Neil Gorsuch Grills Lawyer On 'Impermissible' Search Warrants In Location Data Privacy Case

Added: 2026-04-29

[00:00:00]Except for it's totally inconsistent with your theory, but other than that, >> other than that, >> Gorsuch, on the particularity side, Mr. Fagan, um, let's say you go to a hotel, um, and the warrant is, uh, search all the rooms in the hotel for the gun on the bedside or, uh, the storage facility, search all the storage units, uh, for a particular contraband. um or to bank, go search all the safe deposit boxes uh for the pearl necklace that's been stolen. Um what's the difference between those cases and this case?

[00:00:40]Assuming that I have a term of service with the hotel, with the storage facility, with the u um bank that says you can access these places from time to time for purposes that we agree upon.

[00:00:55]And of course you you can you can uh do something with the government if the law allows it.

[00:01:02]>> So your honor, I think this is a somewhat this goes to a somewhat under theorized portion of the Fourth Amendment, which is the definition of a place. I think we often have an intuitive sense of what's a place in particular with an apartment building.

[00:01:17]Um I think >> you you would agree those warrants would all be impermissible. I don't know about necessarily about uh storage locker one you that would probably be impermissible certainly we couldn't search every apartment in a building both because homes are first among eos hotel rooms bank safe deposit boxes storage facilities the warrants I've just described go search for the contraband the gun the pearl necklace okay or not okay are those sufficiently particularized >> well let me take them each in turn because I think the analysis might be slightly different under under each of those things, your honor. Um, first of all, for the apartment homes, no. And I think that's >> still haven't asked about apartments.

[00:01:59]Asked about hotels, but >> I'm sorry. A hotel a hotel is the same because the courts treated it as a home.

[00:02:05]>> Okay.

[00:02:06]>> Uh, and houses are specifically listed in the Fourth Amendment and they're first among >> How about the other two?

[00:02:12]>> Okay. I think uh storage locker uh I think probably we could not do that some and I think we probably couldn't do a storage room although it would depend how it's organized >> like every storage facility in America you know with one of those awful rolling gates and a padlock at the bottom.

[00:02:33]>> So let me explain why and why that's different from this case if I could.

[00:02:37]>> I'm just asking you. Do you think that warrant would be sufficiently particularized the one I described? Yes or no?

[00:02:42]>> I think it would be sufficiently particularized because it would describe what the government had uh basis to search. The government could ask >> storage facility and require them to search every locker in 500 lockers uh for the contraband.

[00:03:00]>> What I don't think is that it describes a discrete fourth amendment place in which to search for the things.

[00:03:08]>> So it's not particularized then. So I I think it's more about place than particularization there assuming there's probable cause to believe that the uh area at large is going to contain the contraband. I if I could explain a little further on this your honor I think what makes the difference in some of these hypotheticals versus what we have here.

[00:03:29]>> Well first I just want an answer to my hypotheticals and then we'll get to here if that's all right with your honor. My answer to the hotels is no. My answer to the other two is very likely not. I would need to know a little more about it.

[00:03:43]>> Okay. All right.

[00:03:44]>> And now let me explain why.

[00:03:45]>> And now turning to this.

[00:03:48]>> Do you agree that that Google had to query every single user's account?

[00:03:55]>> No.

[00:03:56]>> Well, you said so on page 10.

[00:03:59]>> Do you mean query in the Do you mean query is like a a synonym for >> I'm using your word page 41.

[00:04:05]>> Oh, okay. Yes, I do agree. Google had to query in that sense. I'm sorry. I thought you meant >> and there about 500 million users accounts, right?

[00:04:12]>> Yes, I agree with that.

[00:04:13]>> Okay. All right.

[00:04:14]>> I I agree and let me tell you why it's different. I think the reasons the hypotheticals that I but I apologize for misunderstanding your use of query as a synonym for search. Uh the the reason this is different is I think it's a lot about opacity and control. And what I mean by opacity is the separateness of the different spaces and control is who has control over those spaces. Here is a case where I think as the court recognized in Riley can often happen.

[00:04:45]The physical analogies kind of break down to some degree. Um the court has been clear in Smith against Maryland.

[00:04:53]>> Well, let's let's just stop there. Let's let's assume that these accounts are are kept in >> you can call pacity or whatever you want but are kept in the same kind of discrete manner as your as your email is.

[00:05:06]>> Well, your honor, I don't think that's the case here. I think >> let's assume it is. Let's assume it is.

[00:05:11]Let's assume that the Google user account, we have we've got a lot of briefs on this, that they're categorized similarly by user and and mold off from other users, both the email and the location data. Let's assume they're similar in that respect.

[00:05:27]>> Your honor, if this were a record that the user created and uploaded, our answer to this case would be different.

[00:05:34]But if this is but in this case, this is a record that Google creates. Google software sends it. Google processes it.

[00:05:44]It runs its own algorithms to actually figure out what information it's storing. It is data that Google maintains and data that Google accesses for any number of reasons. If we were to have a physical analogy to storage lockers, and I'm not sure how useful these physical analogies are, it's like having a bunch of storage lockers where there's a glass wall in front of them instead of having an opaque door for each box. All the government is asking for here is to get in the room and look at the front of those storage lockers. I don't think that the limited amount that even Google sees at step one is going to be considered a search. for as I said earlier from the government's perspective all of those other storage lockers if you want to call them that and we're accepting that analogy for purposes of this answer uh all those other storage lockers might as well not exist for all the government knows they there are only 19 people who have Because