En banc Fourth Circuit panel uses bank robbery to debate geofence warrants

RICHMOND, Va. (CN) — An en banc panel of the Fourth Circuit Thursday used a bank robbery to debate whether geofence warrants violated the Fourth Amendment.

The nearly two-hour oral arguments allowed the 15 judges to enjoy a contentious discussion of Google’s role in law enforcement investigations.

“It cast a digital dragnet that gave police discretion over what to search and see," Attorney Michael Price of the National Association of Criminal Defense Lawyers, representing the defendant, said. “It was like making a landlord search every unit of a million-story apartment.”

After coming up empty in investigating the armed bank robbery of Call Federal Credit Union in Midlothian, Virginia, detectives obtained a geofence warrant requiring Google to scan through the 500 million users who’ve enabled location history tracking for suspects. After limiting the search to a 150-foot radius around the bank, investigators eventually narrowed the search to 19 individuals before further narrowing it to three and landing on Okello Chatrie.

Chatrie accepted a conditional guilty plea and was sentenced to 141 months’ imprisonment and three years’ supervised release. However, he appealed the trial court’s decision to deny his motion to suppress evidence from the geofence search. He unsuccessfully argued to a three-judge Fourth Circuit panel that the search violated his right to privacy.

“We find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information since he voluntarily exposed this information to Google," U.S. Circuit Court Judge Julius Richardson, a Donald Trump appointee, said in the July opinion.

U.S. Circuit Judge Marvin Quattlebaum, another Trump appointee, asked why Chatrie would opt in to allow Google to track his location. Price responded that it was not meaningfully voluntary because the opt-in screen did not convey meaningful information about the nature of the data collected.

“Everybody is not that ignorant about cell phones,” U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, said when speaking about phone settings that block location tracking. “I’ve done it, and I’m a Luddite.”

Niemeyer pointed out that only roughly a third of Google users opted in.

“If this bank robber was a thinking bank robber, he’d leave behind no evidence, no fingerprints, no cell data,” Niemeyer said. “He just wasn’t a thinking criminal.”

The Fourth Amendment requires law enforcement to have probable cause and particularity when searching for suspects.

“The framers crafted the Fourth Amendment to protect future Americans from the invasive general warrants that plagued them during the colonial era,” the Technology Law and Policy Clinic at New York University of Law said in an amicus brief. “Geofence warrants are a contemporary incarnation of the general warrants that the framers so reviled.”

U.S. Circuit Court Judge Harvie Wilkinson expressed concern that invalidating the warrant could have far-reaching consequences. He asked why the court should let someone go free by excluding relevant evidence.

“Next time, it’s not going to be just a bank robber. It could be a murder. It could be a terrorism attack,” the Ronald Reagan appointee said. “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.”

U.S. Circuit Judge Andrew Wynn, a Barack Obama appointee, rebutted Wilkinson’s point, making clear that his concern was the broad nature of the search.

“The result does not drive the means,” Wynn said. “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.”

U.S. Circuit Judge Toby Heytens asked Price whether he believed all geofence warrants — including the one used to indict suspects during the Jan. 6, 2021, insurrection — were unconstitutional.

“I think it is impossible to get away from the initial search of millions of people,” Price said. “You’re searching the haystack for a needle. You can describe that needle very particularly. You can describe its shape and its color, but you still have to search the whole haystack to get there.”

Niemeyer compared the data search to police investigating a crime scene. Niemeyer pointed out that police grab plenty of people’s information from crime scenes without implicating them in the crime. He listed DNA, shell casings, notes and surveillance footage as examples of broad evidence that police use to narrow down suspects.

“The reality of a police investigation is to collect data of all kinds that are left behind at a crime scene,” Niemeyer said. “When they search for that, they are not looking for individual human beings. They’re looking at data unidentifiable data."

Price responded that unlike in scenarios where investigators are looking at a specific crime scene, the first step of the geofence warrant is Google providing millions of individuals who have opted in to location tracking regardless of where they are. Niemeyer and Price quibbled over whether the search begins when Google opens its files or when Google applies the criteria: users within 150 feet of the bank near the time of the robbery.

“Part of what we’re dealing with here is we’re dealing with judges who are confronting new technology and want to apply the most simplistic principles to it,” Wynn said. “It’s not a particularized data. It’s 592 million people.”

Wynn said using the geofence warrant is the reverse way of investigating.

“No probable cause until, ultimately, you find something that comes of interest to you,” Wynn said. “If we do this, we are going to be the ones who are being broad in it, and the broadness is not just on Mr. Chatrie. It’s on every citizen who is under the Constitution of the United States.”

Chief U.S. Circuit Judge Albert Diaz, another Obama appointee, wondered if the best course of action was to leave the constitutional questions for another day and instead find that the warrant was a good faith exception to the Fourth Amendment. The Fifth Circuit recently held that geofence warrants are unconstitutional under the Fourth Amendment.

Whoever robbed the bank took nearly $200,000. Government attorney Nathan Judish did not respond to a request for comment.

“This case involves an incredibly important question about the government’s ability to track the movements of millions of Americans, and the full court plainly appreciated the significance of that question,” Price said in a statement.