Court upholds geofence warrant, avoids constitutional ruling

By Jason Boleman
[email protected]

On a rehearing en banc, the 4^th U.S. Circuit Court of Appeals upheld a prior three-judge panel’s decision to affirm the denial of a motion to suppress evidence obtained from Google via a geofence warrant.

But the court elected to pass on addressing the issue of the constitutionality of geofence warrants, a type of search warrant that allows police departments to request a list of cellphones active within the geofence area from Google by accessing location history data for all users within the area.

The 126-page en banc decision in United States v. Chatrie (VLW 025-2-160) was joined by every judge of the Fourth Circuit except Judge Roger L. Gregory, who authored a dissenting opinion. Seven judges penned concurring opinions, with many sharing their split thoughts on the Fourth Amendment question.

“My colleagues have widely divergent views on the intersection of the Fourth Amendment and the groundbreaking investigative tool at issue here,” Chief Judge Albert Diaz wrote in a concurring opinion. “But judicial modesty sometimes counsels that we not make grand constitutional pronouncements merely because we can.”

The defendant’s counsel declined to comment. Attorneys from the Department of Justice did not respond to requests for comment by deadline.

“It’s unfortunate that the Fourth Circuit declined to rule on the constitutionality of geofence warrants, but other appellate courts have followed the lead of the Eastern District of Virginia in finding that the Fourth Amendment prohibits these modern-day general warrants,” Electronic Frontier Foundation Surveillance Litigation Director Andrew Crocker said in a statement. The Electronic Frontier Foundation filed an amicus brief in support of the appellant.

Data implicates defendant
During a May 2019 robbery at the Call Federal Credit Union in Midlothian, an armed suspect took $195,000 from the credit union’s vault and fled before police could respond.

After an unsuccessful initial investigation, the investigating detective obtained a geofence warrant from the Chesterfield County Circuit Court. The warrant drew a geofence with a nearly 500-foot radius covering the bank.

Pursuant to the warrant, Google provided 209 location data points from 19 accounts that appeared within the geofence during the hour-long period surrounding the robbery. The data was paired down, with the investigating detective requesting the subscriber information for three accounts.

One of the accounts belonged to the defendant, Okello Chatrie, who was indicted for charges related to the robbery in September 2019. He pleaded not guilty and motioned to suppress the evidence obtained by the geofence warrant. The Eastern District of Virginia denied the motion based on “the good faith exception to the exclusionary rule.”

Chatrie later entered a conditional guilty plea and was sentenced to 141 months’ imprisonment and three years of supervised release.

Chatrie appealed to the Fourth Circuit, where a divided panel affirmed the lower court’s decision to deny the motion. Writing for the majority, Judge Julius N. Richardson wrote that the government “did not conduct a Fourth Amendment search when it accessed two hours’ worth of Chatrie’s location information that he voluntarily exposed to Google.”

Divided opinions
Citing the U.S. Supreme Court’s decision in TikTok Inc. v. Garland, Diaz wrote in his concurrence that new technology “counsels caution on our part.”

“In short, there are times to make sweeping constitutional pronouncements (with attendant consequences) and times to wait,” Diaz wrote. “Humility in the face of the unknown — whether it be the legal ramifications or practical consequences of our decision, or Google’s own changing policies — ‘counsels caution.’”

The chief judge also noted the numerous concurrences, which he noted presented “a labyrinth of — by my count, nine — advisory opinions, many pointing in different directions.”

“I don’t see the utility in that, as it assumes (wrongly) that we must give a full answer now,” Diaz said.

As in his panel opinion, Richardson wrote that obtaining location information that Chatrie voluntarily shared by opting into Google’s location services does not constitute a Fourth Amendment search.

“The Fourth Amendment is an important safeguard to individual liberty,” Richardson wrote. “But its protections are not endless.”

Judge J. Harvie Wilkinson, who joined Richardson in the majority in the prior panel decision, wrote that “there was no search here” in Chatrie.

“Even if there was a search, there is no room for emergent judicial hostility toward this new investigative tool,” Wilkinson wrote. “Disabling the government from using geofence location data would spurn the basic Fourth Amendment balance and undermine legitimate law enforcement.”

Judge James Andrew Wynn wrote in his concurring opinion that the constitutional question “has been fully briefed, argued and exhaustively debated.”

“By declining to reach the merits in this matter, this Court squanders a critical opportunity to clarify the Fourth Amendment’s application to emerging surveillance technologies,” Wynn wrote. “Instead, we take shelter in the judge-made doctrine of ‘good faith,’ leaving both courts and citizens to grope in the dark as to the limits of governmental power in the digital age.”

The judge added that by not confronting the question, the court “falls short of our duty. The Fourth Amendment demands more.”

However, Wynn wrote in a footnote that although Chatrie involved a Fourth Amendment search, the conditions for the good-faith exception to the exclusionary rule were met.

In her concurrence, Judge Nicole G. Berner cautioned against determining geofence warrants are “categorically unconstitutional,” writing that individuals “lack a reasonable expectation of privacy in Location History data.”

But, having determined the government conducted a Fourth Amendment search, Berner wrote she believed the warrant was unconstitutional due to a lack of probable cause “to search any specific Google user at the time it applied for the geofence warrant.”

In his dissent, Gregory wrote he “concur[s] largely in the writings” of Wynn and Berner in finding a constitutional violation, finding the geofence warrant “glaringly infringed” on the Fourth Amendment.

However, he disagreed with the opinion that the good-faith exception was applicable in Chatrie.

“No reasonable officer could believe that execution of this geofence warrant in this manner comports with the Fourth Amendment and the liberties it serves to protect,” Gregory wrote. “In the same way that this cannot cure the constitutional violation that occurred, it does not excuse the officer’s indiscretions.”

‘A missed opportunity’
The Fourth Circuit’s decision in Chatrie is the latest legal challenge to the rising use geofence warrants.

In a 2022 decision, Fairfax County Circuit Court judge David A. Oblon denied a request from a police department for a warrant to investigate a motel shooting. Oblon, who at the time wrote that “no other court in Virginia has issued an opinion” on criteria for geofence warrants, denied the application on privacy concern grounds and concerns the warrant was overbroad.

In the last year, a split emerged between the Fourth Circuit and Fifth Circuit, with the Fifth Circuit holding in United States v. Smith that while the good faith exception applied, the use of geofence warrants is unconstitutional under the Fourth Amendment. “In doing so, we part ways with our esteemed colleagues on the Fourth Circuit,” Jude Carolyn Dineen King wrote in Smith.

The Project for Privacy & Surveillance Accountability filed a brief supporting a rehearing petition. The group’s president, Erik Jaffe, said the good-faith exemption “should be invoked only after a serious consideration of the Fourth Amendment issue at hand.”

“Jumping straight to the good-faith exception creates a vicious cycle that erodes Fourth Amendment protections,” Jaffe said. “Without clear guiding precedent, the government can invoke the same exception in the next challenge to its use of geofence warrants.”

Jennifer Granick, an attorney with the American Civil Liberties Union, said the organization has filed amicus briefs in Smith, Chatrie, and other cases on these warrants.

“Our position is that the Fourth Amendment cannot authorize these broad searches that implicate so many innocent people,” Granick said. “The law needs to be clarified for the public and for police officers and prosecutors as well.”

Granick highlighted the need for clarity as the number of searches continues to rise.

“Law enforcement started to use this technique back in 2016, and its usage has increased exponentially, so that there were over 10,000 of these kinds of searches going on by the last time we got numbers,” Granick said.

The Reporters Committee for Freedom of the Press also filed a brief in favor of Chatrie. Grayson Clary, a staff attorney for the organization, said in a statement that “this was a missed opportunity to make clear that dragnet location surveillance jeopardizes First Amendment freedoms.”