In Big Win for Fourth Amendment Advocates, the Supreme Court Says ‘Geofence Warrants’ Count as a ‘Search’

The U.S. Supreme Court has issued a far-reaching decision on the constitutionality of a law enforcement tool that allows police to access the location histories of millions of cell phone users. In a welcome result for civil libertarians, the Court ruled on Monday that “geofence warrants” count as a “search” under the Constitution and therefore trigger the Fourth Amendment’s safeguards against unreasonable searches and seizures.

The geofence warrant at issue in this case, Chatrie v. United States, was issued to Google. It told the tech company to search the location histories of every one of its users in order to determine which ones were present in the vicinity of a bank robbery. That information ultimately led to the arrest of Okello Chatrie.

Chatrie’s lawyers argued that this police tactic amounted to “an unconstitutional general warrant [that] compelled Google to conduct a fishing expedition through millions of Google accounts, without any basis for believing that any one of them would contain incriminating evidence,” the very sort of sweeping assault on civil liberties that the Fourth Amendment was originally enshrined to protect. “The Fourth Amendment was born of the Founders’ revulsion for general warrants and writs of assistance—instruments that allowed the government to search first and develop suspicions later,” Chatrie’s lawyers told the Court.

Writing for the majority, Justice Elena Kagan sided with Chatrie. “The police conducted a search when they gained access to Location History data,” Kagan wrote. “An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information—even though for only a limited time, and from a third-party tech company.”

Kagan’s opinion was joined in full by Chief Justice John Roberts and by Justices Sonia Sotomayor, Brett Kavanaugh, and Ketanji Brown Jackson.

Writing alone in concurrence, Justice Neil Gorsuch agreed that Chatrie deserved to win but argued for a different legal rationale. “As I see it, Mr. Chatrie’s Location History data qualifies as his personal property,” Gorsuch wrote, which would place it among his “effects,” a specific category that is listed in the Fourth Amendment itself. And “just as the First Amendment protects speech over the internet today no less than it did speech delivered in the town square in 1791,” Gorsuch argued, “it should hardly come as a surprise that the Fourth Amendment might protect as personal ‘effects’ electronic diaries of one’s travels as it always has more traditional ones.”

With Gorsuch thus voting in favor of Chatrie, the final result of the case was 5–1–3 on the legal reasoning and 6–3 on the result.

Justice Samuel Alito wrote the principal dissent, joined in full by Justice Clarence Thomas and joined mostly by Justice Amy Coney Barrett. According to Alito, the Court’s “pose as a great champion of privacy in the digital age” will only “unleash” an “upheaval in Fourth Amendment law.” Alito said, “I cannot support this irresponsible escapade.”

Here’s a little rule of thumb for Fourth Amendment cases: Whenever you find Gorsuch and Alito on opposite sides, you may safely bet on the likelihood that civil libertarians will be cheering Gorsuch and jeering Alito. That’s certainly the upshot of today’s decision.