SCOTUS on Geofence Warrants & Migrant Protected Status

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1:08This is Bloomberg Law with June Grosso from Bloomberg Radio.

1:16During oral arguments this week, the Supreme Court justices struggle with the question of whether a geofence warrant that compelled Google to share location data from cell phones near a crime scene is an unlawful search that violates the Fourth Amendment. Justices ran through hypotheticals trying to compare the process to a traditional physical search of a hotel or storage locker. Some, like Chief Justice John Roberts, expressed concerns about the surveillance of locations like churches or political rallies. One of the central concerns that's been voiced, of course, is what's to prevent the government from using this to find out the identities of everybody at a particular church, a particular political organization.

2:04What are the restraints that would prevent that from becoming a problem? Others were concerned that the government's position on publicly visible movements would extend to private residences. Here's Justice Amy Coney Barrett. Now you're telling Justice Kagan really that if you go into a private home, it wouldn't be a search? I mean, if you trace location services? I mean, I understand in this case. And is that true that in this case, you're saying you didn't pick him up in any home? Well, Your Honor, he eventually stopped at the end of his journey away from the bank at a group of homes. But there's testimony, this is page 120.

2:41But not inside the home. We couldn't tell which home he was even in. Okay, but you really are saying that you could track someone going inside a home. Justice Sotomayor asked Mr. Unikowski about movements inside a home, movements to the bathroom, movements to the bedroom, all of that. My guest is former federal prosecutor George Newhouse of Richards Carrington. George, will you explain what a geofence warrant is and how police use them? Geofence warrants are the latest technology innovation that's raising some very interesting Fourth Amendment issues. So essentially, Google, which is everywhere, ubiquitous, collects a massive amount of data, location data, from you and me and people with phones who walk around.

3:28And they have to agree to allow this, by the way. So you can turn your location services off, but most people don't. And Google collects information about millions of its customers. But what's amazing about the geofence is it's able to sort through this massive amount of data and hear all the people that were within 150 yards at a particular time and date. So it's very useful and was used in this case to identify the suspect. So it's like a search warrant in reverse. Normally, they know who the suspect is, and they want to search for physical evidence. In this case, the geofence warrants allow law enforcement to locate the suspect they otherwise don't know.

4:06It's ingenious and, of course, some very novel technology. And this case is about a bank robber who actually eluded police until they turned to the geofence warrant? Correct. His name is Shatry. He robbed a Virginia bank, probably walked in with a demand note. No one knew who he was. And he walked out, by the way, with$100 ,000 in cash. So it was a very successful bank robber. He got away. He was on surveillance video, but otherwise no one knew who he was. The police didn't know he was, but they saw something interesting on the surveillance. They saw him talking on his phone, so they knew he had a cell phone.

4:43And of course, most of us, wherever you go, your cell phone is with you. And oh, by the way, that means that your cell phone is pinging towers and Google and telling people what your location is. So knowing that he had a phone, they prepared this search warrant, which is literally a judicially signed document that required Google to search through all this data and produce. They did actually three productions. The first one was animized, meaning they didn't identify who the customers were, but they identified how many and location. And then they did several different tiers until they got to the third tier with more information.

5:19And then Google was able to give them the names and phone numbers of three suspects, one of whom was Shatry. and that led to a real search warrant for his house where guess what they found a hundred thousand dollars in cash easily incriminating him so now what what's the question before the supreme court so typically in these cases the the first question is was the application to google it's a warrant but was that a search under the fourth amendment because typically if it's a search it has to pass the reasonableness question and of course the one of the things the justice has talked about and the argument was, you know, normally if you have a warrant, you're in good shape.

5:58A lot of these test cases are where they're acting without a warrant. Here they had a warrant and the question was, did the warrant then have probable cause sufficient to allow the judge to sign the magistrate to sign the warrant? And of course, they didn't have probable cause as to any specific individual. That's the twist in this case. So they weren't looking for evidence. They were looking to see who did it, the identification, and that's novel. There was a lot of concern about the broadness of the Trump administration's position here. And you had justices like the chief justice saying, what's to prevent the government from using this to find out the identities of everybody at a particular church, a particular political organization?

6:42Justice Amy Coney Barrett said, so you could track someone going inside a home, movements to the bathroom, movements to the bedroom, all of that? Well, first of all, I think they're overstating the preciseness of the technology. It's not that precise. Really, it's a geo circle. It's 100 yards. They don't necessarily know where you're going or what you're doing, but they can see where you are. And yes, those concerns were raised. I think the response to that is, well, first of all, it can't be used for general surveillance. You have to be investigating a criminal action, a bank robbery, or national security, or, you know, they were worried about identifying murderers and other people who committed crimes.

7:19So I don't think it'd be used that far. But the concern is that some of the people talking about this said this case is unique because the principle of government seems to be search first and develop suspicion or evidence later. And normally, it's the other way around. They get the evidence first, and then they use that to further identify the individual who's responsible. So I think that's probably less of a concern, but the breadth of this particular tool in the hands of law enforcement is staggering. And any other concerns that you heard from the justices? Well, again, they're always concerned now when they deal with these cases, because the way technology develops so fast, it quickly outstrips prior cases.

8:02I mean, the last time we had a significant Fourth Amendment search of this nature, it would be Carpenter, the California case where this police seized and then searched a cell phone incident to arrest. And of course, the courts are concerned about protecting the privacy of individuals. The argument that the government made in this case, which I think is a pretty strong argument, is in a sense, everyone who carries a cell phone, they may not know that Google is doing this, but they've consented to location services. So at that point, they have it in the phrase as a diminished expectation of privacy.

8:36And that's usually where it turns. How do you think they'll come out? Well, I mean, I listened to the argument, which was interesting. I didn't see the argument as quite as divided as some of the commentators have. I think quite clearly the action will be affirmed. What they're likely to do is write an opinion that will seek to put some guardrails up, put some parameters, here's what the police have to do. Things that they can't do would be including, you know, start following people around. And there are lots of uses that they could conceivably be concerned about that by writing a narrow opinion, affirming the conviction and the use of the geofence in this case, the court may be trying to put up boundaries as they did in the Miranda decision and in other decisions in the past.

9:21It seems when privacy is at stake, it's something that concerns them personally, and the oral arguments are a lot livelier, with more energy. Energy and good humor. At one point, Barrett commented that she was aware that when she walked into Nordstrom's or one of these stores where she was shopping, that the store seemed to know she was there. And this is true. This is what Google does with this data. It sells the data, and then you immediately get text messages asking if you're interested in a special on XYZ. So you You say, oh, my gosh, my phone knows exactly where I am and what I'm doing. And the justices all seem to enjoy that.

9:59But so the point is when the justices can relate to the use of the technology in their own personal lives, then they stand up and they take attention and they tend to be very careful in the opinion because it affects them as well as everyone else. It's a learning experience sometimes for us and for them. Correct. Anyway, a fascinating case. And it'll be interesting to see where it comes out. But it's clear to me and a few others that although they were interested in a lot of the variations and the particular concerns were expressed, that seems to be a clear majority of the court. The justices who are supporting law enforcement want to make sure that the tools of the law enforcement trade are enabled.

10:41And do you think that it could hamper police in their investigations if they have to comply with certain requirements that were referred to? Well, again, it's hard to say. Yes, if the court said you cannot obtain a search warrant unless you have more specific information about the individual. And there was also some concern about what we call the lack of particularity. It was a very general warrant. In fact, there was discussion about comparing it to the general warrants that were issued by the British authorities in the Revolution that led to the Fourth Amendment. But I think they will do enough to make sure that this is a tool.

11:19It's going to be very useful. But of course, the other problem is it will also continue to develop as technology develops. We are entering an age of surveillance. I hate to say this, and that's the one thing that everyone should be concerned about. That certainly seemed to cut across the ideological divide. Thanks so much for your insights, George. That's former federal prosecutor George Newhouse of Richards Carrington. This message is brought to you by Apple Card. Apple Card is designed with your iPhone in mind, making it easy to get started and even easier to use. Apple Card is a no-fee credit card you can apply for right from the Wallet app on your iPhone.

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12:38Visit Bloomberg.com slash podcast offer to learn more. President Trump's past remarks disparaging Haiti became part of the oral arguments in two cases before the Supreme Court this week that test the Department of Homeland Security's power to end temporary protections for migrants from crisis-ridden countries like Haiti and Syria. Justice Sonia Sotomayor said that Trump's past comments about Haiti seemed to show that an improper discriminatory purpose may have played a part in the decision to cut off temporary protected status. That Haiti is a, quote, filthy, dirty and disgusting as whole country.

13:23I'm quoting him. And where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, where he declared illegal immigrants, which he associated with TPS, as poisoning the blood of America. The administration told the court that those past remarks by the president were not racist and shouldn't get in the way of the government stripping away temporary protections from migrants. But the overarching question was whether judges have authority to even review the DHS secretary's decision. Some of the conservative justices, like Clarence Thomas, questioned that.

14:10Would you be kind enough to say what else is reviewable despite the jurisdiction stripping provision? because it seems pretty broad. It says there is no judicial review of any determination of the attorney general. My guest is immigration law expert Leon Fresco, a partner at Holland and Knight. Leon, start by giving us the background of these cases. In September and in June of 2025, the DHS secretary at the time, Christine Ome, terminated temporary protected status designations for Syria and Haiti. What that means is the president has the ability to at any time say that the conditions in a country are so unacceptable that it would not be a good idea to deport people to those countries.

15:02And then that triggers an 18-month period called temporary protected status. So that had been done under the Biden administration for Syria and Haiti. And the Trump administration lifted these designations for Syria and Haiti because they said that there was no more need for this and they said it was in the national interest of the united states to not have tps which was a subsequent argument in this case that what does that have to do with anything here this is sort of a larger issue of what are the conditions in those countries but nevertheless the immigration advocates found plaintiffs who were syrian and Haitian to sue the Department of Homeland Security over their TPS revocation termination.

15:49And those cases worked their way up the district court and the appellate court. And they're now before the Supreme Court on the issue of whether those designations are reviewable. And if they are reviewable, what can be reviewed? So several of the conservative justices sort of harped on fact that the 1990 law that created TPS says there's no judicial review of the secretary's determination. Correct. And there's a lot of case law on this issue of judicial review. And the big one is McNary. That's a big case that had to deal with other parts of the immigration code where they say there's no judicial review.

16:31And the issue that comes into play is, does that mean everything is not subject to judicial review or the final decision isn't subject to judicial review and this is where there was a lot of debate and discussion there because the idea was well fine if you really did a good job analyzing the issue you contacted the state department you had your experts on the ground tell you that haiti was fine and that syria was fine well then that wouldn't be something subject to review. But what if everybody had found out, let's say they put it on YouTube as an example, where you blindfold the secretary and you say, throw a dart and wherever the dart lands, that's what we're going to do with TPS.

17:19We're either going to do yes or no. Could you review that? Would you have any remedy if that's how they made the decision on TPS? And it looked like there was three justices who said even that would not be reviewable, But there seemed to be about five justices who thought, wait a second, if really something like that happened, where you just made a mockery of the review process on whether to terminate or whether to renew DPS, then that might be something we would need to look at. Because how could you just allow a situation like that to stand? Leon and the liberal justices brought this up. Then Homeland Security Secretary Christine Noem, did she take any of the required steps in canceling the TPS protections?

18:04That's the concern that they have, is they say that at the end of the day, she really didn't review the country conditions that were necessary. She really didn't have the consultations that were necessary in order to make the determinations that it actually was safe to deport people to Syria and to Haiti. They said this was just a very brief email to the State Department and then boilerplate responses saying there were no foreign policy concerns. And so they're saying, look, we're not saying you have to have a massive trial here, but if that's all you do, and then, by the way, you discuss in your revocation notice that it's just in the national interest to revoke this, you know, that the American people not be subjected to immigration from these countries.

18:55that's not really what matters in these determinations. What the statute says matters are the conditions on the ground and whether it has become safe to deport those individuals to those countries based on the conditions on the ground. And lawyers for the immigrants pointed to State Department advisories that warn U.S. citizens not to travel to either country because of risks of terrorism, kidnapping, and armed conflict. Can you lay out where you think the justices stand? It looks to me like there will be five votes, Jackson, Kagan, Sotomayor, but also it looks like Justice Barrett and Justice Roberts that are signaling concern with this idea that there might have been some administrative pretext and procedural irregularity there.

19:45and that what would happen is you would not have a categorical rule that says under no circumstances is anything reviewable. But what it would say is you can have review as to whether the procedures that the Congress requested were followed. And if they were, whatever the outcome is, that can't be reviewed because at the end of the day, you need to have some ability there to say, hey, there's deference given to these determinations. This is not the province of judges to say whether Haiti is too dangerous or whether Syria is too dangerous. How do the judges know that? But you have to follow the procedures.

20:24You can't throw a dart on a dartboard and figure this out. And it looked like there were three justices, Thomas, Alito, and possibly Gorsuch, who seemed to be concerned that this TPS question, it isn't just about deference to President Trump, But it's also about the fact that there's foreign policy questions here about what we say about foreign countries. And the vast majority of time, when you say that something implicates foreign policy, that then becomes what is known as a political question, which means it's not something the courts will elect to review. They'll say, look, that's fully in the province of the president, and we don't get involved in that.

21:04I don't know where Justice Kavanaugh will go. It seemed very uncertain based on the argument. But I think there's at least five votes to say you can have review as to whether the procedure was followed, but that judicial review of whether the right decision was made. So last week, the Supreme Court considered how much discretion immigration officers should have at the border. Tell us what the question is here and whether this comes up often or not. So this is a complicated issue. So I'll I'll give you this example. So a lot of times people, they get what's called a green card, which means that they're a lawful permanent residence of the United States.

21:46And so when they get that, they're finally relieved that they're not going to have to sweat it out every time they travel and come back into the United States. Because the idea is they should be allowed to live in the United States, end of story. But there are some occasions where that's not true, where you can actually be scrutinized when you try to come back in the country. One of the main ones is the question of whether you abandoned your lawful permanent residency. And this comes up all the time. People will live outside of the U.S. for way too long, and they'll try to come back in, and the Customs and Border Protection will say, are you really living here?

22:26That happens a lot. That would probably happen thousands of times a year. But another one will be, and that's the one that happened in this case, was did you commit a criminal act when you were in the United States or outside of the United States that we were not aware of previously, but now we're aware of it. And because you've committed that criminal act, now you are subject to deportation. And so in this case, that's what happened. They said that this person, Mr. Lau, had a pending criminal charge. So what they said was, look, we know that it would be massively unfair to just, you know, you boarded a plane with a green card.

23:10You haven't been ordered deported. You haven't even been convicted of a crime. You just have a pending criminal charge. So we know it would be totally unlawful and unreasonable to not let you in the country. But what they did was they kind of tried to do this weird middle ground thing where they said, well, here's what we're going to do. We're not going to admit you into the country as a lawful permanent resident. We're going to admit you into the country as a parolee. And what a parole is, it's a legal fiction. It's just saying we will let your body into the U.S. so that your body can be here.

23:47But when you're a parolee, your legal body, not your actual body, your actual body is in the U.S., your legal body is still outside the U.S. And what that means is the government could at any time revoke that parole and deport you. And so that's what actually happens here is had they admitted him as a lawful permanent resident, they would have subsequently had no basis to deport him. But because they admitted him as a parolee, what they subsequently did was say, well, we admitted you as a parolee. Now we're going to revoke your parole. And so this Supreme Court case really came down to the issue of whether the CBP is allowed to do that or whether they have to admit anyone who enters with a green card as a green card holder.

24:35So that's the first question. But sort of the deeper question, which was really at the heart of this, and this is why this case is so interesting, is, and I teach this to all because I teach immigration law at GW Law School. I teach in my very first class that for the longest time, the immigration law was based on good faith, meaning good faith of the applicant and good faith of the government. And if you stop basing immigration law on good faith, the whole system collapses. Well, here, this was testing that concept because what the plaintiffs and the side for the foreign nationals were saying was you can't trust the government to act in a good faith manner here.

25:18Look at what they did here. So from now on, that can't happen. And what the conservatives and the enforcement people were saying is, do you really think that our government is just going to psychotically not let green card holders in just so that they could deport them later? But the point is, if the Supreme Court doesn't act to prevent this, they will have that authority to do that to green card holders, which is to say, for any reason, we're not going to let you in with your green card. We know we can't ban you. so we'll parole you in and if for any reason we want to revoke your parole later we can do it even though there was no actual reason to deport you they can just by the legal fiction of you re-entering the country just decide to do this to you so that's the question and the court was really struggling with this issue there was a lot of skepticism at the issue that there would be no standard at the border by which the government could be prevented from saying that you're not a lawful permanent resident.

26:21This really troubled people, but they also don't want a mini trial at the airport about whether you should be admitted or not. So this is very hard to figure out where this is going to go, but I do think there's going to be some constraints as to what the CBP, the Customs and Border Protection could do in terms of trying to figure out when they can refuse to allow you to enter as a lawful permanent resident if you present a lawful permanent resident card. And one other thing, the argument got so crazy that people were talking about why not just dismiss this case as improvidently granted and go back to the Second Circuit's decision.

27:02You know, we're going to create a Pandora's box here. So any outcome is possible here. So this doesn't happen all the time. It might happen a few thousand times a year, but it's really a question of, do you want to give the government, do you trust it enough to give it the authority where it can ruin any green card holder's life for any reason? Or do you want to put that constraint? And that's where it really comes down to whether you believe the government largely acts in good faith or whether you believe the government largely doesn't act in good faith. That's a more loaded question nowadays than it was probably years ago.