Fourth Circuit Finds In Favor Of Geofence Dragnet Deployed To Catch Robbery Suspect

Back in 2022, a federal court responded to a challenge of a geofence warrant with some good questions. But its ultimate ruling was a shrug. A geofence warrant obtained by investigators searching for a bank robbery suspect covered a whole lot of ground, subjecting hundreds of innocent people to a search of their geolocation records.

In this decision, the court actually arrived at the conclusion that the search was probably illegal and unsupported by probable cause to effect the search. That the search was performed by Google and not law enforcement itself didn't matter.

The original geofence warrant covered 17.5 acres in Midlothian, Virginia - an area that included not only the robbed bank but a nearby church and its parking lot.

After getting the warrant approved, the investigators served it to Google. Google did a little pushing back and the final version shrunk the area a bit, but it still covered a whole lot of non-bank robbers, considering the request was for all geolocation data generated in this area between 4:20 and 5:20 pm.

The lower court said the good faith exception salvaged the search, even if it was illegal, because how were investigators supposed to know that casting a 1.75-acre, one-hour dragnet might implicate the privacy rights enshrined by the Fourth Amendment. The court had enough problems with its own ruling that it raised these valid points about the questionable constitutionality of geofence warrants:

[T]he Court is disturbed that individuals other than criminal defendants caught within expansive geofences may have no functional way to assert their own privacy rights. Consider, for example, a geofence encompassing a bank, a church, a nearby residence, and a hotel. Ordinarily, a criminal perpetrator would not have a reasonable expectation of privacy in his or her activities within or outside the publicly accessible bank. See United States v. Knotts, 460 U.S. 276, 281 (1983) (A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."). He or she thus may not be able to establish Fourth Amendment standing to challenge a time-limited acquisition of his location data at the bank.

But the individual in his or her residence likely would have a heightened expectation of privacy. Silverman v. United States, 365 U.S. 505, S11 (1961) (At the very core[of the Fourth Amendment] stands the right ofa [person] to retreat into his [or her] own home and there be free from unreasonable government intrusion."). Yet because that individual would not have been alerted that law enforcement obtained his or her private location information, and because the criminal defendant could not assert that individual's privacy rights in his or her criminal case, United States v. Rumley, 588 F.3d 202, 206 n.2 (4th Cir. 2009), that innocent individual would seemingly have no realistic method to assert his or her own privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a right without a remedy."

Those concerns aren't shared by the Fourth Circuit Appeals Court. It has responded [PDF] to Okello Chatrie's appeal with an affirmation of the lower court's (limited and reluctant) blessing of the investigative dragnet. And it goes further than that, claiming the location data gathered by Google doesn't come with an expectation of privacy attached.

[W]e 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.

But that assumption runs contrary to the points raised by the US Supreme Court in the Carpenter decision. In that case, it held that collecting long-term cell site location data required the use of a warrant. It also pointed out the base assumption contained in the Third Party Doctrine (that anything shared voluntarily with third parties has no expectation of privacy) doesn't always apply. While people understand they're sharing information with their bank in order to avail themselves of bank services, they don't always understand that cell towers and service providers like Google are collecting information on them hundreds of times a day. None of that is affirmative, so it's a bit misleading to call something no one has any power to stop (not if they want access to cell service or other third party services) voluntary."

The Fourth Circuit says Google location data collection, however, is voluntary. That's because several steps must be taken to allow Google to collect this data. (This has not always been the case and, in the past, Google has been known to collect this data even when users have opted out of this data collection.) It says the Third Party Doctrine applies, denying Chatrie's challenge of the warrant.

The third-party doctrine therefore squarely governs this case. The government obtained only two hours' worth of Chatrie's location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." He cannot now claim to have had a reasonable expectation of privacy in this information. The government therefore did not conduct a search when it obtained the data.

So, in the eyes of the majority, the government doesn't even really need a warrant to collect this data. It could have just sent Google a request for the information without having to run it by a judge first. As the dissent points out, that's because even the government believes this is the sort of search that necessitates the use of a warrant.

At the heart of this appeal, the majority opinion concludes that the government has a virtually unrestricted right to obtain the Location Data History of every citizen. But I believe the government needs a warrant to obtain such Location History data. And that's something the government itself apparently believed at the time it conducted the respective intrusion, since it sought and obtained a warrant in this matter.

That, of course, does nothing for Chatrie. But it does show the government thinks there's an expectation of privacy in this data, even though the Fourth Circuit claims there isn't.

But the bigger point is the problem courts generally don't address because they don't have to: the intrusions created by geofence warrants that cannot possibly be supported by probable cause, which means the warrants will almost always be deficient. But the thousands or millions of people whose records are searched have no standing to challenge the search because they never even know it happened.

[G]eofence intrusions are even broader than the intrusion in Carpenter because there is no limit on the number of users police can include in a geofence. With CSLI, police at least had to provide a specific phone number to search, so they had to identify a criminal suspect before they could pry into his or her historical CSLI data. By stark contrast, geofence intrusions permit police to rummage through the historical data of an unlimited number of individuals, none of whom the police previously identified nor suspected of any wrongdoing. Indeed, the very point of the geofence intrusion is to identify persons whose existence was unknown to police before the search.

Both the majority and the dissent make good points. I'd argue the dissent makes the better points. But in the end, it's the majority ruling that matters. And, in this circuit, the ruling seems to say investigators don't even need warrants to perform these searches. There's one option left for Chatrie and it's the Supreme Court. The nation's top court is going to need to deal with this issue and its relation to Carpenter eventually and Chatrie's case is as good as any to serve that purpose.