The Supreme Court said it will take up a case challenging the constitutionality of “geofence warrants,” which police use to try to identify suspects by poring over cellphones in the vicinity of a crime.
The case, which the court accepted Friday, could become a major test of the Fourth Amendment in a world of expanding technological tools to track people wherever they take their electronic devices.
In the case before the justices, police obtained a warrant asking Google for all of its location history data within 150 feet of a bank robbery. That request is known as a geofence.
Police went back to Google twice — without getting new warrants — to hone in on suspicious devices and then to obtain the identities of owners of three of them.
That led police to Okello Chatrie, who is the plaintiff challenging the warrant, asking that the evidence obtained from it be suppressed.
“Geofence warrants are a powerful law enforcement tool. At the same time, they raise significant Fourth Amendment concerns,” said Adam Unikowski, the chief lawyer for Mr. Chatrie.
He said the warrants represent a massive fishing expedition, rather than the particularized circumstances demanded by the Constitution.
The Trump administration had told the justices not to take the case.
Solicitor General D. John Sauer said Mr. Chatrie had opted in to Google’s location history tracking in the first place.
He also compared the location data to any other “marker” a criminal might leave at the scene of a crime, which investigators are free to use.
Besides, Mr. Sauer said, this type of geofence warrant would no longer be possible. He said Google changed its services a few years back so that location data is now only stored locally on a device, not kept centrally by the company.
The 4th U.S. Circuit Court of Appeals, which previously heard the case, upheld the warrant — but judges offered wildly varying reasons.
Some of the judges said a geofence request wasn’t even a search under the Constitution. Others said it was a search. Still another ducked that question altogether, just ruling that the government acted in “good-faith” and so the evidence shouldn’t be suppressed.
Tech companies have weighed in, urging the justices to clear up the law.
X, formerly Twitter, said the justices should consider the contractual promises the companies make to protect data when they rule.
The high court waded somewhat into the issue in 2018 with the Carpenter case.
In a 5-4 ruling, the high court said cops couldn’t get cell data under the “third party doctrine,” which generally holds that records someone turns over to someone else can then be given to authorities without a warrant.
Chief Justice John G. Roberts Jr., writing for the majority, signaled the Fourth Amendment had to be read with modern technology in mind.
“Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, ’after consulting the lessons of history,’ drafted the Fourth Amendment to prevent,” he wrote.
Privacy advocates are urging the Supreme Court to extend the same principles from the Carpenter ruling to the broader issue of geofence warrants.
They said the warrants not only implicate the privacy of those like Mr. Chatrie, but everyone else whose location data was turned over.
The Call Federal Credit Union in Midlothian, Virginia, was robbed on May 20, 2019. The robber made off with $195,000 in cash.
Police saw in video that the perpetrator was using a phone, so they applied for a geofence warrant on June 14.
The initial grab asked for anonymized data on devices within 300 meters of the bank at the time of the robbery, and detectives focused in on nine devices, eventually settling on three that they sought to tie to identities.
