The Slowing of Fourth Amendment Law, and Now Advisory Opinions: A Comment on Chatrie v. United States

The second in a series.
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On April 27th, the Supreme Court will hear oral argument in Chatrie v. United States, on the Fourth Amendment implications of geofencing. I have already posted the amicus brief I wrote for the Court in the case, and I am writing a series of posts in anticipation of the argument. This is the second post in the series.
In this second post, I want to focus on how the Court hasn't handed down a case on the Fourth Amendment and new technology in a long time, and that it is now doing so in what amounts to  an advisory opinion.  These two things are related, I think. And for those of us interested in how Fourth Amendment law develops, they're related in an important way.
First, consider the timing.  Chatrie comes after a surprisingly long gap in Supreme Court attention to how the Fourth Amendment should apply to new technologies.  It has been 8 years since the Court's 2018 ruling in Carpenter v. United States on the Fourth Amendment implications of cell-site location information.  That's a relatively long gap. After City of Ontario v. Quon in 2010 on pagers, United States v. Jones in 2012 on GPS devices, Riley v. California in 2014 on searching cell phones incident to arrest, the Microsoft warrant case in 2018, and Carpenter that same year, it had become a staple of the Justices' speeches that Court was going to have to take a lot of cases on the Fourth Amendment and digital technologies in the future.
Instead, for eight years, we get bupkes.
Next, ponder the advisory-opinion aspect of the case.  The cert petition in the case asked the Court to take on two issues: Was the Fourth Amendment violated, and does the exclusionary rule apply?  In the proceedings below, the fifteen judges on the en banc Fourth Circuit were hopelessly divided on the Fourth Amendment issues—but only one of the fifteen Judges thought the exclusionary rule applied. Instead of taking both issues, the Supreme Court granted cert limited to the first issue.
Think about that. Even if the Court holds that Chatrie's Fourth Amendment rights were violated, it won't make any difference to Chatrie. The lower court has already held that there is no remedy, and that is a retrospective question unaffected by what the Supreme Court might rule on the merits in coming months.  Going forward, the Court gets to hand down what is in a practical sense an advisory opinion on how the Fourth Amendment applies to geofencing.  Many people care a great deal about what that practically-speaking-advisory-opinion will say, of course.  But the actual individual involved, Chatrie, won't get relief.
What is going on?  I think these two points are directly linked.
The common origin is the Supreme Court's cutting back on the exclusionary rule, and in particular its rulings like Davis v. United States in 2011 and earlier cases like Herring in 2009. The basic thinking of these cases is that it's wrong to punish the government with suppression of evidence if the government wasn't culpable for doing what it did.  If the government didn't do something it should have known was illegal, there shouldn't be a suppression remedy.
Some will like that approach, and others won't.  But think about how that changes Fourth Amendment litigation.  When you mix that principle with the novel questions of new technologies, there is usually an exclusionary rule "out" when a defendant moves to suppress evidence in a case on new technology. By virtue of the issue being technologically novel, the government will not have been culpable for trying out the technique it used. And that will often mean that judges can avoid reaching the merits of how the Fourth Amendment applies by relying on the good faith exception.
It's not hard to think about what this does to Fourth Amendment litigation.  Indeed, my sense is that, since Davis in 2011, caselaw development on the Fourth Amendment and new technology has noticeably slowed.  Fourth Amendment caselaw as a whole has slowed, too. A few years ago, I had a research assistant look into this: There were fewer circuit court merits rulings on the Fourth Amendment in 2022 than in 2002 or 1982.  But the technology cases have been hardest hit.  It's just harder to get a merits ruling on the Fourth Amendment and technology than it used to be, and that has meant less caselaw development.
We have seen a taste of this dynamic in lower court cases I have blogged about before, like the computer search cases of United States v. Ganias in 2015 from the Second Circuit and United States v. Morton from the Fifth Circuit in 2022. Both were fascinating panel rulings.  But in both cases, the United States successfully petitioned for rehearing en banc, and the en banc courts handed down opinions saying the good faith exception applied and expressing no views on the merits. We still don't know what the law is on the questions those courts addressed, either in those circuits or in other circuits.
And what's happening in circuit courts is just the tip of the iceberg.
After all, to get to a circuit court, someone needs to have pressed the argument below.  And the real problem in Fourth Amendment litigation these days is just getting defense lawyers to file challenges in trial courts.  Today's criminal defense lawyers know not to bother with novel Fourth Amendment arguments involving digital technologies.  Even if you have what looks like a good argument on the merits, the novelty of the claim itself means you probably lack a remedy.  And lacking a remedy, you won't bother filing the motion to suppress. There's no point in filing if you don't have a remedy even if you're right.
I have learned this first-hand with my draft motion to suppress Internet records seized by unlawful Internet preservation.  Defense lawyers just have to fill in their client's name and add the date of preservation and they can file it.  I think it's a seriously good argument on the merits, and I know prosecutors who are worried about defense lawyers filing such motions because they realize that the arguments against them are strong.  But it's been pretty much impossible to get defense lawyers to file the motion.  The problem is that the argument is novel. It is saying that an existing practice has major constitutional limits that haven't been spotted before. For a lot of defense lawyers, that basic feature means there is no point in filing.  Again, there's no point in challenging the government if you don't have a remedy even if you're right.
What does this have to do with the long gap in Fourth Amendment cases and the advisory nature of the case?  The long gap is probably obvious.  The Supreme Court waits for circuit splits and percolation. But with defense attorneys not interested in challenging government practices, litigation over those practices is more rare, and you don't get the cases to generate a split. Fewer splits means fewer plausible cert petitions, and that means a long window with no grants.
The advisory nature of the case is also part of the story.   The slowing of Fourth Amendment caselaw in the lower courts creates pressure on the Supreme Court to speed things along.  If you want to create clarity on what the law is, you don't want the "out" of the good-faith exception.  You want to forget the remedy entirely, and just focus entirely on the merits.  This is just speculation, of course, but I would guess that this is why the Justices decided to grant cert only on the merits—denying cert on whether the good-faith exception applied.  Limiting the cert grant serves a forcing function. It makes both the lawyers briefing the case, and the Justices deciding it, focus on the law-clarifying questions of how the Fourth Amendment applies.
In a sense, this is a variation of what I proposed back in 2011, in my article Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States.  In that 2011 essay, I predicted that Davis and similar cases were going to cause a future slowing of the development of Fourth Amendment law. (I argued and lost Davis, and had written about this problem before Davis, so this has been a longstanding concern of mine.) I suggested in that essay that one way to help along that development was for the Justices to be active in adding questions presented.  In effect, they should fill in closely related questions that would have been the subject of cert grants if the cases had been litigated, but were not litigated because the incentives to litigate them had been removed.
Limiting the cert grant in Chatrie to the merits seems to me a sort of cousin of that: It doesn't add to the issues in play, but it makes sure that at least some merits issues are reached.  Indeed, in some sense the decision to grant in Chatrie is a cousin of that.  By (surprisingly) granting cert from a one-line affirmance, the Court gives itself maximum flexibility to address a host of issues in the case.
Next up:  Some thoughts on where the Court might go if they take on what is a "search."