By: Lisa Jurinka
In late April, the Supreme Court heard oral arguments in Chatrie v. United States, a case from Virginia over whether law enforcement’s use of a geofence warrant to identify potential suspects based on data from cell phones near a crime scene would violate the Fourth Amendment bar on unreasonable search and seizure. The Chatrie case could have potentially profound implications for location tracking and individual privacy rights in cellphone data.
A geofence warrant, a relatively new investigative tool, requires a technology company (such as Apple or Google) to search its location data to identify all mobile devices present within a defined geographic area (the “geofence”) during a specified timeframe. These technology companies execute a protocol when geofence warrants are issued that involves culling data from phone users in the geofenced area within the target time period and delivering a batch of anonymous data to law enforcement. That data gets pared down until a small target suspect group is achieved. From this smaller group, identifying user data is ultimately shared with law enforcement and, based on that information along with other information gathered by law enforcement, an individual suspect is identified.
The Chatrie case centered on a robbery that occurred in May 2019 in Midlothian, Virginia. An armed suspect entered a federal credit union and stole $195,000 at gunpoint. Video surveillance footage and witnesses at the scene indicated that the suspect was holding a gun and a cell phone. Based on this information and due to the lack of progress using traditional means to pinpoint a suspect, the police applied for and received a geofence warrant to request location data from Google for individuals within the radius of the credit union on the date of the robbery.
The initial search results (which focused on a 17.5 acre area) returned anonymized data of 19 individuals to the police. From there, the suspect group was reduced ultimately to 3 individuals for whom the police received identifying information, one of whom was Okello Chatrie. In district court, Chatrie moved to suppress the location data obtained through the geofence warrant arguing that the geofence warrant was unconstitutional. The district court agreed but admitted the evidence based on the good faith exception determining that law enforcement reasonably believed they acted lawfully in executing the warrant.
In 2024, the Fourth Circuit upheld the district court’s decision on the evidence in a divided opinion. Meanwhile, also in 2024, the Fifth Circuit, when faced with the constitutionality of geofence warrants in the case of United States v. Jamarr Smith, found that geofence warrants are inherently overbroad and violate the Fourth Amendment. The Supreme Court agreed to take Chatrie on and is now tasked to tackle the question of the constitutionality of geofence warrants and resolve the circuit split.
A fundamental question in Chatrie centers on whether the geofence warrant is a ‘search’ under the rubric of the Fourth Amendment. If location information that is being pulled from digital service provider records is data that users voluntarily allow to be tracked in connection with the user’s use of the services, is there any expectation of privacy in such data? Under the Fourth Amendment, it is generally held that if private information is shared with a third party voluntarily, it is no longer entitled to protection from search and seizure (i.e. the “third party doctrine”).
During oral arguments, the Justices appeared reticent to fully embrace the position that all data shared with third party digital service providers is freely shared and openly available for government review and seizure under the third-party doctrine. Counsel for Chatrie cautioned that accepting such a view could have significant consequences for any content that is stored with a third party digital services provider. Beyond location tracking it could open up any cloud hosted content such as private documents, photos, and emails.
Another question being addressed in the case is whether geofence warrants are inherently overbroad. Unlike traditional warrants that identify a suspect at the start, geofence warrants work backward by initially pulling up information on all individuals that were within the geofence area during the specified timeframe. A geofence warrant starts with a broad potential suspect pool and narrows from there.
Chatrie argued that the geofence warrant violated the Fourth Amendment by authorizing the government to search data belonging to multiple people without probable cause on an individualized level. The particularity requirement of the Fourth Amendment mandates that any search or arrest warrant must specifically describe the place to be searched and the persons or things to be seized. The Fourth Amendment protects individuals from being subject to ‘general warrants’ or sweeping warrants that allow the government to conduct broad indiscriminate searches.
During oral argument, the Justices appeared less inclined to equate geofence warrants to general warrants. The geofence warrants were distinguished from the Fourth Amendment’s prohibition on general warrants based on the fact that the geofence warrants identify a time and place and are not arbitrary. The Justices spent time focusing on the question of how broad the geofence parameters in a geofence warrant can and should be which seemed to signal openness to allowing these warrants to persist with rationale and reasonable limits.
It remains to be seen if the Justices will uphold the geofence warrant process as currently conducted or if they will allow it to continue with modifications or additional steps.
While it is unclear how the Justices will ultimately rule, no matter the outcome, this case will be significant in revealing the Court’s view on the application of the Fourth Amendment’s protections to new and evolving technological capabilities and the extent to which location data shared by users with third party data service providers is fair game for search. Of note, in 2023 Google changed its location tracking practices to have location data reside on individuals’ devices instead of with Google, effectively ending its ability to provide responsive data for geofence warrants.
A decision in Chatrie is expected by the end of this month.
About the Author:
Lisa Jurinka is the General Counsel of RxAnte, LLC, a tech-enabled pharmacy services business focused on improving medication adherence and patient outcomes. For over 20 years, Lisa has provided business-minded legal guidance to high growth technology companies in regulated industries.