Another federal appeals court has ruled on controversial geofence warrants—sort of. Last week, the US Court of Appeals for the Fourth Circuit sitting en banc issued a single sentence opinion affirming the lower court opinion in United States v. Chatrie. The practical outcome of this sentence is clear: the evidence collected from a geofence warrant issued to Google can be used against the defendant in this case. But that is largely where the clarity ends, because the fifteen judges of the Fourth Circuit who heard the en banc appeal agreed on little else. The judges wrote a total of nine separate opinions, no single one of which received a majority of votes. Amid this fracture, the judges essentially deadlocked on important constitutional questions about whether geofence warrants are a Fourth Amendment search. As a result, the new opinion in Chatrie is a missed opportunity for the Fourth Circuit to join both other appellate courts to have considered the issue in finding geofence warrants unconstitutional.
Geofence warrants require a provider—almost always Google—to search its entire reserve of user location data to identify all users or devices located within a geographic area and time period both specified by law enforcement. This creates a high risk of suspicion falling on innocent people and can reveal sensitive and private information about where individuals have traveled in the past. Following intense scrutiny from the press and the public, Google announced changes to how it stores location data in late 2023, apparently with the effect of eventually making it impossible for the company to respond to geofence warrants.
Regardless, numerous criminal cases involving geofence evidence continue to make their way through the courts. The district court decision in Chatrie was one of the first, and it set an important precedent in finding the warrant overbroad and unconstitutional. However, the court allowed the government to use the evidence it obtained because it relied on the warrant in “good faith.” On appeal, a three judge panel of the Fourth Circuit voted 2-1 that the geofence warrant did not constitute a search at all. Later, the appeals court agreed to rehear the case en banc, in front of all active judges in the circuit. (EFF filed amicus briefs at both the panel and en banc stages of the appeal).
The only agreement among the fifteen judges who reheard the case was that the evidence should be allowed in, with at least eight relying on the good faith analysis. Meanwhile, seven judges argued that geofence warrants constitute a Fourth Amendment search in at least some fashion, while exactly seven disagreed. Although that means the appellate court did not rule on the Fourth Amendment implications of geofence warrants, neither did it vacate the lower court’s solid constitutional analysis.
Above all, it remains the case that every appellate court to rule on geofence warrants to date has found serious constitutional defects. As we explain in every brief we file in these cases, reverse warrants like these are very sort of “general searches” that the authors of the Fourth Amendment sought to prohibit. We’re dedicated to fighting them in courts and legislatures around the country.
