Relying on Maynard After Jones

Reading EFF’s amicus brief recently filed in United States v. Vargas reminds me of a question that has come up in Fourth Amendment circles after the Supreme Court’s 2012 GPS decision, United States v. Jones: Is the DC Circuit’s mosaic analysis in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2012), aff’d sub nom. United States v. Jones, 132 S. Ct. 945 (2012), still good law? Some argue that the Maynard analysis is still good law for two reasons: First, the Supreme Court affirmed the result in Maynard, and second, the Supreme Court didn’t expressly reject the Maynard theory but instead reached the same outcome on other grounds, implicitly leaving the DC Circuit’s reasoning intact as a precedent. I assume the EFF implicitly accepts that view, as the brief relies on the DC Circuit’s analysis as legal authority.

My instinct is to disagree. When the Supreme Court grants cert on a question and hands down an opinion with a different analysis, I think the Supreme Court’s analysis governs. I don’t think it makes any difference whether the formal disposition of the Court is to affirm, vacate, or reverse. And I’m not sure why it should matter whether the Supreme Court directly rejected the lower court’s reasoning: As long as the Court answered how the law should apply to the facts, I would think that the Supreme Court’s answer now governs. Of course, one can try to use the concurring opinions in Jones to fashion a mosaic argument — a perilous path, in my view, but at least possible. But such an argument would rely on the concurring opinions at the Supreme Court, not the DC Circuit’s opinion. With that said, a quick Westlaw search didn’t yield anything definitive on this, so I figured I would see if commenters knew of any direct law on point. Any thoughts most welcome, especially those based on actual law and not conjecture or personal preference.