Facts
On February 5, 2018, three individuals acting in concert robbed Sylvester Cobbs, a Contract Route Driver with the United States Postal Service. As a Route Driver, Cobbs delivered and picked up mail from five rural post offices in DeSoto County and Tunica County, Mississippi. At the time of the robbery, Cobbs was headed to Lake Cormorant, the fourth of five stops he would make along his route. The mail that Cobbs collected included registered mail bags, which contained cash receipts collected by the Postal Service from the sale of items such as money orders and stamps. By the time that Cobbs arrived at Lake Cormorant, he had already collected registered mail bags from three other post offices along his route.
At approximately 5:20 p.m., Cobbs arrived at the Lake Cormorant Post Office. As he normally would, Cobbs backed his mail truck up to the back door, where he would retrieve mail bags waiting for him inside the post office. Before Cobbs could open the back door to the post office, however, an unknown assailant—later determined to be Gilbert McThunel—sprayed Cobbs with pepper spray, struck Cobbs multiple times with a handgun, threatened to kill him, and grabbed the registered mail bags from Cobbs’s truck. The mail bags contained $60,706. Thereafter, the assailant fled, and Cobbs drove his truck to the front of the post office and called 911.
No suspect was arrested in connection to the robbery on the day of the occurrence. However, around three days after the robbery, Postal Inspector Stephen Mathews began his investigation and was able to locate a video of the incident taken from a camera located at a farm office across the street from the post office. The video showed a red Hyundai and a large white SUV in the area. The video revealed the assailant getting out of the SUV before the robbery, walking behind the building, and waiting for Cobbs to arrive. While behind the building, the assailant had his hand up to his ear and elbow out for multiple minutes, consistent with talking on a cell phone. However, the video does not show an actual cell phone.
Later, after assaulting Cobbs, the assailant went back behind the building, squatted down, and began looking at something in his hand which appeared indicative of cell phone use. Although not visible on video, it is inferred that the suspect got back into the SUV before fleeing the scene. Based upon his examination of the video, Mathews surmised that three suspects were involved. Sometime after obtaining the video footage, but prior to applying for any warrants, Mathews located a witness, Forrest Coffman, who lived across the street. Coffman had seen the red Hyundai circling the area back and forth, and he decided to ask the driver if he was lost. The driver stated that he was looking for the highway. Coffman gave the driver directions, turned around, and went back inside his house. A few moments later, Coffman heard a bunch of commotion, stepped outside, and saw officers at the post office. Coffman walked over and spoke with law enforcement, where he described the person in the red Hyundai as a black male with a reddish color goatee. After meeting with law enforcement on the day of the incident, Coffman had no further involvement with the matter for approximately fifteen months.
By November 2018, nine months after the robbery, the Postal Inspection Service had not been able to identify any suspects from video footage or witness interviews, and Postal Inspector Todd Matney testified that they were having a problem identifying the individuals. However, during the course of their investigation, Matney and Mathews learned about a new type of search warrant—a “geofence warrant” designed to identify who might be present at the scene of a robbery. Believing that this warrant could help them rekindle their investigation, on November 8, 2018, Matney and Mathews applied for a geofence warrant seeking information from Google to locate potential suspects and witnesses in connection to the robbery.
Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects are not. Thus, geofence warrants effectively work in reverse from traditional search warrants. In requesting a geofence warrant, law enforcement simply specifies a location and period of time, and, after judicial approval, companies conduct sweeping searches of their location databases and provide a list of cell phones and affiliated users found at or near a specific area during a given timeframe, both defined by law enforcement. Google collects data from accounts of users who opt in to Google’s Location History service. Location History is disabled by default. For Location History to collect data, a user must make sure that the device-location setting is activated, and that Location Reporting is enabled. This is not to say, however, that enabling Location Reporting is a difficult task. Users are often asked to opt in to Location History multiple times across multiple apps. In fact, manually deactivating all Location History sharing remains difficult and discouraged. In 2018, an internal Google email explained that the current user interface feels like it is designed to make limiting Location History collection possible, yet it is difficult enough that people won’t figure it out.
In October 2018, Google estimated that approximately 592 million—or roughly one-third—of Google’s users had Location History enabled. Once a user opts into Location History, Google is always collecting data and storing all of that data Location History is stored within the Sensorvault for at least eighteen months, but users may also request that the information be deleted themselves.
The data is considerably more precise than other kinds of location data, including cell-site location information because Location History is determined based on multiple inputs, including GPS signals, signals from nearby Wi-Fi networks, Bluetooth beacons, and cell towers. Location History data allows Google to potentially locate an individual within about sixty feet or less, and in certain circumstances, down to three meters. In fact, Location History data can even discern elevation, locating the specific floor in a building where a person might be.
For every single geofence warrant Google responds to, it must search each account in its entire Sensorvault—all 592 million—to find responsive user records. It cannot just look at individual accounts. As to warrants that are issued, the data Google returns is not always perfect, and sometimes contains false positives. In fact, there are already documented accounts of innocent bystanders being swept into geofence warrants based solely on their proximity to a crime. In short, while false negatives appear to be more extremely rare given the accuracy of Google’s data—false positives are still an area of concern.
Mathews was able to determine that “jamarrsmith33.AcountInfo.txt” was Jamarr Smith’s email account and “bleek2004.AcountInfo.txt” was Gilbert McThunel’s email account. The third email account associated with “permanentwavesrecords.AccountInfo.txt” was deemed irrelevant to the investigation. Now, no longer devoid of leads, Mathews and Matney took a bunch of investigative steps related to Smith and McThunel, including sending additional non-geofence warrants to Google regarding Smith and McThunel’s Google accounts, accessing their CLEAR database profiles, investigating cell tower data related to Smith and McThunel, and sending non-geofence warrants to phone companies for Smith and McThunel’s account information. These additional steps revealed multiple phone calls between Smith and McThunel during the time of the robbery, and allowed for further geolocation defendants using historical cell phone record analysis.
Additionally, through a search of Smith’s phone records and his friends on Facebook, the Inspectors were able to identify Thomas Iroko Ayodele as a suspect. Finally, on July 1, 2019, Postal Inspector Dwayne Martin reapproached witness Forrest Coffman and asked him to participate in a photo lineup. Although Coffman was unable to identify McThunel or Ayodele in their respective lines, Coffman did identify Smith as the person he saw driving the red Hyundai. In sum, all evidence connecting defendants to this crime was derived from information obtained from Google pursuant to the geofence warrant.
Smith filed a Motion to Suppress— which the other defendants joined—seeking to suppress all evidence derived from the November 2018 geofence warrant which was used to identify them as suspects. The district court denied defendant’s motion to suppress. After a four-day trial, the jury returned a guilty verdict against all three defendants. They were sentenced to prison terms ranging from 121 to 136 months. The 5th affirmed the sentencing in this case based on good faith but noted that geofence warrants were too broad to be used going forward.
Analysis
A. Is Geofencing a search?
The threshold question posed by this case is whether geofencing is a search under the Fourth Amendment. A Fourth Amendment privacy interest is infringed when the government physically intrudes on a constitutionally protected area or when the government violates a person’s reasonable expectation of privacy. To assess whether a reasonable expectation of privacy exists, the person must have exhibited an actual (subjective) expectation of privacy and that expectation must be one that society is prepared to recognize as reasonable.
Smith and McThunel contend that they have a reasonable expectation of privacy in their respective location information retrieved in response to a geofence warrant. They cited SCOTUS Carpenter v. U.S., 585 US 296 (2018), wherein the Court held that the government violates the Fourth Amendment to the United States Constitution when it accesses historical CSLI records containing the physical locations of cellphones without a search warrant.
Our colleagues on the Fourth Circuit—the first federal Circuit to address whether geofencing is a “search” subject to the Fourth Amendment—saw Location History data differently. Characterizing Location History data as nothing more than a record of a person’s single, brief trip, the Fourth Circuit found that geofencing does not contravene a person’s reasonable expectation of privacy because the data implicated by geofences is far less revealing than that obtained in Carpenter. With great respect to our colleagues on the Fourth Circuit, we disagree.
The potential intrusiveness of even a snapshot of precise location data should not be understated. Even a brief snapshot can expose highly sensitive information—think a visit to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour- motel, the union meeting, the mosque, synagogue or church, or the gay bar, or a location other than home during a COVID-19 shelter-in-place order. Even a geofence warrant that limits itself to a single day could follow a person from the interior of their home, among the rooms of their dwelling, to the location of a crime, then to a place of worship, then perhaps to a new home, such as that of a relative or friend, and among the rooms of that second dwelling.
The fact that approximately 592 million people have “opted in” to comprehensive tracking of their locations itself calls into question the “voluntary” nature of this process. In short, a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant, even if some text offered warning along the way.
To conclude, we hold that law enforcement in this case did conduct a search when it sought Location History data from Google. Given the intrusiveness and ubiquity of Location History data, Smith and McThunel correctly contend that they have a “reasonable expectation of privacy” in their respective data.
B. Geofencing warrants are “general warrants”
Having concluded that the acquisition of Location History data via a geofence is a search, it follows that the government must generally obtain a warrant supported by probable cause and particularity before requesting such information. Accordingly, we turn to the issue of whether geofence warrants satisfy this mandate, addressing defendant’s argument that these novel warrants resemble unconstitutional general warrants prohibited by the Fourth Amendment.
The Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. It is undeniable that general warrants are plainly unconstitutional. Thus, courts have recognized that no warrant can authorize the search of everything or everyone in sight.
When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.
While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.
In sum, geofence warrants are emblematic of general warrants and are highly suspect per se. This court cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.
(The Court went on to explain that in this case, the officers were acting in good faith {evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate judge should be admissible}). Thus, these convictions are affirmed but going forward these types of warrants are no longer allowed in the 5th Circuit.
https://www.ca5.uscourts.gov/opinions/pub/23/23-60321-CR0.pdf