Fourth Circuit kicks can on constitutionality of geofence warrants

RICHMOND, Va. (CN) —The Fourth Circuit affirmed the denial of a defendant’s motion to exclude evidence from a geofence warrant Wednesday on narrow grounds, but left the question of the technology’s constitutionality for another day.

After coming up empty in investigating the 2019 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 within two hours of the crime, 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. Chatrie argued that the use of geofence technology violated his right to privacy.

All but one of the 16 judges who heard the case agreed that the location history the government accessed through Google shouldn’t be excluded, albeit for different reasons. The 126-page decision includes seven concurring opinions.

“My colleagues have widely divergent views on the intersection of the Fourth Amendment and the groundbreaking investigative tool at issue here,” Chief U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, said. “But judicial modesty sometimes counsels that we not make grand constitutional pronouncements merely because we can.”

Diaz avoided making broad judgments about the technology by adopting the lower court’s narrow holding that the warrant didn’t amount to a Fourth Amendment violation thanks to the good-faith exception. The exception makes illegally obtained evidence admissible if the officers had a reasonable, good-faith belief that they acted according to legal authority.

The judges splintered on whether the use of the geofence warrants constituted a search for the purposes of the Fourth Amendment. Some of Diaz’s fellow Democratic-appointed judges criticized his use of the exception to delay a broad ruling further.

“Instead of addressing that compelling constitutional issue, this court takes refuge in the good-faith exception — and thereby clears the path for widespread, surreptitious police surveillance,” U.S. Circuit Judge Andrew Wynn, a fellow Obama appointee, said. “The result is plain. It leaves the door open for law enforcement to monitor religious services, political protests, gun shows, union meetings or AA sessions — all without a warrant, all without judicial oversight or accountability.”

The court’s conservative judges went further in supporting the government’s use of the geofence warrant.

U.S. Circuit Judge Julius Richardson, a Donald Trump appointee, said a search didn’t occur because Chatrie voluntarily consented to Google tracking his location. Richardson pointed out that only roughly a third of Google users opted in.

The logic relies on the third-party doctrine, which states that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.

Wynn disagreed with Richardson’s assertion that Chatrie knew what he consented to when he allowed Google to track his location history.

“That argument is several decades beyond its time,” Wynn said. “It would be a grave misjudgment to conflate an individual’s limited disclosure to Google with an open invitation to the state.”

U.S. Circuit Judge Harvie Wilkinson opined that even if the warrant constitutes a search, the court shouldn’t limit law enforcement’s ability to solve crimes.

“Even if there was a search, there is no room for emergent judicial hostility toward this new investigative tool,” the Ronald Reagan appointee said. “This restraint on investigative tools would frustrate law enforcement’s ability to keep pace with tech-savvy criminals.”

Wilkinson and a handful of concurring judges felt the technology’s potential for good outweighs its potential for harm.

“More cold cases would go unsolved,” Wilkinson said. “Taking this tool of last resort out of law enforcement’s hands would leave these case files collecting dust.”

U.S. Circuit Court Judge Roger Gregory offered the lone dissenting opinion. Gregory ruled that the search violated the Fourth Amendment and that no exception applies due to the breadth of the warrant.

“No reasonable officer could believe that execution of this geofence warrant in this manner comports with the Fourth Amendment and the liberties it serves to protect,” the George W. Bush appointee said.

Gregory also took issue with Wilkinson’s opinion regarding the geofence technologies’ benefit to law enforcement.

“Technology will continue to shift, but the basic protections of the Fourth Amendment must remain,” Gregory said. “The people’s rights against unreasonable searches and seizures cannot bend to accommodate the volatility of technology.”

Google has since announced its intent to change its location history policy so that it will no longer be able to respond to geofence warrants.

“The court did the right thing in affirming that this was an unconstitutional search. It recognized that there is an expectation of privacy in this data, that police may not disregard how these searches invade the privacy interests of uninvolved bystanders and that the geofence search process delegates too much power to the police and Google, without enough oversight by judges,” the American Civil Liberties Union, who filed a brief in support of Chatrie, said in a statement.

Andrew Crockerfrom the Electronic Frontier Foundation, who also filed a support brief for Chatrie, echoed the sentiment.

““It’s unfortunate that the Fourth Circuit declined to rule on the constitutionality of geofence warrants, but other appellate courts have followed the lead of the Eastern District of Virginia in finding that the Fourth Amendment prohibits these modern day general warrants,” the surveillance litigation director said in a statement. “Regardless of the technology they use, police cannot compromise the privacy of untold numbers of people who simply happen to be in the vicinity of a crime.”

Attorneys representing Chatrie declined to comment.

“I see little benefit in postponing these issues until another day,” U.S. Circuit Judge Nicole Berner, a Biden appointee, said. “Deciding this case without reaching the Fourth Amendment issues merely perpetuates the constitutional fog that will allow unlawful searches of location history data to continue to evade consequence through the good-faith exception.”