The U.S. Fourth Circuit Court of Appeals in Richmond, Virginia, heard oral arguments Thursday in United States v. Chatrie, a case that poses an important question at the heart of a dramatic split with the Fifth Circuit: Do geofence warrants violate the Fourth Amendment? In that hearing, Judge James Andrew Wynn had a message for law enforcement, that warrants “don’t mean you can’t do your job. It means you need probable cause with particularity to be able to get information. And when we as a court begin to rewrite the Constitution so that we can allow law enforcement officers to do that which the Supreme Court has already told us they cannot do – that’s a problem.” This case started in 2019 when a bank robber absconded with $200,000 from Call Federal Credit Union in Midlothian, Virginia. With no leads to speak of, investigators turned to Google, requesting location information for everyone within a 150-meter radius of the bank at roughly the time of the crime. Police eventually landed on Okello Chatrie as the prime suspect, but only after searching the location information of 19 people, some dining at a Ruby Tuesday’s and some staying at a nearby Hampton Inn. Chatrie attorney Michael Price told the court that the government might as well have searched the apartments of anyone within that given area – which should be flatly prohibited under the particularized warrant requirements of the Fourth Amendment. Chatrie eventually reached a plea agreement with the government but appealed a federal district court ruling denying his motion to suppress the geofenced information. A Fourth Circuit panel initially rejected Chatrie’s argument based, in part, on his voluntary exposure of data to the tech giant. He did this via the opt-in function on his phone, which – let’s be frank – is a legal vulnerability that most consumers fail to understand. PPSA filed an amicus brief in support of an en banc rehearing, which the court agreed to and held on Thursday. Judge Harvie Wilkinson described far-reaching ramifications of taking away the geofencing tool. He said: “Next time, it's not going to be just a bank robber. It could be a murder. It could be a terrorism attack. I don't think you realize just how much you're taking off the table in terms of the tools that law enforcement can use in the most serious of situations." But Judge Wynn disagreed, noting: “The result does not drive the means. If we are going to do the police's job, then let's just declare the Fourth Amendment nonexistent and just say anytime you want to do a search, just do it.” PPSA has demonstrated that the non-particularized digital dragnets across a 17.5-acre swath of land and the subsequent search of the private data of those within that area is the technological descendant of the “general warrants” of the colonial era. In last year’s United States v. Jamarr Smith, the Fifth Circuit came to a similar conclusion, writing that the “use of geofence warrants – at least as described herein – is unconstitutional under the Fourth Amendment.” It will likely be up to the Supreme Court to bridge this chasm between the Fourth and Fifth Circuits. The Court’s leanings are clear. In Carpenter v. United States (2018), the Supreme Court found that the government must obtain a probable cause warrant before reviewing a suspect’s location history emitted by a cellphone. Why shouldn’t similar reasoning apply when it comes to geofence warrants that cover millions of innocent people? PPSA will continue to echo Judge Wynn’s pointed critique, who concluded: “If we do this, we’re the ones who are going to broaden it. And the broadness is not just on Mr. Chatrie – it’s on every citizen who is under the Constitution of the United States. You just deprived them of an individual right that exists in the Fourth Amendment. You, every one of you sitting here right now, can have your location data ... and it can be put in a great pool and then you have no privacy whatsoever.” PPSA urges the Fourth Circuit to join the Fifth Circuit in upholding the constitutional rights of all Americans. Comments are closed.
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