The U.S. Supreme Court considers the issue of geolocation warrants in investigations

The “geofencing” technique targets mobile phones located near a crime scene.

The debate centers on the balance between privacy rights and a tool for fighting crime.

By John Kruzel and Andrew Chung

The US Supreme Court considered on Monday, in a case from Virginia, whether the use by law enforcement of a “geofencing” warrant to identify potential suspects based on data from mobile phones located near crime scenes violated the Fourth Amendment of the US Constitution, which prohibits unreasonable searches.

Geofencing warrants approved by the courts require third-party companies such as Google (Alphabet) in the case currently under review by the judges to search for location data of customers for mobile devices near the scene of a crime when it was committed.

Investigators generally receive an anonymized list initially, which is then refined through a multi-step process resulting in the communication of account holder information to the police to obtain potential leads on suspects.

The judges questioned lawyers representing Chatrie and the administration, particularly on the level of precision required for a warrant to be constitutional and whether a mobile phone user’s decision to voluntarily share their location data with third parties undermines a Fourth Amendment-based recourse.

This dispute highlights the tensions between an 18th-century constitutional provision that guarantees “the right of citizens to the security of their person, home, papers, and effects against unreasonable searches and seizures,” and the digital age technologies transforming criminal investigations.

LOCATION HISTORY Google location data placed Chatrie at the crime scene, along with 18 other users who, like him, had activated the company’s “location history” feature and were within 150 meters (492 feet) of the credit union within an hour of the 2019 robbery. Google is not a party to the case.

During a subsequent investigation into residences linked to Chatrie, authorities found what the prosecution described as two “bank robbery-style ransom notes” in his room, a gun, and nearly $100,000, including bills wrapped in rubber bands signed by the credit union cashier targeted in the robbery.

Adam Unikowsky, Chatrie’s lawyer, argued that geofencing equivalent to an unreasonably intrusive search that exposes a massive amount of private information to the government and fails to meet the precision criteria required by the Fourth Amendment.

Conservative Justice Samuel Alito seemed to support law enforcement actions in this case, noting that the location data feature had to be activated by users themselves.

“It’s about activating, and according to the government, your client had to follow several steps to activate it,” Alito told Unikowsky. “He therefore voluntarily disclosed to Google information about where he would be.”

Supreme Court Chief Justice John Roberts, a conservative, said that this feature could be turned off, likening it to closing blinds.

“You don’t have to have this feature on your phone. So where’s the problem?” Roberts asked.

Unikowsky argued that smartphone users should not have to disable the location service to escape government surveillance.

“I think we should be allowed to transmit data to a third party without assuming that the government will consult them,” Unikowsky said.

“Geolocation warrants primarily ensnare innocent people,” Unikowsky added.

Justice Department lawyer Eric Feigin argued that Chatrie forfeited any expectation of data privacy by accepting Google’s location history.

A HYPOTHETICAL STOLEN NECKLACE

Conservative Justice Neil Gorsuch expressed skepticism about the warrant’s validity. Gorsuch challenged Feigin to comment on whether the government could search all hotel rooms looking for a firearm, or all boxes in a warehouse looking for a specific contraband, or all safes in a bank looking for a hypothetical stolen pearl necklace.

“What’s the difference between those cases and this one?” Gorsuch asked.

In 2018, the Supreme Court imposed limits on police obtaining mobile phone data to precisely determine suspects’ past movements.

Federal District Judge Mary Lauck, based in Virginia, found the geolocation warrant used in the Chatrie case violated the Fourth Amendment but rejected his request to suppress evidence. The US Fourth Circuit Court of Appeals, based in Richmond, upheld Lauck’s decision.

The Supreme Court agreed to rule on the constitutionality of geolocation warrants but declined to review Chatrie’s evidence exclusion request. If Chatrie succeeds constitutionally, his case will likely be sent back to the district court for further proceedings.

The Supreme Court is expected to issue its decision by the end of June.