Supremes Not Fans of Geofence Warrants

A quick tutorial is in order.

Lets say there was a bank robbery at First and Main yesterday at noon and the police have no idea who did it. So they ask all of the cell phone carriers to give them a list of all phones in the area of First and Main yesterday from, say 9:00 to 2:00. Depending on the area and the city, that could be ten people or thousands of people.

Note that the police have no particularized suspicion that you or me or whoever happened to be in the area at that time committed a crime. This, under the constitutional requirements for a warrant, makes it difficult to get a warrant.

Privacy advocates think that the police or FBI should need to convince a judge (i.e. get a warrant) why this is the appropriate step to take and allow the judge to make whatever stipulations the judge thinks appropriate.

At the moment, there is no federal law that requires that the cops get a warrant and, while some agencies do, others do not. The only state that requires a warrant is Utah. This is where the Supremes come in.

The government is arguing before the Supremes that in this case, Chatrie v. United States, a warrant is not required.

If the Supremes decide that geofencing does not require a warrant, expect a lot more fishing on the part of police departments. Kind of like Flock cameras. Well, we got them. We don’t know what we are looking for, but lets look anyway and see what we find.

While predicting what the Supremes might do is dicey, after oral arguments it seems like they are not fond of fishing. Unless we are talking, perhaps, about trout.

There does not appear to be an ideological divide here. Both sides asked the government hard questions.

The last time the Court handled a similar privacy case was 2018 at which time they limited the amount of cell site data the cops could get without a warrant.

The government, of course, does not want the Supremes to tell them that they need a warrant, even if, sometimes, now, they do get one out of fear that a judge might throw out their case if they don’t get one.

The other side says that geofence searches are like the general warrants the British used in the colonies to sweep up anything they found – which now violates the Constitution – you need to know what you are looking for.

To understand how invasive these geofence warrants are, Google filed a friend of the court brief and gave one example of where the polices asked for all the data from 2.5 square miles for a 48 hour period in San Francisco – yielding thousands of people. In another case the police asked for data that would cover 3,000 people located in a 489 acre area which included homes, apartment buildings, a park, major highways and part of the University of New Mexico.

The court watchers don’t think they will ban these warrants, but they will probably focus on how “particularized” (i.e. specific) these warrants need to be.

If the Court accepts the government’s side that means that police can ask for any data, with no probable cause, for any reason, against anyone, anywhere in America.

We will see what the Court does. Credit: The Record

by