Can Police Search Every Phone in a Crowd? Supreme Court Urged to Block Police Uses of Dragnet Cell Phone Surveillance

WASHINGTON, DC — In the digital age, simply having a smartphone in your pocket can lead to the government collecting your data to investigate you as a suspect for a crime. That is the constitutional danger posed by geofence warrants—sweeping surveillance orders that compel technology companies to disclose location data for every device within a defined area and time frame, regardless of whether the individuals involved are suspected of wrongdoing.

The legality of these warrants is now before the U.S. Supreme Court in Chatrie v. United States, which must decide whether such dragnet searches violate the Fourth Amendment. In an amicus brief filed with the Court, The Rutherford Institute warns that geofence warrants represent a modern version of the general warrants that sparked the American Revolution. Rather than requiring law enforcement to identify a suspect and establish probable cause before conducting a search, these warrants reverse the constitutional order—authorizing the government to search first and decide later who might be suspicious.

“Geofence warrants allow the government to cast a wide net over innocent people, track their movements, and then narrow the list until someone fits the bill. That flips the presumption of innocence on its head,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This case is about whether constitutional protections keep pace with technology—or whether technological capability becomes an excuse to erode them.”

Unlike traditional warrants, which must describe with particularity the person or place to be searched, geofence warrants begin with a location and sweep in everyone who happened to be nearby. Law enforcement can then request progressively more detailed information—movement patterns, account data, subscriber identities—until individuals are singled out for investigation.

In Chatrie, law enforcement obtained a geofence warrant directing Google to disclose anonymized device data for phones located within a 17.5-acre area surrounding the scene of a bank robbery. That meant the geofence area was about the size of over three New York City blocks with a diameter longer than three football fields and encompassed part of a nearby church. Although the district court found that “this particular geofence warrant plainly violates the rights enshrined in [the Fourth] Amendment,” the evidence was ultimately admitted based on an exception for the police officer acting in good-faith. But the Supreme Court’s review now squarely presents the question for future cases of whether this form of suspicionless location tracking is compatible with the Fourth Amendment at all.

During oral arguments, members of the Court grappled with the implications of allowing the government access to detailed location histories capable of revealing far more than proximity to a crime scene—such as where Americans worship, seek medical treatment, attend political meetings, or gather with family and friends. The Rutherford Institute’s brief argues that permitting geofence warrants at all, or at least without significant restrictions to protect privacy rights of innocent bystanders, would entrench a dangerous precedent in which digital convenience becomes a gateway to constant government oversight. By authorizing the bulk collection of location data from untold numbers of innocent people, these warrants threaten to normalize a system in which Americans must effectively surrender their privacy simply to move about in public life.

Ethan H. Townsend and Maura R. Cremin of McDermott Will & Schulte LLP advanced the arguments in the Chatrie amicus brief. This filing builds on Rutherford’s earlier challenge to geofence warrants in Wells v. Texas.

The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Case History

February 05, 2026 • Rutherford Calls on Supreme Court to Prohibit Police Use of Geofence Warrants as Mass Surveillance Dragnets

Chatrie v. United States: Amicus Brief

Wells v. Texas: Amicus brief

Article posted with permission from John Whithead