests on evaluations of scien So ordered. expertise.”

tific within its data area Labs., Shalala, Inc. v. Serono 158 F.3d (internal (D.C.Cir.1998) quota omitted). best,

tion marks At Actavis has

offered evidence that some covalent struc changes

tural prop do not alter the basic drug question

erties of and that

some changes noncovalent structural do. agencies may

But “employ bright-line rules for reasons of administrative conven America, Appellee UNITED STATES ience, long so as those rules fall within a reasonably zone of reasonableness explained.” Emily’s v. Fed. List Election JONES, Appellant. Antoine (D.C.Cir.

Comm’n, 22 n. 20 2009). Nos. 08-3030. The FDA explained has its policy in part “difficulty is based Court Appeals, States determining molecule, precisely which District Columbia Circuit. molecule, portion responsible aof for drug’s effects.” Nothing record es Nov. approach tablishes un FDA’s complexity reasonable. Given the McLeese, III, Roy W. Esquire, Assis- statutory regime, to agency’s we defer Attorney, Geise, tant U.S. John Vincent Found, interpretation. Cmty. See Care Lieber, Rachel Carlson Assistant U.S. At- (D.C.Cir. Thompson, torney, Office, Attorney’s Washing- 2003). ton, DC, Appellee. for Leckar, Stephen C. Shainis & Peltzman Ill Chartered, DC, Washington, Appellant. has other arguments designed

Actavis show grant five-year LLP, Prywes, Bryan FDA’s Daniel I. Ar- Cave exclusivity Vyvanse thur “arbitrary Barry was Spitzer, [and] American Liber- Civil 706(2)(A). capricious.” § Area, U.S.C. Pri- ties Union of the National Capital mary among Vyvanse these is that David Lane Sobel Law David L. Office Of past DC, decision tension agency Sobel Curiae Washington, Amicus which, decisions, claims, Appellants. Actavis establish satisfied. the Government SENTELLE, which Judge, elements Chief BEFORE: Pennsylvania (quoting HENDERSON, GINSBURG, and Labron, 938, 940, BROWN, GARLAND, TATEL, ROGERS, (1996)). Second, L.Ed.2d 1031 KAVANAUGH, Circuit GRIFFITH, and complains that petition the Government’s Judges. calls into “implicitly the court’s important practices common and question ORDER and surveillance such sustained banc rehearing en for petition Appellee’s public places,” photographic response thereto and No. correct. The is not Pet. court, a vote full and circulated were “This ease does not noted: explicitly court Thereafter, majority of requested. we do and therefore require us did not participate eligible to judges instance of hypothetical whether decide Upon consid- petition. in favor of the vote be a would visual surveillance prolonged it is foregoing,, eration of requirement subject to the warrant search denied. petition ORDERED Fourth Amendment.” * Judges and Circuit Sentelle Judge Chief grant Kavanaugh would and Brown SENTELLE, Judge, joined Chief rehearing en banc. petition BROWN, HENDERSON, * Ginsburg, Judges A statement Circuit KAVANAUGH, Judges, dissenting Circuit denial concurring Tatel, and Griffith en banc: rehearing from the denial attached. rehearing en banc case held in this Sentelle, by Chief *A statement use of a warrantless government’s Henderson, Judges by Circuit

joined (“GPS”) system device positioning global dissenting from Brown, Kavanaugh appellant public to track rehearing en banc attached. the denial approximately vehicle Jones’s Antoine * Judge Kava- by Circuit A statement search was an unreasonable four weeks of re- from the denial dissenting naugh of Jones’s Fourth violation is attached. hearing en banc view, should my question In rights. en banc because GRIFFITH, by the court be reviewed GINSBURG, TATEL decision is inconsistent panel’s concurring the denial Judges, Circuit circuit which has every other federal with rehearing en banc: case, importantly, more considered peti- to the Government’s response precedent Supreme Court controlling First, matters. be- tion, two we underline in United States set forth did not argue the Government cause 75 L.Ed.2d 55 whether, did not decide the court points, suspi- warrant, either reasonable absent re- been cause have probable cion law enforcement in which a case viewed of the GPS render the use sufficient to radio transmitter placed a had officers lawful; the Government to the extent container inside a chloroform (“beeper”) war- exception voked the automobile placed inside motor out, turn that which was pointed as we requirement, rant of the electron- Through the use vehicle. car is only when “a exception applies police beeper, signals ic from cause probable exists readily mobile and from container the chloroform contraband,” tracked neither it contains believe and, think, reasoning, one automobile to another across the Court’s controlling length journey interstate from Min- in this case is observation that “[n]oth- Minnesota, Lake, neapolis, to Shell Wis- ing in prohibited the Fourth Amendment consin. The information obtained from augmenting the sensory monitoring augmented the electronic was upon faculties bestowed them at birth with by physical intermittent surveillance and such enhancement as science and technolo- by monitoring helicopter. from In up- afforded them this case.” Id. gy in holding constitutionality of the the sur- Supreme the Everything Court stated in monitoring, veillance electronic the Knotts equally applicable is the to facts of Supreme Court reviewed establish- present controversy. is There no ma- privacy ment of the prin- interest as the terial tracking difference between cipal right protected the Fourth movements of Knotts defendant with a guarantee. briefly Amendment’s To sum- the Jones beeper tracking appellant jurisprudence marize the Court’s from with a GPS. distin- The Knotts predecessors: and its if there is guishes think unconvincingly— Knotts —I no expectation invasion of a reasonable of not on the that basis what the police did privacy, there no violation of the any that this, case is different than Fourth Amendment protection “against that the of volume information obtained is unreasonable searches and seizures.” greater present case than Knotts. U.S. Const. Amendment IV. panel The asserts that totality “the of that Applying jurisprudence to the elec- Jones’s movements over the course of a tronically enhanced month ... exposed not public.” to the person Court declared that travel- “[a] panel “first, The that reasoned unlike one’s ing in an automobile public thorough- on during single movements journey, fares has no expectation pri- reasonable whole of one’s movements over the course vacy in place his movements from one to actually month exposed to the another.” 460 U.S. at 108 S.Ct. 1081. public anyone because likelihood will went Court on that to note “[w]hen observe all these effectively movements is suspect] [the traveled over the public nil.” 615 F.3d at 558. I suggest that this streets, voluntarily conveyed he anyone to way assertion in no demonstrates that who wanted to look the fact that he was Jones’s exposed movements were not to particular traveling over in a partic- roads public. The fact particular that no direction, ular the fact of whatever stops individual them all sees does not make the made, he and the fact of his final destina- public. movements less Nor is it evi- tion when he public exited from roads onto dent at point what likelihood a suc- Id. at private property.” cessful continued surveillance 1081. The Court becomes so further reasoned that slight panel that the since visual would deem the public places surveillance from oth- erwise along public exposure of adjacent driving the route or to on a the destina- public tion thoroughfare would have to private. revealed all of the become As same Knotts recalled, to the police, information fact it well “[t]he estab- ... the officers lished that a person knowingly relied not on “[w]hat ex- surveillance, poses but also on to ... public subject the use of is not beeper signal to the presence Katz protection.” Fourth [the sus- pect’s] receiver, 347, 351, automobile to 389 U.S. does not alter the situation.” Id. 282, 507, 19 L.Ed.2d 576 In applying 1081. to the Knotts S.Ct. Central principle person traveling “a in could have been admitted without Fourth Court declared Therefore, it thoroughfares problem. has Amendment would public automobile argues, appear, appellee in his novel expectation privacy no reasonable place aggregation approach to another.” reasonable one 281, 103 expectation prohibit privacy surveillance, only GPS-augmented recognize seems panel other of sufficient police surveillance had that Jones no reasonable length support consolidation of data into any particular datum re- privacy pattern contemplated or mosaic sort GPS-augmented by the surveil- vealed True, panel. panel declares lance, acquired through but somehow one case us require that “this does not totality of “the Jones’s movements over therefore we do decide whether a a F.3d at the course of month.” 615 558. hypothetical of prolonged instance visual panel, of is true “be- the view the this subject a surveillance would be search ... reveals more than cause that whole the requirement warrant of the Fourth parts.” may of this does the sum its While in face Amendment.” Even the of this true, it is not how it affects the be evident declaration, I cannot discern distinc- expectation privacy by of reasonable supposed tion the invasion by ag- between expectation pri- The of Jones. reasonable of data the gregation GPS-aug- between vacy person’s to a the surveillance and purely mented a Knotts, is, as in highway concluded zero. of length. substantial an of The sum of infinite number zero- I value is also zero. Nowhere in would further note that the parts Seventh Garcia, Supreme Knotts or other Court Circuit United States v. 474 (7th Cir.), denied, since Fourth Amendment decision the F.3d 994 cert. 291, adoption privacy (2007), ra- 140 expectation of 169 L.Ed.2d suggest- in Katz the Court ever tracking tionale has concluded that “GPS expecta- the test the of the ed that of reasonable same side the divide with surveil any way tion related to the intent of lance cameras and the imaging, satellite by the they data obtained sur- and if what do is searching user alleged terms, veillance or other search. Fourth Amendment neither is GPS 997; expectation privacy” tracking.” words “reasonable Id. at also see (8th suggest no such Marquez, themselves element. The States v. 605 604 Cir. 2010); Pineda-Moreno, expectation privacy part is on United States v. (9th Cir.2010). observed, Granted, 1212 not the observer. may degree of invasion of light inconsistency of its with Su- intent, by the

be measured invader’s but preme jurisprudence Court and with the an invasion does not occur unless there is application of the Fourth Amendment expectation. such a reasonable circuits, by similar other circumstances importance this Lest this decision warrants en banc consider- underestimated, respectfully I would note that the in- ation. I de- dissent panel in the vasion found was not use nial. device, aggregation the GPS KAVANAUGH, Judge, Circuit Presumably, of the information obtained. dissenting rehearing from the denial of en

had the GPS device been used for hour banc: perhaps day, period or whatever I agree Judge with a nor- with Chief Sentelle that panel believed was consistent surveillance, panel opinion mal conflicts with the Su- evidence obtained 770 information,

preme Court’s United States v. order to obtain that intrusion decision 75 constitute a violation of the Fourth U.S. S.Ct. also share Chief even if the same information L.Ed.2d panel concern about been Sentelle’s could-have obtained other means.” opinion’s aggregation approach 286, 103 novel to 460 U.S. at S.Ct. analysis.

Fourth Amendment Brennan noted in As Justice however, I think say, That is not to precedent perhaps that is necessarily prevail the Government property-based argu- most relevant to this case. defendant contended ment the Court’s 1961 deci- unanimous Fourth Amendment was violated sion in v. United Silverman surveillance without 734. In L.Ed.2d (the panel warrant issue addressed Silverman, Court concluded initial in- opinion) also listening stallation device on the de- on his car stallation the GPS device property (by accessing heating fendants’ a warrant. The without did duct in shared wall the defendants’ not address the defendant’s alternative house) subject row to the Fourth Fourth and narrower property-based Amendment. The that Court reasoned concerning in- argument Amendment applied Fourth Amendment because of the my judgment, stallation. the defen- police’s physical contact with the defen- poses dant’s alternative submission also an property, variously dants’ which the Court important question and deserves careful physical characterized as: “unauthorized en consideration banc Court. penetration premises,” into the “unautho- physical rized encroachment within con- has stated that area,” stitutionally protected “protects “usurping property Fourth Amendment as office,” part petitioners’ of the house or privacy.” Cnty., well as Soldal v. Cook Ill., 62, “actual 56, 538, constitutionally intrusion into 506 U.S. 113 121 area,” (1992). protected “physically and en- L.Ed.2d 450 As the defendant out, trenching] into a man’s office or home.” rightly points here Id. at 81 S.Ct. 679. The Court engaged GPS also (albeit further that a briefly physical determined en- slightly) intruded and on an triggered croachment such area personal property, namely defendant’s his car, regardless Fourth protection Amendment to install the device the vehi GPS precise details of state or cle. local tres- 511, pass Id. at law. 81 S.Ct. 679. physical Because of the police’s intrusion device, sure, to install the case GPS To be since Silverman the raises Su- presented an preme issue was not Knotts. Court has held the Fourth protects The defendant in Knotts just prop- did not own the Amendment more than property States, which the beeper erty was installed interests. See Katz United 347, 352-53, 507, did standing thus not have to raise 389 U.S. 88 S.Ct. 19 Fourth challenge Amendment to the in- But thoroughly L.Ed.2d 576 Soldal, beeper. explained stallation But Justice Bren- the Court has not nan’s concurring opinion principle Knotts foresaw retreated from posed by protects Fourth Amendment issue Fourth Amendment property also police’s 64, installing such a “when 506 device: interests. U.S. at 113 S.Ct. 538. “ ‘protection engage physical Government does intru- property under constitutionally protected major sion of a area in Fourth Amendment’ remains a

771 wall heating in a shared on a duct person If a device post-Nate era: theme Silverman, 510, relationship U.S. house. 365 or has a close a row property owns owner, judge usu has con property access 679. One circuit 81 S.Ct. his reasonable that the Fourth Amendment does ally violates cluded Kerr, Models Four Orin S. device: privacy.” to installation of a GPS Ab apply Protection, 60 Stan. Amendment Fourth police’s compliance with Fourth sent the (2007) Soldal, 503, 506 (quoting are requirements, “people en L.Rev. 538); Bond v. 64, see also keep police hands and titled to officers’ 334, 120 S.Ct. 529 U.S. States off their vehicles.” United tools (2000) (squeezing L.Ed.2d 365 (9th Cir.1999) McIver, bag subject to Fourth outer surface (Kleinfeld, J., Without full concurring). Amendment). yet I briefing argument, do know agree with that conclusion. whether law, and I see good is still

If Silverman touching or police’s mere ma Whether that it is then Silverman no indication car of the outside of one’s is a nipulating alterna- relevant defendant’s encroachment within constitu concerning “physical argument tive fuller tionally protected requires area” del of the GPS device. Cars stallation event, impor Fourth it is under text of the iberation.* “effects” Amendment, question, v. Chad- one that the see United States tant and close en wick, along banc Court should consider (1977), “constitu- are thus separate issue raised Chief Sen L.Ed.2d purposes tionally protected areas” telle.

Silverman. question, key Silverman-based

therefore, installa- is whether the car is device on one’s

tion of a GPS with- physical encroachment

“unauthorized constitutionally protected area” listening way as installation of

same ^[*] beTo applies to the otherwise attach clear, simply GPS devices demonstrate that their actions even if the Fourth Amendment installation, must first obtain suspects’ police a warrant or cars. still reasonable under warrant warrant’s Indeed, in this but then temporal case, failed the Fourth Amendment. geographic limits. police comply obtained a

Case Details

Case Name: United States v. Jones

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 22, 2010

Citation: 625 F.3d 766

Docket Number: 08-3034, 08-3030

Court Abbreviation: D.C. Cir.