Sept. 4, 2024 – The limitless creep of digital technology continues to raise novel search and seizure issues.

The latest frontier in Fourth Amendment jurisprudence involves geofencing, a technique that allows Google to use cell phone data to potentially identify every person who was in a certain area during a certain period of time.

This article examines two recent U.S. Court of Appeals opinions that reached opposite conclusions as to whether the government’s use of geofencing data to identify suspects violates the Fourth Amendment’s warrant requirement.

What is Geofencing?

Google maintains a vast location history database, which it calls the Sensorvault. The Sensorvault contains data from the accounts of Google users who, on their smartphones, opt into Google’s Location History service.

For each user who has opted into the Location History service, Google tracks the user location across every app and device linked to the user’s account, on an average of every two minutes, every day.

Google holds on to the data for about 18 months. Users may ask Google to delete the data.

Post Office Robbery

In United States v. Smith, No. 23-60321 (Aug. 9, 2024), the U.S. Court of Appeals for the Fifth Circuit held that using geofencing data to identify a suspect constituted a search under the Fourth Amendment.

The police arrested Jamarr Smith after three men robbed a U.S. Postal Service driver in rural Mississippi of $60,000 in February 2018.

After the robbery, the postal inspectors applied for a search warrant for Google data for accounts associated with the location of the post office during a specific time period.

A federal magistrate judge granted the warrant.

The warrant authorized a search of the relevant data from 5 to 6 p.m. on Feb. 5, 2018, within a geofence enclosing 98,192 square meters around the post office where the robbery occurred.

The postal inspectors were able to identify Smith from the data Google provided.

At trial, Smith moved to suppress the results of the geofence search. The U.S. District Court for the Northern District of Mississippi denied the motion.

A jury convicted Smith of robbery and conspiracy to commit robbery. After the district court sentenced him to more than 10 years in prison, he appealed.

Reasonable Expectation of Privacy

In an opinion for a three-judge panel written by Judge Carolyn King, the Fifth Circuit ruled that: 1) the use of the geofence constituted a search under the Fourth Amendment; and 2) the warrant was a general warrant prohibited by the Fourth Amendment.

In ruling that the use of the geofence data was a search subject to the Fourth Amendment’s warrant requirement, the Fifth Circuit relied upon the U.S. Supreme Court’s decision in Carpenter v. United States, 585 U.S. 296 (2018).

In Carpenter, the Supreme Court held that a warrantless search of several days’ worth of a carrier’s cell-site location information (CSLI) violated the Fourth Amendment because people have a reasonable expectation of privacy in all their physical movements.

The Supreme Court acknowledged that under the third-party doctrine, a person has no reasonable expectation in information that he or she gives to a third party.

But Chief Justice Roberts, in his opinion for the majority, reasoned that “the exhaustive chronicle of location information casually collected by wireless carriers today” was significantly different than the limited information at issue in the third-party-doctrine cases.

In applying Carpenter, King reasoned that geofencing data, given Google’s Location History opt-in process, was distinguishable from other types of voluntary information submission.

“As anyone with a smartphone can attest, electronic opt-in processes are hardly informed, and in many instances, may not even be voluntary,” Judge King wrote.

King also pointed out that about 592 million people have opted in to comprehensive tracking of their locations.

“In short, ‘a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant, even if some text offered warning along the way,’” Judge King wrote.

The Evil of General Warrants

The Fifth Circuit concluded that the warrant issued in Smith’s case was too broad to comply with the Fourth Amendment’s warrant requirement.

King pointed out that the Fourth Amendment was drafted to guard against the evils that sprang from the general warrants and writs of assistance issued by King George III and other British officials during American’s colonial period.

The general warrants, Judge King wrote, were hated by the colonists because they “‘allowed British officers to rummage through homes in an unrestrained search of criminal activity.’”

A geofence warrant was analogous to a general warrant, the panel concluded, because Google’s first step when replying to a geofence warrant was to scour all of Sensorvault – the data of all 592 million users.

“This search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a suspect,” King wrote.

“Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any give user may turn up post-search,” Judge King wrote. “That is constitutionally insufficient.”

Nonetheless, the Fifth Circuit upheld the district court’s denial of Smith’s motion to suppress because it concluded that the good-faith exception to the warrant requirement, created by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984), applied.

“The [Postal] Inspectors were utilizing a cutting-edge investigative technique with which neither Inspector had personal experience,” King wrote.

“The Inspectors diligently attempted to make sure that their warrant comported with the Fourth Amendment by communicating with other law enforcement agencies and the U.S. Attorney’s Office, and the Inspectors exhibited no malicious intent through the actions that they took.”

Bank Bandit

In May 2019, a gun-wielding man robbed the Call Federal Credit Union in Midlothian, Virginia. The robber made off with $195,000.

A month after the robbery, the police obtained a warrant for a geofence search. The police used the search results to identify and arrest Okello Chatrie.

At trial, Chatrie moved to suppress the results of the search. The U.S. District Court for the Eastern District of Virgina denied the motion.

After Chatrie entered a conditional guilty plea and was sentenced to 11 years and nine months in prison, he appealed.

No Reasonable Expectation of Privacy

In United States v. Chatrie, No. 22-4489 (July 9, 2024), the Fourth Circuit Court of Appeals held (2-1) that Chatrie had no reasonable expectation of privacy in the Location History data that his cell phone beamed up to the Sensorvault.

Writing for the majority, Judge Julius Richardson pointed out that in Carpenter, Chief Justice Roberts wrote that the Court’s holding was a narrow one.

“[The Supreme Court] did not decide how the Fourth Amendment applies to other forms of data collection, like real-time (as opposed to historical) CSLI or ‘tower dumps’ (i.e., records of phones connected to a particular cell tower over a given period),” Richardson wrote.

“Nor did it jettison the third-party doctrine’s application to other contexts.”

Judge Richardson pointed out that the government had asked for and received only two hours’ worth of Location History data on Chatrie.

“By no means was this an ‘all-encompassing record of [Chatrie’s] whereabouts … provid[ing] an intimate window into [his] person[al] life,’” Richardson wrote, quoting Carpenter.

Third-party Doctrine Applies

The panel also reasoned, unlike the Fifth Circuit, that Chatrie had voluntarily given his Location History data to Google.

Richardson pointed out that by default, the Location History is turned off on devices, and that a user can always ask Google to delete his or her Location History data.

“Whether Google tracks a user’s location, therefore, is entirely up to the user himself,” Judge Richardson wrote.

Wynn Dissent

Judge James Andrew Wynn dissented.

He interpreted Carpenter differently than the majority and argued that Location History data differs qualitatively from the records that the police have historically been allowed to obtain absent a warrant.

“In the context of this novel technology, the third-part doctrine is wholly inadequate to defeat that reasonable expectation,” Wynn wrote.

“While geofence intrusions may be a boon to law enforcement, they still require a warrant.”