President’s Message: Keeping the Geofence Shut

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We all remember in law school how Katz v. United States, 389 U.S. 347 (1967), evaluated recording devices in public telephone booths. Over twenty years ago, the Supreme Court in Kyllo v. United States, 533 U.S. 27 (2001), looked at thermal‑imaging devices and how they affected the Fourth Amendment. Just a few years ago, the Supreme Court then addressed cell‑site location data in Carpenter v. United States, 138 S.Ct. 2206 (2018). The hot new topic now is geofence warrants which request a user’s location data within a given time and a particular area.1 Google and other such companies collect large amounts of location data from users, and law enforcement are now issuing geofence warrants to obtain this stockpile of data.2 The question now for courts is whether or not these geofence warrants violate the Fourth Amendment. In Chatrie, the defense filed a motion to suppress the geofence warrant, and surprisingly, Google filed an amicus brief.3 Google argued that its location data “is not a business record, but is a journal stored primarily for the user’s benefit and is controlled by the user.”4 Google stated that location data “can often reveal a user’s location and movements with a much higher degree of precision than [cell cite location information].”5 Google argued that a user has a Fourth Amendment right in geofence information because users have a reasonable expectation of privacy in location data.6 For those of us brothers and sisters who have ever attempted to subpoena Google information for our cases, this is quite a change from Google’s invocation of the Stored Communications Act to quash our subpoenas.

A law enforcement geofence warrant served on Google identifies a geographic area (the geofence), identifies a period of time (a few minutes to a few hours), and requests location history for all users located within the given area during the given time.7 The first geofence warrant served on Google was in 2016, and there has been a 1500% increase in geofence warrants from 2017 to 2018 in addition to a 500% increase from 2018‑2019.8 The court expressed concern that Fourth Amendment law is “materially lagging behind technological innovations.”9 The court stated that a geofence warrant provides the government with an almost unlimited pool of location data and “‘whoever the suspect turns out to be’, they have ‘effectively been tailed’” because they enabled location history.10 The court was concerned with the Fourth Amendment violation of a geofence warrant because such a warrant “authorize[s] the search of every person within a particular area” which requires the government to “establish probable cause to search every one of those persons.”11 The court also could not determine whether or not the defendant voluntarily agreed to disclose his location history.12 The court saved the government with the good faith exception but cautioned the government that it was now duly warned that geofence warrants must establish particulared probable cause.13 Where does this leave those of us who are representing the citizen accused and encounter a geofence warrant? It is thought that the Chatrie order “could make it more difficult for police to obtain the warrants in the future — and more likely that judges will suppress evidence obtained from them, experts said.”14 “There are more and more of these warrant requests going around, and judges are starting to look more closely at them, and they are becoming aware of the problem with them.”15 The great work by the federal public defender in Chatrie is a lesson to all of us in how to ensure Fourth Amendment rights and other rights of our clients are properly evaluated and analyzed. We should all keep proper vigilance in our preparation and protection of the citizen accused in the face of a geofence warrant or whatever is awaiting us in the future. Good luck to you.

Footnotes

  1. See United States v. Chatrie, 3:19‑CR‑130‑MHL (E.D. Va., March 3, 2022).
  2. Id.
  3. Id.
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. https://www.nbcnews.com/news/us‑news/geofence‑warrants‑help‑police‑find‑suspects‑using‑google‑ruling‑could‑n1291098.
  15. Id.
TCDLA
TCDLA
Michael C. Gross
Michael C. Gross
Michael C. Gross is currently the President of the Texas Criminal Defense Lawyers Association and is a partner with Gross & Esparza, P.L.L.C., San Antonio, Texas. He received his B.A., Trinity University, San Antonio, Texas, 1984; J.D., St. Mary’s University, San Antonio, Texas, 1987. Mr. Gross’ professional activities include Judge Advocate in the United States Marine Corps from 1988-1992. His court admissions include the Supreme Court of the United States; Supreme Court of the State of Texas; United States Court of Appeals for the Armed Forces; United States Court of Appeals for the Fifth Circuit; United States Court of Appeals for the Tenth Circuit; and United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas. He is board certified in criminal trial advocacy by the National Board of Trial Advocacy and board certified in criminal law and criminal appellate law by the Texas Board of Legal Specialization. He has been named in the Best Lawyers in America (2005-2019); Best Lawyers’ San Antonio Criminal Defense: Non-White-Collar “Lawyer of the Year” (2015, 2017); Texas Super Lawyers in Texas Monthly Magazine (2004-2019); a Top 50 Texas Super Lawyer in Central and West Texas Region (2010-2012, 2014); named one of the Top 10 criminal defense attorneys in San Antonio by S.A. Scene Magazine (2013); Best Lawyers in San Antonio by Scene in San Antonio Magazine (2004-2019); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2008); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2009); and is AV rated by Martindale Hubble.

Michael C. Gross is currently the President of the Texas Criminal Defense Lawyers Association and is a partner with Gross & Esparza, P.L.L.C., San Antonio, Texas. He received his B.A., Trinity University, San Antonio, Texas, 1984; J.D., St. Mary’s University, San Antonio, Texas, 1987. Mr. Gross’ professional activities include Judge Advocate in the United States Marine Corps from 1988-1992. His court admissions include the Supreme Court of the United States; Supreme Court of the State of Texas; United States Court of Appeals for the Armed Forces; United States Court of Appeals for the Fifth Circuit; United States Court of Appeals for the Tenth Circuit; and United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas. He is board certified in criminal trial advocacy by the National Board of Trial Advocacy and board certified in criminal law and criminal appellate law by the Texas Board of Legal Specialization. He has been named in the Best Lawyers in America (2005-2019); Best Lawyers’ San Antonio Criminal Defense: Non-White-Collar “Lawyer of the Year” (2015, 2017); Texas Super Lawyers in Texas Monthly Magazine (2004-2019); a Top 50 Texas Super Lawyer in Central and West Texas Region (2010-2012, 2014); named one of the Top 10 criminal defense attorneys in San Antonio by S.A. Scene Magazine (2013); Best Lawyers in San Antonio by Scene in San Antonio Magazine (2004-2019); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2008); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2009); and is AV rated by Martindale Hubble.

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