A Narrow Resolution on Geofence Warrants?: A Thought on Chatrie

On April 27th, the Supreme Court will hear oral argument in Chatrie v. United States, on the Fourth Amendment implications of geofencing. I have already posted the amicus brief I wrote for the Court in the case, and I have decided to write a series of posts in anticipation of the argument.  This is the first.

For my first post, I want to suggest that Chatrie may end up being decided on relatively narrow grounds.  That’s relevant because the Chatrie case implicates a very wide range of potential issues. The Court granted cert on the first of Chatrie’s proposed Questions Presented, which was “[w]hether the execution of the geofence warrant violated the Fourth Amendment.” But because the opinion following the en banc proceedings below was just a one line affirmance—as I detailed last year, no particular reasoning commanded a majority of the Fourth Circuit judges—what that might mean is, at least in theory, very open.

Broadly speaking, there are two sets of questions in the case. First, was the obtaining of records from Google a Fourth Amendment “search” of the suspect’s “persons, houses, papers, [or] effects” that presumably triggered a warrant requirement?  And second, if so, was the warrant constitutional?  Each of those two questions breaks down into a lot of different sub issues. This means that a lot of really important conceptual issues in Fourth Amendment law are potentially in play.

It wouldn’t surprise me, though, if a majority of the Court bypasses a lot of those issues.  I would guess it likely—and it wouldn’t be a terrible idea—for the Court to rule narrowly on the warrant issue.  If so, the majority would leave the search issue for another day.  I thought I would say a bit about why I think that might happen.

First, this case gets to the Court very late in the Term.  Oral argument is April 27th, the last week of argument.  That’s going to create intense pressure to identify a majority position quickly.  It’s been a long while since I was a law clerk, and the dates I vaguely recall for when majority opinions need to be circulated for the end of the Term may be wrong (or the current Chief may not follow the earlier guidelines).  But whoever has the pen for the expected majority opinion is going to have to work super quickly.  If you figure opinions are generally handed down by the end of June, that means there is only about 60 days until everything is out.  And that means the Justices will need to agree on a rationale and get at least a majority on board very rapidly.

On balance, the legality of the warrant is a lot more conducive to a quick resolution than than the search questions.  There are only a handful of relevant precedents, and they’re not issues on which Justices tend to have a lot of past writings or particularly strong views.  On the whole, that probably makes it more likely that the Justices will be able to reach some agreement.

The search issues are comparatively thornier. What is a Fourth Amendment “search” has been the topic of a great deal of caselaw and a lot of separate opinions, and it has been something that has caused something of an ideological divide (mistakenly, in my view, as I think there’s actually a lot of agreement as to substance, but nonetheless). Getting to five on search issues would be harder, I think, than getting to five on the warrant issues.  Of course, some Justices are likely to weigh in on the search issue in separate opinions.  But the warrant issues present a likelier basis on which to get to five votes in the short time the Court has.

There’s also a practical reason for the Court to focus on the warrant issues.  As I noted back in 2023, in “Did Google Just Defeat Every Geofence Warrant?,” Google responded to the Fourth Circuit panel oral argument in Chatrie by phasing out its practice of storing Location History records.  So what matters most going forward is what the Court says that touches on other forms of surveillance.  And it’s the warrant issues that have the greatest practical importance, I think.  As I wrote in 2024 in response to the Fifth Circuit’s ruling that all geofence warrants are unconstitutional, there’s a whole lot more at stake than just geofencing for location history records:

[T]he stakes of this case are immense, going way beyond geofence warrants, encompassing most law enforcement and national security surveillance involving the Internet.  I started this long post by saying that the warrant ruling was more important than the search ruling. That’s not to say the search ruling isn’t important!  But if the search ruling has case-of-the-week importance, the warrant ruling has case-of-the-year importance.

Why is that?  It has nothing to do with geofence warrants.  Instead, it has to do with all the other digital warrants.

Unsurprisingly, trial judges in the Fifth Circuit had a hard time limiting the Fifth Circuit’s ruling on geofence warrants to just geofence warrants. For example, there were also opinions saying that tower dump warrants were unconstitutional.  As a result, a ruling limited to the warrant issue would still have a major impact going forward.

Next up: Some thoughts on remedies, and why the Court hasn’t taken a case on the Fourth Amendment and technology in eight years. They’re related, I think.  Stay tuned.