In March of 2018, a string of bombings took place in Austin, Texas, leaving two men dead, numerous others severely injured, and law enforcement officers scrambling to find who did it. During their investigation, officers applied for multiple geofence warrants in an effort to find a viable suspect. Geofence warrants, a relatively new investigative tactic, helps law enforcement find suspects in criminal investigations when there are no leads, such as in cold cases. Ultimately, the Austin bomber was identified, but authorities declined to answer whether the use of the geofence warrants aided in the identification process. In this article we will discuss geofence warrants, what they are, and how law enforcement is using this type of warrant.
A geofence warrant, also known as a reverse location search, is a search warrant that allows law enforcement to search a specific geographic area at a specific time to locate all active mobile devices, including cellphones, tablets, smartwatches, etc. Geofence warrants allow the officers to work backward in their investigations by learning what mobile devices, through an anonymous ID, were at or near a crime scene when the crime was committed. This type of reverse location search has the potential to produce hundreds of active mobile devices in the area, one of which could belong to the culprit.
The first step is to have an officer apply for the geofence warrant. The warrant will list, in detail, the geographical area and time frame of interest. Once the warrant is signed by a judge, officers will present it to the appropriate electronic service provider. Electronic service providers, like Google, regularly track, store, and release their users’ location information. While other providers, such as Microsoft, have publicly stated they do not release location information to authorities, companies such as Facebook and Apple have declined to comment on the matter.
Once an electronic service provider has been presented with a signed geofence warrant, they are required to disclose the location information of all mobile devices located within the geographic area specified by the warrant. Next, the data is reviewed by investigators looking for patterns in the locations of those mobile devices. For example, they may look to see whether a particular mobile device was at the location of a crime when the crime was committed. If, like in the Austin bomber case, there are multiple crime scene locations, investigators will look for mobile devices that are at all, or at least some, of the locations targeted by the warrant.
Although each mobile device is initially identifiable through an anonymous ID code, law enforcement officers can get specific user information for any device that look suspicious. For example, if a device was at the location of a crime when the crime was committed, authorities may ask the electronic service provider for more location information by expanding the parameters of the initial search. This allows investigators to see the whereabouts of the specific mobile device in a larger geographical area. If the mobile devices’ location is still of interest, officers can request further information from the electronic service provider such as the name, email address, and other data associated with the device.
Occasionally data providers (like Google) will notify the target of a geofence warrant that someone has initiated a legal action to obtain their data. However, that doesn’t happen in every case – and even when the target is made aware of the warrant, they are given very little time to try to block to please of information. As a result, law enforcement loves using geofence warrants as a virtual dragnet to find evidence. If you receive notice that your data is subject to a warrant, speak to an attorney in your area about how this might be challenged.
If you only find out about the warrant after the fact, your attorney might still be able to challenge the evidence. Geofence warrants have been criticized for violating the Fourth Amendment. Even federal magistrates have addressed concerns about these types of warrants. They are often overbroad – how is there probable cause to look for all the devices in a particular area. Some believe even narrowly tailoring a warrant to a short period of time and a limited area does not overcome objection because of the sheer number of devices in any area, particularly an urban one. For example, in Ybarra v. Illinois, the Supreme Court ruled that a warrant to search a bar and a bartender didn’t give police the power to search every person who happened to be in the bar. Similarly, the Fourth Amendment requires particularity in the requested search.
Google reports that between just 2017 and 2018, there was a 1500% increase in the number of geofence requests it received. As it stands in 2022, there is no case law developed in the state of Texas on how these cases. If you have a case involving a geofence warrant, talk to your attorney about ways that information may be challenged.
All mobile devices have numerous built-in systems, such as a GPS, that allow companies like Google, Facebook, Microsoft, and Apple to track their location. These mobile devices take note of wireless access points like cell towers, GPS satellites, Bluetooth, and mobile networks, to help establish a longitudinal and latitudinal location for each device. Additionally, most locations are time-stamped because mobile devices have internal clocks. Once the time-stamped location has been recorded by the device, it is forwarded to the appropriate electronic service provider and stored in internal databases.
Google has advised users who want to opt-out of tracking to turn off their location history, but it is not always that simple. Google has publicly apologized in the past for tracking users’ locations after users have manually turned off their location history. Accordingly, manually turning off location history does not guarantee your location will not be tracked. Fortunately, turning it off might result in less accurate location information for that device. In 2018 Fox News conducted an investigation to determine what type of data Google collects from mobile devices. The results were shocking. Two phones, neither connected to Wi-fi, one on airplane mode and the other completely turned off, were transported throughout Washington, D.C. to see if Google could pick up where the devices had been. Despite not being connected to Wi-fi, Google was able to collect an abundance of data from both phones, including the phones’ locations throughout the trip.
Apple and Android users who are curious as to whether Google has data on their physical movements should check their Google account. If “location history” or “Web & App Activity” is switched on, Google knows where the user has been. It is important for all electronic device users to know that information shared with electronic service providers may also be shared with law enforcement without their knowledge.
Since its first use in 2016, geofence warrants have repeatedly proved to be a useful tool for law enforcement officers. Geofence warrants have allowed officers to work backwards in their criminal investigations in an effort to locate a viable suspect. For example, on June 16, 2017, a woman was assaulted, raped, and left on the side of the road by her assailants. She had been driving home from work when an unidentified man jumped into her car through her open window at a highway exit, forced her to pull over, and ultimately tossed her into a different vehicle for transport. Despite her best efforts the victim was unable to give a clear description of her assailants which halted the initial investigation. After thorough questioning, however, the victim revealed that the man driving was using Google Maps to navigate, which would be the key to identifying her assailants. At the time of the attack, geofence warrants were uncommon, but given the circumstances of the case, a geofence warrant was promptly approved. Officers compelled Google to release the location information for all cellular devices near the intersection where the attack happened at the time of the attack. After days of reviewing the cellular device location information, officers were successful in locating and arresting both assailants.
Now fast forward to May 20, 2019, when an armed man robbed a bank in Midlothian, Virginia. Officers, whose investigation was at a dead end, turned to Google for help in identifying the armed suspect. The signed geofence warrant compelled Google to release the cellular location data of every existing Google account that was within a 150-meter radius from the bank, 30 minutes before and after the robbery took place. Officers were quickly presented with a list of 19 Google accounts that met the parameters of the geofence warrant. After a thorough investigation of those accounts, the officers compelled Google to release additional location information pertaining to nine specific Google accounts. Ultimately, Google was required to reveal the specific subscriber information for three of its users. It is important to note that the multitude of data collected by law enforcement stemmed from one signed warrant. Google’s cooperation ultimately helped law enforcement identify and arrest Okello Chatrie, a 24-year-old male who was indicted for the armed robbery on September 17, 2019. Chatrie plead not guilty in federal court. Chatrie’s arrest resulted in the first known Fourth Amendment challenge to a geofence warrant. What is decided in the litigation could monumentally influence how law enforcement conducts future criminal investigations.
The Fourth Amendment of the United States Constitution gives people the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This means any warrant that is issued by a judge must be based on probable cause, this includes geofence warrants. Probable cause means there is reasonable belief that a crime has been committed. Without probable cause, warrants will not be issued, searches will not be conducted, and arrests will not be made.
The Supreme Court has battled with the question of what constitutes a search when it comes to electronic tracking and has established that there is a difference between long-term and short-term searches. The Court, however, has refrained from explicitly defining what constitutes a long-term search for purposes of Fourth Amendment violations. On June 22, 2018 the Court held in Carpenter v. United States, that access to seven or more days of a person’s historical cell-site records is a Fourth Amendment violation. Access to that quantity of cell-site location information violates a person’s reasonable expectation of privacy to his or her physical movements. The Carpenter decision heavily relied on the earlier Supreme Court ruling of United States v. Jones, where the Court established that a search occurs when the government physically intrudes on a constitutionally protected area – person, home, papers, or effects – for purposes of obtaining information. In Jones, the defendant was under suspicion of drug trafficking, so law enforcement officers set up visual surveillance outside of his nightclub and wiretapped his phone. Based on the evidence collected from the surveillance, law enforcement officers obtained a warrant to put a GPS tracking device on the defendant’s vehicle, ultimately tracking his movements for over 28 days. The Court held that the government’s attachment of the GPS device to Jones’ vehicle did constitute an unreasonable search and was accordingly a violation of his Fourth Amendment right.
So it has been established that access to seven or more days of a single person’s historical cell-site records and GPS tracking of over 28 days is an unconstitutional search when it comes to electronic tracking, but what about tracking numerous cellphone users’ past locations? The Supreme Court has yet to address this question because a case that challenges the use of a geofence warrant in a criminal investigation as not reached the Court. It is important to note that no federal law outright prohibits searches based on a geofence warrant, yet two federal magistrate judges have held that geofence warrants are unconstitutional. Additionally, other lower courts have mentioned that a geofence warrant that allows for the search of a broad geographic location may be unconstitutional.
Warrants are required to be specific; general warrants are actually forbidden by the Constitution, yet geofence warrants have a reputation for being too broad. A geofence warrant does not target an individual but rather an area that captures location data from all mobile devices within that area. As a result, the execution of a geofence warrant risks obtaining information belonging to completely innocent bystanders who were unfortunately at the wrong place at the wrong time. This is exactly what happened to Zachary McCoy early last year in Gainesville, Florida.
In January 2020 McCoy received an email informing him that law enforcement had requested information associated with his Google account. McCoy quickly learned that his information was sought in connection to a burglary that took place less than a mile from his home and he was the lead suspect. The Gainesville Police Department, shortly after the burglary took place, applied for a geofence warrant to search the geographic area around the crime scene with hopes the culprit would be identified. McCoy, an avid bike rider, regularly used RunKeeper to record his daily bike rides. Google had tracked and stored this information and, when presented with the geofence warrant, disclosed the information to Gainesville authorities. It turns out McCoy had innocently ridden his bike past the victim’s house three times within an hour on the date the burglary took place. What happened to McCoy is a prime example of why geofence warrants are exceedingly controversial. Are innocent people being subjected to unconstitutional searches by the government, or is this investigative tactic an innovative way to find suspects when law enforcement officers have no leads?
If your location information has been released to law enforcement by an electronic service provider, and you are now the suspect of a criminal investigation in north Texas, it is important to contact a highly experienced criminal defense attorney immediately. In and around the DFW area, call us at 817-203-2220.