The first challenge to a new breed of warrants is pending in the Eastern District of Virginia. Law enforcement is using “geofence” warrants to sweep up large amounts of data on all the cell phones in a particular geographic area. Rather than seeking a warrant for information about one person or one cell phone, these warrants seek information about all the cell phones that passed a location at the time of the crime. Paranoid yet?
Here, a bank robbery was committed, and the government had no suspects, so they got a warrant for Google to turn over data related to all smart phones that passed by a bank over the course of 2 hours one afternoon. Right by the bank was also a hotel, restaurant, mega church, and retirement home. Getting the early bird special at the Ruby Tuesday’s in Richmond? The government learned about it.
In a motion to suppress, defense counsel argued this was an unconstitutional general warrant, sweeping up a “trove of private location information” of people who “happened to be near a local bank.” The government’s response? You have no right to privacy in your location. The government suggests that you “delete” your “location history” (although, the government doesn’t say that that would actually prevent it from turning up in response to a geofence warrant) and that all Android phone users agree that google can use and store their location information. Oh, and, they also argue that the search warrant just wasn’t a “search” at all.
Keep any eye out for this in your cases! And check out the briefing here: EDVA Docket Number 19-cr-130.
The defendant is represented by Laura Koenig and Paul Gill of the Federal Defenders in Richmond and Michael Price of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers.