29 Jun Supreme Court Decides Geofence Warrant Case But Punts on Reasonableness of Geofence Warrants
Today, in Chatrie v. United States, the Supreme Court held that law enforcement conducts a search under the Fourth Amendment when it reviews location data a user provided to their cell phone company. The Court rejected the government’s arguments that law enforcement’s review of the data was not a search because: A) it only reviewed a short time-period of the location data (2 hours); and /or B) the location data is voluntarily shared with the cellphone providers (i.e., the third party doctrine). The Court remanded to the lower court to determine if the geofence warrant was reasonable under the Fourth Amendment.
This case concerns a geofence warrant sent to Google that enabled police to review cell phone location history for various users pursuant to the warrant. While Google’s location history can be turned off, Google repeatedly prompts users to enable it, and it even advises users that certain aspects of their devices will not “work correctly” unless the user enables location history. Once a user enables location history, it runs constantly in the background and can track an individual’s location to within twenty meters.
On May 20, 2019, an armed suspect robbed a Federal Credit Union in Midlothian, Virginia, taking $195,000 from the vault. The initial investigation into the robbery did not lead to any suspects. Then, a detective applied for a geofence warrant from the Virginia circuit court.
At the time, Google utilized a 3-step process on how to handle law enforcement geofence warrants. The warrant in this case drew a geofence with a 150-meter radius covering the bank. It then laid out the three-step process by which law enforcement would obtain location information from Google. At Step One, the warrant sought from Google anonymized location history information for all devices that appeared within the geofence from thirty minutes before to thirty minutes after the bank robbery. Then, at Step Two, law enforcement would “attempt[ ] to narrow down that list” by reviewing time stamped location coordinates and comparing that to information known about the crime and then providing the narrowed list to Google. Google would then disclose anonymized location data for all those devices from one hour before to one hour after the robbery, but this information was unbounded by the geofence. Finally, at Step Three, law enforcement would again “attempt to narrow down the list by comparing this additional information regarding travel and time against the known time and location information that is specific to this crime.” Google would then provide the username and other identity information for the requested accounts.
This back-and-forth process ultimately resulted in the arrest of Chatrie who was then indicted by a grand jury. Chatrie sought to suppress the location data from the geofence warrant, claiming the warrant violated the Fourth Amendment. The district court denied the motion to suppress the evidence, relying on the good-faith exception to the exclusionary rule. The Fourth Circuit upheld the denial of the motion to suppress but based on its view that Chatrie did not have a reasonable expectation of privacy in two hours’ of Location History data that he voluntarily exposed to Google. So, there was no search under the Fourth Amendment by the government. The Fourth Circuit heard the case en banc and divided 7-7 on whether a Fourth Amendment search occurred. The Fourth Circuit did not rule on the reasonableness of the geofence warrant itself as it had found no search had occurred.
The Supreme Court granted certiorari to resolve the question of whether the use of the geofence warrant constitutes a search under the Fourth Amendment. In a 5-4 decision authored by Justice Kagan, the Court held that law enforcement conducted a search under the Fourth Amendment when they gained access to the location data. The Court reasoned “[a]n individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information—even though for only a limited time, and from a third-party tech company.”
The Court emphasized the importance of smart phones to modern society, noting 91% of Americans own a smartphone and are “likely addicted to apps and other services, many of which collect and store ‘detailed information about all aspects of a person’s life.’” A cell phone user’s location data can provide the government with detailed insight into the most private aspects of their life. The Court analogized this data with other private materials like emails, documents, and photographs – many of which are also stored on Google’s servers. The challenge then is to apply the principle that the Fourth Amendment “has sought to secure the ‘privacies of life’ against the exercise of ‘arbitrary power’” in the face of new technology.
Before getting to the reasonableness of the geofence warrant, the federal government argued there was no search here for two reasons. First, because the duration of the data they reviewed was for such a limited period that it did not constitute a search. And second, it argued the review of the data was not a search because Chatrie voluntarily turned over the location history to Google and under the third-party doctrine, he had no reasonable expectation of privacy in the data anymore. The Court rejected both these arguments.
The Court relied heavily on Carpenter v. United States, 585, U.S. 296 (2018), which held that police conduct a search under the Fourth Amendment by accessing cell-site location information (CSLI) records from a third party. The Court found the “resemblances between CSLI and Location History, in their relationship to personal privacy, practically leap off the page,” except “Location History is the far more precise measure.” And therefore, everything the Court concluded in Carpenter applies with equal force in this case. The federal government sought to distinguish Carpenter by pointing to the duration of the data searched in each case: two hours’ worth of data in this case versus seven days in Carpenter. In rejecting this argument, the Court indicated there is no “Fourth Amendment grace period” in terms of the government accessing location history. That is because even a short amount of time regarding an individual’s physical movements can reveal intimate details about that person’s life including their “familial, political, professional, religious, and sexual associations.” In other words, “[w]here the Fourth Amendment applies, it applies—regardless of ‘the quality or quantity of information’ the government obtains.”
As for the third-party doctrine, the Court once again relied on Carpenter, noting that the Court in that case “refused to apply the third-party doctrine to CSLI, and no good reason exists to reach a different result for Location History.” Here, the Court distinguished the cases that have relied on the third-party doctrine which involved an individual voluntarily turning information over to a bank (canceled checks and deposit slips) or telephone company (phone logs), which then turned that information over to law enforcement. In these cases, the Court concluded that the individual who had voluntarily turned over the information lacked a reasonable expectation of privacy “and so relinquished his Fourth Amendment right.”
In Carpenter and here, the Court concluded the information at issue was “qualitatively different” both int terms of the “nature” of what each record reveals and because the cell location data is not “truly ‘shared’ as one normally understands the term.’” On this last point, the Court reasoned this information is not “shared” in the traditional sense because it is being exposed to Google and “it is the automatic price of conventional cellphone usage—which, just as Carpenter noted, is a ‘pervasive and insistent part of daily life.’” The Court rejected the government’s argument that location data is something a user can opt out of, highlighting the repeated prompts Google sends users to turn on the service. At bottom, the Court provided that “[a] cell-phone user is not to be viewed as sharing private information with third parties—which then can be freely passed on to the government—just by doing the ordinary things cell-phone users do.”
Finally, having concluded the government did engage in a search under the Fourth Amendment, the Court remanded to the lower court to determine in the first instance whether the geofence warrant in this case was reasonable. The Court called the multi-step warrant at issue in this case “uncommon” and noted it is a Court of review, not first view.
Justice Alito dissented and, among other things, argued that the third-party doctrine should govern this case. In his dissent, he pointed out various line drawing problems in terms of where a third-party might fall between the bank line of cases versus the cell phone company line of cases including things like Amazon’s purchase history, Venmo’s transaction log, or Google’s search history.
You can read the decision here.
You can read the LGLC amicus brief here.