U.S. Supreme Court's Chatrie Decision Explained | Geofence Warrants, Digital Privacy & the Fourth Amendment

What does the U.S. Supreme Court's landmark decision in Chatrie v. United States mean for your digital privacy, law enforcement investigations, and the future of geofence warrants?

In this episode of True Crime with the Sarge: The Audio Files, retired NYPD Sergeant Joseph Giacalone is joined by former Assistant U.S. Attorney and current Adjunct Professor at the University of Pennsylvania Carey Law School to break down one of the most important Fourth Amendment decisions in the digital age.

Together, they examine the Supreme Court's ruling in Chatrie v. United States, its impact on geofence warrants, the use of Google location history in criminal investigations, and what the decision means for prosecutors, defense attorneys, investigators, and everyday Americans concerned about digital privacy.

Whether you're in law enforcement, the legal profession, a true crime fan, or simply interested in constitutional law, this episode offers an accessible yet in-depth look at a case that will shape criminal investigations for years to come.

In this episode:

• What is Chatrie v. United States?
• Why geofence warrants have become a powerful investigative tool
• How Google location data is used in criminal investigations
• The Supreme Court's Fourth Amendment analysis
• The balance between public safety and digital privacy
• How this decision affects police, prosecutors, and defense attorneys
• The future of electronic surveillance and search warrants

If you enjoy thoughtful discussions on criminal investigations, constitutional law, forensic evidence, and today's biggest true crime stories, be sure to follow True Crime with the Sarge: The Audio Files on Apple Podcasts and leave a rating and review.

Transcript

SPEAKER_02 0:01

The US Supreme Court has just decided in Chattery versus the United States that could fundamentally change how law enforcement gets location data for cases. It's called a geofense warrant. We're going to get into it in a second. But this also has to do with privacy issues and, of course, the Fourth Amendment. With us today to break it all down is Professor Michael Levy. Professor Levy currently teaches at the Pen Carrey Law School of the University of Pennsylvania. He has also spent over 37 years as an assistant U.S. attorney at the Eastern District of Pennsylvania. Professor, welcome to the show. Thank you. So about a week or so ago, we got this major Supreme Court decision. And kind of like, you know, it kind of like went below the radar, but I think there's some real significance in here. I saw a post about the blog that you wrote for the uh Cary Law School, and that's what made me reach out to you. So what was one of your first impressions when you heard about this?

SPEAKER_00 0:56

You know, I wasn't surprised by the decision. I was surprised by, from a practical point of view, how little it decided. Uh the Supreme Court had decided uh in, I think it's 2019, uh, in a case involving cell site location information, that is, getting cell tower information, um, that the law enforcement needed a search warrant to get information that that tracked a person for at least seven days. They didn't say what happened less than seven days. But the the nature of the opinion was such that it was pretty clear that personal location information that could track you going around places was something the court was going to protect. So I wasn't surprised that they required a warrant. Now, as a practical matter, in the geolocation search warrant problem, law enforcement have been seeking geofence warrants for probably close to a decade now, um, since Google let it be known that they had this huge database of location information from subscribers. Uh, but Google always insisted on a warrant. And so law enforcement always was getting search warrants. So there's you know, nothing new. I mean, it wasn't a question of they didn't think that they wasn't a question they decided, you know, we don't think we need a warrant. It's a question of, I mean, you're a law enforcement officer. Is your job to fight Google to make law? Is your job to solve a crime and get somebody arrested? So law enforcement quickly provided the search warrants, you know, and then you'd have to go back and forth with either a judge or with Google as to whether they liked it. But all these cases involve search warrants. And the issue then becomes well, what do you need in that search warrant application? And the court passed on that and said, we'll send it back to the lower court to decide.

SPEAKER_02 2:55

So let's guidance. I'm sorry, not much guidance for law enforcement going forward. So let's walk everybody through this. So this guy, O'Kello Chatry, walks into this um federal credit union and is it Midlothian? I'm I hope I say that right. Richmond, Virginia. And he has a he tells the teller he's got a gun and he gets about $200,000 or say, about that amount. Yeah. And the police really have no investigative leads, right? So this is how this whole thing comes about. Right. Yeah.

SPEAKER_00 3:23

So the geofense warrant is is a tool of last resort in a sense. Um, I mean, first from a practical point of view, I I used to get that from Google, not geofense warrants. But it wasn't unusual to wait three or four months to get a response to a search warrant. Um and so what happened in this case and what's happened in other geofense warrant cases is you've done all your investigative work and you don't have a suspect. And so now you turn the problem around. You know, there's a crime, you know, we you know, this is a bank robbery we know somebody did it. So, and if in this particular case, the surveillance uh photos showed that the person who robbed the bank was on a cell phone just before he went into the bank. So there's good reason to believe there'll be uh cell phone records. So they get a warrant, and the warrant asks Google to tell them every Google subscriber, and if you have an Android phone, you probably whether maybe you realize it or not, are a Google subscriber. Even if you don't have an Android phone, but if you are using some Google app, whether it's maps or Waze, or you just are logged into your Google account, Google is tracking where you are. It's using cell site information, it's using Wi-Fi information, using just a whole lot of data. And so what they did was said they drew a basically a circle around the bank of, I think it's 150 meters, and asked, tell us every person that you could track in that 150-meter circle 30 minutes before the robbery and 30 minutes afterward. And that was what the warrant asked for. Right.

SPEAKER_02 5:16

So basically, some look at this as a fishing expedition. Is that is that so much like a good adjective, say, or is a little too?

SPEAKER_00 5:23

I mean, it's it's it's mature, but in a sense, it is. You know, like usually we have, I mean, usually when I was seeking records from an internet service provider, I had a suspect. I wanted information about the suspect. In this case, we we turn the problem around. We don't have a suspect. Give us some clues that will help us identify a suspect. So in this particular case, um they get the search warrant, they get it to Google. Now, Google's procedure was we'll tell you who was in that area in that time, but we won't tell you who we'll we'll give you just an anonymized identifier. We won't tell you who they are. And in this particular case, let me just check my notes here.

SPEAKER_02 6:07

It was glad you said the word animized because that's a tough one.

SPEAKER_00 6:11

Anonymized, yeah. So it what they have is that they, you know, they got a they have a user. They don't tell you who the user is, they give them a number, you know, number 40, you know, 451 or something, whatever it is. And you get a bunch of numbers or you know, letters or whatever they put on it, but you don't know who that person is, you don't know anything about them. And they say, okay, we have, I think in the initial search there were 19 people in that area. And so the Google procedure was that you law enforcement could then go back to Google and say broaden the time frame for these people. So we're not now searching everybody, and there are millions of people in the in that database. We're looking at these 19 people, and let's see if we can't eliminate some. Some people didn't spend long enough in the in that geofense warrant. Somebody was there, but they they then parked at a house around the corner and we figure out who that is, and they're not the person. I'm not sure because I had nothing to do with that investigation. So it finally, when they they get that, the law enforcement now eliminates a whole bunch of others. And if and I'm just gonna check the numbers because I don't want to be wrong on this.

SPEAKER_02 7:31

Yeah, it goes to nine if they get them from six to nine.

SPEAKER_00 7:34

Nineteen, yeah, and then and it goes nineteen to nine when they narrow it down, and then when they finally get it to the final thing, it's three people. And Google says, okay, here are the names of those three people. And now law enforcement has three suspects to go start investigating. It's not the end of the investigation, they don't know much more other than a person with a cell phone that we now know who it is, was in the area at the time. So now you start the kind of investigation you did as a police officer.

SPEAKER_02 8:07

Right. I mean, I look at this from like this was great police work, right? Where they they made something out of nothing. Is that all in danger now because of this?

SPEAKER_00 8:18

It depends on what they're gonna decide. There are a whole bunch of open questions. I mean, one of the one of the arguments is Google doesn't store this data in any broken-up fashion. They take every user's data and put it into this gigantic database. Um, they've got over, I think it's 500 million subscribers. So one of the arguments is you're searching the records of 500 million people. And if you go back to the revolutionary times, one of the complaints that led to the Fourth Amendment was that the king's officers had what they called writs of assistance, which was basically search warrants that said you can go to any building that you know you want to, looking for, and usually in that case it was customs violations, uh, but could also be, you know, the letters they were writing back and forth criticizing the British King. Um, and so the Fourth Amendment kind of says, you know, you can't have a search warrant that covers multiple houses. So is a search warrant that covers you know five million people, you know, cover it now. A couple of things to think about here. One law enforcement doesn't decide how to break that database down. Google decides to store it that way. There is there's at least one app I know of called What Three Words, which divides the world up into three three square meters. Um so if you ask them who was in you know a geofence warrant, it wouldn't require searching these five million people. It would just require who was in this particular, you know, the just the users there. You could also store data by user, and you could then say search over all the user, but only give us back the ones who were there. So I'm I don't see that as a big problem. The second one is kind of an interesting, almost a philosophical question is what do we mean by a search? If you do a you do a Google search and you look up some information, well, Google has indexed the entire internet. Are you looking at everything on the internet? No, what you're looking at is what Google sends back to you. And we're basically telling the computer to go scan a whole bunch of data and just report back to us uh things that are relevant. In this case, it scanned the records of 500 million people, but it reported back 19 that fit in in the search. But there's at least one court who's had that has held that that is you can never get a warrant for Google because it searches too many people. So that's one of the open questions that's still there. And then it's gonna be the issues of uh kind of the what you would have think of ordinarily, which was um you need probable cause. Well, the tighter the circle and the shorter the time frame, the more likely you're gonna be able to show probable cause that the person was in that area. There's a natural tendency for law enforcement people to want a smaller circle and a and a and a shorter time frame because you don't need 500 million suspects. That hasn't advanced your investigation at all. So, you know, I think law enforcement is going to draw tight circles and tight time frames because we don't want that much more data. But how tight and how long a period of time is reasonable under the Fourth Amendment is still all up in the air.

SPEAKER_02 11:48

Right. I mean, I was hoping for them, or I guess it's gonna come eventually, like almost like a bright line rule out of this, right? Where they say this, this is the deal, this is what you need, this is what the plan is.

SPEAKER_00 11:59

It basically didn't give us that. No, it gave us you need a warrant, but it didn't tell us what has to be in that application for the search warrant. Now, I I don't know. Do you have the graphic I sent you? Because it might be helpful for the viewers to see when we're talking about what a geofense warrant covers.

SPEAKER_02 12:17

Yes. So you can you can uh just I'll I'll pull it up in a second.

SPEAKER_01 12:22

Yeah.

SPEAKER_00 12:33

So why are you getting it up? This is a graphic I made. One of my students wrote a paper on geofence warrants uh and not this past spring, but this the but the year before. Um and I wrote a you know, as I always do, I I grade the paper and I write a critique and telling them this was good, this is where you need improvement. And one of the things I did was I wanted to illustrate what is what does a geofense warrant mean? And so I took the um a map of uh took Google Maps and drew a circle of 150 meters around the University of Pennsylvania Law School. And basically, when you get it up, you'll see it goes just less than one city block uh in each direction. Now that that can be a lot of people, uh, but I think it's helpful to get some idea of what it is we're we're talking about when we wait. This is here we go. Okay, so the center of the circle is 34th and Chestnut Street in Philadelphia, which is where the University of Pennsylvania Law School is. Um Philadelphia has main streets and alleys, and so the big dark line at the top is Market Street. Uh the law school's on Chestnut, and the next major street down is Walnut. And you can see the circle doesn't quite make it to market, doesn't quite make it to Walnut, doesn't go down to 34th. There is no 35th Street, it doesn't quite go up to 36th Street. And so that's what's covered in it. And there's a lot of buildings in that area. Uh during the daytime, probably a lot of people. Uh but at least you get some sense of what we're talking about when we're talking about a geofence warrant.

SPEAKER_02 14:11

Any reason why they used um, I'm gonna stop sharing on this. Any reason why they used um meters instead of feet? I mean, United States, I mean, we rarely use that kind of stuff.

SPEAKER_00 14:24

Probably because because Google covers everything around the world. Uh, and so they probably will have an easier time measuring it in meters. I never asked for a geofense warrant, but geo Google may have come back to law enforcement people and says, can you can you translate that into meters? Because we can our software works that way.

SPEAKER_02 14:44

I mean, I suppose I have no idea. Yeah, what are they talking about here? Yeah. So, I mean, you had mentioned to me about um basically there's a first cousin to this kind of search with the keyword search, right?

SPEAKER_00 14:58

Yes. Yeah, that's kind of the same problem. Uh, there was a crime, somebody did it, and it's logical that they would have done some kind of a search. So, two big cases I know of, one is Pennsylvania and one's in Colorado. The Pennsylvania case is a rape case in a rural area of Pennsylvania, and the the Colorado case is an ours in case of an apartment building. And again, they after several weeks of investigation, law enforcement comes up empty-handed. They have no suspects. Um the in the rape case, they they had you know DNA, but they didn't have nobody matched because the suspect, as it turned out, had no criminal record, had never been arrested, so never provided a DNA sample. So they they took a they got a search warrant that said, tell us everybody who searched for this particular person, the rape victim, or her address during a week one-week period on either side of the crime. And it's similar in the arson case in Colorado, who looked for this address. Um the rape case came up with one person. Um and as it that began the investigation, uh, they later followed the guy around. He was a cigarette smoker. He threw down a butt, they picked it up, they matched the DNA. It was, you know, it was it was him. He was another the woman's husband was a prison guard, and this guy was also a prison guard. So he knew the husband's schedule and knew the wife would be alone in a in a farm area in Pennsylvania. The arson case, I think they came up with nine people and they eliminated a bunch of them for various reasons. Uh, and I think they ended up with like three or four possible suspects, which then led them to the to find the right person. But once again, the charges didn't come when they finally identified somebody. That's when the investigation finally could begin to focus on an individual and see what evidence there was uh to show that they were or were not uh the criminal.

SPEAKER_02 17:16

Right. When you read through this Chatry case, I mean you see where it's building off of Carpenter versus the United States, right? Where the the um the cell tower and the location and the privacy, because this really has to do with digital privacy. They're talking basically the Supreme Court has told us in this case, right? You have no choice but to give up your privacy. That's why it's protected.

SPEAKER_01 17:36

Yeah.

SPEAKER_00 17:37

Yeah, and and you know, and there are arguments about that. And you know, in the in the um reverse keyword search case, the Pennsylvania Supreme Court kind of split, but it it affirmed it. Uh, one of them was saying, regardless of whether the Fourth Amendment protects us or not, the warrant was good, so that's fine. But others say you don't have an expectation of privacy in your Google searches. And one of the reasons was you do have a search about a choice about who you use as your search engine. You can use DuckDuckGo. They don't track your searches, and so unlike the cell phone, we you can't run around in today's world without one. Um I don't know if that's gonna be acceptable or not. All this goes back to a 1967 United States Supreme Court decision in Katz versus the United States, where they gave a new definition of what the Fourth Amendment covered, and they said it covers a reasonable expectation of privacy, and they defined that as first, the person has to demonstrate that they have an expectation of privacy. And second, that has to be one that society is prepared to recognize as reasonable. And in writing that opinion, they basically said, look, if you leave your curtains open at night, even if you have an expectation of privacy, you can't complain if somebody looks through the window. The other side, part of that is also who decides what's a reasonable expectation of privacy? A bunch of nine judges on the Supreme Court, um, you know, some of whom are you know as old as I am and don't have experience in the digital world? They're probably very different from 20 and 30 year olds. Uh the other problem is once you get to carpenter and cell site location information, if my look if where I'm driving is now protected by the Fourth Amendment, how do I have an expectation of privacy in that? I'm out on the street driving around, anybody can follow me. And one of the things the court was concerned about there was how easy it is now to do a surveillance of somebody. When you were a cop, if you wanted to do a physical surveillance and the person was driving, how many law enforcement officers did it take to follow them? Too many cops. And so you didn't, yeah, you didn't do that very often. Well, you know, you can get cell site location information, you can put a tracker on a car, and one agent sitting at a computer can tell everybody else where this guy is. You don't have to worry, he's gonna suddenly take a turn and go to a different block. And we can't all be following him because he's gonna figure out we're following him. There's that's that great scene in The Godfather where they they go from Manhattan to Brooklyn by way of New Jersey. Take a U-turn on the Pulaski Skyway. Um, you know, they were shaking, they're shaking a tail if there was one. And so the digital age has just made it so much easier for law enforcement to get information and cell site location information and and you know the Google uh geofense information, they're collecting all the time. Back in the old days, you had a suspect, you wanted to know where he was six weeks ago, you had to find people who knew. Now you get a geofense warrant, and you go, you know, ask, or you, you know, if you know the suspect, you ask, where was this person according to your record six weeks ago? He wasn't a suspect back then, but he is now, and we want to know. And and the court's concerned about this gigantic database of information that's now available to law enforcement, and how we you know, how we define privacy in a digital age.

SPEAKER_02 21:27

Yeah, well, the one good thing that I think we could get out of this is by basically the Supreme Court's telling us, listen, yes, you're giving up your right to privacy, but you know what? It's still gonna have to follow a plan for law enforcement. I mean, absolutely. Yeah. To me, when I read that, I said, yeah, that's at least you know, they're giving us something.

SPEAKER_00 21:45

And and that that doesn't bother me. Um, I you know, my I was I always preferred getting search warrants, and I've heard you do another interview where you had the same attitude was you have a search warrant, you're in much better shape. Um, so you know, you're not gonna lose the evidence in court. One of the other things that that that's troublesome about where the court is going, and I'm not bothered by making location information private, is there's no real definition of what is private. They they say, you know, you have a right to privacy in the whole of your location history. I I don't know what that means. I use Waze when I when I drive around in this area. I live in a suburbs outside Philadelphia. If I go into the city, I know where I'm going, but I want to avoid traffic. So I find it convenient to have a GPS thing running. So it tells me where I am. Well, they know where I am. That doesn't bother me. But what else, you know, I'm much more concerned about my financial records, my medical records. Those aren't, at least right now, covered by the Fourth Amendment. And so will they be covered? I mean, most people I think would put a higher degree of privacy value on those. Um, we don't protect um, not just medical. I refer to my students, I talked to the idea of privileged professions, meaning professions that have a privilege that go with them: lawyers, doctors, psychiatrists, um, in some places, accountants, clergy. Um, nobody's ever thought those were protected by the Fourth Amendment, but I would think most people would put much more value of privacy on information they give to a lawyer, a priest, an accountant or financial advisor than they would about you know what their driving records are.

SPEAKER_02 23:34

Right. Do you think this is the last we're going to hear about this geofence warrant? Because the Supreme Court sends it back down to the Fourth Circuit. Am I correct on that? Basically saying you guys figure it out?

SPEAKER_00 23:44

Yep. But you know, the the it as as long well, I mean, the the only reason we may not hear more is Google doesn't store the data that way anymore. Um, Google decided it was much easier to avoid the bad publicity they had about providing this information by just not collecting it anymore. Uh, but there are other places that keep information. I mean, Uber and Lyft have information on you, not to the detail that uh Google had, but they have it. And so law enforcement may want to get records from them. Uh, and so it probably will require a search warrant. So it's gonna come up at some point. Whether it gets up to the Supreme Court again, I don't know. Um, or whether the courts of appeals managed to sort it out. But it's it's one of those issues I think might well get up there.

SPEAKER_02 24:34

Yeah, I'm assuming any app that requires you to go home or get a delivery or whatever, because they have to they got to know where you are, right? I mean, that's basically what you're thinking about.

SPEAKER_00 24:44

Yeah, yeah, absolutely.

unknown 24:46

Yeah.

SPEAKER_00 24:47

We live in strange times, Mike. We really do. You know, that and and you and I are too old to know how it's all gonna turn out at the end because it's gonna take another 40, 50 years to sort out.

SPEAKER_02 25:00

Well, you brought up a great point about the you know, the age of the justices, and as that, you know, gets you know, the new cohort comes in, the younger generation. But there might be something else that we might not even be aware of at that time that that takes over.

SPEAKER_00 25:13

Well, you know, I started doing cybercrime stuff in 2001, which I thought was pretty intriguing because I was already in my late 50s. And I was the guy that gave it to. And I decided I was just gonna learn it. So I so I did. Well, in 2001, uh, Google was just getting really beginning to go. Um, Facebook didn't exist yet, the iPhone hadn't been created yet. Um I tried a case in 2003. The judge, it involved a computer, it was a computer case. The judge wouldn't ask questions of the jury panel about did they own a computer or not. I don't know why. Convicted the guy. I'm standing out in a hallway and one of the jurors comes up to me. And his guy is probably around 60, and he says, Why did you pick me? I don't even own a computer. I don't think that's just true today. I think more people have computers, more people have phone iPhones or some kind of cell phone. So everybody's using them today. Um, so I've just, you know, in the time I was doing this work, I watched the world change radically. And it hasn't slowed down any. I mean, we now have artificial intelligence that's speeding things up again. I don't know where it's gonna end.

SPEAKER_02 26:31

I just I'm pretty confident I won't be around when it happens. You and me both. On that note, we're going to end this here. You hang out one second with me, Mike. Thank you very much. That was interesting. You hang out one second. Thank you.

SPEAKER_00 26:43

Sure.