The Fourth Amendment and Geofence Warrants: A Critical Look at United States v. Chatrie
Judge Lauck of the Eastern District of Virginia recently handed down the long-awaited opinion in United States v. Chatrie, on how the Fourth Amendment applies to geofencing warrants. I believe this is the first Article III judicial opinion on the subject. Geofence warrants raise some really interesting Fourth Amendment issues, and we’re likely to hear more about those issues. Given that, I thought I would offer my take on the opinion.
My reaction, unfortunately, is pretty critical. I really appreciate the care Judge Lauck put into the case, including building an extensive record. But I also think the reasoning of the decision has some major problems. In particular, I am not sure the execution of geofence warrants involve a Fourth Amendment search at all. And if they do, then I think the Fourth Amendment standard is a lot less strict than Judge Lauck concludes it is.
This post explains my concerns. I’ll start with a general background on geofence warrants and then turn to the facts of the case. I’ll next cover the court’s reasoning, and explain why I think key parts of the opinion are not persuasive. How the Fourth Amendment applies to geofence warrants raises some tricky issues. But I don’t think this opinion points in the right direction to help find the answers.
I. Background on Geofence Warrants
First, some context. Most cell phones are logged into Google these days. And Google users often have their phones set to enable Google, by a range of means, to track their phones’ location. This can be a useful tool for law enforcement. If a crime was known to have occurred in a particular place and time, Google may have records about which phones were there.
Access to Google location data is especially important to create leads when none exist. If the criminal had his phone on when he committed the crime, if his phone was logged into Google, and if his phone was set to let Google generate location information, Google will have a record of it that can be traced directly back to him.
Of course, you can’t be sure that’s the case. And it’s unlikely that the criminal’s phone will be the only one around. Other people will likely be nearby, and Google may have records of their phones in the area, too. But as a means of generating leads, Google location records are a potentially useful way of going from a cold case to a list of possible suspects.
Some details of how Google’s location service works are relevant. As I understand the record in Chatrie, Google users need to opt-in to have Google services keep location records for their phone. Users who opt-in to location services can also later pause the creation of the records, or delete past records created, although they need to make a point of doing that. It’s not entirely clear, though, how easy this is to do at any given time, or how widely understood it is that users can do this.
Users can also just turn their phones off, or put them in airplane mode, if they otherwise want their location tracking on when the phone is in use. Also, Google location information can be very precise and dynamic, showing where a phone was and where and how quickly it moved, But the records can also be uncertain. Google is sometimes unsure of exactly where a phone was, and it only has location estimates with confidence intervals rather than certain information.
It has not been clear that the government’s obtaining Google location records is a Fourth Amendment search that requires a warrant. But Google has required warrants to obtain this information, and it has specified a three-step process that it requires investigators to follow to try to protect the privacy of Google users. In theory, an investigator could challenge this process in court rather than comply with Google’s warrant requirement and process. But there are some practical reasons why investigators haven’t done this, at least yet. So at least for now, Google’s process has effectively become the current way geofence warrants are carried out.
Because Google requires a warrant for these location records, the legal issues raised by government access to the records has led to judicial decisions only in the warrant context. There have been a handful of opinions written by federal magistrate judges explaining why they did or did not agree to sign a geofencing warrant. And now Chatrie is the first case where the legal issues are being actually litigated in the normal course before an Article III judge. A geofence warrant was issued, a suspect was found, and the suspect has moved to suppress evidence from the geofence warrant.
II. The Facts of This Case
This particular case involves a bank robbery in 2019 in Virginia. The suspect entered the bank, handed the teller a note explaining that this was a robbery, and then showed the teller his gun. The robber took $195,000. Law enforcement had no leads. But the suspect had a cell phone with him, and the government obtained a geofence warrant from a state magistrate judge to try to identify him. The warrant sought to identify each phone logged into Google within a 150-meter radius of the bank from 30 minutes before the robbery to 30 minutes after the robbery.
A state magistrate judge signed the warrant, and Google informed law enforcement that19 phones were responsive to the warrant. Google’s production to the government also revealed the location patterns of the 19 phones during the hour window, showing the area the phones were thought to be in, and when, over the hour. The government then asked for expanded location information on the 19 phones, and Google told the government the whereabouts of the 19 phones for a full hour before and a full hour after the time of the robbery. At this point, the government had detailed tracking information on 19 phones, but no information about who had the phones.
The government then asked for the actual identity of three of the phone owners according to Google’s records, reflecting the phones that investigators believed, based on the patterns of location over the two hours, were the bank robber and possible co-conspirators in the area. Google disclosed that information, and it revealed that the phone believed to belong to the robber was registered to Okello Chatrie. Chatrie was eventually charged with the robbery, and now has moved to suppress the fruits of the geofence warrant in his criminal case.
III. Does Obtaining Geofence Information Constitute a “Search” At All?
The first legal issue raised is whether obtaining geofence information is a search at all. As this issue is litigated in the context of
Article from Reason.com
