Back in August, I wrote a long post about the Ninth Circuit’s very dubious computer search and seizure decision in United States v. Payton, 573 F.3d 859 (9th Cir. 2009). I speculated about the possibility the opinion might be revised or overturned en banc, but I wrote that post a week before the en banc Ninth Circuit handed down its nutty computer search and seizure decision in United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009) (en banc) (“CDT“). I’m trying to figure out whatever happened to Payton, especially after CDT.
Last I recall hearing, the Payton panel had sua sponte asked the government whether it wanted to seek rehearing in Payton. Does anyone know how DOJ responded? I would imagine DOJ was in a very tricky position. Sure, you want rehearing because the original panel goofed. But after CDT, who on earth knows what could happen en banc? You never know if the panel is asking because they sense they got it wrong or because they want a fresh canvas to paint CDT Part II. Anyway, I figure someone among our readership must know what (if anything) happened with Payton. Off-blog and off-the-record responses welcome.