SCOTUS Hands Down Limited 4th Amendment Win In Geofence Warrant Case

from the better-than-expected,-but-not-much-better dept

We’ve been waiting for this one for a long time. And while it doesn’t disappoint, it doesn’t leave a whole lot of room for celebration.

Okello Chatrie has been challenging the geofence warrant that led to his arrest and prosecution since 2019(!). Nearly seven years later, he’s a step closer to… well, maybe setting precedent that will help others? That’s how it usually works in cases like these: the person experiencing a new violation of rights sets the precedent. But because there was no precedent, the government is generally given a “good faith” pass, even when warrants seem so far removed from Fourth Amendment principles even the government should have known its warrants were unconstitutional.

The Fourth Circuit Appeals Court handled Chatrie’s case multiple times. It reviewed it twice and still decided the government didn’t do anything (intentionally) wrong when it used a geofence warrant to narrow down its list of suspect and, finally, put Chatrie on trial.

Don’t let the word “warrant” fool you. There are legitimate warrants that adhere to particularity standards meant to deter officers from just searching wherever, whenever. Then there are geofence warrants, which are more comparable to the “general warrants” the Fourth Amendment was put in place to prevent.

When investigators have no idea who they’re looking for, they stop looking for people and start demanding Google cough up tons of location data. The government argues these warrants are “particular” because they only ask the most likely repository of this data to search for this data. Normal people would argue these are “general warrants” because they force Google to search everyone’s location data on the government’s behalf, in hopes of generating a list of devices that match up with the government’s date/location range inputs — something that’s also often far more vague than it should be.

The government likes to say it doesn’t even need a warrant. Location info generated by phones is “third party” data “voluntarily” relinquished by phone users. The problem with that argument is that the Supreme Court — via its 2018 Carpenter decision — has already made it clear there is at least some expectation of privacy in that data, especially when the government is capable of gathering it en masse.

The time stamp on the Carpenter ruling works a bit in Okello Chatrie’s favor because the alleged crime happened after that ruling. The Supreme Court majority also agrees with Chatrie’s other arguments, including those pointing out geofence warrants cannot possibly satisfy probable cause/particularity requirements generated by Fourth Amendment case law.

Here’s the briefest description of the Supreme Court’s ruling [PDF], as delivered by SCOTUS itself:

Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.

More specifically, the Court points to its own precedent:

Everything Carpenter relied on to find that law enforcement officers conducted a Fourth Amendment search when they accessed CSLI records applies as well or better to the police’s accessing of Location History data. First, Location History provides an even more fine-tuned picture of a person’s movements, pinpointing location within around twenty meters rather than within sectors of one-eighth to four square miles; it records location every two minutes or so for a daily average of 720 chartings rather than 101; and it can estimate elevation to reveal which floor of a building a phone is on.

Second, Location History allows police to reconstruct “retrospective[ly],” and with no real effort, people’s comings and goings in any area, enabling “tireless and absolute surveillance” of any number of people in any number of places. Carpenter, 585 U. S., at 312.

And third, Location History implicates personal privacy interests even more than CSLI, because Location History is more the cell-phone user’s own. Most cell-phone users have no awareness of CSLI records, and would never try to retrieve them; by contrast, Google users regularly employ Location History as a personal journal. In that way, Location History resembles other private materials—e.g., emails, documents, photographs, or calendars— that even if stored on Google’s servers, a user reasonably views as his own and expects to be shielded from the “inquisitive eyes” of the government.

While this is a good ruling, it also does little more than tell the Fourth Circuit to do what it has already done: rule the warrant a search under the Fourth Amendment but still give the government a pass for not knowing its warrant was unconstitutional. A concurrence written by Justices Jackson and Sotomayor says the Court should have gone further, declaring this warrant (and any like it — which would be most of them) so unconstitutional the government couldn’t possibly claim to have obtained them in good faith.

Geofence warrants generate waves. The first one is the vaguest. Once more information comes in, investigators approach Google with narrowed lists. These repeat visits are almost never brought to the attention of magistrate judges. If a judge OKs the first search, the government just keeps going back to the well without bothering to seek judicial approval.

This “uncommon, multi-step” process, ante, at 30, meant that officers conducted key portions of the search outside the supervision of “a neutral and detached magistrate,” Johnson v. United States, 333 U. S. 10, 14 (1948). Put differently, officers could obtain additional, sensitive information at steps two and three without having to convince a magistrate that there was probable cause to believe this particular information would uncover evidence related to
the crime. In this way, the warrant left “too much to the discretion of the officer[s] executing the order,” giving them a “roving commission” to collect more data absent any justification to a magistrate.

The facts of this case illustrate why the lack of magisterial oversight is dangerous. When executing steps two and three, law enforcement initially sought unbounded data and account information from all 19 devices identified at step one. Nothing in the warrant prevented officers from obtaining this broad set of data; they narrowed the list only because Google insisted on it.

Because that’s only a dissent, it won’t be taken into consideration when the Fourth Circuit takes its third look at the case. That should have been a point raised by the majority. As it stands, it just means the government will take its good faith ruling and sprinkle it generously on the further unconstitutional acts it engages in while holding a single geofence warrant.

There’s a dissent, of course. And if you can guess two of the three authors, you won’t win anything. No one is going to offer those odds.

JUSTICE ALITO, with whom JUSTICE THOMAS joins as to Part I and with whom JUSTICE BARRETT joins as to Parts II–B, II–C–1, and II–C–2, dissenting.

As is always the case when something isn’t about what this president wants to do/get away with, Alito and Thomas are there to LiveJournal their complaints about constitutional rights:

Eight years ago, I warned that this Court’s decision in Carpenter v. United States, 585 U. S. 296 (2018), would produce one of two outcomes. Either the Court would need to clarify Carpenter’s limits in a future decision, or Carpenter would usher in “revolutionary developments” in our doctrine by giving criminal suspects a “protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties.” Id., at 385 (ALITO, J., dissenting). Today, the Court takes the country down the latter path. In doing so, the Court sheds Carpenter’s self-imposed boundaries and further destabilizes longstanding Fourth Amendment jurisprudence.

To make matters worse, the majority does all this in an advisory opinion. Although today’s decision will send seismic waves through our Fourth Amendment doctrine, not one iota of the majority opinion will affect the outcome of this case. The Court knows this and does not claim otherwise. Indeed, by refusing to review the one question that could have at least theoretically given Chatrie some hope of relief, the Court carefully set the stage for its planned performance: striking a pose as a great champion of privacy in the digital age. I cannot support this irresponsible escapade.

Note the loaded language, where Alito attaches “giving criminal suspects” to his complaint about recognizing the Fourth Amendment needs to be interpreted in conjunction with today’s realities, not left to be a dusty relic that cannot be expanded to cover things that were impossible to envision more than two centuries ago.

Note also that Alito, et al. bitch about the majority not addressing the one thing that might have helped Chatrie: a ruling on the good faith exception itself. And while I have the same complaint, I would have limited myself to asking the court why it didn’t do this, rather than immediately pivot in the very next paragraph to saying the Court should never have taken this case up in the first place.

The Court should not have granted certiorari in this case, and under any faithful application of our precedents.

Right after that Alito immediately says “Fuck Chatrie,” only sentences after (disingenuously) expressing concern for the Court’s unwillingness to tangle with the “one question” that could have given Chatrie “some hope of relief.”

[I[t should now either dismiss this petition or affirm the decision below based on the “good-faith exception” to the exclusionary rule.

I agree with the dissent in terms of the Court’s unwillingness to draw a bright line that will guide future rulings. But I say that because I think this will just allow law enforcement to roll the dice on questionable searches and hope the muddied water will get them forgiven for willfully bypassing the spirit of this ruling, which unfortunately hasn’t carried over to the letter of the ruling.

But these motherfuckers — Justices Alito and Thomas — think the real harm is that the government won’t be able to engage in as much warrantless surveillance as it would like to:

If the Court maintains its unwillingness to engage with such “line-drawing questions,” ante, at 21, n. 9, Carpenter’s warrant requirement might soon come for all forms of digital surveillance.

Take a long walk off a short pier, boys. You are the worst people to be entrusted with standing as a bulwark against government excess. You welcome it. You absolutely crave it when its one of your boys sitting in the Oval Office. You’re supposed to be serving the entire United States, not just those in the ruling class. But you’d clearly rather give the government unlimited power, rather than ensure the only people guaranteed rights — WE, THE PEOPLE — are allowed to use them.

Filed Under: 4th amendment, carpenter v. us, csli, general warrants, geofence warrants, location tracking, okello chatrie, privacy, reverse warrant, scotus