Police Use of Geofence Warrants Splits Courts Over 4th Amendment

The Fourth Circuit’s decision to re-hear en banc a privacy dispute over whether Virginia police’s use of phone location data violated Fourth Amendment protections could shape a constitutional question for the US Supreme Court.

Okello Chatrie, accused of robbing a bank in Richmond, Va. in 2019, sought to suppress evidence obtained from a geofence warrant key to his arrest, claiming police’s conclusions and methods were over-broad and unconstitutional. Despite agreeing with Chatrie’s Fourth Amendment arguments, the Virginia district court let the evidence stand because state investigators thought they had a valid warrant.

The US Court of Appeals for the Fourth Circuit in July also sided with Virginia law enforcement in a split decision. But on Nov. 1, the full court agreed to review the case, setting up a hearing to revisit the Fourth Amendment question.

Chatrie’s appeal was the first time a criminal defendant challenged a conviction based, in part, on evidence obtained through a geofence warrant, which collects information from all individuals within a geographic area during a particular time period.

The warrant authorized Google to disclose two hours of location information from devices within 150 meters of Call Federal Credit Union in Midlothian, Va., where the robbery occurred. In response, Google produced one hour of data for 19 anonymized accounts within the area. Investigators then narrowed the list to one account of interest: Chatrie’s.

The appeals court’s July ruling heavily relied on the third-party doctrine, which holds that individuals voluntarily sharing information with companies like Alphabet Inc.‘s Google don’t have a reasonable expectation of privacy. The panel also leaned on the argument that the geofence warrant’s two-hour scope was too narrow to qualify as a Fourth Amendment search.

The new hearing opens the door for the court to re-examine these findings—especially as more geofence-related cases percolate throughout the country. Reversing the court’s prior ruling would not only resolve a current circuit split between the Fourth and Fifth Circuits, but could also answer how—or even if—geofence warrants can meet Fourth Amendment requirements.

“What’s at stake in these cases is whether the courts will hold the line on fundamental Fourth Amendment principles now that advances in technology are increasingly threatening those principles,” said Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program. “That will mean revisiting interpretive doctrines that worked well several decades ago, but that no longer work.”

‘Legal Fiction’

Judges in other courts have admonished the appeal court’s ruling that Chatrie waived his Fourth Amendment privacy protections by opting into Google’s location data collection. That includes the Fifth Circuit, which a month later explicitly disagreed with the Fourth Circuit and found geofence warrants unconstitutional in US v. Smith.

Critics of the decision “pierced the legal fiction” that making data privacy decisions on a mobile application “constitutes meaningful informed consent for Fourth Amendment purposes,” said Goitein.

Many companies’ notice-and-consent policies force users to navigate lengthy privacy terms, often packed with legal jargon. Customers often opt-in to share data for convenience—like using a map app—without grasping that consent may allow government access.

“People are just sort of checking ‘yes’ to a question where ‘yes’ is often the default answer,” said Matthew Tokson, College of Law Professor at the University of Utah, where he researches Fourth Amendment applications to emerging technologies. “I believe that’s what happened with Chatrie—I think they made some factual errors there that the court may want to clean up.”

Baltimore Surveillance

Investigators’ geofence warrant tracked two hours of Chatrie’s whereabouts, a narrow enough scope that the police department had “by no means” an “all-encompassing record” of his location, Circuit Judge Julius N. Richardson wrote. He cited the court’s 2021 ruling in Leaders of a Beautiful Struggle v. Baltimore City Police Department, in which the Fourth Circuit ruled en banc that a warrantless aerial surveillance program in Baltimore violated Maryland residents’ Fourth Amendment privacy protections.

While Baltimore’s program allowed for rampant data collection, investigators in Chatrie’s case only had a targeted geofence warrant. The data obtained wasn’t enough to “enable deductions” about his whereabouts and actions more broadly, Richardson wrote.

The court’s 2021 case will shape this re-rehearing, as it must re-examine its distinction between limited data collection compared to collection that enables a third party to infer an individual’s patterns of life, said Jordan Wallace-Wolf, assistant professor of law at UA Little Rock’s William H. Bowen School of Law.

“There’s a question of how that earlier opinion applies to Chatrie,” he said. “Is Chatrie such a short invasion or short tracking of a person that it doesn’t trigger the ruling?”

Circuit Split

In Beautiful Struggle, the court applied the 2018 Supreme Court decision in Carpenter v. United States—which required a warrant for cell site location records spanning more than seven days—to a novel technology, Tokson said.

That “makes me cautiously optimistic, or at least able to cautiously predict, that they will probably overturn at least some aspects of the Chatrie panel decision,” he added.

Groups calling for a re-hearing, including the Reporters Committee for Freedom of the Press and the American Civil Liberties Union, pointed to Circuit Judge James Andrew Wynn Jr.’s dissent and the Fifth Circuit’s August ruling. In October, the government argued the Fourth Circuit correctly upheld the district court’s denial of Chatrie’s motion to suppress Google’s data.

“If the Fourth Circuit changed on rehearing to saying that the Fourth Amendment rights of Chatrie were implicated, were relevant, then it looks like there would be no real circuit split to speak of,” Wallace-Wolf said.

Instead, the court would have to address how geofence warrants fit under Fourth Amendment requirements.

“That would be, to my knowledge, the first appellate court to talk about the requirements on geofencing warrants,” Wallace-Wolf said.

The case is US v. Okello Chatrie, 4th Cir., No. 22-04489, en banc rehearing granted 11/1/24.