Author name: Mike M.

A federal appeals court ruled on Friday that geofence warrants, which are used to identify all users or devices in a geographic area, are prohibited by the Fourth Amendment’s protection against unreasonable searches.

The ruling was issued by the US Court of Appeals for the 5th Circuit, which is generally regarded as the most conservative appeals court. The 5th Circuit holding creates a circuit split with the 4th Circuit, which last month rejected a different Fourth Amendment challenge to geofence warrants.

“This court ‘cannot forgive the requirements of the Fourth Amendment in the name of law enforcement.’ Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment,” the August 9 ruling from the 5th Circuit said.

The case, United States v. Smith, involves three Mississippi men convicted of a 2018 armed robbery of a mail truck. Despite ruling geofence warrants to be unconstitutional, the 5th Circuit denied the convicts’ motion to suppress evidence because “law enforcement acted in good faith in relying on this type of warrant.”

“We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment. However, considering law enforcement’s reasonable conduct in this case in light of the novelty of this type of warrant, we uphold the district court’s determination that suppression was unwarranted under the good-faith exception,” the court said.

4th Amendment scholar stunned

Despite the evidence being allowed, the court’s overall holding against geofence warrants is significant. The Electronic Frontier Foundation (EFF) called the 5th Circuit ruling “a major decision.”

“Closely following arguments EFF has made in a number of cases, the court found that geofence warrants constitute the sort of ‘general, exploratory rummaging’ that the drafters of the Fourth Amendment intended to outlaw. EFF applauds this decision because it is essential that every person feels like they can simply take their cell phone out into the world without the fear that they might end up a criminal suspect because their location data was swept up in an open-ended digital dragnet,” the nonprofit group focused on digital rights said.

The ruling impressed Berkeley Law Professor Orin Kerr, a Fourth Amendment scholar. The 5th Circuit decision “makes my jaw drop,” he wrote in a post on Reason’s Volokh Conspiracy blog.

“The case creates a split with the Fourth Circuit on one important issue, and it creates another split with the Colorado Supreme Court on an even more important issue,” Kerr wrote.

The 4th Circuit ruling on July 9, in United States v. Chatrie, said “that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.” The 4th Circuit panel vote was 2-1.

It’s no coincidence that Google was involved in both the 4th and 5th Circuit cases. “Geofence warrants require a provider—almost always Google—to search its entire reserve of user location data to identify all users or devices located within a geographic area during a time period specified by law enforcement,” the EFF explained in December 2023 after Google implemented a technical change that could make it harder to provide mass location data in response to such warrants.

Geofence warrants skyrocketed

Requests for geofence warrants have skyrocketed since Google received its first such request in 2016. “In 2019, Google was receiving about 180 geofence warrant requests per week from law enforcement around the country, amounting to about 9,000 geofence requests for that year,” the 5th Circuit ruling said. “By 2020, that number went up to 11,500 geofence warrant requests. By 2021, geofence warrants comprised more than 25 percent of all warrant requests Google received in the United States.”

Kerr’s post explained why he thinks the 5th Circuit ruling is so significant:

The Fifth Circuit makes two important holdings. First, accessing any amount of geofence records is a search under an expansive reading of Carpenter v. United States [a 2018 Supreme Court ruling]. That’s the issue that creates the split with the Fourth Circuit in United States v. Chatrie. As I noted just a few weeks ago, Chatrie held that accessing such records is not a search in the first place, at least if the records sought are relatively limited in scale. The Fifth Circuit expressly disagrees.

Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance. The government can’t gather these kinds of online records at all, in other words, even with a warrant based on probable cause. This holding conflicts with a recent ruling of the Colorado Supreme Court, People v. Seymour, and more broadly raises questions of whether any digital warrants for online contents are constitutional.

After the 2018 mail-truck robbery, video from a camera at a nearby farm office appeared to show a suspect using a cell phone. But in November 2018, “nine months after the robbery, the Postal Inspection Service had not been able to identify any suspects from video footage or witness interviews,” the 5th Circuit ruling said.

Postal inspectors who were on the case initially didn’t know what a geofence warrant is. When they learned about this type of warrant, they applied for one “seeking information from Google to locate potential suspects and witnesses in connection to the robbery.” The geofence warrant “authorized an hour-long search… within a geofence covering approximately 98,192 square meters around the Lake Cormorant Post Office.”