Reverse Warrant Used In Robbery Investigation Being Challenged As Unconstitutional

from the gradually-narrowed-crafting dept

Reverse warrants are being challenged in a criminal case involving a bank robbery in Virginia. These warrants (also called “geofence warrants”) work in reverse, hence the nickname. Rather than seeking to search property belonging to a known suspect, investigators approach Google with a demand for information on all cellphones in a certain location at a certain time and work backwards from this stash to determine who to pursue as a suspect.

Warrants require probable cause. And there doesn’t seem to be much in the way of specific probable cause supporting these fishing expeditions. In this case, a bank was robbed in the late afternoon, resulting in plenty of people unrelated to the robbery being in the vicinity. This is all it takes to turn random people into suspects. And that has gone badly for investigators and, more importantly, innocent citizens on more than one occasion.

Accused bank robber Okello Chatrie is challenging the reverse warrant that led to his arrest and indictment on federal charges. Chatrie hopes that warrant will be found deficient because it will make it easier to undo the damage he seemingly inflicted on himself after he was taken into custody.

In Chatrie’s case, bank cameras showed the robber came and went from an area where a church worker saw a suspicious person in a blue Buick. Chatrie’s location history matched these movements. Prosecutors say Chatrie confessed after officers found a gun and nearly $100,000 in cash, including bills wrapped in bands signed by the bank teller.

Chatrie first moved to suppress this warrant late last year, arguing [PDF] that it’s impossible for a warrant that targets no one in particular to contain the necessary probable cause for the search of Google’s location records.

This is no ordinary warrant. It is a general warrant purporting to authorize a classic dragnet search of every Google user who happened to be near a bank in suburban Richmond during rush hour on a Monday evening. This is the kind of investigatory tactic that the Fourth Amendment was designed to guard against. Geofence warrants like the one in this case are incapable of satisfying the probable cause and particularity requirements, making them unconstitutional general warrants.

His motion also points out that the location info gathered by Google via the Android operating system is far more precise than cell site location info gathered by cell service providers.

[T]he location data available in Google’s Sensorvault is even more precise than the data in Carpenter. Google can pinpoint an individual’s location to approximately 20 meters compared to “a few thousand meters” for cell site location data…

In this case, investigators received “anonymized” data on nineteen cellphones that were in the area at the time of the robbery. From there, investigators determined Chatrie to be the most likely suspect. That’s detailed in the warrant application [PDF] for a search of Chatrie’s Google accounts.

Based upon Google’s return of anonymized information, your Affiant discovered a Google account that: (1) was near the corner of Journey Christian Church prior to the robbery at approximately 4:30 to 4:40 p.m. — the time period [redacted] recalled encountering a suspicious individual wearing reflective glasses in a blue Buick sedan; (2) was near the southwestern corner of Journey Christian Church prior to the robbery at approximately 4:48 p.m.; (3) was inside the Credit Union during the time of the robbery; and (4) immediately left the area following the robbery, leaving from the southwestern corner of Journey Christian Church.

Chatrie filed a supplemental suppression motion [PDF] in May of this year. This one expands on points previously made, as well as adding new information gathered from a few rounds of discovery. It opens with this statement, again characterizing reverse warrants as general warrants forbidden by the Fourth Amendment — something that doesn’t become acceptable just because investigators don’t have any immediate leads.

Local police had no suspects in the robbery of the Call Federal Credit Union, so they decided to enlist Google to sleuth for them. Investigators went to a Virginia magistrate and, without conveying critical information, obtained a staggeringly broad and unparticularized warrant to go fishing in a pool of private location data that most people have never heard of. They demanded the location information associated with all Google users who happened to be in the vicinity of the bank during rush hour on a Monday evening, and thus, caused Google to search numerous tens of millions of accounts at their behest.

As the motion notes, the Supreme Court has said historical cell site data is protected by the Fourth Amendment, requiring the use of a warrant to obtain it. Even though there was a warrant involved here, it did not satisfy the particularity needed to justify this search of Fourth Amendment-protected records.

While the government obtained a warrant in this case, it did not obtain one for Mr. Chatrie’s Location History data. In fact, it did not seek anyone’s data in particular. Rather, the government compelled Google to search everyone’s data in order to develop an investigative lead. This warrant was unconstitutional. It was both overbroad and lacking in particularly, a forbidden general warrant purporting to authorize a dragnet search of Google users. It did not—and could not— satisfy the Fourth Amendment’s probable cause and particularity requirements, rendering it wholly impermissible and void from the beginning.

The government’s response [PDF] portrays Google as nothing more than a nearby resident who could be approached with the proper paperwork to compel it to disclose what it “saw.”

The investigators were correct: Google had been a witness to the robbery. Pursuant to the warrant, Google produced to the United States a small set of records: location information over a two-hour interval of three identified and six unidentified individuals, and limited location information over a one-hour interval of ten other unidentified individuals. This information was sufficient for investigators to recognize that the defendant’s Google account likely belonged to the robber, and subsequent investigation led to his indictment.

The government says the Carpenter decision doesn’t apply because — unlike cell location data gathered by service providers — users must opt in to allowing Google to collect their location data. The argument is an old one: that a person’s agreement to share data with a company is an agreement to share data with a government.

Google could not obtain and store the defendant’s location without his undertaking multiple affirmative acts. He had to opt in to Location History in his account settings, and he had to enable Location Reporting for his phone. The defendant had discretion regarding whether Google stored his location information, and he retained the ability to delete it. And none of the services associated with Google’s storage of location information are indispensable to participation in modern society. The defendant thus voluntarily disclosed his location information to Google, and Google’s conveyance of that information to the United States did not infringe his reasonable expectation of privacy.

The government also argues that a warrant targeting nothing more than anonymized data is still somehow particular. It says warrant affidavits only need to show there’s a probability that evidence will be found in the place searched.

In particular, the affidavit established: (1) that an unknown subject committed an armed bank robbery at a particular place and time; (2) that prior to the robbery, the robber held a cell phone to his ear and appeared to be speaking with someone; (3) that the majority of cell phones were smartphones; (4) that “[n]early every” Android phone “has an associated Google account,” and that Google “collects and retains location data” from such devices when the account owner enables Google location services; and (5) that Google can collect location information from non-Android smartphones if the devices are “registered to a Google account and the user has location services enabled.” From this information, there was a substantial basis for the magistrate to find probable cause to believe that Google possessed evidence related to the robbery.

The defendant argues that the warrant lacked probable cause because it “did not identify any individuals or accounts to be searched because investigators did not know who they were searching for, or even if Google would have relevant data.” However, a warrant for evidence of crime need not identify specific individuals or establish with certainty that evidence will be found—all it must do is establish a fair probability that specified evidence will be found in the place to be searched.

The judge has yet to rule on this suppression attempt. The government’s arguments seek to turn a broad warrant into something that “narrowly” targets what may be a very large data subset collected and stored by Google. The implications of claiming everyone who uses Google’s location services voluntarily waives their privacy right in this information are far-ranging and somewhat opposed to the Supreme Court’s Carpenter decision. While the Supreme Court only delivered a narrow ruling on the warrantless acquisition of several days of cell site location info, it pointedly did not state this was the only way this decision should be applied. Other courts have already found Carpenter’s reasoning capable of covering third-party records not explicitly discussed in that decision.

Finally, also of interest in the reporting on this case is that reverse warrants are the target of legislation in New York. And we have, of all people, the Proud Boys, to thank for it.

“If you are someone who went out on the streets to express your rage, your sadness and your hope that there is a better way to do policing and are then subject to a warrant, I think that would go against everything we are telling people they have the right to do,” said New York state Sen. Zellnor Myrie, a lead sponsor of a bill to ban geofence warrants.

The legislation was prompted in part by a New York Times report that prosecutors sought Google’s cellphone records around the spot where the Proud Boys, a far-right group, brawled with anti-fascist protesters in 2018. Several Proud Boys were later convicted of assault.

If this challenge ends up in a federal appeals court, more attention will be drawn to these questionable warrants that allow investigators to treat everyone in an area as a suspect by leveraging data many cellphone users may not realize is being collected and stored. And, because this is a relatively new investigative option, judges aren’t being provided with all the details needed to make informed decisions, which is going to result in even more collateral damage in the future if courts don’t start doing something about this now.

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Comments on “Reverse Warrant Used In Robbery Investigation Being Challenged As Unconstitutional”

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Anonymous Coward says:

Re: I guess if you are going to rob a bank

It seems pretty clear that Chatrie did indeed rob said bank. If he was dumb enough to do that it’s not too surprising he was dumb enough to take his phone with him.

These reverse warrants need to go for all of their illegality but it’s super hard to root for this guy.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Re: it's super hard to root for this guy

Sadly, super-hard-to-root-for guys are really effective in creating bad precedent that serves law enforcement departments.

Al Capone shows us that if someone is enough of a dastard, the police can get away with anything to bag him.

See also the FBI’s Playpen malware.

That One Guy (profile) says:

Re: Re: Hard cases can make for unpleasant 'allies'

Thankfully you don’t necessarily need to root for them, all you need to root for is for their rights to be respected and upheld, because the rights that protect them are the exact same ones that protect you and anyone else who might find themselves in court for legitimate or not-so-legitimate reasons.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re:

These reverse warrants need to go for all of their illegality but it’s super hard to root for this guy.

The point isn’t that anyone is “root[ing] for this guy”. The point is that everyone, even a criminal, deserves to have their rights respected.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"The point is that everyone, even a criminal, deserves to have their rights respected."

To hell with "deserve". You neither need to respect an obvious bad boy or think he’s deserving of anything at all. It’s simpler than that. It boils down to no sane person willing to live in a jurisdiction where your rights depend entirely on which people currently think badly of you.

"William Roper: “So, now you give the Devil the benefit of law!”"

"Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”"

"William Roper: “Yes, I’d cut down every law in England to do that!”"

"Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”"

Anonymous Coward says:

Re: Re: I guess if you are going to rob a bank

These reverse warrants need to go for all of their illegality but it’s super hard to root for this guy.

That’s how it’s always been. The ACLU, for example, often finds itself on the side of defendants who are…unsympathetic (ie. obviously guilty, sometimes of some pretty horrific shit). Look up the history behind the "Miranda" warning.

It’s important to defend everyone’s rights; but the US criminal justice system kind of requires someone to be charged with a crime before that’s an option, and it’s the cops that choose who that’s going to be.

This comment has been deemed insightful by the community.
Upstream (profile) says:

Re: Re: I guess if you are going to rob a bank

Very unsympathetic characters are frequently used as an excuse to pass bad laws and set bad precedent. It is a favorite government tactic in the war on our rights.

When it comes to our rights, we must all be as close to ‘absolutist’ as possible. As Benjamin Franklin [is said to have] said "We must, indeed, all hang together, or most assuredly we shall all hang separately."

JoeCool (profile) says:

Re: Re:

That was my thoughts: this is very much like a surveillance camera – hours of coverage with any number of innocent people included. So how are the two different such that geofencing is bad while surveillance cameras are not? Are they both bad? Neither? If a bank posts a sign that warns your cell phone is being monitored, does that make it fine? That’s all they have for CCTV monitoring and they’re considered not an issue.

This comment has been deemed insightful by the community.
Zgaidin (profile) says:

Re: Re: Re:

There is a distinct difference. There was a witness who claimed to have seen a suspicious individual prior to the robbery near a church with a car, and if that individual is the robber it’s likely he’ll return there to his vehicle afterwards. All fair so far. Let’s pretend to change what happened thereafter. Let’s say there was a surveillance camera on the likely route between the bank and the church, owned and operated by a private business. If the owner refused to voluntarily hand over the surveillance recordings, it’s easy to see probable cause to secure that particular camera’s recording for the date & time in question. Those recordings could then be referenced against the original witness outside the church. All this would get them is a picture of the suspect to circulate in the media assuming the picture was of high enough resolution and the witness verified it. In this case, there’s little functional difference between the warrant for the camera and a subpoena to compel testimony from a reluctant witness.

However, with a reverse warrant, instead of using a warrant to access the records of one particular device that probably recorded the suspect, the warrant compels Google to access an unspecified number of accounts who were in the search area at the specified time. Chatrie alleges it was "tens of millions of accounts," and depending on how Google conducted the search, it may have been. Even if it was only a few thousand accounts (those who passed through the specified area in the specified time frame), that’s a far cry from this one particular hypothetical camera. It would have included far more people than the number who passed in front of the hypothetical camera during the time window. Also, unlike the camera, this returned a list of 19 possible accounts whose movements might be what the police were looking for, with one matching more closely. Where the camera only gave them a picture of the suspect, this gave them his name, probably his address, phone number, and e-mail account and gave them far more information about his movements in the time at question than "he passed in front of this camera." It corroborated that he was at the church prior to the robbery, entered the bank before the robbery, exited right after, and returned to the church. If these sort of warrants are allowed to stand, despite their clear lack of particularity, why would the police ever bother with surveillance cameras? Google will give them much more information that helps their case.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

Each surveillance camera only covers a limited area, and show who was doing what in that area. They do not directly tie footage or location to a person, that requires someone to examine the footage. Also, to track one person through various cameras takes a lot of effort. Because of this, their use is limited to tracking someone forward or backward in time from an incident captured on camera. Without effective face recognition, surveillance cameras do not act as general tracking devices, and face recognition is not there yet.

Uriel-238 (profile) says:

Re: Re: A surveillance camera

In this case it’s like a wide-angle surveillance camera attached to facial recognition software which the judge believes is accurate and issues warrants to seize communication records and social media of all matched identities.

The fourth amendment is supposed to allow for warrants that narrowly reduce suspects (say from five to one) or confirm an established link (did he drive the getaway car or not?). It’s not supposed to be license to dragnet the hundred-plus people who happened near the bank in a two hour time window so law enforcement could rummage through their social media or GPS records.

I suspect deep-search surveillance of everyone in the vicinity of a crime would be a bad look for NCIS, especially if the team then kept all that data in order to bust the black citizens caught in the net for unrelated crimes.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"So how are the two different such that geofencing is bad while surveillance cameras are not? Are they both bad?"

They are both bad but at least you can use surveillance cameras responsibly – by mandating that signs of warning be put up that the area is monitored, by mandating timed deletion of captured images, by making camera surveillance something requiring a cause and a license…all the stuff that keeps the surveillance camera from becoming the ever-present eye on everyone.

Reverse warrants, not so much. It does highlight the point that ISP’s and telcos really need to have an enforced policy to wipe their client logs within a defined time, because police which relies on consistent fishing expeditions to find criminals aren’t part of good law enforcement.

It boils down to that old answer to the question "Do you have anything to hide?" to which the answer will always be "Yes, eventually". Go ask the jews whether anyone could be harmed, for instance, by a simple national list of demographics with name and ethnicity. Or labor union representatives under Hoover and McCarthy.

madasahatter (profile) says:

Re: Re:

A major difference between using a security camera and reverse warrants. Security cameras only record a limited amount based on their location. Also they are useful for actually showing the crime, verifying/breaking alibis, etc. Reviewing the footage can be time consuming. They are not as likely to capture large numbers of innocent people in the shot and often it is pretty obvious they are innocent to someone with a couple of functioning grey cells. Depending on the camera and angles, the quality of the images may be rather grainy. But there is often enough detail to give a decent description of the perp that eliminates a large number of people. Reverse warrants in this case lump a number of phones which happened to be in the area together without any means of obviously rejecting them. The movements of each must be traced. Depending on the accuracy of the location data it will be difficult to accurately sort out quickly which phones to ignore.

An example, I live very close to several bank branches (walking distance). If there was a robbery at one of them the interior video footage would either confirm whether I was in even in the branch at the time. And the footage would confirm if I even matched the perp’s description. The cell location data from tower pings might not show my location with enough accuracy for me to be eliminated if I was at home during the robbery. The risk is a false positive will lead the police to focus on an innocent person with the possibility of charging an innocent person.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"Also they are useful for actually showing the crime, verifying/breaking alibis, etc. Reviewing the footage can be time consuming."

Security cameras share all the disadvantages of reverse warrants – but they can be mitigated. By having to show need and aquire a license before you monitor public spaces, for instance, or by mandating rolling deletion of old footage. You can, as we can see in London, abuse cameras the same way we abuse reverse warrants – and with nothing to show for it which the employment of half a dozen detectives wouldn’t similarly accomplish.

Reverse warrants, otoh, is a fishing expedition which starts from "everyone within a city-wide area" and then narrows down as you search the personal details of every citizen while looking for flags. It’s as unacceptable as pursuing a drug dealer by running no-knock warrants on everyone who lives in a five-mile radius of the event.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

For a very, VERY lose definition of 'small'

Pursuant to the warrant, Google produced to the United States a small set of records: location information over a two-hour interval of three identified and six unidentified individuals, and limited location information over a one-hour interval of ten other unidentified individuals.

If ‘information sufficient to track anyone in the general area over the course of several hours‘ is considered only a ‘small’ set of records then the definition of the word has truly been stretched well past the breaking point.

The fourth amendment is very specific in it’s language, you need to specifically state what you are searching for and where you intend to search, so to argue that ‘the potential guilty party’ and ‘everyone in a given area, over the course of several hours’ is to water down the fourth to the point that a judge accepting such an argument might as well just state flat out that the fourth does not apply to accused criminals and anyone else who might be caught up in a given dragnet.

ECA (profile) says:

Re: Even when you opt-out

you buy the phone, you get tracked, by either the Cellphone corp or Google..There is 1 other way to do this, requiring the bank to setup an Monitor for all cellphones that enter..

Smart enough to Rob a bank,
Dumb enough not to TURN THE THING OFF, leave it at home, WRAP IT up in Aluminum foil.. Anything else?

Then comes a What IF’.
These rules are Gov. rules, and the bank could of done the same, Probably with Less Problems..Then handed it to the police.

Anonymous Coward says:

Criminals are usually pretty dumb, which is why they are criminals. You’re going to rob a bank and you bring your phone alone? Why? Who do you have to call that badly to bring your phone while you’re doing a crime? If anything, leaving it home helps with an alibi. You say you were home and your phone is showing you were home. So it can work both ways.

You have no privacy in public!!! Which is why there are cameras everywhere. They can record everything they see in public. I’m kind of on the fence with tracking cell phones. Who doesn’t at this point realize that Google is spying on everything you are doing with your phone, including tracking you!!! That’s a part of Google Maps and WYZE which Google also owns. You have no privacy on your phone. If it was an iPhone, well Apple is not going to just release a bunch of records like Google. You can still get all the phones in an area from Cell phone company’s that way.

Again if you are going to rob a bank, which is a Federal Crime, never take your phone with you. In fact, you don’t want to take any type of ID that you might risk losing. Let alone anything else that could ID you like a Tatoo.

There are some smart criminals, but most are pretty dumb and get caught over and over.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Hope for the liberal socialists

Ooooh! Given we live in a fascist police state where people are murdered by law enforcement whenever someone transgresses against an officer’s sensibilities…

Given we live in a fascist police state where undesirables are targeted and then tracked until they do some esoteric crime that the DA can turn into a ten-year prison sentence…

Given we live in a fascist police state where any loose cash is seized and bank-cards emptied as a second income source for our law enforcement departments, ruining American lives at a rate higher than all the non-law-enforcment-involved theft and burglaries put together…

Do tell us about this liberal socialism solution! It sounds intriguing compared to the alternative of keeping the atrocity-laden system we have.

Scary Devil Monastery (profile) says:

Re: Re: Re: Hope for the liberal socialists

"decorum prevents me from replying in the manner i’d like to…"

Oh, please. The only logic which fits your comment is that you view the concept of civil rights and due jurisprudens with contempt.

Everyone eventually has something to hide without necessarily being a criminal. Or else why are you here posting anonymously?
That being a tacit fact it’s not good when one tool the police uses violates the constitutional amendment meant to protect against unwarranted searches on a regular basis, for a few ten thousand citizens every time.

But I think we all realize from your one-liner above which sort of crowd you’re with.

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