WASHINGTON — A divided Supreme Court heard arguments Monday on whether the police use of phone tracking data violates the Constitution’s protection against “unreasonable searches.”
Most of the justices sounded wary of barring investigators from obtaining precise location history from Google or cellphone providers if it helps find a murderer or a bank robber.
“I’m trying to figure out why this was bad police work,” Justice Brett M. Kavanaugh told an attorney representing the defendant, Odell Chatrie.
He said a police detective in Virginia was seeking clues to find a bank robber and sought a “geofence warrant” from a judge that told Google to turn over data from phones that were near the bank during the hour of the robbery.
“In the end, he got three names,” Kavanaugh said, including Chatrie, who pleaded guilty. He said these searches have proved to be practical for finding criminals.
But other justices said the court should not rule broadly to endorse digital searches of vast data bases held by private companies.
What about emails or Google photos, asked Justices Sonia Sotomayor, Neil M. Gorsuch and Amy Coney Barrett.
All three said this information deserves more privacy protection than location data.
In the past, the court has said the 4th Amendment protects against government searches that intrude upon a “reasonable expectation of privacy.” The two sides in this case differ on whether a digital search of location data violates privacy rights.
Gorsuch said he was generally skeptical of broad searches if the government had no particular suspect.
Is it OK to search “all the rooms in a hotel for a gun or all the storage units or all bank deposit boxes of the pearl necklace that has been stolen?” he asked.
Eric Feigin, a deputy solicitor general, said the government probably could not obtain a search warrant for all storage units or hotel rooms, but a Google search is different because it is a software filter.
Chief Justice John G. Roberts Jr. proposed a narrow ruling.
Perhaps unwittingly, Chatrie had agreed to have Google store his location history data. Roberts said he could have turned off the public location data, and for that reason, he may have lost his right to appeal.
“If you don’t want the government to have your location history, you just flip that off,” he said.
Justice Samuel A. Alito Jr. agreed. Chatrie “voluntarily disclosed to Google the information about where he was going to be,” he said.
Eight years ago, Roberts wrote an opinion for a 5-4 majority that said investigators needed a search warrant before they could obtain 127 days of cell tower records that helped convict a Michigan man of several store robberies.
Four of the court’s liberal justices joined that majority, but only two of them — Sotomayor and Elena Kagan — remain on the court.
Since then, Kavanaugh, Barrett and Justice Ketanji Brown Jackson have joined the court.
The National Assn. of Criminal Defense Lawyers and other civil liberties groups backed Chatrie’s challenge to the government’s use of geofence warrants.
Chatrie had “a reasonable expectation of privacy in his location history given both its sensitive and revealing nature and the fact that it was stored in his password-protected account,” Washington attorney Adam Unikowski told the court. “There was not probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime.”
Feigin, the Justice Department attorney, said a ruling for Chatrie “would impede the investigation of kidnappings, robberies, shootings and other crimes.”
He agreed, however, that email should be protected because it involves personal communication.
The justices will hand down a ruling in Chatrie vs. U.S. by the end of June.
