The 5th U.S. Circuit Court of Appeals has broken new ground again — but perhaps not in the way you might think. While that court has issued extreme rulings aligned with Republican Party preferences that have gone too far even for the Supreme Court, this latest decision deals with the Fourth Amendment, an area of the law where opinions can cut across party lines. And now this issue could be headed for the justices, too.
This time, a 5th Circuit panel held that so-called geofence warrants are unconstitutional. Such warrants seek location information within a certain area and time frame as a means to identify suspects; in the case of United States v. Smith, it was used to find robbers. In reaching its conclusion, the appeals court has split with the 4th U.S. Circuit Court of Appeals, which said recently in United States v. Chatrie that it didn’t count as a Fourth Amendment “search” when the government got two hours’ worth of location information from Google that had been voluntarily exposed by the defendant.
Such “circuit splits,” as they’re called, generally increase the chances of Supreme Court review, because the justices can resolve them to ensure uniformity across the country. But this issue might not be settled by the high court soon, for a couple of reasons.
First, the rulings aren’t necessarily the last word within the circuits, because both cases were three-judge panel decisions, and the full appeals courts in both circuits could weigh in and reach different conclusions. If that happens, then the decisions of those full courts could determine the next moves. The 5th Circuit covers Texas, Louisiana and Mississippi, while the 4th Circuit covers Maryland, the Virginias and the Carolinas.
Moreover, the Supreme Court hasn’t been eager to take Fourth Amendment cases lately. Its biggest such case in recent years was Carpenter v. United States, decided in 2018. But both of these geofence warrant rulings cite Carpenter to reach different conclusions, showing that the justices have open questions to settle in this area of the law.
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