Appeals Court Judges Say Some Worrying Things While Re-Thinking Their Geofence Warrant Decision
Last July, the Fourth Circuit Court of Appeals appeared to have shut the door on constitutional discussions of geofence warrants. These so-called warrants operate from a point of ignorance. Investigators have no idea who they're looking for. So, they ask Google to do some of the work for them.
Casting a small dragnet around a certain location at certain times sounds like a good start. Unfortunately, the reality is that Google has to search its entire repository of location data to find the data investigators are seeking. That turns probable cause into fishing expeditions that affect all users of Google services. Even if the search is narrowed past this first exploratory request, the damage has already been done.
Okello Chatrie has been challenging this search since it first was revealed in his criminal case, where's he facing federal charges for robbing a bank. The trial court upheld the search. While it found the implications of geofence warrants disturbing - especially in light of the Supreme Court's Carpenter decision that instituted warrant requirements for location data searches - it ultimately decided good faith applied to this unsettled area of the law.
The Fourth Circuit upheld this ruling, reasoning that the Third Party Doctrine covered location data willingly" shared with Google, rather than the normal warrant requirements that require more than law enforcement assertions that the data the seek is most likely located on Google servers.
About four months later, the Fourth Circuit announced that it would be taking a second pass at this decision. Now, this en banc review (involving all 15 appeals court judges) is underway. But early reporting from Joe Dodson of Courthouse News seems to indicate the judges are more likely to affirm their previous ruling that subject geofence warrants to long-held probable cause standards. (h/t FourthAmendment.com)
One judge appears to believe that if he can navigate the difference between involuntary and voluntary data sharing with Google, surely anyone - even an accused criminal - should immediately know that what they've agreed to will allow the government to access their location info at will, provided they have a warrant in hand that lists Google as the place to be searched, rather than data stored on their own phones.
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."
There's the defense of the Third Party Doctrine the Supreme Court's Carpenter decision at least partially dismantled. Combined with the Riley decision (the one that created warrant requirements for phone searches), this logic simply doesn't make sense. The Supreme Court warned against the government's ability to turn personal devices into always-on tracking devices simply because decades of precedent never foresaw people carrying powerful computers in their pockets at all times as a necessity, rather than a luxury.
The conclusion drawn here by this judge is antithetical to constitutional rights. Just because a person has agreed to certain things to provide them access to apps and services they'd like to use is not the same thing as agreeing the government can browse their data without showing more probable cause than geofence warrants appear to require.
Then there are appeals court judges like Harvie Wilkinson, who appears to believe it's fine to allow the ends to justify the means.
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."
Well, bring back the general warrants, I guess. The only way to handle serious cases is to put the Fourth Amendment on mute until cops get what they want, no matter what they have to do to obtain it. These are the words of someone who should probably retire and start writing their memoirs, rather than continue to be treated as capable of contributing valuable jurisprudence going forward.
While some judges pushed back against Wilkinson's sidelining of the Fourth Amendment, others suggested kicking this can further down the road and just say the cops were wrong, but not wrong enough to lose their unconstitutionally-obtained evidence.
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.
While this en banc hearing is still underway and there's really no way to predict how the majority will rule when the decision is finally handed down, these early indicators suggest the most likely outcome is an affirmation of the decision released last November. Worse, it suggests the upcoming decision might even be worse than the one the court originally released last summer. Judge Diaz suggests a Third Party Doctrine affirmation backed by the court's refusal to address the underlying constitutional questions by deferring to the good faith exception. If that ends up being the final conclusion in this case, it will be years before this circuit is willing to entertain geofence warrant challenges again.