On August 9, 2024, the Fifth Circuit issued its decision in United States v. Smith, No. 23-60321, broadly holding: “that the use of geofence warrants … is unconstitutional under the Fourth Amendment.” This categorical holding dramatically diverges from other courts’ previous treatment of geofence warrants and, if read expansively, could be applied to reach numerous other common law-enforcement search practices.1 This Client Alert (1) explains geofence warrants and the Fifth Circuit’s decision, (2) describes the conflicts between the Smith decision and previous holdings of the Fourth Circuit and Colorado Supreme Court, (3) offers predictions on where this new Fifth Circuit rule may be headed next, and (4) discusses how the decision may affect companies that collect and store users’ location data.
Geofence warrants are a powerful and controversial tool that enable law enforcement to compel technology companies to search through vast databases of users’ historical location data to determine who may have been at a given location at a given time. These warrants are commonly referred to as “reverse warrants” because they begin with the location and time of the crime and are used to identify suspects rather than beginning with a suspect and employing the search warrant to gather further evidence linking the suspect to the crime.
Smith involved a robbery of a mail truck parked at the Lake Cormorant Post Office in Mississippi. Investigators applied for and received a geofence warrant seeking information from Google pertaining to all devices and users present in the approximately 98,192 square meters around that post office during a one-hour window on the day of the robbery. According to the Fifth Circuit, in order to return responsive information, Google ran a search over 592 million user accounts’ historic location data to identify all users located within the designated geofenced area. Based on the results of that search and subsequent investigatory follow-up, law enforcement identified the three Smith defendants as suspects.
In analyzing the constitutionality of the geofence search warrant, Smith reached two key holdings that diverge from the conclusions reached by other courts addressing the same issues:
First, the Fifth Circuit split with the Fourth Circuit by holding that accessing location records—no matter the temporal or geographical limitation of the ultimate search—sufficiently violates an individual’s reasonable expectations of privacy in that it constitutes a Fourth Amendment search. In contrast, in United States v. Chatrie,2 the Fourth Circuit recently held that accessing limited location history records did not constitute a search at all. The Fourth Circuit’s reasoning relied on the fact that users opt in to sharing their location histories with service providers; the court therefore held that users have no expectation of privacy in that information.
Second, the Fifth Circuit also split with the Colorado Supreme Court by holding that geofence search warrants categorically violate the Fourth Amendment, no matter their ultimate geographic and temporal scope, because the “places” to be searched—encompassing review of a provider’s entire universe of users’ historical location records—are so expansive that a warrant can never be sufficiently particularized to justify the intrusion. The Fifth Circuit likened these warrants and the searches they permit to the revolutionary-era British general warrants the Fourth Amendment was adopted to prohibit–i.e., fishing expeditions and dragnets. By contrast, in People v. Seymour,3 the Colorado Supreme Court took a different view, holding that searching a massive database of users’ records could be reasonable and therefore permitted by the Fourth Amendment where the warrant’s ultimate search parameters are appropriately tailored and the initial search is anonymized. In other words, the Colorado court found that the sheer size of the user database or the need to apply the search parameters to all its contents to turn up responsive results does not automatically render a search unconstitutional.
In practice, geofence warrants have become a more common tool of law enforcement. Magistrate judges determining whether to issue such geofence warrants in the first place and trial courts reviewing geofence warrant challenges generally have not assessed the overarching constitutionality of geofence warrants writ large. Instead, they have focused on the specifics of the geofence warrant application at issue, including (1) the temporal length of the period for which historical location information is sought and (2) the geographic scope of the area for which results will be deemed responsive. These decisions have largely upheld geofence warrants if they are sufficiently limited both temporally and geographically.4
Thus far, although courts have diverged in how they have interpreted the demands of the Fourth Amendment as applied to geofence warrants, the ultimate result in each case has been the same: denial of the motion to suppress under the good-faith exception. This outcome has made decisions such as the Fifth Circuit’s less threatening to law-enforcement actions that have already been completed. That the government prevailed in Smith could delay any opportunity for the Supreme Court to weigh in and resolve the relevant disagreements.5 At the same time, technology companies’ practices of expansive collection and storage of users’ geolocations in large, shared databases may be waning. For example, according to a footnote in Smith, Google has announced plans to switch from storing users’ location histories in the cloud to storing them locally on users’ devices and deleting location data previously stored in the cloud.6 If the historical location databases in which geofence warrant searches are run are on their way out, the questions posed by this area of law may seem less pressing.
That said, the importance of these issues and the deepening division in the treatment of geofence warrants in reviewing courts makes it likely this issue will work its way up to the Supreme Court. The government has strong incentives to defend geofence warrants as a law-enforcement tool; the ability to rely on the good-faith exception might become less certain in the wake of the Fifth Circuit’s decision; and there is a practical interest in ensuring a consistent approach to these warrants. Moreover, the application of Fourth Amendment doctrine to relatively new technologies is an area that has long interested the Supreme Court and raises thought-provoking questions for originalism, the preferred interpretive method of several of its members.
The defendant-appellant in United States v. Chatrie, the Fourth Circuit case from which Smith diverged, has already filed a petition for rehearing en banc that previews arguments that an eventual petition for certiorari might advance. The petition asks the Fourth Circuit to reconsider its determination that the government’s accessing Chatrie’s location history data from a limited time period via a geofence warrant did not constitute a search. Among other things, the petition (1) highlights the conflict between the Chatrie decision and Smith, (2) argues that Chatrie fails to recognize the novel issues presented by geofence warrants, and (3) argues that the decision conflicts with Supreme Court precedent governing the third-party doctrine. Those watching these issues develop will pay close attention to any response the government might file and whether the Fourth Circuit takes up the issues en banc.
In the meantime, it would be prudent for companies that collect and store geolocation data to take account of how the Fifth Circuit’s decision may inform their approach to several key issues:
- Awareness of differences in approach based on geography. As noted, the Fifth Circuit’s holding differs from the approaches previously taken by other courts in other jurisdictions. Global companies that collect data and work with law enforcement across the country and the world should be aware of the different governing legal frameworks applying to their work in different geographical areas. Such a geographically tailored approach could be difficult to implement in practice, but it can allow companies to ensure legal compliance while simultaneously advancing their strategic preferences to the extent legally permissible.
- Evaluating compliance strategies and protocols. Affected companies should regularly assess their search warrant compliance strategies and protocols.
- Interacting with law enforcement. Smith is a new decision; it may take time for law-enforcement authorities to integrate the ruling into their practices. Affected companies may wish to engage in dialogue with law-enforcement contacts regarding any changes in policy and approach based on the decision.
- Storing data. A company’s particular data storage practices can implicate the issues addressed in Smith.
- User communications. Users are increasingly aware of and interested in technology companies’ privacy policies and practices, including their cooperation with law enforcement.
Footnotes
