Are Geofence Warrants Permissible? – A Circuit Split

Geofence warrants are categorically unlawful: “We hold that the use of geofence warrants—at least as described herein—is unconstitutional under the Fourth Amendment. In doing so, we part ways with our esteemed colleagues on the Fourth Circuit.”  United States v. Smith, __ F.4^th __,  2024 WL 3738050, at *1 (5th Cir. Aug. 9, 2024).  “We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.”  Id. at *18.[1]

Geofence warrants are permissible.  United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024);  Geofence Search Warrant Held Valid (June 28, 2024), citing Tomanek v. State, 261 Md. App. 694 (2024).  The Fourth Circuit wrote that “we find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.”  Id. at 322.  “The Supreme Court has long recognized that ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”  Id. at 326.  “[W]e find that Chatrie did not have a reasonable expectation of privacy in the two hours’ worth of Location History data that law enforcement obtained from Google. So the government did not conduct a search by obtaining it.”  Id. at 330.  “Chatrie voluntarily exposed his location information to Google by opting in to Location History.”  Id. at 331.

Because they are relatively new, there is a “relative dearth of case law addressing geofence warrants.” Smith, 2024 WL 3738050 at *2, citing Chatrie.  “Google received its first geofence warrant request in 2016….  Since then, requests for geofence warrants have ‘skyrocketed in number.’ …  From 2017 to 2018 alone, requests to Google for geofence warrants increased over 1,500%.”  Id. at *2.

In 2019, Google was receiving about 180 geofence warrant requests per week from law enforcement around the country, amounting to about 9,000 geofence requests for that year…. By 2020, that number went up to 11,500 geofence warrant requests…. By 2021, geofence warrants comprised more than 25% of all warrant requests Google received in the United States.

Id. (citations omitted).

Geofence warrants are unique: “Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects [are] not. …. Thus, geofence warrants effectively ‘work in reverse” from traditional search warrants.” Id. at *3 (citations omitted; cleaned up).

One court explained:

A geofence warrant authorizes the seizure of location data collected from smartphones of individuals within a particular area over a specified range of time.” United States v. Rhine, 652 F. Supp. 3d 38, 66 (D.D.C. 2023). It “seeks cell phone location data stored by third-party companies like Google, which offers the Android operating system on which millions of smart phones run and offers other applications commonly used on phones running on other operating systems.” Id. at 66-67. Because “[t]he scope of location data captured by a geofence is limited by geographic and temporal parameters,” “geofence warrants identify the physical area and the time range in which there is probable cause to believe that criminal activity occurred.” Id. at 67. “Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects is not.”

Tomanek, 261 Md. App. at 703.

Chatrie provides a thorough explanation of “location history.”  Id. at 331, passim.  “While Location History offers a few useful features to a user’s experience, its activation is unnecessary to use a phone or even to use apps like Google Maps. Chatrie gives us no reason to think that these added features are somehow indispensable to participation in modern society and that his decision to opt in was therefore involuntary. That two-thirds of active Google users have not enabled Location History is strong evidence to the contrary….  Location History data is obtained by a user’s affirmative act…. The government obtained only two hours’ worth of Chatrie’s location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018.”  Id.  The Chatrie Court wrote:

The Fourth Amendment is an important safeguard to individual liberty. But its protections are not endless. To transgress its command, the government must first conduct a search. We hold that the government did not conduct a Fourth Amendment search when it accessed two hours’ worth of Chatrie’s location information that he voluntarily exposed to Google. Thus, the district court’s decision must be AFFIRMED.

Id. at 338.  The Chatrie dissent wrote:

The explosive growth of the usage of new technologies, such as smartphones, illustrates a certain level of comfort among the American populace in entrusting personal information to technology companies like Google. But that does not mean such trust extends to the State or that the American populace has ceded its reasonable expectation of privacy in that information. Americans might expect that companies provided with their information will, at most, barrage them with advertisements. The State, by contrast, holds a monopoly on licit violence and detainment….  As a consequence of today’s majority decision, significant concerns arise regarding the privacy rights of all Americans….  For the first time since the ratification of the Fourth Amendment, the government is permitted to retroactively surveil American citizens anywhere they go—no warrant needed—so long as it keeps its snooping to a few hours or perhaps a few days.

The Smith court describes Google’s internal procedure for responding to geofence warrants. 2024 WL 3738050 at *5, passim.  Regardless of the ultimate outcome of the legal issue, Smith’s description of how the process works is fascinating and valuable.  A concurring opinion in Smith stated:

Geofence warrants are powerful tools for investigating and deterring crime. The defendants here engaged in a violent robbery—and likely would have gotten away with it, but for this new technology. So I fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests.

But hamstringing the government is the whole point of our Constitution. Our Founders recognized that the government will not always be comprised of publicly-spirited officers—and that even good faith actors can be overcome by the zealous pursuit of legitimate public interests. “If men were angels, no government would be necessary.” THE FEDERALIST No. 51, at 349 (J. Cooke ed. 1961).

The two Circuit Court decisions are extensive and lengthy.  This blog cannot cover all, or even most, of them.  They present issues of import to all.  Neither is likely the last word.

UPDATE: On October 22, 2024, Appellee USA filed a petition for rehearing en banc.  On October 25, the court requested a response by November 4, 2024.

UPDATE: In Maryland’s New Approach to Data Minimization Creates Unique Compliance Issues | Cozen O’Connor – JDSupra (Aug. 27, 2024), the authors state that Maryland’s Online Data Privacy Act (“MODPA”) “prohibits the creation of a virtual boundary – also known as a geofence – within 1,750 feet of any mental health facility or reproductive or sexual health facility for the purpose of identifying, tracking, or collecting data from, or sending any notification to a consumer regarding the consumer’s consumer health data. This mirrors similar prohibitions found in both the Connecticut Data Privacy Act (CTDPA), as amended by Public Act No. 23-56, and the Washington My Health, My Data Act (MHMD), though My Health, My Data uses 2,000 feet. New York law contains a similar ban, but focuses more narrowly on digital advertisers.” [emphasis added].

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[1] The Fifth Circuit recognized a good faith exception in this case.