July 12, 2024 | By Cassandre Coyer & Tonya Riley | Bloomberg Law |
Split Fourth Circuit ruling leaves ‘lurking issue’ on scope
Case attempts to fill gaps left by Supreme Court’s Carpenter
A split appeals court opinion clearing the government’s acquisition of users’ mobile-device location data from Google of constitutional scrutiny will likely spark more friction between emerging technologies and the scope of law enforcement searches, attorneys warned.
The US Court of Appeals for the Fourth Circuit’s ruling in US v. Chatrie concluded, over a dissent, that the use of such geofencing doesn’t constitute a search under the Fourth Amendment.
It comes six years after the Supreme Court’s landmark decision in Carpenter v. United States, which held the government has to obtain a search warrant to access historical cell site location records covering a period of more than seven days. In that time, courts have continued to struggle with questions of digital surveillance and the scope of Fourth Amendment protections in the age of mobile devices.
The Fourth Circuit’s July 9 opinion, determining that a warrant isn’t needed for limited digital dragnets of location data collected by third-parties, opens the floodgates for police surveillance, some lawyers said.
“The ruling essentially says you can look at someone’s location in the past at any time, as long as you don’t do it too much,” said Matthew Tokson, a law professor at the University of Utah focusing on the Fourth Amendment’s application to new technologies. “But that subjects our whole lives to potential police surveillance.”
Location Data
Okello Chatrie pleaded guilty in May 2022 to robbing a bank after a district court judge refused to suppress evidence on his location obtained from Google. His appeal marked the first instance of a criminal defendant challenging a conviction that was based in part on evidence from a geofence warrant, which seek information for all users within a geographic area during a particular period in time.
Circuit Judge Julius N. Richardson’s majority opinion affirmed the lower court’s decision but used different reasoning. Judge M. Hannah Lauck of the US District Court for the Eastern District of Virginia had found the warrant to violate the Fourth Amendment but allowed the evidence into the record because the officers thought in good faith they were executing a valid warrant. Richardson’s opinion, however, concluded that Chatrie, who had voluntarily opted into Google’s location data collection, didn’t have a reasonable expectation of privacy and his constitutional rights weren’t implicated by the geofence.
Shortly after the December oral argument in the case, Google announced it would begin to limit its own access to users’ location information, making it inaccessible to law enforcement. But even with Google’s move to cut itself and police off, other companies collect similar data and could nevertheless turn it over to investigators, said Jake Laperruque, deputy director of the Center for Democracy and Technology’s security and surveillance project.
“It’s very likely that other companies that collect location data get these kinds of orders as well,” Laperruque said.
The ruling also opens the door for unchecked use of other dragnet technologies that can place individuals in a given location, such as facial recognition and license plate readers, Laperruque said.
Richardson’s analysis in Chatrie also may have ramifications for other types of information beyond location data, such as in cases where police are looking to identify suspects through reverse search warrants or are using pole cameras to surveil an area.
“The technique of dipping into a large pool of data to find a suspect out of thin air is something that’s going to continue to be an issue,” said Brett Max Kaufman, senior staff attorney at the American Civil Liberties Union’s Center for Democracy. “And so that’s why, even though geofence warrants—maybe for the moment, at least through Google—might be on the decline, the principles being litigated in this case are really important going forward for the Fourth Amendment.”
The Chatrie opinion suggests that unless a court finds an excessive amount of information was taken, it won’t conclude the Fourth Amendment applies, lawyers said. But Richardson didn’t delineate exactly how much data collection would trigger Fourth Amendment scrutiny.
The opinion “adopted this idea that there’s a distinction between a little bit of surveillance and a lot of surveillance,” said University of California Berkeley School of Law professor Orin Kerr, who focuses on Fourth Amendment and criminal procedure. “And if you take that view as correct, you have to figure out, where is that line? That’s a big lurking issue.”
Filling a Void
The ruling is reflective of the questions unanswered by the Supreme Court since the Carpenter decision, leaving circuit courts to decide how to interpret the Fourth Amendment as it applies to new technologies.
However, “a lot of the federal circuit courts are cautious about innovating at all in the Fourth Amendment space,” said Tokson.
Until now, most courts have shied away from deciding whether the collection of location records qualifies as a search, Kerr said, focusing instead on debating the appropriate scope of warrants.
“It’s a reminder that Carpenter didn’t make all location data queries a search,” Kerr added, noting that many courts have yet to grapple with that threshold question.
Chatrie is not the end of the road, he said, because the ruling brings new questions for courts about how to apply Carpenter to warrants involving other emerging technologies. Meanwhile, he and others noted, the Supreme Court hasn’t been eager to weigh in on privacy and Fourth Amendment issues.
“The Supreme Court’s refusal to take up future location privacy questions—or any Fourth Amendment cases on new technologies and surveillance in the six years since Carpenter—has left a void and opened the door to this type of regressive ruling,” said Laperruque.
Next Steps
Though Chatrie’s attorneys from the Federal Public Defender’s Office and the national Association of Criminal Defense Lawyers haven’t signaled their next move, they have multiple options—including seeking a rehearing by the panel or the full Fourth Circuit or petitioning the Supreme Court to take up the case.
If he seeks a rehearing, the appeals court’s precedents indicate it may rule differently than the three-judge panel’s majority. The Fourth Circuit ruled en banc in 2021 that a warrantless aerial surveillance program in Baltimore violated the Fourth Amendment, reversing a panel decision.
Tokson said an en banc rehearing could also explore an idea in Circuit Judge James Andrew Wynn’s Chatrie dissent, which called for a more rigorous standard for searches based on Carpenter. Tokson has called for such a standard in his scholarship, arguing it could include establishing a multifactor test involving the amounts of data collected, how revealing that data is, and whether the third-party disclosure was in fact voluntary.
The debate around warrants’ scope is ultimately a longstanding one, Kerr noted, and the Chatrie ruling brings a “new angle” to the story—especially amid fast-evolving Big Tech developments.
“The big question will be when the next technology comes along that is not something you have to opt into: How broadly can warrants extend in those cases?” Kerr said. “So switch to another technology that is more clearly covered by Carpenter as a search, the scope of the warrant then becomes big in those cases.”
The case is US v. Chatrie, 4th Cir., No. 22-4489.
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