UNITED STATES OF AMERICA v. JAMARR SMITH THOMAS IROKO AYODELE GILBERT MCTHUNEL II (2024)

A jury found Appellants guilty of robbery and conspiracy to commit robbery based on evidence obtained through a geofence warrant. On appeal, Appellants challenge the constitutionality of this novel type of warrant under the Fourth Amendment and maintain that the district court erred by failing to suppress all evidence derived therefrom.

We hold that the use of geofence warrants—at least as described herein—is unconstitutional under the Fourth Amendment. In doing so, we part ways with our esteemed colleagues on the Fourth Circuit. See United crime location is known but the identities of suspects [are] not.” United States v. Rhine, 652 F. Supp. 3d 38, 66 (D.D.C. 2023). Thus, geofence warrants effectively “work in reverse” from traditional search warrants. Amster & Diehl, Against Geofences, supra at 388 (internal quotation omitted). In requesting a geofence warrant, “[l]aw 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.” Geofence Warrants and the Fourth Amendment, supra at 2509.

So far, Google has been the primary recipient of geofence warrants, in large part due to its extensive Location History database, known as the “Sensorvault.”³ Amster & Diehl, Against Geofences, supra at 389. Google

A. Reasonable Expectation of Privacy

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.’ ” United States v. Turner, 839 F.3d 429, 434 (5th Cir. 2016) (quoting United States v. Jones, 565 U.S. 400, 406 (2012)). To assess whether a “reasonable expectation of privacy” exists, the Supreme Court has applied Justice Harlan's two-fold approach as explained in his concurrence in Katz v. United States, 389 U.S. 347. See Jones, 565 U.S. at 406. Specifically, for Fourth Amendment protections to attach to a person's privacy interest, the person first must “have exhibited an actual (subjective) expectation of privacy.” Katz, 389 U.S. at 361 (Harlan, J., concurring). Second, that expectation must “be one that society is prepared to recognize as ‘reasonable.’ ” Id. (Harlan, J.,concurring).

Smith and McThunel contend that they have a reasonable expectation of privacy in their respective location information retrieved in response to a geofence warrant.⁵ This argument is rooted in the application of Carpenter v. Google Is a Dragnet for the Police, N.Y. TIMES (Apr. 13, 2019), https://perma.cc/NCF3-H5DP. “Awareness that the government may be watching chills associational and expressive freedoms,” Jones, 565 U.S. at 416 (Sotomayor, J., concurring). And, when these core rights are at issue, the warrant requirement must “be accorded the most scrupulous exactitude.” See Stanford, 379 U.S. at 485.

Here, the Government contends that geofence warrants are not general warrants because they are “limited to specified information directly tied to a particular [crime] at a particular place and time.” This argument misses the mark. 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.¹²

FOOTNOTES

3.   In December 2023, Google authored a blog post where it announced its intent to modify how and where it stores Location History data. See Marlo McGriff, Updates to Location History and New Controls Coming Soon to Maps, GOOGLE: THE KEYWORD (Dec. 12, 2023), https://perma.cc/DN4Z-7CTA; see also Cyrus Farivar & Thomas Brewster, Google Just Killed Warrants that Give Police Access to Location Data, FORBES (Dec. 14, 2023, 5:43 PM EST), https://perma.cc/WM83-DAXM. Google's decision should make it “impossible for the company to access” Location History data in a move made “explicitly [to] bring an end to ․ dragnet location searches.” Farivar & Brester, Google Just Killed Warrants that Give Police Access to Location Data, supra. In other words, these changes, in theory, “will eventually render the company unable to fulfill geofence warrants.” Prathi Chowdri, Emerging Tech and Law Enforcement: What Are Geofences and How Do They Work?, LEXIPOL (Jan. 4, 2024) (internal quotation omitted), https://perma.cc/DNL3-XC56.However, Google has not fully implemented its new storage methods; the migration will only be complete within “the next several months.” See Stan Kaminsky, Google Location History Is Now Stored Offline ․ Or Maybe Not, KASPERSKY DAILY (Mar. 1, 2024), https://perma.cc/ZM6X-92JZ. In fact, the Government concedes that it “is still seeking Google geofences,” and that even after Google changes its storage techniques, “the United States ․ may in the future seek geofence warrants from sources other than Google.” Regardless, these facts do not affect this court's Fourth Amendment analysis regarding the constitutionality of the practice itself.

5.   Ayodele also attempts to join Smith and McThunel's arguments. However, as noted above, Ayodele's information was never retrieved in response to a geofence warrant—his involvement in this robbery was deduced through a search of Smith's phone records and Smith's friends on Facebook performed after the geofence search. As such, Ayodele may lack Fourth Amendment standing to join Smith and McThunel because even if he has an expectation of privacy in his own Google Location History data, he may not have an expectation of privacy in the Google Location History data of an unrelated third-party. See United States v. Davis, No. 23-10184, 2024 WL 3573478, at *5–7 (11th Cir. 2024) (concluding that a defendant lacked Fourth Amendment standing to challenge a geofence warrant that produced his girlfriend's Google Location History data because “[e]ven if a person has a privacy interest in the data on his own phone, he does not have that interest in the data on someone else's phone”).

12.   The Fourth Circuit—albeit in the context of determining whether law enforcements acquisition of Location History data qualified as a “search” under the Fourth Amendment—appeared to contend that Google's search at Step 1 is irrelevant to our inquiry because Google, rather than law enforcement, conducts that search. See Chatrie (App.), 107 F.4th at 330 n.16. Instead, the Fourth Circuit concluded that “the proper focus of our inquiry [should be] ․ the government's access of two hours' worth of [defendant's] Location History data,” i.e., Step 2, because “a search only occurs once the government accesses the requested information.” Id.This proposition is breathtaking. In essence, the Fourth Circuit appears to conclude that law enforcement may flaunt the Fourth Amendment by simply offloading their act of “searching” on to a third party, and waiting to see if that third party's search produces any fruit before applying for a warrant. Moreover, by implication, if the third party's search produces zero evidence, law enforcement never conducted any search at all.But the Supreme Court has clearly stated that the Fourth Amendment protects against both searches and seizures “effected by a private party ․ if the private party acted as an instrument or agent of the Government.” Skinner v. Ry. Lab. Execs.' Ass'n 489 U.S.

KING, Circuit Judge: