I had criticized the 8th Circuit’s panel decision in United States v. Kattaria here, back in October 2007, and today the en banc court handed down a new decision that allows the evidence without reaching the issue of whether the police can get a “reasonable suspicion warrant” to use an imaging device (effectively removing the panel’s holding from the books).
Chief Judge Loken, the author of the original panel decision, adds in a concurrence that partly sticks to his guns from the original panel holding but partly would amend it. Loken argues that the relevant Supreme Court precedents should be read relatively narrowly in a way that leaves open whether a lower standard than probable cause is allowed. He then writes:
On further reflection, I have concluded that the panel was unwise to borrow the concept of “reasonable suspicion” to reflect the quantum of probable cause that should be required in this situation. Reasonable suspicion is not focused to the task at hand, and it has never been applied to the warrant-issuing process. Rather, the question for the issuing magistrate (and reviewing courts) when considering an application like Agent Perry