In Chatrie v. United States, the Supreme Court held that the government's request for user Location History data through a geofence warrant constituted a "search" under the Fourth Amendment. The opinion in this case, which we have been following closely and have most recently written on here, makes clearer the intersection between third-party collection and storage of individual users' data and those users' Fourth Amendment expectations of privacy in the increasingly digital modern age. The decision is an important privacy ruling for companies that collect, store, receive, or respond to government requests for data, because it confirms that such data may be constitutionally protected, while leaving unresolved what showing law enforcement must make before companies can be compelled to disclose through a geofence warrant. Instead, the Court left the lower courts to answer questions on what makes a geofence warrant sufficiently supported by probable cause. Writing in a 6-3 decision, Justice Kagan held that officers conducted a Fourth Amendment search by accessing Mr. Chatrie's Location History, a service that records a user's cell phone location around every two minutes, because individuals have a reasonable expectation of privacy in their stored cell-phone location information.
Virginia law enforcement requested, and received, the geofence warrant at issue as part of a 2019 bank robbery investigation. Geofence warrants have become an important investigative tool for law enforcement where they know that a crime was committed but not who committed it. Obtaining a geofence allows them to narrow a perimeter around a crime scene and to ask technology companies to identify devices that were used in the area at a specific time. In this bank robbery, witnesses and surveillance footage showed an unknown robber near the credit union using his cell phone. The three-step warrant process ultimately narrowed down law enforcement's search to three users, including Okello Chatrie, leading to his arrest.
Mr. Chatrie moved to suppress the evidence obtained from Google, arguing that the warrant violated the Fourth Amendment. The district court agreed that the warrant was constitutionally deficient but concluded that the good faith exception to Fourth Amendment violations would allow use of the evidence. A divided Fourth Circuit panel affirmed on different grounds, holding that no Fourth Amendment search had occurred. The Fourth Circuit later reheard the case en banc and again affirmed but split on whether the geofence warrant constituted a search.
The Supreme Court granted review on a narrower question: whether law enforcement violated the Fourth Amendment by obtaining Chatrie's digital location data. Writing for the Court, Justice Kagan concluded that the collection of Chatrie's data constituted a Fourth Amendment search. The Court relied heavily on Carpenter v. United States, 585 U.S. 296 (2018), which held that law enforcement conducted a search under the Fourth Amendment by obtaining cell-site location information (CSLI) without a warrant.
The Court reasoned that the Location History implicates potentially greater privacy interests than the CSLI in Carpenter. Location History can reveal more specific personal information than historical cell-phone data, which connects to cell towers and provides approximate location information, even if it is more limited in duration (compare Carpenter's week-long request with Chatrie's two-hour window). The government argued that Chatrie did not have a reasonable expectation of privacy because the request covered a short period and because he affirmatively opted in to sharing his data with Google. However, the court rejected both arguments, emphasizing that the short period and third-party source did not negate that a search took place. Furthermore, the Court highlighted that modern cell-phone use almost always requires some kind of opt-in action to use an app, and therefore Fourth Amendment protection cannot turn on whether a user clicked through a particular setting.
The Court left open, however, the important question of whether the warrant used in Chatrie's case was valid, sending that part of the litigation back to the Fourth Circuit for further proceedings.
The separate concurring and dissenting opinions show that this conversation is far from over. Justice Jackson, joined by Justice Sotomayor, wrote a concurrence emphasizing that the Court should have gone further, establishing that this search violated the Fourth Amendment in the second and third stages of the geofence process. Justice Gorsuch also concurred in the judgment, emphasizing how he would have reached this conclusion through a different line of reasoning looking to the language of the Fourth Amendment. Specifically, Justice Gorsuch would have asked if Chatrie's Location History was one of his "papers" or "effects," instead of asking if there was a reasonable expectation of privacy under the Katz v. United States, 389 U.S. 347 (1967) line of cases. Justice Alito dissented, arguing that the Court should not have taken this case, reached the constitutional question, or extended Carpenter and the third-party doctrine. Justice Barrett also dissented, agreeing that Chatrie lacked a reasonable expectation of privacy.
While Chatrie is likely a win for criminal defendants, it does not end the geofence warrant debate. The decision establishes that law enforcement access to Location History is not outside the scope of the Fourth Amendment just because the data is held by a third party. Yet, it leaves open the question of what is needed to make a geofence warrant sufficiently supported by probable cause. Likewise, Google has since altered the way that it stores location data, storing the information on individual devices rather than internally by the company. Thus, the scope of data Google possesses and can hand over to law enforcement has been significantly limited. More broadly, Chatrie continues the Court's effort to modernize Fourth Amendment precedent, helping to bring the amendment more fully into the twenty-first century.
As the lower courts continue to navigate the intersection between the Fourth Amendment and modern living, Venable's appellate and regulatory teams will be there to help navigate the path forward, monitor these developments, and advise clients on their implications.
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The authors thank Nicholette L. Khoubian, a summer associate in our Los Angeles office, for her assistance in writing this article.