Fourth and Fifth Circuits Split Over Geofencing in Fourth Amendment Interpretation

Authors

Mollye O'Rourke, J.D., Duncan School of Law, Lincoln Memorial University

First & Last Page

208-241

Abstract

In 2024 the Fourth and Fifth Circuits split over the issue of location history retrieved via geofencing. The Fourth Circuit held in United States v. Chatrie, that enabling one’s cell phone location history is consent for the government to retroactively view location history without a warrant. However, the Fifth Circuit held in United States v. Smith, that when the government uses location history data, it conducts a general search, which they said is unconstitutional even with a warrant. This note analyzes the split and proposes a modification of the third party doctrine that would maintain the equilibrium of powers between the government and the people in our current digital age. This equilibrium of powers is a trend that Fourth Amendment Scholar Orin S. Kerr has brought attention to in his writing and this note argues that we are due for an adjustment.

Recommended Citation

Mollye O'Rourke, J.D., Fourth and Fifth Circuits Split Over Geofencing in Fourth Amendment Interpretation, 12 Lincoln Mem’l U. L. Rev. (2025).
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol12/iss2/8