The Fifth Circuit Court of Appeals has ruled it is “categorically” illegal to scoop up the cell phone data of random people in a geo-fence warrant. Uh oh! That might be bad news for Attorney General Merrick Garland and the Department of Justice, since they used geofence warrants to viciously hunt 5,726 mostly peaceful January 6 protesters down. The case that the Fifth Circuit ruled on was unrelated to January 6, but hopefully, every J6 defendant’s lawyer caught the important implications of it.
In United States v. Smith, the court found that geofence warrants amount to the kind of “general, exploratory rummaging” that the Founding Fathers intended to outlaw when they wrote the Fourth Amendment. The US v. Smith case involved a 2018 armed robbery and assault of a postal worker.
Police were unable to come up with suspects for several months. So, they obtained a geofence warrant for a huge area around the post office during the hour of the robbery. Google turned over the geolocation data for every single person’s phone within the radius of the warrant, which ultimately led to the location of two suspects.
You might think on the surface that this is a good thing. We certainly want the police to be able to catch bad guys. But it is anti-American and an obvious violation of the Fourth Amendment for police to look at every innocent person in the vicinity of a crime as a suspect. Police make mistakes frequently, and most people don’t have thousands of dollars to shell out for a defense lawyer if they get accused of a crime they had nothing to do with.
Based on a previous landmark Supreme Court ruling, the Fifth Circuit held that every individual has a reasonable expectation of privacy in the location data scooped up by geofence warrants. The court ruled that these searches are highly invasive because they technically allow the police to “follow” anyone into a private space and expose information about their associations.
The court also ruled that even though geofence warrants are now a commonplace tool used by law enforcement agencies, they are inherently unconstitutional. Geofence warrants require a provider, which is almost always Google, to turn over its entire reserve of location data, even though the cops have no idea who they’re looking for.
Because of the nature of geofence warrants, they never identify a specific suspect being searched for. They only turn up temporary information in a geographic location where literally anyone can turn up—and thus become a suspect, even though the police had no reason to ever look at them in the first place.
Geofencing was still a novel technology in 2018, so the court did not suppress the information obtained in the US v. Smith case. The judges felt that police had sought the warrant at the time in good faith because they had reached out to more experienced law enforcement agencies for guidance. The technology is no longer brand-new today, however, and it was used to scoop up every single person in the Washington, DC, area on the day of the mostly peaceful January 6th election justice protests.
Law enforcement agencies across the country have been increasingly relying on geofence warrants and other types of reverse warrants that violate the privacy rights of large numbers of Americans all at once. It’s one thing for police to request the cell phone data of a known suspect who they have specific evidence against. It’s another thing entirely—and completely anti-American—to track every single person walking their dog in the vicinity of a crime just because they have a cell phone in their pocket.
