The Supreme Court on Monday grappled in Chatrie v. United Stateswith a Virginia man’s challenge to the use of a “geofence warrant” – a warrant that directed Google to provide location data for cellphone users who were near a particular place during a specific time period – to obtain evidence that was used to convict him of a 2019 bank robbery. After two hours of oral arguments, the justices appeared divided over whether prosecutors violated the Fourth Amendment when they used the warrant to find Okello Chatrie’s location data. Some justices seemed to advocate for a relatively narrow ruling that would clarify what such warrants require, even if it does not ultimately resolve all of the thorny issues potentially raised by the case.
The case began in 2019, when a man armed with a gun entered a federal credit union in the Richmond, Virginia, suburbs. The robber gave the teller a note demanding money and made off with nearly $200,000. When the investigation into the robbery stalled, law enforcement officials served a “geofence warrant” on Google, which directed the tech company to provide location data for cellphone users who were near the bank at the time of the robbery.
Google provided information to law enforcement officials in three steps. Google first gave law enforcement officials a list of the 19 accounts – but not the names of the accounts’ owners – linked to devices that were within 150 meters of the bank during the 30 minutes before and after the robbery. Based on that list, the government next asked Google for more information about nine accounts that were in the area during a two-hour period. Third and finally, a detective asked for, and received, the names and information for three accounts – one of which was Chatrie’s.
Based on the location data, law enforcement officials obtained a warrant to search two residences linked to Chatrie, where they found almost $100,000 of the stolen cash, a gun, and demand notes.
Chatrie was charged with (among other things) bank robbery. He argued that prosecutors should not be allowed to use the evidence obtained as a result of the geofence warrant against him because the warrant violated the Fourth Amendment.
A federal district judge agreed with Chatrie that the warrant in his case did not have the kind of probable cause and specificity that the Fourth Amendment requires, but she allowed the government to use the evidence on the ground that law enforcement had acted in good faith.
Chatrie then pleaded guilty, while reserving the right to appeal the district court’s denial of his motion to suppress the evidence obtained through the geofence warrant. He was sentenced to nearly 12 years in prison, followed by three years of supervised release.
A divided panel of the U.S. Court of Appeals for the 4th Circuit upheld the denial of Chatrie’s motion to suppress. In the majority’s view, the government had not conducted a “search” for purposes of the Fourth Amendment because Chatrie could not reasonably expect two hours’ worth of location data, which he had voluntarily allowed Google to have, to be kept private. The case then went to the full court of appeals, which upheld the panel’s ruling in a deeply splintered decision.
Chatrie subsequently came to the Supreme Court, which agreed in January to take up his case.
Representing Chatrie, lawyer Adam Unikowsky argued on Monday morning that “[t]he government conducted a search” of Chatrie’s location history, and that the geofence warrant “that purported to authorize that search violated the Fourth Amendment.” Chatrie, Unikowsky contended, had a reasonable expectation that his location data would be kept private, “given both its sensitive and revealing nature and the fact that it was stored in his password-protected account.” Moreover, he continued, the warrant was unconstitutional because police did not have “probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime” and because it later “gave the police unlimited discretion to decide who to search while casting Google into the role of magistrate.”
Deputy U.S. Solicitor General Eric Feigin, representing the federal government, countered that Chatrie was “asking for an unprecedented transformation of the Fourth Amendment into an impregnable fortress around records of his public movements that he affirmatively consented to allow Google to create, maintain, and use.” Chatrie’s reading of the Fourth Amendment, Feign argued, would be “debilitating and counterintuitive,” and it would “impede the investigation of kidnappings, robberies, shootings, and other crimes.”
Chief Justice John Roberts expressed skepticism about whether Chatrie could complain that he believed his location data would be private. “If you don’t want the government to have your location history,” Roberts said to Unikowsky, “you just flip that off.” He continued, “the only reason the government has access to this information is because you decided to make it public. … Just like,” Roberts posited, “if you don’t want” someone “to peer into your window, you can close your window or the shades.”
Justice Samuel Alito appeared to agree. In his view, it was “not a question of shutting it off. It’s a question of turning it on. And according to the government,” Alito said to Unikowsky, “your client had to go through multiple steps in order to turn it on. So he voluntarily disclosed to Google the information about where he was going to be.”
Justice Amy Coney Barrett also seemed dubious about any expectations of privacy that Chatrie may have had. She stressed that the warrant only covered “a few hours,” during which Chatrie was in “a public location. And nobody has a reasonable expectation of privacy in their public observable movements,” Barrett said.
Justice Sonia Sotomayor, on the other hand, emphasized that the trial judge in Chatrie’s case had concluded that Chatrie had not “necessarily” consented to share his location data.
Unikowsky echoed that thought, pointing to “findings that at midnight, when” a user is providing consent “to try to get your phone to work correctly, that may not be a consent to the government searching your phone.”
“And there are certainly Google Documents,” Sotomayor continued, “that show that it’s very hard and if not opaque to figure out how to turn these things off, correct?”
“Yes,” Unikowsky responded.
Justice Neil Gorsuch expressed concern that a ruling in favor of the government would also allow the government to search other digital media stored with Google – such as emails, photos, documents, and calendars – without a warrant. “So, if we were to rule that there was a voluntary exposure here to Google that allows the government unfettered access to” the location history, Gorsuch asked, “that ruling would pertain equally to email?”
Unikowsky answered that it would. “Essentially, all of your data on the cloud,” he said, “which is kind of all of your data if you use a computer, would be exposed to government searches without a warrant.”
Feigin told the justices that in the federal government’s view, location data was different from other digital information like email and photos. He explained that “the court has always treated … the contents of one’s personal thoughts as recorded differently from one’s exposed public location, which is all that’s at issue here.”
Roberts worried aloud that, if the government were to prevail, it could use geofence warrants “to find out the identities of everybody at a particular church, a particular political organization.”
Feigin assured Roberts that a federal law, the Stored Communications Act, would protect data in such a scenario. But when Roberts pushed Feigin to “just focus on the Constitution,” Feigin emphasized both that the government would generally obtain a warrant because “it’s just easier to get Google to comply if we do get a warrant” and that “people have affirmatively opted” into sharing their location data.
But that response did not seem to mollify Roberts. “So,” he said, “to prevent surveillance of sensitive locations, you have to rely on the fact that people are going to turn off something that many if not most people find is an important service?”
Similarly, Justice Elena Kagan pushed back against Feigin’s contention that some of the court’s earlier Fourth Amendment cases “focus on detecting the patterns of life and long enough periods of location to show the patterns of life.” She questioned why “the only thing that you would have an interest in protecting is the patterns of one[’s] life as opposed to the things that you do in one’s life that you particularly don’t want people to know about, such as going to a political event, going to an abortion clinic, et cetera.”
Alito seemed to suggest that however the court ruled, it would ultimately have no real impact on Chatrie’s case. A majority of the court of appeals, he noted, had voted to allow the evidence to be used on the ground that, even if the use of the warrant violated the Fourth Amendment, police officers had acted in good faith. Moreover, he added, Google now stores the location history on devices themselves, rather than in its own database.
In response to a question from Thomas, Feigin reiterated this idea, telling the justices that “there’s really no chance the opinion here would make the officer’s actions here unreasonable.” “At bottom,” Feigin concluded, “we just don’t think there’s anything that’s going to happen here other than an affirmance. You would essentially have something that looks like an advisory opinion.”
Some justices broached the possibility of a relatively narrow ruling that would help to clarify what warrants must include. Sotomayor, for example, suggested that the court could hold that the government needs “a warrant, it has to be particular as to time, place … and it has to explain the reasons why those limitations are reasonable.” Such a ruling, Sotomayor said, might have “value for the dispute that’s going on around the country and between and among judges even on this Court.”
Justice Brett Kavanaugh was less receptive to this possibility. In his view, the detective responsible for the warrant “should be applauded in terms of narrowing this down and going through multiple steps. I guess I’m trying to figure out,” Kavanaugh said, “why this was bad police work to get a warrant.”
But Feigin agreed with Sotomayor that such a ruling “could have value.” “Your Honor,” he told Sotomayor, “you’re simply describing what the Fourth Amendment requires.”