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.”
Hellbound and Down 