En Banc Court Affirms Denial of Geofence Warrant Challenge

US v. Chatrie: Recall last July when a panel of the Fourth Circuit affirmed the denial of Chatrie’s motion to suppress evidence gathered pursuant to a geofence warrant. Where the district court had denied the motion by applying the good-faith exception to the exclusionary rule, a divided Fourth Circuit panel concluded that Chatrie lacked standing to challenge the warrant in the first place under the third-party doctrine. Chatrie sought, and was granted, rehearing en banc.

After oral argument, the en banc Fourth Circuit released a per curiam opinion stating simply that the “judgment of the district court is affirmed,” with no further explanation. There were, however, many other opinions (totally 120 pages) discussing the issues raised in the case.

Judge Diaz concurred, emphasizing the court was affirming “solely on the court’s finding of good faith” and arguing that “judicial modesty counsels that we not make grand constitutional pronouncements merely because we can.”

Judge Wilkinson (joined by Judges Niemeyer, King, Agee, and Richardson) argued that “with due regard for my fine colleagues, there was no search here” and even if there was, there were “many good reasons why courts should respectfully rejected the assault on geofence warrants” mounted by, among others, the Fifth Circuit, which not only held that a defendant could challenge geofence warrants but that they violated the Fourth Amendment.

Judge Richardson also concurred separately (joined by Judges Wilkinson, Niemeyer, King, Agee, Quattlebaum, and Rushing), arguing that “obtaining just two hours of location information that was voluntarily exposed is not a Fourth Amendment search and therefore doesn’t require a warrant at all.”

Judge Niemeyer also concurred separately, emphasizing the long history of law enforcement “collecting and following ‘markers,’ or clues, voluntarily left behind and abandoned by a person at the scene of a crime.” Judge King also similarly concurred separately, briefly, to express his agreement with both the no-search rationale and good faith rationale.

Judge Wynn (who dissented on the initial panel) concurred in the result (joined by Judge Thacker, Harris, Benjamin, Berner and, with the exception of a footnote, Gregory), arguing that the “surveillance technologies at issue in this case – the very same ones that seem to thrill my colleagues who join Judge Wilkinson’s separate opinion – would have been unimaginable to the Founders” and that, applying the Supreme Court’s decision in Carpenter, the geofence warrant was a search. In a footnote (to which Gregory did not join), Wynn states that he nonetheless agrees that good faith applies, but doesn’t explain why he changed his mind on that from the panel opinion. Nonetheless, he criticizes the court’s “unwillingness to confront” the Fourth Amendment question “head-on” by taking “shelter in the judge-made doctrine of ‘good faith.’”

Judge Heytens (joined by Judges Harris and Berner) concurred, arguing that the “strong medicine” of exclusion was unwarranted in this case (even if there was a search) because the legal landscape at the time was “uncertain” and that the officer did “what we expect reasonable officers to do when face with such uncertainty” by getting a warrant and consulting with prosecutors beforehand.

Judge Berner (joined by Judges Gregory, Wynn, Thacker, Benjamin, and (largely) Heytens) concurred, arguing against the Fifth Circuit position of geofence warrants always violate the Fourth Amendment, but that there is an expectation of privacy in the non-anonymized data that is produced during the process. Here, the warrant violated the Fourth Amendment and she saw “little benefit in postponing these issues until another day.”

Finally, Judge Gregory dissented, stating that he largely concurred in the opinions of Wynn and Berner, but that he would go further and hold that the good-faith exception did not apply in this case because the warrant violated long-held understandings of what warrants require, regardless of whether the particular circumstances had been previously addressed by the court.