Fourth Circuit: No Fourth Amendment Implications in Geofence Warrants (Huh?)

United States v. Chatrie

​We reported on the bold opinion of federal district Judge Mary Hannah Lauck of Virginia who ruled in 2022 that the government erred by seeking a warrant for the location histories of every personal digital device within a 17.5-acre area around a bank that had been robbed in Richmond, Virginia, in 2019.
 
To identify the suspect, Nathaniel Chatrie, law enforcement officials obtained a geofence warrant from Google, requesting location data for all devices within that large area. Swept into this mass surveillance – reminiscent of the “general warrants” of the colonial era – were people in restaurants, in an apartment complex, and an elder care facility, as well as innumerable passersby. Judge Lauck wrote that these consumers were almost all unaware that Google logs their location 240 times a day. She wrote: “It is difficult to overstate the breadth of this warrant” and that every person in the vicinity has “effectively been tailed.”
 
At times it almost seems that no good opinion goes upheld, at least where the Fourth Amendment is concerned. On July 9, the Fourth Circuit Court of Appeals reversed Judge Lauck’s decision in United States v. Chatrie. The court held that a geofence warrant covering a busy area around a bank robbery did not qualify as a Fourth Amendment search at all, a sweeping decision that has serious implications for privacy rights and law enforcement practices across the country.
 
The two-judge majority on the Fourth Circuit Court of Appeals concluded that the geofence warrant did not, after all, constitute a Fourth Amendment search because the collection of location data from such a broad geographic area, even a busy one, did not infringe upon reasonable expectations of privacy.
 
Got that?
 
Judge J. Harvie Wilkinson III, writing for the majority, emphasized that the geofence warrant was a valuable tool for law enforcement in solving serious crimes. He wrote that the use of such warrants is necessary in an era where traditional investigative methods may be insufficient to address modern criminal activities.
 
In a strongly worded dissent (beginning on p. 39), Judge James Andrew Wynn Jr. criticized the majority opinion, highlighting the potential dangers of allowing such broad warrants. Judge Wynn, with solid logic and command of the relevant precedents, demonstrated that the decision undermines the Fourth Amendment’s protections and opens the door for pervasive surveillance.
 
Judge Wynn showed that the geofence warrant lacked the necessary particularity required by the Fourth Amendment. By allowing the collection of data from potentially thousands of innocent people, the warrant was not sufficiently targeted to the suspect. He emphasized that individuals have a reasonable expectation of privacy in their location data, even in public places. The widespread collection of such data without individualized suspicion poses significant privacy concerns. And Judge Wynn warned that the majority's decision sets a dangerous precedent, ignoring the implications of the U.S. Supreme Court’s 2018 Carpenter v. United States opinion in its landmark case on location data.
 
So what, you might ask, is the harm of geofencing in this instance, which caught a suspect in a bank robbery? Answer: Enabling law enforcement to use geofence warrants in such a broad way will almost certainly lead to a variety of novel contexts, such as political protests, that could implicate Americans’ rights to free speech and freedom of assembly.
 
Judge Wynn's dissent highlights the need for a careful balance between effective law enforcement and the preservation of civil liberties. While the majority’s decision underscores the perceived necessity of geofence warrants in modern investigations, Judge Wynn's dissent serves as a poignant reminder of the constitutional protections at stake.
 
The Electronic Frontier Foundation reports that Chatrie’s lawyers are petitioning for an en banc hearing of the entire Fourth Circuit to review the case. PPSA supports that move and we hope that if it happens, there are judges who take the same broad view as Judge Lauck and Judge Wynn.