After Further Review, The Fourth Circuit Says Good Faith Applies To Bad Geofence Warrant

Last July, the Fourth Circuit Appeals Court handled a geofence warrant case, marking the first time this issue had been handled at the appellate level. The robbery suspect, Okello Chatrie, challenged the constitutionality of the warrant, arguing that its non-particular nature placed it outside the bounds of the Fourth Amendment.

A half-decade ago, this argument wouldn’t have worked. But the Supreme Court’s Carpenter decision — which followed from its warrant requirement for device searches in Riley — changed all of that. Gone were the routine assumptions about the Third Party Doctrine. If cell phones needed connections to towers (and were filled with far more information than could be found in the search of a house), then the Fourth Amendment needed to be extended to cover these utilitarian computers everyone now carries with them everywhere they go.

The problem with geofence warrants is that they work backwards. Unlike the cell site location info (CSLI) cited in the Carpenter case, investigators were still searching for suspects, rather than tracking the movements of known suspects. Similar to cell tower dumps, geofence warrants ask Google to provide location data and device info on everyone in a certain area at a certain times, even though investigators know going into this that 99.9% of the people being “searched” aren’t actually criminal suspects.

The Fourth Circuit ultimately ruled that geofence warrants were constitutional. And, even if they weren’t, the subject matter was novel enough that investigators should be granted the good faith exception. Its reasoning, however, focused on Chatrie himself and the data he “shared” with Google.

[W]e 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.

That’s where Carpenter factors in. Is it really “voluntary” when certain functions, services, and apps simply won’t work unless device owners “opt in” to location sharing? That rhetorical question was answered by the Fifth Circuit a month later: there’s not much about this that’s actually “voluntary.” To make that point, it quoted one of Chatrie’s submissions to the Fourth Circuit Appeals Court:

[T]he fact that approximately 592 million people have “opted in” to comprehensive tracking of their locations itself calls into question the “voluntary” nature of this process. In short, “a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant, even if some text offered warning along the way.”

The Fifth Circuit said searching the data of all Google users to produce a list of those matching the criteria of the geofence warrant specifications was nothing more than a “general warrant,” the sort of non-specific government rummaging that’s specifically prohibited by the Fourth Amendment.

Five months after its original decision was handed down, the Fourth Circuit Appeals Court announced it was going to rethink its first take on geofence warrants, a reconsideration no doubt prompted by the Fifth Circuit’s rejection of geofence warrants.

Unfortunately, putting this in front of all 15 Appeals Court judges hasn’t changed anything. The entirety of the official decision [PDF] reads thusly:

PER CURIAM:
The judgment of the district court is AFFIRMED.

But it’s not quite that simple. It’s followed by 122 pages of opinions from the en banc crew. While there are some objections to geofence warrants from several judges, almost every judge issuing a concurring or dissenting opinion have decided that whether or not the warrants are constitutional doesn’t really matter — at least as this point.

Here’s the breakdown from Orin Kerr, whose excellent post on the outcome of this en banc hearing deserves to be read in full.

[I]f I’m counting the votes correctly, there is a 7-7 split on whether a search occurred—with the 15th judge, Judge Diaz, not expressing a view either way.  So there is no majority opinion, but instead just a crazy amount of uncertainty. What is the law now, after all this?  I haven’t a clue.

After all of this time and a full reconsideration, the Fourth Circuit Appeals Court has managed to leave the law unsettled. Most of the judges who feel a Fourth Amendment search did occur (meaning the Third Party Doctrine does not apply) would still give the government a good faith pass because… the law is unsettled.

Nearly half the judges went the other way, deciding geofence warrants are a Third Party issue, rather than a Fourth Amendment issue, which means the government doesn’t even need the good faith exception to deploy general warrants.

The five judges who chose to discuss the Fifth Circuit’s take on the issue all agreed the Fifth Circuit was wrong, which means there’s definitely a circuit split that will need to be resolved in the future.

And, because the good faith exception was applied by most of the judges, the Fourth Circuit Appeals Court still has yet to rule definitively on the constitutionality of geofence warrants, which means yet another case must hit this level before the Appeals Court might be forced to issue a ruling on the merits, rather than duck out through the “warrant exception” side door.

We’re back to where we started, at least in the Fourth Circuit. The Fifth Circuit’s take has yet to be overruled by the Supreme Court. And the Fourth Circuit doesn’t even have solid take on the issue, other than it’s probably going to give cops a pass, rather than give the general public better protections against warrants that work their way backwards from “search ’em all” to probable cause.