Geofence Warrant Unconstitutional

Geofence Warrant Unconstitutional, Says Virginia Judge: eDiscovery Trends

This happened last week, but I just saw it, so maybe you missed it too? A federal court ruled the use of a geofence warrant was unconstitutional because it violated constitutional protection against unreasonable searches.

According to Denise Lavoie of the Associated Press (reported here by ABC), the warrant used Google location history to find people near the scene of a 2019 bank robbery. U.S. District Judge Hannah Lauck ruled the use of a geofence warrant was unconstitutional because it by gathered the location history of people near the bank without having any evidence that they had anything to do with the robbery.

The decision — believed to be the first of its kind — could make it more difficult for police to continue using an investigative technique that has exploded in popularity in recent years, privacy experts say.

The ruling came earlier this month in a closely watched Virginia case in which the robbery suspect argued that the use of a “geofence warrant” violated the Fourth Amendment. Geofence warrants seek location data on every person within a specific location over a certain period of time. To work, those people must be using cellphones or other electronic devices that have the location history feature enabled.

“The warrant simply did not include any facts to establish probable cause to collect such broad and intrusive data from each of these individuals,” Judge Lauck wrote in her ruling.

The judge said she was not ruling on whether geofence warrants can ever satisfy the Fourth Amendment, but privacy advocates said the decision could make it more difficult for police to persuade magistrates to grant such warrants.

“She’s saying that’s a general search that’s just sweeping up people, most of whom have nothing to do with the thing you are investigating,” said Jennifer Stisa Granick, surveillance and cybersecurity counsel for the American Civil Liberties Union. “You have to seriously consider the impact on uninvolved people and their privacy, and the balance of power between people and law enforcement.”

I wrote about geofence warrants last year, how they can identify suspects (sometimes, the wrong suspects) and even linked to a story about the challenge in this case. According to the AP story, Google said in a legal brief that geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. Google now reports that geofence warrants make up more than 25% of all the warrants Google receives in the U.S.!

Will the ruling in this case that a geofence warrant is unconstitutional reduce or eliminate those warrants? We’ll see. There’s more about this ruling in the report here.

Ironically, the defendant, Okello Chatrie, who has pleaded not guilty and is awaiting trial, won’t benefit from Judge Lauck’s ruling. She denied his lawyers’ request to suppress the evidence produced by the warrant, finding that the detective was not at fault because he had consulted with prosecutors before applying for the warrant and relied on his past experience in obtaining three similar warrants.

So, what do you think? Do you agree with the judge that a geofence warrant is unconstitutional? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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