from the hey-whatever-gets-the-job-done-I-guess dept
Whenever cops discover a new means or method of tracking people that seems to run afoul of the letter (if not the spirit) of the Fourth Amendment, they’re quick to defend these actions by claiming they’re necessary to hunt down the most dangerous of criminals: terrorists, sexual exploiters of children, kidnappers, homicide suspects, etc.
When pressed for details, it usually turns out Fourth Amendment eluding by law enforcement tends to focus on the same sort of bog standard crime cops could be using regular stuff to handle, rather than seeking “national security” exceptions for their rights violations.
Cops are terrible at tracking down and punishing the worst criminals. And, like anyone employed pretty much anywhere, they’re far more interested in easy wins and easy busywork. So, when cops started acquiring designed-for-the-military phone tracking gear (Stingrays, etc.), they claimed these purchases that they kept hidden from the public were essential to ensure the annual Mule Day parade remained free of terrorist activity. The heinous criminal acts cited in acquisition forms materialized as the deployment of cell site simulators to track down threats to the fabric of society like… fast food thieves.
Cops are frequently turning to Google to shortcut the investigative work of criminal investigations. When cops can’t find a suspect, they send subpoenas (or “reverse” warrants) to Google, demanding information on every device found in the area of a crime scene during the time the crime occurred. Depending on the size of the geofence erected around the request, hundreds to thousands of innocent people are subjected to searches while cops figured out who might actually be a likely suspect.
Again, cops (and their published advocates) argue the use of reverse warrants is a net good for society — something that allows cops to track down suspects without troubling the rights of people who don’t care about their rights.
Few assurances have been offered about the use of reverse warrants. The lack of “but serious crimes” assurances may have factored into the handful of court rejections of these warrants. But cops continue to run to Google for location data. And they rely on the (sometimes unspoken) implication that serious criminal investigations would dead end without this information, further separating probable cause from its expected definition to engage in dragnet acquisitions of cell location data and identifying info that can link devices to people.
This report from Utah’s KUTV shows what cops are actually utilizing this option to accomplish. And it certainly isn’t the sort of crimes most people would associate with dragnet surveillance via third party data.
A review of warrants by KUTV found Layton Police are routinely obtaining geo-fence warrants to investigate property crimes. Court records show that since last fall, Layton Police have used geo-fence warrants for cases including a stolen wallet at Layton Hospital, a theft at Layton Hills Mall, a car break-in at a gym, and a stolen vehicle from a car dealership, among other crimes.
These are the sorts of crimes people expect cops to solve without a bunch of fancy technical tools. This are small-time property crimes — the sort that make up the bulk of police work. Why a geofence warrant was considered necessary is unclear. The most obvious explanation is “because it’s there.” If it’s an option that will see little pushback from third parties and courts, then why bother doing any actual police work using means and methods that have proven capable of handling low-level crap like this for years?
Until the pushback arrives, we can expect Utah cops to keep using a questionable tool to investigate regular property crimes they often couldn’t be bothered to investigate otherwise. When time is of the essence, cops are always available to write things down and shrug about the possibility of property recovery. But when Google can be made to do cops’ work for them, then Google it is.
And, of course, certain residents are cool with cops lazily turning dozens or hundreds of people into criminal suspects because someone else is doing most of the work. KUTV interviewed Randy Lavine, one of several residents living in the area where multiple cars were broken into and thieves made off with [rereads news report] $350 in property. Lavine indicated some discomfort at being (however briefly) considered a suspect due to his residence in the neighborhood where the thefts took place, but otherwise gave his blessing to the dragnet surveillance.
“I would like to have a heads up to say ‘hey, this is what we’re going to do,’ and I would have said ‘fine, hey, knock yourself out’,” Lavine said.
This is a pretty easy thing to say when you haven’t been hauled out of your home, dragged down to the precinct, and aggressively questioned about a crime you didn’t commit. That didn’t happen to Lavine, so that probably explains his blase attitude towards this use of reverse warrants.
Then again, Lavine was never going to “fit the description,” even if the theft had been committed by someone described as a “white, mustachioed, hat-wearing, AARP member.” Here’s Lavine, as captured by KUTV’s cameras:
Lavine isn’t the sort of person who’s going to get picked up and threatened by detectives who’ve done nothing more than run a proxy Google search before searching for suspects. That’s not how the system works anywhere in this country, least of all primarily white states like Utah. Lavine can shrug this off because even if the cops are wrong, it’s never going to affect him personally. This is not to condemn Lavine for his reaction. This is just to point out how easy it is to not be too bothered by apparent Fourth Amendment violations when they have little chance of affecting you personally.
The courts are pretty much the only thing pushing back against law enforcement overreach when it comes to methods and means that haven’t been subjected to a lot of precedent or judicial examination. The court will always trail tech advances because that’s the way the system operates: nothing is an issue until somebody raises it in court. The problem is courts are often hesitant to weigh in on these issues. The (irrational) fear that limiting cops might give criminals an advantage is only one of the problems. The other is the deference shown by courts to law enforcement officers who have somehow maintained their reputation as good people despite years of constitutional violations, lying, and inexplicably violent reactions to everyday occurrences.
Cops may have legitimate uses for geofence warrants. But those uses should be the exception, not the rule. But what’s shown here is that cops are using new tools that have not been fully examined by courts to track down the most petty of criminals, even when less intrusive options would accomplish the same ends. This needs to stop. And it’s up to the courts to stop it.