Geofence Warrants and the Grand Canyon of Circuit Splits

​The U.S. Supreme Court will almost certainly take up and resolve two furthest – some would say extreme – rulings by the Fourth and Fifth Circuit Courts of Appeals on the Fourth Amendment implications of geofence searches.
 
The Fourth Circuit ruled that geofence warrants – which search the mobile devices of many people in designated areas – contain no Fourth Amendment implications. The Fifth Circuit ruled that geofence warrants are inherently unconstitutional.
 
This is the Grand Canyon of circuit splits. At stake are not just geofence warrants, but conceivably almost every kind of automated digital search conducted by the government. At stake, too, is the very meaning and viability of the Fourth Amendment in the 21st century.
 
We had previously reported on the gobsmacking ruling of the Fourth Circuit in July that held that a geofence warrant to identify a bank robber within a 17.5-acre area – including thousands of innocent people living in apartments, at a nursing home, eating in restaurants, and passing by – did not implicate the privacy rights of all who were searched. In United States v. Chatrie, the court held in a split opinion that this mass geofence warrant had no Fourth Amendment implications whatsoever.
 
In doing so, the Fourth reversed a well-reasoned opinion by federal Judge Mary Hannah Lauck, who wrote that citizens are almost all unaware that Google logs their location 240 times a day. Judge Lauck wrote: “It is difficult to overstate the breadth of this warrant.” The same overbreadth can be seen, in a very different context, in the Fourth Circuit’s jettisoning of the Fourth Amendment in its reversal.
 
Now the Fifth Circuit Court of Appeals has weighed in on a similar case, United States v. Jamarr Smith. The Fifth came to the opposite conclusion – that geofence warrants cannot be reconciled to the Fourth Amendment.
 
Orin Kerr of the UC Berkeley School of Law argues that the Fifth’s ruling conflicts with Supreme Court precedent, including Carpenter v. United States, in which the Court held that the government needs a warrant to extract cellphone location data. Kerr also asserts that the lack of particularity in which a suspect’s identity is not known at the beginning of a search (indeed, that’s the reason for these kind of searches) is a well-established practice recognized by the Supreme Court.
 
Jennifer Granick and Brett Max Kaufman of the American Civil Liberties Union push back at Kerr, finding the digital inspection of the data of large numbers of people to identify a needle-in-a-haystack suspect is, indeed, a “general warrant” forbidden by the Constitution. They write:
 
“Considering the analog equivalents of this kind of dragnet helps explain why: For example, police might know that some bank customers store stolen jewelry in safe deposit boxes. If they have probable cause, police can get a warrant to look in a particular suspect’s box. But they cannot get a warrant to look in all the boxes – that would be a grossly overbroad search, implicating the privacy rights of many people as to whom there is no probable cause.”
 
The implications of this circuit split are staggering. If the Fourth Circuit ruling prevails, it will be anything goes in digital search. If the Fifth Circuit’s ruling prevails, almost any kind of digital search will require a probable cause warrant that has the particularity the Constitution clearly requires.
 
There will be no way for the U.S. Supreme Court to reconcile these opposite takes on digital warrants. It will be up for the Court to set a governing doctrine, one that examines at its root what constitutes a “search” in the context of 21st century digital technology. Let us hope that when it does so, the Supreme Court will lean toward privacy and the Fourth Amendment.