When the Call Federal Credit Union outside Richmond, Va., was robbed at gunpoint in 2019, the suspect took $195,000 from the bank’s vault and fled before the police arrived.
A detective interviewed witnesses and reviewed the bank’s security footage. But with no leads, the officer relied on a so-called geofence warrant to sweep up location data from all the cellphones in the vicinity of the bank for the 30 minutes before and after the robbery.
The data he gathered eventually led to the identification and conviction of Okello T. Chatrie, now 31, a Jamaican immigrant who came to the United States in 2017.
Geofence searches have become increasingly popular as a tool for law enforcement, but critics say they put at risk the personal data of everyday Americans and violate the Constitution. Mr. Chatrie challenged the use of a geofence warrant in his conviction, in a case that will be heard by the Supreme Court on Monday.
The justices will examine how the Constitution’s traditional protections apply to rapidly changing technology that has made it easier for the police to scoop up vast amounts of data to assemble a detailed look at a person’s movements and activities.
It has been eight years since the court last took up a major Fourth Amendment case involving the expectations of privacy for the millions of people carrying cellphones in the digital age. In that 2018 case, the court ruled that the government generally needs a warrant to collect location data drawn from cell towers about the customers of cellphone companies.
The court has also limited the government’s ability to use GPS devices to track suspects’ movements, and it has required that law enforcement get a warrant to search individual cellphones.
In Mr. Chatrie’s case, the government did obtain a warrant, but one that his legal team said was overly broad, violating Fourth Amendment protections against unreasonable searches.
Millions of Americans use a Google service known as “location history,” which gathers data about every two minutes about where its users travel and when. Unlike traditional warrants, which target an identified suspect based on probable cause that they have committed a crime, geofence warrants operate in reverse. Law enforcement draws a virtual “fence” or boundary around a geographic area where a crime has been committed and asks Google for data on every user whose device happens to be in the area during a particular time.
Mr. Chatrie’s lawyer Adam G. Unikowsky compared geofence warrants to fishing expeditions, saying they allow the government to “search first and develop suspicions later,” in violation of the Constitution and the longstanding prohibition against warrants that are too broad or general.
“The technology may be novel, but the constitutional problem it presents is not,” Mr. Unikowsky wrote in a court filing. “The potential for abuse is breathtaking: The government need only draw a geofence around a church, a political rally or a gun shop, and it can compel a search of every user’s records to learn who was there.”
A person’s location history, which can be reviewed, edited and deleted, is private data, Mr. Chatrie’s lawyer said. The lawyer argued that even if Mr. Chatrie had agreed to share it with Google, he had not agreed to share it with the government.
D. John Sauer, the solicitor general, countered that Mr. Chatrie had voluntarily shared his location data with Google. Similar to a person’s bank or phone records, which are held by a business, Mr. Sauer argued there is no expectation of privacy for information that someone chooses to share with a third party.
Plus, the administration contended that surveillance video showed Mr. Chatrie holding his cellphone just before the robbery, meaning he had chosen to keep it with him during the crime. Mr. Sauer argued that a person in Mr. Chartrie’s position “has no reasonable expectation of privacy” over the stored location data, and that the time period specified by the warrant was too brief to be overly intrusive.
Google says it stopped responding to geofence warrants last year, because the company no longer stores such data and instead keeps location data on each user’s device. But law enforcement has made geofence requests of other tech companies, including Apple, Lyft, Snapchat, Uber, Microsoft and Yahoo, meaning the Fourth Amendment questions before the justices remain relevant.
Officers used automated license plate readers, for instance, to help identify the man suspected in the Brown University shooting last year. Investigators identified the “Golden State Killer” using artificial intelligence-powered genealogy tools.
In Mr. Chatrie’s case, a federal judge said the geofence warrant violated the Fourth Amendment because it did not meet probable cause requirements. But the judge allowed the evidence to be admitted in court, finding that the officer who requested the warrant had acted in good faith. Mr. Chatrie eventually pleaded guilty to charges related to the robbery and is serving a nearly 12-year sentence.
A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against Mr. Chatrie, but for a different reason. The panel found that the search was valid because Mr. Chatrie did not have a reasonable expectation of privacy for the two hours’ worth of location history data that he voluntarily shared with Google.
Mr. Chatrie asked the Supreme Court to weigh in after a full complement of Fourth Circuit judges divided 7 to 7 and, in a one-sentence order, left Mr. Chatrie’s conviction in place.
In the last major Fourth Amendment case heard by the court, Carpenter v. United States, the justices in 2018 made a major statement about privacy in the digital age. In general, they said, law enforcement must seek a warrant for cell tower location information. The court found at that time that it did not matter that the records at issue were in the hands of a third party.
But the court’s membership has changed since that decision. Chief Justice John G. Roberts Jr. wrote that opinion joined by four justices who had all been appointed by Democratic presidents, including Justices Sonia Sotomayor and Elena Kagan. Of the court’s other current members, Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.
Google did not take a position on the legality of the warrant in Mr. Chatrie’s case, but told the court that it had advocated robust Fourth Amendment protections for sensitive data such as location history and had objected to thousands of geofence warrants that it believed were overbroad and swept up the data of hundreds and sometimes thousands of people.
