4th Circuit: Split panel upholds geofence warrant

By Jason Boleman

A District Court’s denial of a motion to suppress location data obtained by a police department via a geofence warrant has been affirmed by a divided panel of the 4th U.S. Circuit Court of Appeals.

The decision is the latest in recent litigation concerning a type of search warrant whose use has skyrocketed in recent years. The majority opinion said the government did not violate the Fourth Amendment when it obtained location information in connection to a 2019 bank robbery in Midlothian, Virginia.

The geofence warrant obtained two hours’ worth of the appellant’s location information, which he argued was a violation of his Fourth Amendment rights and that the search “lacked probably cause and particularity.”

U.S. Circuit Judge Julius N. Richardson noted that the Fourth Amendment is an “important safeguard to individual liberty,” but that its “protections are not endless.”

“We hold that the government did not conduct a Fourth Amendment search when it accessed two hours’ worth of [the appellant’s] location information that he voluntarily exposed to Google,” Richardson wrote.

U.S. Circuit Judge J. Harvie Wilkinson III joined Richardson in United States v. Chatrie.

U.S. Circuit Judge James Andrew Wynn authored a 68-page dissent, stating that the geofence warrant “was a search that triggered the Fourth Amendment’s protections.”

“[T]he majority opinion concludes that the government has a virtually unrestricted right to obtain the Location Data History of every citizen,” he wrote. “But I believe the government needs a warrant to obtain such Location History data.”

Background

In May 2019, a robbery was committed at the Call Federal Credit Union in Midlothian. The suspect carried a gun and took $195,000 from the credit union’s vault, fleeing before police could respond.

After the initial investigation failed to reveal the suspect’s identity, the investigating detective applied for a geofence warrant from the Chesterfield County Circuit Court in June 2019.

The warrant drew a 150-meter “geofence” covering the credit union. Such warrants require Google to produce location history data for all users within the geofence area during a particular time — in this case an hourlong period sandwiching the time of the robbery.

The warrant first provided 209 location data points from 19 accounts that appeared within the geofence during the period. As information was winnowed down per Google’s protocol, the detective requested the subscriber information for three accounts. One of the accounts belonged to Okello Chatrie, who was indicted in September 2019 on charges related to the robbery.

Chatrie pleaded not guilty and moved to suppress the evidence obtained via the geofence warrant. The Eastern District of Virginia denied the motion based on “the good-faith exception to the exclusionary rule.” The District Court left unresolved whether the geofence evidence violated the Fourth Amendment.

Chatrie subsequently entered a conditional guilty plea and was sentenced to 141 months’ imprisonment and three years of supervised release. He appealed.

Appeal

Arguing that the government conducted a Fourth Amendment search, Chatrie claimed the geofence warrant violated his constitutional rights and that the “fruits of the warrant should be suppressed.”

He also claimed the good-faith exception does not apply, the geofence warrant was invalid due to a lack of probable cause and, particularly, that the warrant “invaded his reasonable expectation of privacy in his location information.”

Richardson agreed the motion should be denied, but for a different reason — “Chatrie did not have a reasonable expectation of privacy in two hours’ worth of Location History data voluntarily exposed to Google.”

At issue was whether the government conducted a search by obtaining the location history data from Google via the geofence warrant. Chatrie, citing Carpenter v. United States, argued that it was.

Richardson disagreed.

“Carpenter identified two rationales that justify applying the third-party doctrine: the limited degree to which the information sought implicates privacy concerns and the voluntary exposure of that information to third parties,” Richardson wrote. “Both rationales apply here.”

The judge added that the U.S. Supreme Court in Smith v. Maryland. “has long recognized that ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”

Since Chatrie voluntarily opted in to sharing location history with Google in 2018, he “knowingly and voluntarily chose to allow Google to collect and store his location information. … He cannot now claim to have had a reasonable expectation of privacy in this information,” Richardson pointed out.

Also, the nature of the information sought — two hours of Chatrie’s location history data — was “an ‘individual trip viewed in isolation,’ which, standing alone, was not enough” to deduce what Chatrie does habitually,” the judge said.

“A record of a person’s single, brief trip is no more revealing than his bank records or telephone call logs,” Richardson wrote.

Having found the government did not conduct a search under the Fourt Amendment, Richardson affirmed the lower court’s judgment.

Dissent

“A faithful reading of Carpenter — not to mention common sense — compels the conclusion that when the police obtained Chatrie’s Location History data, they engaged in a Fourth Amendment search,” Wynn wrote. “That conclusion is evident upon evaluating how the Carpenter factors apply to the Location History intrusion in this case.”

In the present case, the location history provides more detailed surveillance and information than the information at issue in Carpenter.

“Most critically, it is a fundamental legal principle that any intrusion into a constitutionally protected space receives Fourth Amendment protection,” Wynn wrote. “And Location History data is so granular that it can pinpoint and continuously follow a device inside protected spaces.”

The geofence here “covered over 17 acres and encompassed a nearby church,” and could have also captured residences and a senior living facility.

Wynn disagreed with the majority’s analysis that Chatrie could not challenge on this ground because the geofence did not enter Chatrie’s home.

“It follows then that Chatrie would have a reasonable expectation of privacy from such an intrusion that could capture a church and residences at Step One and was boundless at Step Two,” the judge wrote. “Indeed, police executed a search that would have captured Chatrie’s home or other constitutionally protected space if it was in the Step One boundary, or if he happened to travel there during Step Two.”

Wynn said it wasn’t clear if Carpenter requires courts to consider voluntariness at all. He added that the sharing of location history is not “meaningfully voluntary” and, regardless, the Carpenter factors “strongly supports the conclusion that the geofence intrusion constituted a search.”

“For the first time since the ratification of the Fourth Amendment, the government is permitted to retroactively surveil American citizens anywhere they go — no warrant needed — so long as it keeps its snooping to a few hours or perhaps a few days,” Wynn concluded.