Posted by [By Professor Megan Graham, Guest Correspondent]
Earlier this week, the Supreme Court decided an important substantive Fourth Amendment case called Chatrie v. United States.
Big Picture. The majority held that geofence queries are Fourth Amendment searches and sent the case back to the Fourth Circuit to determine whether the warrant in the case was sufficiently particularized and based on probable case at every step of the search process (geofence warrants often involve several steps). This case is a big win and it is an important case for defense attorneys to understand so they can zealously advocate for their clients in an ever-increasingly surveilled world.
Background. In 2019, a bank was robbed in Midlothian, Virginia. Eyewitnesses said that the suspect was talking on his phone while he walked to the bank from a neighboring church parking lot, but they could not identify the suspect. When the investigation stalled, the police sought a geofence warrant, which demands information from third-party providers about all devices the provider believes were in a defined geographic area shortly before and after a crime occurred. That geofence warrant ultimately resulted in identifying Mr. Chatrie as the suspect.
The 15-judge en banc Fourth Circuit issued ten opinions and divided 7-7 on the question of whether geofence queries are Fourth Amendment searches. (Chief Judge Diaz did not reach the question of whether a search occurred.) Of the seven judges who wrote that a geofence query is a search, five indicated the warrant was not supported by probable cause, but only one would have suppressed the evidence.
The Supreme Court opinions. Justice Kagan wrote the majority opinion, which included Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Jackson. Justice Gorsuch concurred in the judgment. Justices Alito, Thomas, and Barrett dissented.
What Do You Need to Know? There is a lot going on in this case, but there are a few key takeaways to know and use for your clients:
- People have a reasonable expectation of privacy in their movements in public, even for short periods of time.
- The Court also wrote that “we have never understood Fourth Amendment protections as kicking in only once an intrusion ‘goes too far.’” Slip op. at 20. And “[w]hether something is a search does not depend on what it finds.” Slip op. at 23. This is powerful language to help push back when a judge might be inclined to issue a ruling on whether a search occurred because of what was found.
- Footnote 9 also shows that the majority is aware of potential line-drawing challenges. You may be able to use this in a case if there are successive historic search warrants to third-party providers that look or feel like the government really wanted to be engaging in real-time surveillance.
- The third-party doctrine does not apply here given the reasoning in Carpenter v. United States, 585 U.S. 296 (2018). The data here is even more revealing than the cell site location information in Carpenter and it is not meaningfully voluntarily revealed to the third-party provider.
- “A cell-phone user is not to be viewed as sharing private information with third parties . . . just by doing the ordinary things cell-phone users do,” slip op. at 28–29, which includes using apps and other smartphone services.
- The Court sent the case back to the Fourth Circuit to consider whether the warrant was supported by probable cause and met the Fourth Amendment’s particularity requirement at all three stages of the search the warrant authorized.
- This opens the door for defense attorneys to be making arguments about what particularity requires when it comes to digital searches in the 21st century. Every case and warrant is different, but the Court left these questions open for litigation, both in Mr. Chatrie’s case and in your clients’.
- Justice Gorsuch’s concurrence agreed with the outcome, but he would have held that the location information the government sought Mr. Chatrie’s personal property, which could not be searched without a valid warrant.
- This opinion continues the lesson we have learned in recent years that you should be making property-based arguments about investigative techniques when and where you can.
Overall, there are still many open questions, but this case presents great opportunities and new citations as you advocate for your clients on digital Fourth Amendment issues.
* Professor Graham is Clinical Professor, Director of the Technology Law Clinic, and Managing Attorney at the Legal Clinic at the University of Iowa College of Law.
** Disclaimer: Professor Graham filed an amicus brief at the Supreme Court in Chatrie on behalf of eight law professors.
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