If you give the United States Court of Appeals for the Fourth Circuit thirty thousand words, you get a single per curiam sentence of ‘law’: “The judgment of the district court is AFFIRMED.” That’s it. Eight words out of some 34,000. Some 0.02%. That’s all the en banc court could manage to agree upon in United States v. Chatrie, __ F.4th __, No. 22-4489 (4th Cir. Apr. 30, 2025).
This is not what I had in mind when I urged courts to be reasonable in analyzing the constitutionality of geofence warrants. I mean, if you give a mouse a cookie, it only takes some dozens of lightly-worded pages to figure he’s going to need a glass of milk… and another round. It can be digested in two and a half minutes, and the entire house gets cleaned in the process. The Fourth Circuit’s 126-page pdf? Eight concurrences and a dissent. Not a single cookie. And certainly no milk chaser.
And while that’s playful, I don’t mean to be dismissive… because this stuff matters. Indeed, it’s this sort of thing that makes my eyes roll when anyone accuses a certain person or event of ‘threatening democracy’ or the ‘rule of law.’ Again, not because that stuff doesn’t matter. It of course does. A lot. But because anyone paying attention must know how broken everything already is. Chatrie isn’t some cattle-call justice in a small misdemeanor court (which is appalling), this is some I-don’t-even-know-what-to-term-such-incompetence in a full federal circuit court of appeals. This is you had a single job—to come to terms on how the Fourth Amendment regulates this no-longer-very-novel law enforcement technique—and you entirely blew it. You didn’t, like we require of layperson juries, have to achieve unanimity. You merely had to achieve majority. And you failed. Utterly. And that is despite all of your legal training and experience, despite the Fifth Circuit ‘going first,’ and despite having a good number of the best minds in law arguing the case and otherwise chiming in as amici. This doesn’t inspire confidence.
Of course, it would never be the last word anyway, and maybe this appellate disaster will hasten getting the issue before the United States Supreme Court. But I submit that our appellate courts, speaking generally, ought to do better: fewer, shorter opinions that actually agree upon something. (Looking at you, Justice I’ll-write-separately-about-anything-even-when-I-do-agree Gorsuch.) The reason we have multiple-person courts is to work by consensus. So, let’s try and do that.
When I was a baby lawyer, I clerked on the Fifth Circuit Court of Appeals, and I was too eager/naive to appreciate my judge’s reasoned decision to sparingly dissent. I get it now, Judge. It’s not that one pretends agreement… it is that one appreciates our system working by majority and, yes, when possible, by unanimity. There are many true things in life that simply don’t need to be said. In this, law is no different.
So, here’s to hoping courts can better strive for agreement, operating by majority. As for the Fourth Circuit in Chatrie, it went like this…
Judge Diaz wrote alone to argue solely for no suppression: these officers, Diaz agreed with the district court, acted in reasonable reliance upon a warrant issued by a neutral and detached magistrate. “[S]ome may say that I’ve done nothing more today than kick the geofence warrant can down the road.” True. “But … my colleagues … [have] gifted law enforcement (and the public) a labyrinth of … advisory opinions, many pointing in different directions.” Also true.
Judge Wilkinson, joined by four others, argued there was no search under the third party doctrine in “straightforward application of Smith [and] Miller.” Sigh. And, “[e]ven if there was a search, there is no room for emergent judicial hostility toward this new investigative tool.” With that I agree.
Judge Niemeyer, flying solo—he also joined two other opinions, but, you know, one… er, I mean two… is never enough!—argued there is no search because geofencing is akin to “law enforcement [being] entitled to retrieve boot prints, tire tracks, shell casings, [or] a scarf or a cap” left at the scene. “Collecting markers such as these from public places or third persons is the stuff of law enforcement” (emphasis added). Well, yes, but that’s why the framers wrote a Fourth Amendment. Even the extremely minimal law enforcement of their day (when compared to our own) made them realize the need. So, no, the case is not “well-removed from the text of the Fourth Amendment.” Not at all.
Judge King, flying solo, only required two sentences. After all, he too had already joined in the concurrences of Wilkinson and Richardson. But, look, when everyone is writing… you’ve just got to get in on the fun! So, he helped out by explaining, “I am pleased to join in the fine concurring opinions of Judge Wilkinson and Judge Richardson.” Well, yes, if you are pleased, do let us know… are we returning to the seriatim opinions of each Law Lord? “In addition, I agree that the officers acted in good faith”—by which King means reasonable reliance, upon the warrant.
Judge Wynn, joined by four others… (Or, wait, is it five? Well, Judge Gregory was having none of Wynn’s footnote one, which asserts that reasonable reliance prevents suppression in this case. So, joined by four if you include that footnote, five if you don’t.) Judge Wynn strongly urged that geofencing is a Fourth Amendment search post-Carpenter, arguing that Kyllo, Jones, Riley, and Carpenter transformatively moved beyond the third party doctrine and it’s “public-surveillance” easiest case. I agree. For Wynn, “Carpenter established a multifactor approach to assessing reasonable expectations of privacy in digital information.” I don’t disagree, as of course reasonableness is the constitutional criterion, and it’s hard for reasonableness to operate otherwise. But it would be a mistake, I think, to believe any particular factors necessarily control. See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (rejecting a “magical on/off switch” triggering Fourth Amendment protections in the context of deadly force).
Judge Richardson, joined by six others, argued there was no Fourth Amendment search given the “specialized form of location information maintained by Google,” keeping this case within the traditional third party doctrine, at least for this two-hour block of voluntarily stored data.
Judge Heytens, joined by two others, rejected the “strong medicine” of suppression, regardless of whether a Fourth Amendment violation may have occurred. Now, you might wonder why yet another judge needs to write this up… or, maybe you would not wonder, having made it this far in. For what it’s worth, the reason seems to be because Heytens wanted to focus on the Supreme Court’s relatively recent move to a case-by-case exclusionary rule that “deter[s] deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” rather than focus on the ‘special case’ of reasonable reliance upon a warrant.
Judge Berner, joined by four others… (Or, wait, is it five? Once again, one judge (the just-having-written Heytens!) was only willing to join portions of this opinion because, hey, there just weren’t enough judicial opinions to get it all out there!) Judge Berner worked with Google’s attempt at selective revelation, holding that while the initial investigative step revealing pseudonymized information was no search, the later steps revealing Chatrie’s location information were (any amount of de-anonymized location information will do), and that here the warrant issued without the necessary probable cause. While I do not think it helpful to break things down into ‘no search’ and ‘search’ components, I agree that reasonableness commends—and certainly permits—a properly implemented selective revelation framework that establishes the necessary probable cause.
Judge Gregory was the lone dissenter. (But remember he joined Wynn’s concurrence, minus footnote one… oh, and he also joined Judge Berner’s concurrence.) Gregory wrote separately, then, to argue against application of the reasonable reliance exception to the exclusionary rule.
Got all that? Neither do I. Which is, again, why courts need to do a much better job of working to majority.
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