Federal Court Says Good Faith Prevails In Deployment Of Extremely Questionable ‘Reverse’ Warrant

Legal Issues

from the bad-warrant-with-magistrate's-ok-equals-good-warrant? dept

“Who are we to judge?,” say federal court judges. That’s the questionable conclusion reached by an otherwise solid reading [PDF] of the constitutional implications of one of law enforcement’s favorite new tools: “reverse” warrants. (h/t Orin Kerr/Volokh Conspiracy)

They’re called “reverse” warrants because the paperwork asks Google to turn over location info on everyone in certain areas at certain times in hopes of giving law enforcement enough information to generate a list of suspects. It may technically be a warrant but probable cause is lacking — unless you consider (as some courts have) that the only probable cause needed is the probability that Google possesses the records sought by investigators.

Google likely does. It grabs location info from phone users who opt into location sharing. It’s a bit more affirmative than the collection done by cell service providers, which collect location data every time a phone connects with a cell tower. This location data is protected under the Fourth Amendment, thanks to the Supreme Court. This other pile of location data isn’t explicitly protected at this time, which has made it a prime target for investigators hoping to turn fishing expeditions into successful prosecutions.

In recent months, courts have subjected these geofence/reverse warrants to more scrutiny, rejecting requests that are too broad or rely too heavily on the discretion of law enforcement officers.

A recent decision [PDF] by a federal judge in Virginia says a reverse warrant used to seek bank robbery suspects is probably illegal, but gives the cops using it a pass because how were they to know it might be illegal to seek this data?

A bank in Midlothian, Virginia was robbed of $195,000. Using a reverse warrant, investigators decided the most probable suspect was Okello Chatrie, who was arrested after investigators used location data obtained from Google to (in a manner of speaking) place Chatrie at the crime scene.

But the court isn’t happy about the warrant, despite its decision to apply the good faith exception to the warrant and investigators’ subsequent actions. The court notes that there’s a “dearth” of applicable case law before deciding to develop a little of its own. (Orin Kerr, of course, remains skeptical of the court’s findings as far as the unconstitutional aspects of the reverse warrant. You can read his analysis of the decision here.)

The court says Google collects user location data from users who opt into its location tracking services. It states no opinion as to how “voluntary” this is or how well-informed users are about their opt-out options. But, as far as the record shows, the suspect must have at least performed one affirmative step to allow Google to track his location info.

Even if the warrant had been limited to the bank, it still would have been problematic. That warrant would have treated anyone inside or in close proximity of the bank during the timeframe specified by investigators as a potential suspect — a list that would have necessarily included innocent customers and bank employees. But the warrant, which sought all location info collected by Google, targeted a much larger area during a time when the number of innocent, non-suspects might be at their highest level: from 4:20-5:20 p.m.

It wasn’t just the bank being targeted by investigators. It was an area of 17.5 acres, with a diameter of 300 meters, that encompassed a nearby church and its parking lot.

Three iterations later investigators narrowed it down to this:

None of those iterations — which narrowed down the list of suspects and further constrained the outlines of the geofence — required any interaction from a magistrate judge. Any refinement was solely at law enforcement’s discretion.

The court sees nothing to like about reverse/geofence warrants. They aren’t particular, they’re not based on any commonly understood definition of probable cause. And they bypass judicial scrutiny by only involving courts during the primary step — the point where suspects are unknown and the dragnet being cast by law enforcement is at its widest.

Good faith is awarded (as mentioned above) but the court appends several, potentially problematic (for law enforcement) asterisks to its extremely reluctant approval of this warrant and its outcome.

[T]he Court notes its deep concern (underlying both Fourth Amendment standing, and the third-party doctrine discussed below) that current Fourth Amendment doctrine may be materially lagging behind technological innovations. As Fourth Amendment law develops in a slow drip, “technology [continues to] enhance[] the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes.” Carpenter v. United States, 138 S.Ct.2206, 2214 (2018). Relevant here, although law enforcement limited the warrant’s window to two hours, Google—despite efforts to constrain law enforcement access to its data— retains constant, near-exact location information for each user who opts in. See Part ILA 3.2, supra. The Government thus has an almost unlimited pool from which to seek location data, and “[w]hoever the suspect turns out to be,” they have ‘effectively been tailed'” since they enabled Location History. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 341 (4th Cir. 2021) (en banc) (quoting Carpenter, 138 S. Ct. at 2218).

It’s not just the lag. It’s the application of law. Law enforcement is seemingly taking advantage of this “dearth in case law” to bypass guaranteed rights. When cops exceed the normal boundaries of acknowledged rights, innocent people are affected. But because they don’t know they’re affected, they’re unaware their rights have been violated. Rights violations are still rights violations even if the victims aren’t apprised of the violations. And that’s why the courts are here: to protect not only the rights of the accused, but the rights of those accused of nothing who have, nevertheless, had their rights violated.

What is more, the Court is disturbed that individuals other than criminal defendants caught within expansive geofences may have no functional way to assert their own privacy rights. Consider, for example, a geofence encompassing a bank, a church, a nearby residence, and a hotel. Ordinarily, a criminal perpetrator would not have a reasonable expectation of privacy in his or her activities within or outside the publicly accessible bank. See United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). He or she thus may not be able to establish Fourth Amendment standing to challenge a time-limited acquisition of his location data at the bank.

But the individual in his or her residence likely would have a heightened expectation of privacy. Silverman v. United States, 365 U.S. 505, S11 (1961) (“At the very core[of the Fourth Amendment] stands the right ofa [person] to retreat into his [or her] own home and there be free from unreasonable government intrusion.”). Yet because that individual would not have been alerted that law enforcement obtained his or her private location information, and because the criminal defendant could not assert that individual’s privacy rights in his or her criminal case, United States v. Rumley, 588 F.3d 202, 206 n.2 (4th Cir. 2009), that innocent individual would seemingly have no realistic method to assert his or her own privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a “right without a remedy.”

As this court sees it, geofence warrants implicate — if not violate — rights en masse. Without particularity (a crucial Fourth Amendment element), cops are free to call everyone a suspect until proven otherwise, flipping reasonable suspicion (and probable cause) on its head. Orin Kerr’s analysis agrees with some courts’ take on this issue: that the only thing that needs to be proven is the (high) probability that searching Google will produce the geolocation records sought by investigators. This court says a higher bar needs to be applied. Even if the probable cause assertions are considered valid, warrants need to be more particular about the places searched and the evidence sought.

Informed consent is one thing. What happens in real life hardly approaches that.

Even with consent, it seems clear that most Google users do not know how the consent flow to control their collection of data works, nor do they know Google is logging their location 240 times a day.

It may not be up to the government to protect the ignorant from their actions. But there’s a massive gap between what the public considers to be private and what the government thinks it can obtain with minimal (or nonexistent) court oversight. That disconnect resulted in the Supreme Court’s Carpenter decision, which now extends Fourth Amendment coverage to something historically considered to be a third-party record. This court suggests Congress needs to take the wheel on this issue. And while that may be true, Congress has historically moved much slower than courts when it comes to the Fourth Amendment friction created by tech advances.

Despite the court’s recognition of the multiple issues in need of addressing, good faith is awarded to law enforcement. Unsettled law cannot create precedent and there was no reason for investigators to assume a reverse warrant acquired in the Fourth Amendment gray market could not be considered valid. The evidence leading to the suspect’s arrest remains in play. The prosecution show goes on. And unsettled law will remain unsettled, albeit with copious footnotes.

Filed Under: 4th amendment, geofence, geofence warrant, good faith, okello chatrie, reverse warrant, virginia