We all walk around with tracking devices on: cell phones. While these devices report our location on an almost minute by minute basis, have you considered the rules law enforcement must have to follow to search that data?
Background
There are times when people who have done bad things need their rights protected. That appears to be the case here. The story starts with a 2019 bank robbery.
On May 20, 2019, a man robbed a credit union in Midlothian, Virginia. Local police officers learned from witness interviews and surveillance footage that the robber had approached the credit union from a corner of an adjacent church while appearing to talk on a cell phone, but they could not find out anything more, and the robber remained at large.
Chatrie v. United States
Like so many investigations, this one started with witness statements and surveillance footage. Both stated that the robber approached the credit union while talking on a cell phone.
On June 14, the police officers applied to a Virginia magistrate for a geofence warrant directed to Google, which would require Google to hand over data about the cell phones located within a 150-meter radius of the credit union—the so-called “geofence”—near the time of the crime. The application described the cell-phone location data Google collects through a service called Location History, which records the location of a user’s cell phone every two minutes or so.
Chatrie v. United States
Did you know that you are walking around with a tracking device on you? Every cellphone contacts the local tower to let the network know how to route calls to it. In the case of Google devices, they collect that data through their Location History service. This is the database of information law enforcement was asking permission to search through a geofence warrant.
The application also explained how that cell-phone location data could help identify the robber, possible accomplices, or additional witnesses.
Chatrie v. United States
Remember the Warrant Clause of the Fourth Amendment:
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Constitution, Amendment IV
Geofence warrants are a bit unique, as the opinion describes.
The warrant described a three-step process that the police would follow: at step one, Google would produce anonymized location data for all cell phones within the geofence 30 minutes before to 30 minutes after the robbery;
Chatrie v. United States
The first step in this geofence process is a list of cell phones within the designated geofenced area and period of time. This data is anonymous, meaning the police know which cell phones were in the area, but not who owns them. At this point, the only information being provided is the location and phone identifier.
at step two, officers would attempt to narrow the list, and Google would provide additional anonymized data for that narrowed list, consisting of cell-phone locations both inside and outside the geofence during a two-hour period surrounding the robbery;
Chatrie v. United States
Step two, law enforcement narrows the list to devices they are interested in. Google then provides data over a greater period of time and no longer bound by the geofence.
and at step three, officers would further narrow the list, and Google would turn over identifying information, including names and phone numbers, for users on the final list.
Chatrie v. United States
At step three, law enforcement further narrows the list of phones of interest and Google turns over personal information about the owner, including their name and phone number.
The magistrate issued the warrant, and through this process, Google ultimately produced three cell-phone users’ identifying information, including petitioner Okello Chatrie, whose location data showed that he entered the geofence about ten minutes before the robbery and headed toward a residential area immediately after leaving the bank.
Chatrie v. United States
The magistrate issued the warrant and the three-step process led to the identification of three cell-phone users, including Mr. Chatrie. Further investigation led to a grand jury indictment of Mr. Chartrie. However, Mr. Chatrie challenged the data collected through the geofence warrant.
According to Chatrie, the officers had acquired that data through a Fourth Amendment search, and the warrant ostensibly authorizing that search was invalid. The District Court found that the geofence warrant “plainly violates the rights enshrined in [the Fourth] Amendment” but denied the motion based on the good-faith exception to the exclusionary rule. … A divided panel of the Fourth Circuit affirmed on different reasoning, holding that no search occurred because Chatrie “did not have a reasonable expectation of privacy in two hours’ worth of Location History data voluntarily exposed to Google.” … The Fourth Circuit granted rehearing en banc and affirmed in a one-sentence per curiam, with the court dividing evenly on whether a Fourth Amendment search had occurred. This Court granted certiorari solely on the question whether the police violated the Fourth Amendment in obtaining Chatrie’s location data.
Chatrie v. United States
Two federal courts, for two different reasons, deny Mr. Chatrie’s motion. Do those reasons hold water?
Fourth Amendment
Since the question before the court was whether or not the police conducted a search under the Fourth Amendment, Justice Kagan, who wrote the majority opinion, details the issue.
The Fourth Amendment protects individuals’ reasonable expectations of privacy, and governmental “intrusion into that private sphere generally qualifies as a search.” Carpenter v. United States, … The Amendment’s “basic purpose” is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” … and it was designed “to place obstacles in the way of a too permeating police surveillance,” United States v. Di Re,
Chatrie v. United States
The Fourth Amendment doesn’t actually say anything about privacy, but more on that later. It is designed to safeguard our security from arbitrary invasion by government officials. Did you notice that Justice Kagan uses precedent rather than the actual language to support her position on what the Fourth Amendment says and does?
In Carpenter, this Court held that accessing cell-site location information (CSLI) constitutes a Fourth Amendment search because “individuals have a reasonable expectation of privacy in the whole of their physical movements,” …
Chatrie v. United States
The court held in Carpenter that accessing cell-site location information is a search under the Fourth Amendment. This makes sense because cell phones didn’t exist when the Fourth Amendment was ratified. This is the type of controversy the federal judiciary was designed to resolve, but since the Fourth Amendment makes no mention of privacy, how did the Carpenter court come to their decision?
The Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, … and, with that, “an intimate window into a person’s life,” … Because people “compulsively carry” their cell phones “all the time,” the Court explained, a cell phone “tracks nearly exactly the movements of its owner,” and thus “faithfully follows” him not only through “public thoroughfares [but] into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
Chatrie v. United States
An interesting, if somewhat convoluted, way for the court to come to its conclusion. How about the fact that once I purchase a cell phone. it becomes one of my effects? Or the fact that I contract with another entity, in Mr. Chatrie’s case, Google, does not change the fact that the cell phone is part of his effects, which the Fourth Amendment requires to be secure from unreasonable searches.
The Court further observed that the “newfound tracking capacity” that CSLI gives the police “runs against everyone”—not just those “under investigation”—and “travel[s] back in time,” making possible a form of surveillance that would have been unknown prior to the digital age, … Carpenter accordingly held that “[a]llowing government access to cell-site records contravenes” expectations of privacy.
Chatrie v. United States
I would say that unwarranted searching of data related to me, my phone, and my interaction with a service provider constitutes my effects and therefore are to be kept secure from unreasonable searches.
The Government’s argument that accessing only a short amount of cell-phone location information does not count as a Fourth Amendment search fails. “[E]ven short-term monitoring” can provide “a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations,” … and this Court has never understood Fourth Amendment protections as kicking in only once an intrusion “goes too far,” Pennsylvania Coal Co. v. Mahon, … Where the Fourth Amendment applies, it applies regardless of “the quality or quantity of information” the government obtains. Kyllo v. United States, … That approach makes all the more sense when, as with Location History, law enforcement officials can select the time-limited set of materials they want from an all-encompassing database.
Chatrie v. United States
The government’s argument that they only collected a little bit of data makes as much sense as claiming someone is only a little bit pregnant.
The Government argues that the so-called third-party doctrine precludes Chatrie from invoking the Fourth Amendment’s protections. The idea is that in “authoriz[ing] Google to collect, retain, and use” his location information, Chatrie lost his legitimate expectation of privacy, and therefore his right to complain of a search. …
Chatrie v. United States
Ahh, the old “third-party doctrine.” This laughable idea a previous court came up with, that when you give your papers or effects to a third-party it loses all Fourth Amendment protections. Of course this has nothing to do with the Constitution, only the court’s twisted logic to promote the violation of your rights. But not all the time?
But Carpenter refused to apply the third-party doctrine to CSLI, and no good reason exists to reach a different result for Location History. In Carpenter, the Court rejected application of the third-party doctrine to CSLI because such information is “qualitatively different” from “telephone numbers and bank records,” …—it is incomparably “revealing” and is “not truly ‘shared’ as one normally understands the term” given that cell phones are “indispensable to participation in modern society,” …
Chatrie v. United States
So it’s not that the third-party doctrine is a wholly made up thing, just that the court thinks it doesn’t matter here because cell phones are “indispensable to participation in modern society.” I hate to tell you this Justice Kagan, but so are telephone numbers and bank records.
The conclusion that a Fourth Amendment search occurred does not resolve this case, because the Fourth Amendment prohibits only searches that are “unreasonable.” When law enforcement officials undertake a search to discover evidence of a crime, the reasonableness standard generally requires that they seek a warrant from “a neutral and detached magistrate,” … who may issue a warrant only when “probable cause is properly established and the scope of the authorized search is set out with particularity,” … The warrant issued here, as described earlier, was an uncommon, multi-step one, and the parties have contested the legality of each stage of the search process it authorized. The Fourth Circuit did not address the questions that unusual warrant raises. Because this is “a court of review, not of first view,” … the Court leaves it up to the Court of Appeals to decide whether, at each step of the search process, the warrant satisfied the Fourth Amendment’s requirements of particularity and probable cause.
Chatrie v. United States
So SCOTUS agrees that Mr. Charatie’s data was searched under the Fourth Amendment, but leaves it to the Court of Appeals to determine if the warrant was valid?
Jackson Concurrence
Justice Jackson concurred with the majority opinion, but not entirely.
I agree with the Court that law enforcement officers conducted a search when they accessed petitioner Chatrie’s Location History. I write separately because I would have gone further to explain that this search violated the Fourth Amendment. As the Court observes, “[w]hen officers have obtained a warrant,” the validity of a search turns on “whether a magistrate has properly found probable cause to support a particularly described search.” … In my view, it is clear that at a minimum the second and third stages of the search process here did not satisfy this foundational requirement.
Chatrie v. United States
Interesting. Justice Jackson is OK with the original request for the geofence warrant, but not the subsequent requests for data. I wonder why?
At step two, the warrant authorized officers to access an additional hour’s worth of Location History, unbounded by the geofence’s perimeter. Though the warrant stated that officers would “attempt to narrow down the list” of devices subject to this step, there was no explicit requirement that they do so. … Nor did the warrant set forth any criteria that officers would use in their narrowing efforts.
Chatrie v. United States
I appears Justice Jackson has concerns with the specificity of the warrant at the second and third steps. After all, the Fourth Amendment’s Warrant Clause requires a warrant to:
particularly describing the place to be searched, and the persons or things to be seized.
U.S. Constitution, Amendment IV
The problems becomes worse at the third step, since now Google is expected to turn over not just what devices were in the area, but the personal information of the owners.
The same infirmities carried over to step three. At this step, the warrant authorized officers to access “identifying account information,” including the username, date of birth, account number, and any email addresses or telephone numbers associated with the account. … Once again, the warrant stated only that officers would “attempt to narrow down the list,” without setting forth any criteria for doing so.
Chatrie v. United States
Since neither step two or three actually require law enforcement to narrow down the list of devices whose owner’s data is to be shared, it no longer particularly identified the devices to be searched, and the data for whose devices is to be seized.
Gorsuch Concurrence
Justice Gorsuch also agreed with the majority, but for a different reason.
I agree with the Court’s judgment that the government’s examination of Okello Chatrie’s Location History data amounted to a search for purposes of the Fourth Amendment. But respectfully, I would reach that conclusion by a different route.
Chatrie v. United States
It appears Justice Gorsuch’s route is based on the definition of what a search is under the Fourth Amendment.
To decide whether a Fourth Amendment search took place in this case, the Court once again invokes a test first advanced in a solo concurrence in Katz v. United States, … Under that test, a search occurs when the government intrudes on an “expectation of privacy” that “society is prepared to recognize as ‘reasonable.’ ”
Chatrie v. United States
Surprise, the Supreme Court based its decision not on the Constitution or laws of the United States, but their own previous opinions. That precedent seems to be Justice Gorsuch’s problem.
The Fourth Amendment’s protections do not depend on “the breach of some abstract ‘expectation of privacy’ whose contours are left to the judicial imagination.” … Instead, the Fourth Amendment speaks in more concrete terms, protecting an individual’s person, house, papers, and effects from unreasonable searches and seizures. … No surprise, then, that it’s hard to find anything like the Katz test in the law leading up to the Fourth Amendment’s adoption—or anything much like it in this Court’s jurisprudence before the 1960s.
Chatrie v. United States
I’m glad to see at least Justice Gorsuch sees that the term “privacy” does not exist in the Fourth Amendment. Rather, it’s a question of when a search and seizure is reasonable?
Rather than employ Katz and its third party doctrine, I would take a different approach. To decide whether the Fourth Amendment is in play, I would consult its terms, asking first whether Location History qualifies as one of Mr. Chatrie’s papers or effects, and then asking whether the government searched those papers or effects. This traditional approach remains very much part of our law. … Indeed, we have expressly recognized that Katz and its progeny “supplemen[t] rather than displac[e]” traditional Fourth Amendment principles.
Chatrie v. United States
It’s nice to see not just one, but two justices looking at a case based on the language of the Constitution, not just the opinions of their predecessors.
Alito Dissent
Sadly, when it comes to justices looking at the law rather than precedent, Justice Alito failed in this case.
Eight years ago, I warned that this Court’s decision in Carpenter v. United States, … 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.” .. 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.
Chatrie v. United States
Justice Alito reminds the court that he warned them of the consequences of the Carpenter decision, then chastises them for not following it. Just because the court has opined some Fourth Amendment “jurisprudence” doesn’t mean that jurisprudence is correct. Justice Alito further shows his slavish devotion to precedent later in his dissent.
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.
Chatrie v. United States
I guess Justice Alito forgot the question before the court in this case. You see, SCOTUS was not asked to provide Mr. Chatrie relief.
The questions presented are:
1. Whether the execution of the geofence warrant violated the Fourth Amendment.
2. Whether the exclusionary rule should apply to the evidence derived from the geofence warrant.
Chatrie v. United States – Petition For A Writ Of Certiorari
Whether disqualifying the evidence collected via the geofence warrant changes the outcome of the case is not the point; deciding the controversies around geofence warrants is. And in that aspect, Justice Alito failed.
Barrett Dissent
Justice Barrett had the shortest dissent I think I’ve ever seen. That’s not to say there isn’t a point worth looking at.
I have no quarrel with Carpenter v. United States, … or with the Court’s decision to grant certiorari in this case. But I agree with JUSTICE ALITO that under our Fourth Amendment precedent, including Carpenter, Chatrie had no reasonable expectation of privacy in data about his public movements that he voluntarily disclosed to Google. I therefore respectfully dissent.
Chatrie v. United States
Again, Justice Barrett, the Fourth Amendment does claim to protect someone’s expectation of privacy. No one I know is arguing that Google didn’t have the legal right to collect Mr. Chatrie’s location data or to keep it for historical purposes. Rather the Fourth Amendment protects people from searches and seizures that are unreasonable. Does a warrant with a varying scope of search meet the requirement for “particularly describing the place to be searched, and the persons or things to be seized?” What about the fact that, while there may be probable cause for the anonymous search, where is the probable cause for the detailed owner information?
Conclusion
Now that we’ve looked at the different position the justices of the court had on this case, let’s look at the court’s conclusion.
Held: 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.
Chatrie v. United States
Yes, a geofence warrant involves a search under the Fourth Amendment. However, the court keeps falling back on this “expectation of privacy.” I agree, an expectation of privacy is involved when the data is collected, but the Fourth Amendment doesn’t protect a person’s expectation of privacy. I agree that most people would expect that any data they share with a service provider, especially one they have contracted with is private. But what you expect to be private is likely to be different from what other people expect to be private.
The problem here is the question of search and seizure. Did the police have probable cause, supported by oath or affirmation, to get a geofence warrant? At step one, it appears to be yes. They had both video and witness testimony that showed the alleged criminal on a cell phone. Therefore, they had probable cause that collecting anonymized data about the devices in the area at the time was a reasonable search. However, when the timeframe was expanded beyond the half-hour before and after the crime was committed, what was law enforcement’s probable cause for that? They didn’t provide one. When specific devices were targeted, and owner information seized from Google, what was law enforcement’s probable cause? Again, they didn’t provide one.
Before you get all upset about the unconstitutional acts of law enforcement, don’t forget a magistrate issued this warrant. That magistrate is just as guilty of depriving Mr. Chatrie of his rights as the officers were. To me, this is the fatal flaw in the District Court’s opinion.
The District Court found that the geofence warrant “plainly violates the rights enshrined in [the Fourth] Amendment” but denied the motion based on the good-faith exception to the exclusionary rule.
Chatrie v. United States
The idea that a judicial magistrate can violate someone’s rights by issuing an invalid warrant, but it’s OK because law enforcement executed that warrant in good-faith is roughly equivalent to war-crimes being dismissed because people were only following orders. While the officers may not be culpable, that doesn’t relieve the grievance of violation of rights based on the good-faith doctrine.
Will this decision overturn Mr. Chatrie’s conviction? Not necessarily.
For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Chatrie v. United States
Hopefully the Circuit Court will recognize the unconstitutionality of this geofence search and send the case back to the District Court. Maybe then the District Court will fulfill its oath of office to support the Constitution of the United States, rather than the good-faith of the officers.
