Supreme Court restricts police use of geofence warrants

The Supreme Court on Thursday limited law enforcement’s use of geofence warrants, ruling that demands for smartphone location data from people near a crime scene can trigger Fourth Amendment protections against unreasonable searches.

In a 6-3 decision in Chatrie v. United States, the court ruled against the government in a case viewed as a major test of privacy rights in the digital era. Justice Elena Kagan, writing for the majority, said police intrude on a constitutionally protected privacy interest when they demand cellphone location records from a technology company, even for a limited period.

“An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information – even though for only a limited time, and from a third-party tech company,” Kagan wrote.

A geofence warrant allows investigators to draw a virtual boundary around a place where a crime occurred and require a company such as Google to search its databases for users who were in that area during a specific time. Police agencies and the FBI have used the warrants to identify possible suspects and witnesses when investigations stall.

The case began with a bank robbery in the suburbs of Richmond, Virginia. A man stole $195,000, and after two months the investigation had gone cold. Detectives then served Google with a warrant seeking location information for cellphone users in and around the bank during the hour before and after the robbery.

Google initially identified 19 people who were in or near the bank, NPR reported. After pushing back, the company ultimately provided police with the names of three people whose location data showed they were at the bank. When officers went to the home of one of them, Okello Chatrie, they found a pistol matching one seen in security camera footage and nearly $100,000 in cash. Chatrie later confessed, pleaded guilty and was sentenced to 12 years in prison.

Chatrie’s attorneys argued that the search violated the Fourth Amendment because it allowed the government “to search first and develop suspicions later.” They said the warrant directed Google to search millions of users’ location histories, exposing people to a government search even though they were not suspected of wrongdoing.

The government argued that users do not have a reasonable expectation of privacy when they are in public and have allowed a third-party company to collect and analyze their location data. It also said that people can choose not to share such information with companies like Google, and that only about one-third of active Google account holders had opted into Google’s location history service. Chatrie’s lawyers said in court documents that still amounted to more than 500 million users.

The majority rejected the government’s view that using location history is simply a voluntary choice, calling that argument “meritless.” The opinion said Google repeatedly prompts users to turn on location history, sometimes warning that devices will not “work correctly” otherwise, without disclosing in that prompt how often location information would be recorded, how precise it would be or how it might be shared with the government.

The justices also said cellphone users are not sharing private information with third parties in a way that makes it freely available to the government “just by doing the ordinary things cell-phone users do.” The opinion cited apps that use location data to function or tailor services, including rideshare and weather apps.

Justice Sonia Sotomayor wrote that “even short-term monitoring” of a person’s movements can reveal “a wealth of detail about [his] familial, political, professional, religious, and sexual associations,” including trips to “the psychiatrist, the plastic surgeon, the abortion clinic, the Aids treatment center, the strip club, the criminal defense attorney, (or) the by-the hour motel.”

The majority said accessing Chatrie’s location history was a Fourth Amendment search, but left further questions for the appeals court, including whether the search was reasonable and properly supported by probable cause and particularity.