Geofence Warrants UPDATE
The Third-Party Doctrine Was Built for a World That No Longer Exists
I spend a lot of time thinking about the Constitution.
My client’s freedom, and our collective freedom, often depends on whether a particular judge, in a particular case, in a little county in Colorado, is going to have the bravery to insist on a basic principle: government power has limits, even when a person accused may have done something wrong.
Fighting to inspire such judicial bravery requires fortitude and historical imagination. It also requires saying uncomfortable things out loud.
A Rule from the Rotary-Phone Era
I wrote about a then-pending Supreme Court case Chatrie a while ago and have some additional thoughts after the decision.
This gets a bit technical. But… it is really simple and practical.
Chatrie touches on the third-party doctrine in Fourth Amendment law.
OK. So… the modern third-party doctrine draws much of its force from Smith v. Maryland, a 1979 Supreme Court case decided just as I was learning to walk.
Our Supreme Court held, in 1979, that a person had no reasonable expectation of privacy in the telephone numbers he dialed because he voluntarily conveyed those numbers to the phone company. OK. Fair enough.
Maybe that made sense in a world of landlines, rotary dials, and phone cords long enough to reach the basement stairs (where I used to sit and talk to my junior-high girlfriend).
But applying that rule to modern digital life makes less sense every day.
Our phones, cars, banks, apps, internet providers, and cloud services constantly create records. We cannot participate in modern life without leaving a trail of information in the hands of third parties.
Calling all of that “voluntary disclosure” has an effect. It destroys any reasonable expectation of privacy. It makes a mockery of the word voluntary, ignores the steps we may take to protect our privacy. It just removes any possibility of privacy.
James Madison’s Digital Diary
Imagine James Madison writing in a private diary at his fancy house in Montpelier.
The quill is his. The ink is his. The parchment is his. The diary probably goes into some wooden desk with a lock and, presumably, one of those old-timey keys that look like something my kids play with around Halloween.
Now imagine Madison keeps the same diary today.
Apple owns the quill. Some app company provides the ink and parchment. Google supplies the shelf. A password manager holds the key. AT&T carries all of it through the metatubes, or whatever the technical term is. Maybe I’m mixing up the metaphor. But… you get the point.
Before Madison writes a word, he scrolls through and accepts six contracts nobody reads to use this tech. (And I mean nobody, including lawyers.) Maybe he’s careful. Maybe these companies can’t see the content of the diary. Maybe Madison is smart and spends a bunch of time reading user agreements and selecting encryption. But… the companies can still probably find out where he writes, when he writes, what he searches for while writing. They can tell whether he spent twenty minutes probably writing some ridiculous blog post about the third-party-doctrine and personal liberty before searching “best powdered wigs near me” and “Why is this Hamilton guy going to get so famous and get his own musical? He doesn’t even have a nice powdered wig. He died in a stupid duel. Why won’t Ron Chernow someday write a biography of me??”
OK, so… enough of that… here’s the thing… did Madison voluntarily surrender his private information?
Or did he simply act like a normal, everyday person in 2026?
This is the basic problem with the traditional third-party doctrine. Modern life requires technology. Modern life therefore requires intermediaries. A company touching information just cannot mean the government gets to grab it.
Chatrie Starts Pulling the Doctrine Apart
That is why Chatrie v. United States is exciting.
To review: the case arose from a Virginia bank robbery. Investigators used a geofence warrant to obtain Google Location History records for all devices near the bank. The resulting process identified three users, including Okello Chatrie.
OK, so, Mr. Chatrie probably robbed a bank. Let’s get that part out of the way. But a serious allegation does not make government power unlimited or forgive any intrusion. In fact, that is when constitutional limits actually matter. (Think of it this way: maybe there would be a lot less crime if the cops were allowed to burst into anyone’s bedroom at any time and search for illegal stuff. But we don’t want to live in that world.)
Anyway, back to the case… The Supreme Court held that obtaining Chatrie’s location information invaded his reasonable expectation of privacy and was illegal.
The Court rejected two important government arguments.
First, the government does not get a free pass because it obtained only a short period of location information. One visit to a doctor, lawyer, church, political meeting, or private home may reveal plenty of information. So “we only searched a lil’ bit” doesn’t cut it.
Second, information does not become voluntarily shared merely because ordinary smartphone use causes a technology company to possess it. So “you handed it over, so it’s not private” is really questionable at this point.
Or we could take Justice Gorsuch’s approach… which… Wait. Let’s skip that digression.
Here’s the simple version:
A rotary phone is obviously not a smartphone;
The dialing of numbers on a rotary phone is obviously nothing like a digital dossier with an entire psychometric profile tuned to predict preferences and behaviors of all kinds, including consumer behaviors;
And Ma Bell ain’t nothing like the cloud.
The Interesting Part Comes Next
The question now… how is this entire area of law going to develop? I think that Gorsuch is right to point out the tensions, troubles, and contradictions that need to be resolved.
Here’s the question for Judges and the question for US… are we going to keep putting up with violations of our constitutional rights? Are we going to keep listening to those who say “trust me, it’s safer to give up privacy and just let the government have more authority”.
In a recent draft article, Professor Orin Kerr calls Chatrie a “blockbuster.” He identifies three possible readings of the decision.
It may protect only location records.
OR… it may protect all kinds of other information generated through ordinary smartphone use.
OR… it may announce something much broader: private digital information can remain constitutionally private even when a technology company holds it.
Nobody yet knows which reading will prevail. There is a fork in the road. That is exactly what makes the law dynamic and interesting. It is rarely “settled”. It is a journey in which we all participate.
The next chapter in this story will be written in suppression motions in little counties in Colorado, evidentiary hearings, and lower-court opinions. Professor Kerr notes that courts are already confronting arguments about how Chatrie applies to automated license-plate readers.
OK, this brings me to Flock cameras. In another blog post, I wrote “don’t get me started on Flock cameras”. But now… more and more stories are bubbling up in the media about Flock cameras. And it is probably time for me to get started on Flock cameras.
A Flock Camera Is Not a Camera
Here’s the first point. A Flock Camera is not a camera. Calling a Flock device a “camera” is ridiculous.
It is worse than calling a smartphone a telephone. (A smartphone is not a telephone. It is a computer in your pocket.)
A camera takes a picture. A camera sees one car at one place at one time.
But a Flock Camera is not like this. A Flock Camera is a connected, nationwide, hidden network of AI-enhanced sensors and data that can transform every movement and every passing vehicle into a searchable mosaic. This “camera” can generate extremely detailed, stored, manipulable, searchable records. This can permit officers to do all kinds of intrusive things.
The word ‘camera’ is a poor description of the individual device and the local sensor. This individual device and sensor is nothing like your grandpa’s Minolta… trust me.
Anyway, the sensor or photograph or video is not the product this company sells to law enforcement. The network and the interwoven galaxy of information is the product.
This “Flock Network” is a high-tech, dynamic system that is improving all the time.
This set of technologies create a world where no movement and no behavior is private.
OK… think of it this way. Unlike a normal “public observer”, this technology does not get distracted. It does not have a shift. It does not have to pee. It does not get hungry and go to the donut shop. It does not forget a plate. It does not miss some aspect of facial recognition or some other minor detail. It would never confuse a 2023 dark grey Subaru Forester Wilderness edition with a particular scratch on the passenger door and a Thule ski rack with some other person’s Subaru of the exact same year and model and color and with the exact same ski rack in a mountain town. (Just… asking for a friend, not describing why I grew frustrated and set off the alarm on that other car in the City Market parking lot one time).
OK, so… a Flock device is not a “camera”. But what does this mean?
Surveillance First, Suspicion Later
Traditional surveillance required police to decide whom to follow.
Following someone required officers, vehicles, gasoline, patience, and probably the occasional humiliating act of peeing in a bush or purchasing a gas-station hot dog (or a donut, sorry cops!).
Those practical limits mattered. It is true… Police could follow a person in a public place. But they could not follow everyone.
And they certainly could not follow everyone, all the time, everywhere.
In this sense, a surveillance network flips the 4th Amendment upside down.
Nah… that phrasing is not strong enough. A surveillance network flips the 4th Amendment upside down and then gives it a piledriver and then taps it out!! (sorry, I used to watch Andre the Giant on TV as a kid).
Old model: Develop suspicion. Identify a particular suspect. Conduct surveillance.
New model: Collect everything about everyone, everywhere, all the time. Store the records. Enhance and interlace them with sophisticated technology. Search later. Identify a particular suspect. Develop suspcion about this suspect.
This is not ordinary activities, but more efficient. This is not more efficient policing. It is an entirely different conception of government power. It is like living in the upside down.
Public Does Not Mean Meaningless
Cars travel on public roads. Anyone nearby may see them. Mmmkay… this is true.
But being seen by a human is not the same as being systematically cataloged by sensors and AI networks.
A pedestrian (or police officer) might notice your car outside a church, medical office, defense lawyer’s office, political meeting, or a dive bar.
That does not mean the government should be able to reconstruct all such movements of any person weeks later with a few keystrokes.
Let’s travel to a magical land together. Imagine you are in Granada, at the Alhambra.
A particular observation of “camera photograph” may reveal information. It is like a tile. And it may be a detailed, painted tile. But it is just a tile. In contrast, a connected series of such tiles can reveal habits, relationships, worship, medical treatment, moral foibles, and private associations. It is like a huge mosaic.
Every tile may have been visible by some pedestrian or police officer. This is true.
But an instantly-summoned genie from a lamp that sits on a desk in every police department is very different. This genie may use tiles. But it uses the tiles to produce effectively inifinite, changeable, finished mosaics out of many, many, many tiles. Such a genie has enormous power. Such a genie can expose the private context and content of any person’s life.
This Is a Case Worth Making
Chatrie did not decide whether searching a Flock network violates the Fourth Amendment.
But it gives defense lawyers some glimmer of hope. There are now new ways to frame these issues.
What information did the system create? How long was it retained? How broadly could it be searched? Could police reconstruct movements after the fact? Could police begin with everyone and narrow down from there? Was the information meaningfully or knowingly shared? Did the government obtain a single observation, or use an entire system capable of revealing much more?
Here’s the big one… do we have any reasonable expectation of privacy anymore, or… is that just gone?
These questions require hard work and factual development. Lawyers now need to ask for the search history, retention policies, audit records, network scope, access rules, and the actual query used.
The prosecution may use the word “camera”. They may call the product of the “camera” simply “a photograph of a license plate”.
The defense should ask about the entire infrastructure and the workings of the machine behind these sensors.
The Principle Has Not Changed
Law enforcement should be able to obtain private information only when they have established probable cause, submitted a written warrant, and gotten permission from a neutral judge.
They should not be able to obtain private information everywhere, all the time, about everyone.
Let’s read the text of the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It just seems to me that the idea that the government may not surveil all people, everywhere, all the time should be common sense. It seems that simple to me.
The Fourth Amendment is not an obstacle to legitimate law enforcement investigation.
It is just a limit that we agreed on, to structure our society in a way that will respect some space for privacy and some sense of individual liberty.
After Chatrie, there is a serious argument to be made about all of this. And it is time to upset the entire applecart of prior decisions, starting with that case from when I was learning how to walk.
This post provides general information about constitutional law and criminal defense. Actually, it’s not really ‘general information’ it’s more like ‘an unhinged rant’. Whatever it is, it is certainly not legal advice. It does not create an attorney-client relationship. An attorney-client relationship begins only through a signed agreement. If you are in a position where you need to exercise your rights, contact a lawyer.