In May 2019, a man robbed a credit union in Virginia, made off with $195,000, and vanished. Witnesses noticed only one odd detail: as he approached the bank, he appeared to be talking on his cell phone. Weeks later, with the trail cold, police tried something unimaginable a generation ago. They asked a magistrate for a “geofence warrant”—an order compelling Google to search the location histories of over 500 million users to identify every cell phone that had been near the credit union around the time of the crime and, after winnowing down the list a couple times, reveal the identities of the cell phones’ owners. At the end of the three-step process, Google gave police three names. One was Okello Chatrie. This past Monday, in Chatrie v. United States, the Supreme Court decided that process was a Fourth Amendment “search” and remanded the case to the Fourth Circuit to determine whether the broad geofence warrant was adequate, or whether the Constitution requires more. But the real story is how the Court reached its holding—and why a lone concurrence may, in the long run, matter more than the majority opinion. What Was at Stake The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” For most of American history, that text did work on its own terms. In the common law, privacy was protected—robustly—but not as a freestanding right. It was the by-product of other common-law rights. If a stranger opened your mail, for example, that was a trespass against your papers. If a housekeeper rifled through your private papers, it could be both a trespass and a breach of contract. And so on. That changed after 1890, when a young lawyer named Louis Brandeis—later a Supreme Court Justice—co-authored a Harvard Law Review article proposing a new, freestanding “right to privacy,” which he called “the right to be let alone.” The amorphous new “right,” which was intended to be upheld only when it survived a balancing test pitting it against the “public interest,” first became part of tort law before being welcomed into Fourth Amendment doctrine. Legal protection for privacy has suffered ever since. The worst setback was in 1967, in Katz v. United States. Fun fact: The famous test that emerged from Katz—the one every law student can recite, asking whether a person had an expectation of privacy that “society is prepared to recognize as reasonable”—appears nowhere in the majority opinion. It comes from Justice Harlan’s solo concurrence. The Court adopted it as the test for a Fourth Amendment search only afterward, but it has endured for nearly sixty years. The trouble with Harlan’s test is that it converted what had been a question of principle into a matter of opinion. Whether the amendment protects you no longer turned on whether you owned or otherwise had a protected right to the thing searched, but on what judges supposed “society” was prepared to tolerate. And once legal protection for privacy became a matter of a judge weighing society’s expectations against those of the individual, government was eager to set the terms of comparison. Not surprisingly, it wasn’t long before government’s own alleged needs—for security, for information, for efficiency—kept winning. In 1976, the Court held in United States v. Miller that you have no Fourth Amendment interest in your bank records, because you “voluntarily” handed them to the bank. Three years later, in Smith v. Maryland, it said the same of the phone numbers you dial. From these cases emerged the supersized “third-party doctrine”: share information with anyone, even on delimited terms, and the government may obtain it without a warrant. Your contract with a service provider, which the common law would have treated as binding and protective of your privacy, dissolved into whatever judges imagined “society” thought it was worth—usually not much. The Chatrie Majority’s Answer Enter Chatrie. Its immediate predecessor was Carpenter v. United States (2018), in which the Court held that the government needs a warrant to obtain a week or more of cell-phone location records from a carrier. Writing for a five-justice majority, Justice Kagan treated Chatrie as a near-mechanical application of Carpenter. If anything, she reasoned, Google’s “Location History” is more revealing than the data in Carpenter: it pinpoints a phone within about twenty meters rather than within a sector of up to several square miles, logs a position every couple of minutes, and can even tell which floor of a building you’re on. Everything that made Carpenter a search, she concluded, “applies as well or better” here. The third-party doctrine again failed to save the government, because this information is “not truly shared” in any ordinary sense—it is simply the inevitable byproduct of carrying a modern phone. If a warrant is now required for location data, where does the logic stop? What about your Amazon purchase history, your Google searches, your Venmo ledger, your Apple Pay record? So the Court held that a search occurred and remanded the case for the Fourth Circuit to determine, in the first instance, whether the unusual three-step geofence warrant satisfied the Fourth Amendment’s demands of probable cause and particularity at each stage. A majority holding that a search occurred was already more than many expected out of Chatrie. But notice what the majority would not do. While it calls the records “his” freely—and even likens them to Chatrie’s own emails and photos—it refuses to let that ownership decide anything. The Katz test remains: a search occurred because it violated a “legitimate expectation of privacy.” The possessives do the persuading; the principle of private ownership does not. The Court helped itself to the principles of property and contract while denying them any doctrinal standing. Gorsuch Goes Where the Majority Wouldn’t Justice Gorsuch, concurring only in the judgment, pointed out the elephant in the room. He would skip the expectations test entirely and ask the questions the Fourth Amendment’s text actually poses: Is Location History one of Chatrie’s “effects”? And did the government search it? His answers: a resounding yes to both. As to the first, Chatrie’s agreement with Google called the data “your information.” Chatrie could review it, edit it, export it, delete it, and exclude everyone else from it. Those are the classic sticks in an owner’s bundle of sticks—including the right to exclude, which the Court, in Cedar Point Nursery v. Hassid (2021), has called the “most treasured” of them. That Google stored the data on its servers and had access to it changes nothing. As Gorsuch puts it, “entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours.” Toss your keys to a valet, ask a neighbor to mind your dog, and the property remains yours throughout. And as to the second, because the data is Chatrie’s effect, the government searched it the moment Google queried its vast database at the government’s behest. Here Gorsuch goes further than the majority. Where the Court left the precise timing of the search’s occurrence for another day, Gorsuch would hold that a search occurred at the very first step—when “the government … compelled Google to rummage through” its customers’ data. The search was complete before the police themselves saw any of the data—and of course long before Google named names. Little of this is new ground for Gorsuch; what’s new is the opportunity to use it. He sketched this same property approach eight years ago, dissenting in Carpenter v. United States—the bailment, the valet, the dog-sitter, all appeared there too. But the defendant in that case had argued only the expectations test, leaving Gorsuch to lament that “Mr. Carpenter forfeited perhaps his most promising line of argument.” So the 2018 opinion spoke in the conditional: the data “could qualify” as Carpenter’s papers or effects; his interest “might even rise to the level of a property right.” This time the argument was properly raised—Chatrie’s brief led with it—and the hedges fall away. The data, Gorsuch now states flatly, “is his effect.” What was a forfeited possibility has become a decided ground. His posture toward the third-party doctrine has hardened in the interval, too. In Carpenter he treated the expanded doctrine that emerged from Miller and Smith as a worthy adversary to be outflanked—methodically dismantling justifications for the expansion, yet choosing to route around the doctrine rather than call for its end. In Chatrie the doctrine’s precedential value is moldering; it’s more relic than adversary. Gorsuch dismisses it as an “indefensible qualification” and “battered” offshoot of Katz, needling the majority for giving it “a quiet burial.” He still stops short of moving to overrule it. But the shift is unmistakable: a doctrine he once worked carefully around, he now treats as already crumbling, with the only open question being whether the Court will be honest about the cause of its demise. The Dissent Has a Point Justice Alito, in dissent, made two arguments. The first is procedural: because the lower court had already upheld Chatrie’s conviction on a separate “good-faith” ground that the majority never disturbed, nothing the Court said is likely to change the outcome of his case. The opinion, Alito charged, is therefore “advisory”—a constitutional pronouncement dressed up as a decision. His second argument is the one that could haunt courts for years. If a warrant is now required for location data, where does the logic stop? What about your Amazon purchase history, your Google searches, your Venmo ledger, your Apple Pay record? Each can paint a portrait of a private life every bit as intimate, and each, for now, falls within the third-party doctrine the majority left standing. (Justice Barrett dissented briefly to say she agreed with Alito’s view that the majority reached the wrong result, even though she, unlike Alito, had no issue with either Carpenter or with the Court’s decision to hear the case.) Alito’s line-drawing complaint is devastating against the majority. The majority’s rule asks questions with no stable, predictable answers: How much surveillance is too much? Which technologies has society come to accept? The majority rule’s application must be relitigated every time a new device, app, or media type appears. Gorsuch’s framework, by contrast, asks questions applicable in predictable ways to any technology: Is this thing yours? Did the government search it? Ownership ports across technologies; expectations may not. Fourth Amendment law has already witnessed a single concurring justice’s framework become the majority’s—that is the history of the Katz test. Gorsuch’s property- and contract-based approach, which rests on a foundation laid by the late Justice Scalia in Kyllo v. United States (2001), United States v. Jones (2012), and Florida v. Jardines (2013), is following a similar path: a dissent in Carpenter eight years ago, a concurrence in the judgment this week, one seat nearer the center. It commands no majority now. Neither did Harlan’s, at first. The clearest, most consistent opinion in Chatrie rode sidecar. If we take history and principle as our guide, it is Gorsuch’s framework that should endure. With persistence and a bit of good fortune, it will.   This op-ed was originally published in Law & Liberty on July 7, 2026. The post <em>Law & Liberty</em>: <em>Chatrie</em> and the Long and Winding Road to Privacy appeared first on Pacific Legal Foundation.

New Jersey is slamming taxpayers with a one-two punch: forcing them to pay more for their roads — and trampling on the Constitution to do it. When Evesham Township in southern New Jersey needed some roads repaved in 2025, it put the job out for bid. Of the eight responding contractors, Earle Asphalt Co.’s bid came in lowest, at $1,463,513. That’s where the story should have ended: Earle gets the job, taxpayers get their roads fixed at the best price, everyone goes home happy. It’s not what happened. Seven days after bids closed, the Evesham Township Council passed a resolution mandating that all public works contracts include a project labor agreement. That’s a pre-hire collective bargaining arrangement requiring contractors to hire through union halls, and to recognize unions as their workers’ exclusive bargaining representative. Earle, which has operated as a non-union “open shop” since its founding in 1968, couldn’t agree to those terms without betraying the principles that make it one of New Jersey’s most respected construction companies. So the township threw out all the bids and started over. When the dust settled, every offer came in higher than Earle’s original price. The lowest was $1,617,411 — more than $153,000 above Earle’s bid. Evesham taxpayers are now on the hook for that amount to get the exact same roads repaved by a different company willing to abide by the unionization requirement. The roads don’t know the difference. The taxpayers’ wallets do. It’s a small-scale preview of what’s happening all across New Jersey, as project labor agreements spread from large state projects down to routine local work. In January, outgoing Gov. Phil Murphy signed legislation eliminating the cost-threshold rules that once limited PLAs to major endeavors, allowing municipalities to slap union mandates on virtually any public works contract. The result is predictable: fewer bidders, less competition, higher prices. The company has now taken the state to federal court, represented by Pacific Legal Foundation and the Wisconsin Institute for Law & Liberty. It’s challenging the PLA mandate as well as an equally troubling state policy requiring contractors on public projects to meet “targeted employment goals” — in plain English, race- and sex-based hiring quotas. Fail to hit your numbers, and the state can fine you, penalize you and jeopardize your future public contracts. Earle has spent nearly six decades hiring and assigning workers based on merit, skill and need. The company doesn’t discriminate, period — but under New Jersey’s scheme, that’s not enough. Trenton is forcing Earle to track the race and sex of his workforce and hit county-by-county demographic targets. If the numbers in its required monthly compliance reports don’t add up, Earle must either cut a deal with a union to supply the right workers or complete 25-part bureaucratic obstacle course — an onerous ordeal that exists solely to pressure non-union shops into joining the union fold. The US Constitution has something to say about all this. The 14th Amendment’s Equal Protection Clause doesn’t allow the government to force private employers to sort workers by race and sex. To survive legal scrutiny, racial classifications must serve a compelling governmental interest and be narrowly tailored to achieve it. New Jersey’s rule doesn’t come close: It’s a blatant racial quota with no justification and no sunset — precisely what the Constitution forbids. Meanwhile, the PLA mandate raises a different constitutional problem. The First Amendment protects not just the right to speak, but the right to freely associate — and, critically, the right not to associate. Forcing Earle to recognize and funnel money to unions as a condition of competing for public contracts compels association and subsidizes speech that Earle and its employees never agreed to. These discriminatory rules are doing demonstrable harm. Earle’s senior employees have an average tenure of 18 years, remarkable in an industry defined by turnover. The company is nationally recognized for second-chance hiring, giving people with criminal records a genuine shot at a career. “This isn’t about me,” co-owner Michael Earle says. “This is about our people.” If his employees choose a union, that’s their right. But the government doesn’t get to make that choice for them. That’s what Earle is fighting for in federal court: not special treatment — just the right to compete on merit, hire on merit, and keep its workers free to make their own choices. New Jersey has spent decades substituting government mandates for both market competition and individual freedom. The bill for that overreach is now showing up on taxpayers’ invoices — $153,000 at a time, in Evesham and across the state.   This op-ed was originally published in the New York Post on July 9, 2026. The post <em>New York Post</em>: New Jersey’s outrageous union giveaways are paving a road to ruin appeared first on Pacific Legal Foundation.

The Docket is PLF’s weekly newsletter covering the cases, clients, and policy battles shaping the future of liberty in America. You can catch up on last week’s Docket here and subscribe below to receive future editions in your inbox.   A homebuilder challenges a six-figure fee to subdivide one lot into two; Texas nurses set their sights on the State’s “pay to practice” scheme; and PLF attorney Charles Yates applauds the Trump administration’s repeal of an ESA rule historically weaponized against landowners.   California homebuilder challenges City’s six-figure ‘recreation in-lieu’ fee The Supreme Court has repeatedly held that “exactions,” or conditions imposed on land-use approvals, must be directly related to the impact and scope of a project to be valid. The Court has even characterized improperly applied exactions as little more than “an out-and-out plan of extortion.” Yet Americans like California homebuilder Mircea Voskerician are regularly hit with exorbitant demands from local governments simply for permission to make productive use of their property. In Mircea’s case, the City of Menlo Park demanded his business pay a $127,400 “recreation in-lieu” fee before it would approve his plans to subdivide a property into two lots. Now, Mircea is challenging the six-figure fee in state court as a violation of both state law and the U.S. Constitution. Read More   Texas nurses fight ‘pay to practice’ scheme banning them from working without physician permission Texas law requires nurse practitioners—even those with 30+ years of experience like PLF client Sandy McCoy—to secure a “collaborative practice agreement” with a physician before they can operate independently. In practice, these agreements amount to little more than expensive permission slips, with some NPs paying as much as $50,000 simply to practice the skills they are already licensed to practice. Now, Sandy has teamed up with the nonprofit Texas Nurse Practitioners to challenge the “pay to practice” scheme under the Texas constitution. Read More   PLF applauds repeal of Endangered Species Act’s ‘blanket’ 4(d) rule On Tuesday, the Trump administration confirmed the repeal of the Endangered Species Act’s “blanket” 4(d) rule, a provision that extended protections generally reserved for endangered species to threatened species. PLF attorney Charles Yates applauded the repeal, noting that “for many years federal bureaucrats have viewed [the 4(d) rule] as a blank check to control land use across the country.” Read More   Tattoo company files First Amendment lawsuit to challenge South Carolina’s restrictions on protected expression South Carolina bans tattoo studios within 1,000 feet of any church, school, or playground. It also criminalizes tattooing anyone’s head, face, or neck. These prohibitions do nothing to make tattooing safer; instead, they reflect the State’s disapproval of tattoo art and those who create it. Under the First Amendment, tattooing is protected expression. So, we’re proud to represent a pair of local tattoo enthusiasts and a pop-up tattoo studio in challenging these restrictions in federal court. Read More   California property owner sues State for violating Fourth Amendment through mandatory participation in Section 8 Housing Program In 2019, California amended its Fair Employment and Housing Act to effectively require landlord participation in the federal Section 8 program. As a condition of the program, landlords must grant the local housing authority, the U.S. Department of Housing and Urban Development, and the Comptroller General “full and free access” to the voucher-assisted rental unit—without a warrant, probable cause, or opportunity for pre-compliance review. For Thomas Manning, a Sacramento-based business owner with roughly 300 properties under management, the Section 8 obligations are a step too far. States cannot force participation in a federal program that Congress made optional—particularly when participating in that program threatens their constitutional rights. Thomas is now fighting back with a federal lawsuit challenging California’s mandate, seeking to strengthen property owners’ Fourth Amendment protections against warrantless searches. Read More   Subscribe to PLF’s weekly newsletter, The Docket, to receive future updates in your inbox. Firstname(Required)Lastname(Required)Zipcode(Required)Email(Required) Δ The post The Docket: July 24, 2026 appeared first on Pacific Legal Foundation.