WASHINGTON- A man carrying a gun and a cellphone walked into a federal credit union in a small central Virginia town in May 2019 and demanded cash.
He left with $195,000 in a bag and no clues to his identity. But his smartphone was following him.
What happened next could lead to a landmark Supreme Court ruling on the Fourth Amendment and its restrictions against “unreasonable searches.” The court will hear arguments on the issue on April 27.
Typically, police use tips or clues to find suspects and then request a search warrant from a judge to enter a home or other private area and seize evidence that may prove a crime.
Civil liberties advocates say the new “digital networks” work in reverse.
“It's about taking the data and searching first. Suspicion later. That's the opposite of how our system has worked, and it's really dangerous,” said Jake Laperruque, an attorney with the Center for Democracy and Technology.
But these new data analyzes can be effective in finding criminals.
Lacking leads in the Virginia bank robbery, a police detective turned to what a judge in the case called an “innovative investigative tool…that allows for the relentless collection of eerily precise location data.”
Mobile phones can be tracked through towers and Google stored this location history data for hundreds of millions of users. The detective sent Google a request for information known as a “geofence warrant,” which refers to a virtual fence around a particular geographic area at a specific time.
The officer searched for phones that were 150 meters from the bank during the time of the robbery. He used that information to locate Okello Chatrie, then obtained a search warrant for his home where the cash and robbery notes were found.
Chatrie entered a conditional guilty plea, but the Supreme Court will hear his appeal next week.
The justices agreed to decide whether geofencing orders violate the Fourth Amendment.
The result may go beyond location tracking. More broadly, what is at stake is the legal status of the vast amount of privately stored data that can be easily scanned.
This may include words or phrases found in Google searches or in emails. For example, investigators may want to know who searched a particular address in the weeks before a fire or murder occurred there or who searched for information about the manufacture of a particular type of bomb.
The justices are deeply divided over how this fits with the Fourth Amendment.
Two years ago, the conservative Fifth Circuit Court of Appeals in New Orleans ruled that “geofencing orders are general orders categorically prohibited by the Fourth Amendment.”
Chief Justice John Roberts sided with the court's liberals in a Fourth Amendment privacy case in 2018.
(Alex Wong/Getty Images)
Fourth Amendment historians say the constitutional ban on “unreasonable searches and seizures” arose from anger in the American colonies that British officers used general warrants to search homes and stores even when they had no reason to suspect any particular person of wrongdoing.
The National Association. of Criminal Defense Lawyers relies on that argument to oppose geofencing orders.
His lawyers argued that the government obtained Chatrie's “private location information… with an unconstitutional blanket order that forced Google to conduct a fishing expedition through millions of Google accounts, without any basis to believe that any of them would contain incriminating evidence.”
Meanwhile, the more liberal Fourth Circuit in Virginia split 7-7 to reject Chatrie's appeal. Several judges explained that the law was not clear and that the police officer had done nothing wrong.
“There was no search here,” Justice J. Harvie Wilkinson wrote in a concurring opinion defending the use of this tracking data.
He pointed to Supreme Court rulings in the 1970s that declared that check records held by a bank or dialing records held by a telephone company were not private and could be searched by investigators without a warrant.
Chatrie had agreed to let Google keep its location records. If several months' worth of financial records are not private, the judge wrote, “surely this request for a two-hour snapshot of one's public movements” is not private either.
Google changed its policy in 2023 and no longer stores location history data for all its users. But cellphone carriers continue to receive orders seeking tracking data.
Wilkinson, a prominent Reagan-era conservative, also argued that it would be a mistake for courts to “thwart law enforcement's ability to keep up with tech-savvy criminals” or cause “more cold cases to go unsolved. Think of a murder where the culprit leaves his phone encrypted and nothing else. No fingerprints, no witnesses, no murder weapon. But since the killer allowed Google to track his location, a geofencing order can solve the case,” he wrote.
Los Angeles judges upheld the use of a geofence warrant to find and convict two men for a robbery and murder in a bank parking lot in Paramount.
The victim, Adbadalla Thabet, picked up cash at gas stations in Downey, Bellflower, Compton and Lynwood early in the morning before driving to the bank.
After he was robbed and shot, a Los Angeles County sheriff's detective found surveillance video showing he had been followed by two cars whose license plates could not be seen.
The detective then sought a geofencing order from a Superior Court judge who asked Google for location data from six designated locations on the morning of the murder.
This allowed the identification of Daniel Meza and Walter Meneses, who pleaded guilty to the crimes. A California Court of Appeals rejected his Fourth Amendment claim in 2023, even though the justices said they had legal questions about the “novelty of the particular surveillance technique at issue.”
The Supreme Court has also been divided on how to apply the Fourth Amendment to new types of surveillance.
By a 5-4 vote, the court ruled in 2018 that the FBI should have obtained a search warrant before requiring a cell phone company to turn over 127 days of records on Timothy Carpenter, a suspect in a series of store robberies in Michigan.
Data confirmed that Carpenter was nearby when four of the stores were robbed.
Chief Justice John G. Roberts, joined by four liberal justices, said this prolonged surveillance violated privacy rights protected by the Fourth Amendment.
“Seismic changes in technology” could allow for complete surveillance of the public, Roberts wrote, and “we refuse to grant the state unrestricted access” to these databases.
But he described Carpenter's decision as “narrow” because it was based on many weeks of surveillance data.
Dissenting, four conservatives questioned how tracking someone's driving violates their privacy. Surveillance cameras and license plate readers are often used by investigators and have rarely been questioned.
Attorney General D. John Sauer relies on that argument in his defense of Chatrie's conviction. “An individual has no reasonable expectation of privacy in movements that anyone can see,” he wrote.
The judges will issue a decision at the end of June.
