The Supreme Court will hear oral argument next week in Chatrie v. United States, which concerns a Virginia man who was convicted of bank robbery. Okello Chatrie contended in the lower courts that the government violated the Fourth Amendment when it obtained his location from his cellphone records, which put him in the vicinity of the robbery. The lower courts rejected that argument, but now the justices will weigh in.
The case has its roots in a 2019 robbery of a federal credit union in Midlothian, Virginia, in the Richmond suburbs. Because the robber, who made off with $195,000, appeared to be speaking on his cellphone when he entered the bank, 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.
The process of obtaining data from Google moved forward in three steps. The warrant initially created a “geofence” with a 150-meter radius around the bank for the 30 minutes before and after the robbery. Google gave law enforcement officials an initial list of accounts linked to devices that were in the area during that time period, although it did not provide the names of the users of those accounts. At the second step, based on the initial list, law enforcement officials asked Google for information about several accounts that were in the area during a two-hour period. And at the third step, a detective asked for, and received, the names and information for three accounts – one of which was the defendant, Chatrie. Law enforcement did not seek a warrant when conducting the latter two steps.
Based on the information that the government had obtained from Google, Chatrie was charged with (among other things) bank robbery. He asked a federal district court in Virginia to bar prosecutors from using evidence obtained as a result of the geofence warrant against him, arguing that it violated the Fourth Amendment. The district court agreed with Chatrie that the warrant in his case did not have the kind of probable cause that the Fourth Amendment requires, but it nonetheless allowed the government to use the evidence on the ground that law enforcement had acted in good faith.
Chatrie then pleaded guilty to bank robbery and gun charges, although he reserved 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 141 months in prison, followed by three years of supervised release.
A divided panel of the U.S. Court of Appeals for the 4th Circuit affirmed 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.
In his brief on the merits, Chatrie makes several different arguments assailing the use of the geofence warrant to find his location data. First, he contends, the use of the warrant resulted in a “search” for purposes of the Fourth Amendment. This is so, he says, for two reasons. It infringed on his property interest in his location data, and he had a reasonable expectation of privacy in that data. In particular, he notes, geofence warrants “present serious privacy concerns” because the government can use them to determine when someone makes a visit that they might want to keep discreet – for example to a plastic surgeon or a psychiatrist. Chatrie also tells the justices that the “third-party doctrine” – the idea that someone gives up a reasonable expectation of privacy over information that he voluntarily discloses to someone else – does not apply here because it only involves business records, which location data is not.
Second, Chatrie argues, although the government may have had a warrant for its search, the geofence warrant was still unconstitutional because it was the kind of “general warrant” that the Fourth Amendment was intended to protect against – “instruments that allowed the government to search first and develop suspicions later. A geofence warrant operates on precisely that principle.” The warrant was also unconstitutional in any event, Chatrie contends, because it did not identify any specific accounts to be searched or provide probable cause to believe that any of those accounts would have evidence relevant to the bank robbery.
The government offers a very different view of the case. It emphasizes first that Chatrie did not have any reasonable expectation of privacy in his location data, both because he “affirmatively opted to allow Google to collect, store, and use” it and because the warrant merely sought information that would have been “visible to anyone near” him at the time of the robbery. And although, according to the government, Chatrie cannot make his property rights argument at all, because he did not make it in the lower court, the government contends that it too fails because “‘American law has generally refused to recognize property rights in data’ as such” and because any property rights would be Google’s, rather than Chatrie’s.
The government also pushes back against Chatrie’s suggestion that the warrant used by the government in this case resembles a “general” warrant. U.S. Solicitor General D. John Sauer stresses that, unlike a general warrant, the warrant in this case did not give law enforcement officials “free rein to rummage through Google’s database.” To the contrary, he suggests, “the warrant simply directed Google to locate and turn over the necessary information, such that investigators themselves saw only a minuscule slice of data in Google’s database.” “At bottom,” Sauer posits, Chatrie’s “arguments seem to imply that no geofence warrant, of any sort, could ever be executed.”
It is not clear how broad the impact of the court’s decision in the case will be, because Google now stores location data on mobile devices themselves, rather than in its own database. Additionally, even if the court ultimately determines that the search violated the Fourth Amendment, the government contends that the evidence against Chatrie can come in based on the the lower court’s finding that law enforcement acted in good faith in obtaining the location data from Google.
But as one “friend of the court” brief, filed by the Cato Institute, points out, the court could still clarify a variety of issues related to cellphones, technology, and the Fourth Amendment – for example, whether Americans have a property interest in digital records, even if they are stored with tech companies like Google, and when the government must obtain a warrant if it seeks to search digital records.
A decision in the case is expected by late June or early July.