Geofence warrants have proven extremely valuable in solving crimes; however, they also raise serious concerns regarding privacy and civil liberties. A recent ruling from the Fifth Circuit Court has set up a Fourth Amendment case with potential nationwide ramifications on geofence warrant law.

Decision resulting from the robbery of an US Postal Service worker in Mississippi. Police identified Okello Chatrie as their suspect using Google Geofence warrant to search all devices within a certain geographical area and time period around the crime scene.

Probable Cause

DUI cases in Georgia often hinge on officer observations of erratic driving behavior such as weaving from lane to lane or hitting the fog line or centerline, weaving between lanes, hitting fog lines or centerlines, hitting foglines or centerlines or failing to take field sobriety tests – which give probable cause to stop your vehicle. Other evidence such as slurred speech, open containers in your vehicle and bloodshot eyes give additional grounds for probable stop.

Law enforcement uses geofence warrants as a way of searching the area surrounding your vehicle and gathering information from companies like Google for any accounts that appear there in a certain timeframe. Legal professionals have challenged this type of search based on two issues.

One issue may arise if a warrant does not fulfill the criteria outlined by Paragraph XIII of the Fourth Amendment, which prohibits unreasonable searches and seizures and mandates a warrant be supported by probable cause. Another potential problem can occur if your search is too general in scope, which violates your privacy rights.

Specificity

Geofence warrants raise Fourth Amendment concerns due to their indiscriminate nature. To obtain a traditional search warrant, law enforcement must submit an affidavit showing probable cause and provide specific descriptions of property to be searched; while geofence warrants use Google to search users’ location history within a particular geographical area.

Meza case warrant covered an urban area roughly equal to 24 football fields and included barber shops, nail salons, churches, medical centers, restaurants, libraries and union headquarters – making the warrant inherently constitutionally flawed.

Defense attorneys may appeal geofence warrants on several grounds: (1) they are overbroad and don’t specify individual targets, and (2) the data obtained via GPS tracking technology may be unreliable due to possible inaccuracies. They could also request that evidence collected through this warrant be suppressed due to its lack of particularity or constitutionality.

Limitation of the Scope of the Warrant

Geofence warrants require companies like Google to search its user location data database in order to identify devices in a certain geographic area during a specified timeframe. Such searches are far more invasive than physical evidence searches and could potentially sweep up innocent devices as evidence.

In Chatrie’s case, the judge determined that the scope of her warrant was too expansive and therefore violated the Fourth Amendment. He likened it to revolutionary-era general warrants which the Fourth Amendment was written to prohibit–fishing expeditions and dragnets.

Law enforcement agencies that wish to use geofence warrants should narrow its scope as much as possible. Investigators should take into account what they know about the crime as well as any suspects, in order to create a tighter geographic area around its time and place of occurrence and meet both probable cause and particularity requirements for this warrant type.

Involve the Prosecutor

Geofence warrants are issued by a technology company and require them to scour through their large reserve of user location data for devices that were in a specified area at the time of a crime. While traditional search warrants only target specific individuals based on probable cause for being part of it, geofence searches can encompass many innocent users and target multiple devices simultaneously.

Geofence warrants can also help in cases involving credit union robberies; one issued in Virginia captured locations of over 200 homes and businesses as well as several houses of worship, giving police enough information to identify and arrest their target – in this instance a credit union robber.

EFF has long argued that geofence searches violated the Fourth Amendment. A recent decision of the Fifth Circuit Court of Appeals agreed, ruling geofence warrants to be “categorically prohibited by the Fourth Amendment”. This major milestone may eventually make its way before the Supreme Court for review.