The Supreme Court held oral argument this morning in Chatrie v. United States, the geofence warrant case. I live-tweeted the two-hour argument over at both X and Bluesky, and click the links there to see the play-by-play. For those wanting the big picture, here are my initial thoughts right after the argument:
(1) The most important takeaway is that the Justices seem likely to reject the broader arguments Chatrie made that geofence warrants are categorically unconstitutional or cannot be drafted in ways that could identify suspects. They seem likely to rule that geofence warrants can be drafted constitutionally, rejecting the 5th Circuit’s view in Smith. I suspect they will likely hold that geofence warrants have to be limited in time and space, and leave the details to lower courts. There were some Justices who wanted to address the multi-step process of Google’s warrant procedure and say new warrants were needed for those steps—that was the view, if I recall correctly, suggested by Justices Sotomayor and Jackson. But I don’t know if the majority will get that far.
(2) I don’t know if the Court will rule on whether there was a search. I would guess that they assume a search and say the warrant was constitutional, so they don’t have to decide the search question. There was a lot of discussion of whether location history records were kept in a virtual private locker, and I heard the government conceding that this was a viable theory of protection for cloud-stored *content* records, like calendar entries and photos stored in the cloud, that the user directly controls. But I don’t know if the Court will weigh in on that just assume a search and focus on the constitutionality of the warrant.
(3) I was somewhat surprised by the government not pushing back more late in the argument, especially in response to arguments that its search arguments are maximalist, or that there were practical problems with getting warrants, or that warrants might be needed if the revealed location was a home. Late in the argument, the government seemed in a conciliatory mindset, perhaps sensing a victory on the warrant issue that it didn’t want to place at risk. But Smith v. Maryland expressly holds that voluntary disclosure from the home that reveals presence in the home is still not a search. And more broadly, there’s no practical problem with getting warrants for Location History because the technology doesn’t exist anymore, and probable cause was not challenged back when there was. In any event, what matters going forward is all the other online records that exist online: IP logins, etc. (See my book for some of the other kinds of records that are important in investigations.) Those are records that lower courts have held don’t require warrants, and it would be a massive shift in practice if the Court ruled on the search issue in ways that implicated those different records. I was surprised the government didn’t flag that; that’s what matters practically speaking. Anyway, maybe that counsels in favor of just assuming a search here, or maybe the Court will get into that. Stay tuned.
(4) There was some discussion of a bunch of the side issues: Do Terms of Service matter? Does privacy legislation matter? Can we recognize a mosaic theory? These are each massive questions on which lower courts are split. Although I think there are correct answers to each of the three questions— Full disclosure, I have articles on each of these topics arguing that the answers are, respectively, no, no, and no—I am not sure that the Court will get into them.
(5) Justice Alito expressed some frustration that the Court had granted cert to render what amounted to an advisory opinion, both because the good faith exception obviously applies and because Google no longer stores these records. Justice Alito suggested that he might rule for the government on the good faith exception even though the Court denied cert on that question presented. He also hinted that perhaps it was the minimum of four Justices among his colleagues who voted to grant in the case. Justice Sotomayor weighed in that guidance in this area was important. So presumably Justice Sotomayor voted to grant cert in the case, and Justice Alito did not.
(6) There was some discussion of the Stored Communications Act and how it applies. It wasn’t a particularly strong discussion, I thought; it’s a complicated question, and this was no context in which to delve into the glorious statutory details. I don’t think the statute is relevant to the Fourth Amendment issue, for all the reasons I explained here. But if the Court does weigh in on the SCA, it might surprisingly lead to an important SCA precedent, albeit on a question not really briefed.
As always, stay tuned.
