Earlier this year, we wrote on the Fourth Circuit's en banc rehearing in United States v. Chatrie, a criminal appeal addressing whether a geofence warrant used to locate the defendant in a bank robbery trial was a constitutional "search" under the Fourth Amendment. The full Fourth Circuit heard argument in late January and, on April 30, issued nine separate opinions covering 126 pages, providing the answer to the question: maybe?
All fifteen members of the federal appellate court considered whether to affirm the three-judge panel's decision finding the geofence warrant, by which the government requires a company, such as Google, collecting personal data on users, to turn over the records of a group of users' movements in order to narrow down and eventual identify a suspect, was not actually a "search" at all. In the end, the court voted 14-1 to affirm the outcome from the trial court and not to disturb the conviction that followed from it. But how the Court got there is a different story entirely.
First, the court issued a one-sentence per curiam order affirming the District Court's ultimate conclusion not to exclude the geofence warrant results as an unconstitutional search. Next, eight different concurring opinions explained the rationale of various subsets of the court's membership, with opinions across the whole spectrum of views on the topic. For instance, Chief Judge Diaz relied on judicial restraint and the good faith doctrine[1] to justify the terse affirmance. Judge Wilkinson, along with the judges joining his concurring opinion, wrote that the geofence warrant is not actually a search since users must voluntarily permit companies to track their location data; these opinions advance the third-party doctrine[2] of Fourth Amendment jurisprudence. Judge Wynn, who broke from his colleagues at the initial panel hearing of the case, and the judges joining his concurrence, wrote that the Court should have addressed the "search" question head-on and urged that the Court hold that the geofence was a search[3] but that the resulting evidence was admissible under the good faith doctrine.
Judge Richardson and other judges joining his concurring opinion offer the same basic rationale as Judge Wilkinson, but with a different emphasis: the fact that the government obtained only two hours of location information from Google, which the defendant had voluntarily disclosed to Google, does not constitute a search under the Fourth Amendment. Perhaps most interestingly, Judge Heytens, alongside Judges Harris and Berner, skipped over the Fourth Amendment search, third-party, and good faith doctrines altogether and focused instead on whether the District Court was right not to exclude the evidence from the geofence under the exclusionary rule.[4] Judge Heytens concluded that, whether or not the geofence was a search, was conducted in good faith, or was subject to the third party doctrine, the trial court was right not to toss the evidence, and thus the Circuit Court could affirm and dispense with the case. Judge Berner, in his concurrence and joined by a handful of colleagues, would have divided consideration of the three-step geofence warrant process, finding the first step to be free from Fourth Amendment search concerns while requiring a warrant for the second and third steps. And because Judge Berner did not believe the warrant was supported by sufficient probable cause as to the second and third steps of the process, he would have found the search violated the defendant's Fourth Amendment rights.[5]
Standing apart from the collection of concurrences, Judge Gregory wrote for himself as the lone dissenter, arguing that there was a Fourth Amendment search involved in the geofence warrant process but that the good faith doctrine should not apply, meaning the resulting evidence should have been excluded. Judge Gregory, while alone on the Fourth Circuit, is not alone in his thinking across all the federal benches: a panel of the Fifth Circuit held last August that the use of geofence warrants itself was unconstitutional as a categorical matter, though it also permitted the admission of the evidence obtained thereby under the good faith exception. See United States v. Smith, 110 F.4th 817 (5th Cir. 2024).
While the state of the law on geofence warrants is perhaps more fractured now than ever, the Supreme Court may soon be asked to clarify the limits of the good faith and third-party doctrines in the context of these searches. And how it chooses to answer the question could bring much-needed relief to the criminal defense bar, or it could take the multiplicity of opinions in the Fourth Circuit and cast it out nationwide. Whatever happens next, the Investigations and White Collar Defense team at Venable is ready to help navigate the complex and shifting world of criminal law and procedure.
[1] The good faith doctrine permits evidence obtained from a search with a warrant to be admitted if the officer was "objectively reasonable" in relying on the warrant, even if that warrant itself was constitutionally deficient after the fact. See United States v. Leon, 468 U.S. 897 (1984).
[2] The third-party doctrine permits obtaining evidence against a defendant without a warrant if that defendant voluntarily disclosed the information to a third party, from whom the government can ask and receive the evidence. See Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976).
[3] To qualify as a "search," there must be some kind of official violation of an individual's reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347 (1967).
[4] The exclusionary rule provides courts a way to remedy constitutional violations by preventing the jury from considering evidence obtained in defiance of the Constitution. See Mapp v. Ohio, 367 U.S. 643 (1961).
[5] Since steps two and three of the process seek data about users that is not purely anonymous, Judge Berner concluded the Fourth Amendment requires probable cause as to each of those users whose data was exposed to the government in those steps. For more on that formulation of the probable cause requirement, See Carpenter v. United States, 585 U.S. 296 (2018).