United States v. Chatrie A detective in Midlothian, Virginia, in 2019 asked Google to ping cellphone locations of everyone who passed within a circumscribed area within one hour of the robbery of nearly $200,000 from a credit union. That order led to a sweep through a Ruby Tuesday restaurant, a Hampton Inn, an apartment complex, and a nursing home within the prescribed area. The Gordian knot of issues raised by this wide-ranging search will be examined in oral arguments in United States v. Chatrie in an en banc hearing to be held by the Fourth Circuit Court of Appeals in Richmond, Virginia, at 9 a.m. Thursday. The court will consider: Does the wholesale expropriation of the cellphone and location data of a large number of people in a geofenced area amount to a modern version of the “general warrants” of the agents of the British Crown during the colonial era? A lower court judge, Hannah Lauck, took her guidance from the U.S. Supreme Court in Carpenter v. United States (2018), which held that the search of a suspect’s location history from a cellphone tower came under the Fourth Amendment’s requirement for a warrant. Judge Lauck wrote “it is difficult to overstate the breadth of this [geofence] warrant” and that an “innocent individual would seemingly have no realistic method to assert his or her privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a ‘right without a remedy.’” And, as every law student knows, a right without a remedy is no right at all. The Fourth Circuit panel, however, reversed that ruling, holding that no warrant at all was required in this case. The court reasoned that the limits on location tracking from Carpenter applied only to longer-term tracking. The Eleventh Circuit in Atlanta, in a similar case, agreed. Then the Fifth Circuit in New Orleans held – correctly in our view – that not only is there an expectation of privacy in location data, but broad geofence warrants are inherently unconstitutional. As a result, the appellate courts are not just split, they look like the spaghetti tangle of tracks in a railway yard. Such tangles are usually untangled by the U.S. Supreme Court. But after PPSA filed an amicus brief in favor of an en banc hearing by the full Fourth Circuit court, that court agreed to allow all the judges to weigh the constitutional equities in this case. We asked the court to consider that if the government can request the location of all the individuals within a geofenced area. For example, could it request all photos in the cloud that were taken within that same area? After all, AI can now estimate, with astonishingly high accuracy, the location of a photograph. Invoking Carpenter, we asked the court if we have to leave the public’s Fourth Amendment rights to “the mercy of advancing technology.” To hear the court’s oral argument, go to the court’s calendar and search for “Chatrie.” Or just wait and we will give you a digest of answers to the judges’ questions and their apparent leanings. This is an exceptionally important case for the Fourth Amendment. Stay tuned. Comments are closed.
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