A federal appeals court ruled Friday that geofence search warrants, which are used to identify all users or devices in a geographic area, are prohibited by the Fourth Amendment, which protects them from unreasonable searches.

The ruling was issued by the U.S. Court of Appeals for the 5th Circuit, widely considered the most conservative appellate court. The 5th Circuit ruling splits the two courts in the 4th Circuit, which last month rejected another Fourth Amendment challenge to geofence orders.

“This Court cannot forgive the demands of the Fourth Amendment in the name of law enforcement. Accordingly, we hold that geofence search warrants are general search warrants that are categorically prohibited by the Fourth Amendment,” the 5th Circuit Court of Appeals’ August 9 decision said.

The case, United States v. Smithconcerns three Mississippi men convicted of an armed robbery of a mail truck in 2018. Although the 5th Circuit ruled geofence warrants unconstitutional, it denied the convicts’ motion to suppress evidence because “law enforcement acted in good faith when they relied on these types of warrants.”

“We hold that geofence search warrants are modern general search warrants and are unconstitutional under the Fourth Amendment. However, given the novelty of these types of search warrants in this case, we affirm the district court’s finding that suppression was not justified under the good faith exception,” the court said.

Scholar stunned by 4th Amendment to US Constitution

Although the evidence was admitted, the court’s overall decision against geofence orders is significant. The Electronic Frontier Foundation (EFF) called the 5th Circuit’s ruling “an important decision.”

“The Court followed the arguments EFF has made in a number of cases and concluded that geofence orders constitute the kind of ‘general, exploratory browsing’ that the Fourth Amendment’s authors intended to prohibit. EFF welcomes this decision because it is important that every person feels they can simply take their cellphone out into the world without fear of ending up as a suspect because their location data has been captured in an unlimited digital manhunt,” said the nonprofit group focused on digital rights.

The ruling impressed Berkeley law professor Orin Kerr, an expert on the Fourth Amendment. The Fifth Circuit’s decision “leaves me speechless,” he wrote in a post on Reason’s Volokh Conspiracy blog.

“The case creates a split with the Fourth Circuit on an important issue, and it creates a further split with the Colorado Supreme Court on an even more important issue,” Kerr wrote.

The judgment of the 4th District Court of July 9 in United States v. Chatriesaid “the government did not conduct a Fourth Amendment search when it obtained Chatrie’s location information for two hours because he voluntarily disclosed that information to Google.” The Fourth Circuit panel’s vote was 2-1.

It is no coincidence that Google was involved in both the 4th and 5th Circuit cases. “Geofence warrants require a provider – almost always Google – to search its entire repository of user location data to all “Users or devices located in a geographic area during a period of time specified by law enforcement,” the EFF said in December 2023 after Google implemented a technical change that could make it more difficult to provide bulk location data in response to such warrants.

Geofence arrest warrants skyrocketed

Geofence warrant requests have skyrocketed since Google received the first such request in 2016. “In 2019, Google received approximately 180 geofence warrant requests per week from law enforcement agencies across the country, which amounts to approximately 9,000 geofence requests that year,” the 5th Circuit Court decision states. “By 2020, that number increased to 11,500 geofence warrant requests. By 2021, geofence warrants accounted for more than 25 percent of all warrant requests Google received in the United States.”

In his contribution, Kerr explained why he believes the 5th Circuit’s ruling is so significant:

The Fifth Circuit makes two important findings. First, access to any set of geofence records is a search under a broad interpretation of Carpenter v. United States (a 2018 Supreme Court ruling). This is the point that caused the split with the Fourth Circuit in United States v. Chatrie. As I noted just a few weeks ago, Chatrie held that access to such records does not constitute a search, at least when the scope of the records sought is relatively limited. The Fifth Circuit expressly disagrees.

Second, and much more dramatically, the Fifth Circuit rules that the database of geofence records is so large and the entire database must be searched to find matches. The Fourth Amendment does not allow courts to issue search warrants to collect this data. Legally, it is impossible to have a search warrant specific enough to authorize surveillance. The government cannot collect these kinds of online records. at allin other words, even with a warrant based on probable cause. This decision contradicts a recent ruling by the Colorado Supreme Court, People vs Seymourand raises the more general question of whether digital arrest warrants for online content are constitutional.

After the 2018 mail truck robbery, video from a camera at a nearby farm office appeared to show a suspect using a cell phone. But in November 2018, “nine months after the robbery, the Postal Inspection Service was unable to identify any suspects from video footage or witness interviews,” the 5th District Court ruling said.

The postal inspectors working the case initially did not know what a geofence search warrant was. When they learned about this type of search warrant, they applied for one “to obtain information from Google to help locate potential suspects and witnesses related to the robbery.” The geofence search warrant “authorized a one-hour search… within a geofence of approximately 98,192 square feet surrounding the Lake Cormorant Post Office.”