United States v. Jamarr Smith et al.
In United States v. Smith, 110 F.4th 817 (5th Cir. 2024), the Fifth Circuit created a new circuit split by holding that “the use of geofence warrants—at least as described herein—is unconstitutional under the Fourth Amendment.” Nevertheless, in this case, it found that officers relied on a geofence warrant in good faith, so the defendants’ motion to suppress had been properly denied.
Geofence Warrants in General: “Google received its first geofence warrant request in 2016,” and since then the number of requests has “skyrocketed.” In 2020, for instance, Google received 11,500 geofence warrant requests. Geofence warrants “work in reverse” from traditional search warrants, because they are used when “the crime location is known but the identifies of suspects [are] not.” Law enforcement specifies a location and a period of time, then a company — typically, but not always, Google — must “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.”
In this opinion, the Fifth Circuit went much further, explaining many technical aspects of location tracking, Google’s retention policies, and more. For those with an interest in the mechanics of either location tracking or geofence warrants, this opinion is well worth reading even apart from its legal analysis and holding.
Factual Background: In this case, law enforcement obtained a geofence warrant directing Google to provide location and account information about anyone who came within an area “covering approximately 98,192 square meters” during a one-hour period in which a robbery had occurred. In response, Google searched its “592 million accounts” and returned data “from a circular area that was approximately 378,278 square meters, not 98,192 square meters.”
Typically, at that stage, law enforcement would “contextualize[] and narrow[] the data” to determine what is relevant, and officers would then “compel[] Google to provide account-identifying information” for the relevant users." Here, officers “decided themselves which device IDs were relevant and requested additional … information for all three devices.” When Google provided that information, officers investigated the people associated with those devices, and ultimately identified and arrested the suspects.
Holding: “This court ‘cannot forgive the requirements of the Fourth Amendment in the name of law enforcement.’ Berger v. New York, 388 U.S. 41, 62 (1967). Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.”
Analysis: To reach that conclusion, the Fifth Circuit first evaluated whether people have “a reasonable expectation of privacy in their respective location information retrieved in response to a geofence warrant.” It relied heavily on Carpenter v. United States, 585 U.S. 296 (2018), in which the Supreme Court concluded that people have a reasonable expectation of privacy in “the whole of [their] physical movements.” Indeed, “[m]any of the concerns expressed by Chief Justice Roberts in his Carpenter opinion are highly salient in the context of geofence warrants.”
In Carpenter, however, people were automatically tracked through their use of a cell phone. But here, people are only tracked by Google if they “opt in” to the company’s location tracking service. Even so, “[a]s anyone with a smartphone can attest, electronic opt-in processes are hardly informed and, in many instances, may not even be voluntary.” “Even Google’s own employees have indicated that deactivating Location History data based on Google’s ‘limited and partially hidden’ warnings is ‘difficult enough that people won’t figure it out.’” For those reasons, the court concluded that people have a reasonable expectation of privacy in their location-history data, so law enforcement conducted a search under the Fourth Amendment when it sought that data from Google.
From there, the Fifth Circuit compared these geofence warrants to “the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California, 573 U.S. 373, 403 (2014). Geofence warrants require a company “to search through its entire database to provide a new dataset.” For Google, that means searching 592 million accounts “for all of their locations at a given point in time.”
Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.
That is “the exact sort of ‘general, exploratory rummaging’ that the Fourth Amendment was designed to prevent.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
This watershed decision offered no solace to the named defendants, however, because the Fifth Circuit affirmed the district court’s decision that the good-faith exception applied because law enforcement acted reasonably “in light of the novelty of this type of warrant.”
Next Steps: After the court’s decision, the mandate was held, and the court granted the Government’s motion to extend its deadline for filing a petition for rehearing. That petition is due on October 22, 2024, and if we’re reading the tea leaves correctly, it appears likely that the court will agree to rehear this case en banc.