The Fourth Circuit’s Geofencing Case Ends Not With a Bang But A Whimper
Earlier this week, the Fourth Circuit handed down its en banc ruling in the closely-watched geofence warrant case that I have blogged about here at Volokh, United States v. Chatrie.Â
The majority opinion is a very quick read. It consists entirely of the following: “PER CURIAM: The judgment of the district court is AFFIRMED.”  After that comes 124 pages of separate opinions, consisting of seven concurrences and one dissent.
Here’s a summary of the eight separate opinions, followed by some quick thoughts. I’ll assume the reader is familiar with the case from my 2022 post, and just jump into the opinions:
Judge Diaz (solo opinion):Â The good-faith exception applies, so we should not reach the merits of how the Fourth Amendment applies to geofencing. These are hard issues and judicial modesty demands we not reach out and try to address other issues. The government should win on the good-faith exception alone.
Judge Wilkinson, joined by Judges Niemeyer, King, Agee, and Richardson (five judges total): Geofencing is not a search. The third-party doctrine is still good law, and users voluntarily disclose their location to Google. The government should win on the merits.
Judge Niemeyer (solo opinion): No search occurred here because the government was essentially just following the tracks left by users, which is not a search. Also, the good-faith exception applies.
Judge King (solo opinion): The good-faith exception applies.
Judge Wynn, joined by Judges Thacker, Harris, Benjamin, Berner, and mostly Gregory (six judges total): Geofencing is a Fourth Amendment search. We understand Carpenter v. United States to be a transformative decision that replaced the third-party doctrine and announced a new multi-factor test for what is a Fourth Amendment search. We apply the factors and we conclude that geofencing is a search. Still, the good faith exception applies, so the government wins.
Judge Richardson, with Judges Wilkinson, Niemeyer, King, Agree, Quattlebaum and Rushing (seven judges total):Â The government wins under the third-party doctrine, which dictates that there was no search here. Carpenter limited the third-party doctrine, but under Carpenter the rationale of the third-party doctrine applies because the information is limited and was voluntarily disclosed when users opted in to the location history feature.
Judge Heytens, joined by Judges Harris and Berner (three judges total):Â Whether or not a se
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