The federal Fifth Circuit Court of Appeals is maintaining its position that so-called geofence warrants, which were used to track Jan. 6, 2021, "insurrection" participants, are "categorically prohibited by the Fourth Amendment," which protects We the People from unreasonable searches and seizures by law enforcement and other arms of the government.
Judge James C. Ho issued an opinion that while geofence warrants "are powerful tools for investigating and deterring crime," they overtly violate the U.S. Constitution and the protections it affords to people living in this country.
"The defendants here engaged in a violent robbery – and likely would have gotten away with it, but for this new technology," Judge Ho wrote. "So I fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests."
"But hamstringing the government is the whole point of our Constitution. Our Founders recognized that the government will not always be comprised of publicly-spirited officers – and that even good faith actors can be overcome by the zealous pursuit of legitimate public interests."
Justice Ho also quoted The Federalist No. 51, at 349 (J. Cooke ed. 1961) which reads in support of his ruling:
"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary," but "experience has taught mankind the necessity of auxiliary precautions" because of "human nature," which makes it "necessary to control the abuses of government."
(Related: Have you read the Health Ranger's article about how both Israel and the GOP completely lost his support in just six-and-a-half months following the October 7 Hamas attack?)
Supreme Court decision in Carpenter v. United States concurs with Judge Ho's decision
Recognizing that he and his panel's decision "is not costless," Judge Ho continued in his opinion to emphasize the fact that our rights as Americans under the Constitution "are priceless" and are not something with which to be toyed.
"Reasonable minds can differ, of course, over the proper balance to strike between public interests and individual rights," he further said.
"Time and time again, modern technology has proven to be a blessing as well as a curse. Our panel decision today endeavors to apply our Founding charter to the realities of modern technology, consistent with governing precedent. I concur in that decision."
The Electronic Frontier Foundation (EFF) commented on the ruling as well by citing the Supreme Court's landmark ruling in Carpenter v. United States. In that case, it was decided that "individuals have a reasonable expectation of privacy in the location data implicated by geofence warrants."
The EFF noted in that case that SCOTUS likewise determined geofence warrants to be unconstitutional because they require a provider, usually Google, to search "the entirety" of its location data "while law enforcement officials have no idea who they are looking for or whether the search will even turn up a result."
Geofence warrants afford cops too much leeway to probe for evidence without reasonable suspicion or an actual warrant as traditionally defined. As such, geofence warrants violate Americans' constitutional rights by their very definition.
Since the Fourth Circuit Court of Appeals recently ruled the opposite way, the issue will likely make its way all the way up to the Supreme Court, which will make a final decision on the matter.
"SCOTUS has long ruled against open and blanket warrants," wrote someone on X about which direction the final ruling will probably go.
"They knew the 'geofencing' surveillance method was unconstitutional; why do you think they didn't go after the 2000 Mules?" asked another.
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