Laura Bondank, Brent Skorup, and Matthew Cavedon
In May 2019, a gunman robbed the Call Federal Credit Union in Midlothian, Virginia. After investigations stalled, law enforcement secured a “geofence warrant” directing Google to produce location history records for every device within a 300-meter diameter of the bank. This yielded 19 records for Google users. Officers then narrowed their focus to some of those users and demanded that Google produce records of their travel in the hours before and after the crime, along with their identifying information. One of the users identified in this final step was Petitioner Okello Chatrie.
After obtaining his location history records and identifying information from Google, the government indicted Chatrie on robbery and firearms charges. He moved to suppress his location history records, arguing that the geofence warrant violated his Fourth Amendment rights. The district court held that the geofence warrant may have been unconstitutional but admitted the evidence under the good-faith exception.
A divided Fourth Circuit panel affirmed on different grounds, holding that no search occurred because Chatrie voluntarily exposed his location history to Google, suggesting that law enforcement needed no warrant at all. On rehearing, the full Fourth Circuit court affirmed in a single-sentence opinion. However, the court divided 7–7 across multiple concurring opinions on whether a Fourth Amendment search occurred.
Lower courts are plainly struggling to apply the Fourth Amendment in this context. Cato filed an amicus brief to emphasize three areas in which guidance from this Court is urgently needed in cases involving digital records.
First, in determining whether a search occurred, the panel relied solely on Katz v. United States and the reasonable expectation of privacy test. This Court should instruct lower courts that their first duty is to rigorously apply the original public meaning of “search.” A “search” occurs when the government undertakes an investigatory act designed to reveal private information. That is precisely what the government did at each step of this geofence process.
Second, in applying Katz, many judges tersely dismissed the notion that Chatrie had a property interest in his location history records. Yet under state law and Google’s user agreements, Chatrie may own his location history records. Property rights lie at the heart of the Fourth Amendment, and they do not dissolve merely because one’s records are stored by a third party.
Finally, this Court should clarify that in cases like this—where information is disclosed in multiple stages—each step constitutes a new search. Each step yields new records and new information and therefore requires separate review and authorization by a neutral magistrate.
Warrants issued to technology companies for users’ records—to build leads and suspect lists—are rapidly becoming an important tool for law enforcement. If a single warrant can authorize successive and increasingly invasive searches of millions of people’s digital records, the Fourth Amendment’s guarantee to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures” will be rendered hollow.
Cato has asked that the Court clarify these issues and reverse the judgment.
