N.D.Ga.: No justification shown for geolocation data of def’s phone

The affidavit for geolocation data about defendant’s phone showed no nexus to crime. Merely having a cell phone on you at the time of a crime doesn’t provide justification. United States v. Cable, 2023 U.S. Dist. LEXIS 190357 (N.D. Ga. Oct. 24, 2023):

To obtain a search warrant, law enforcement must establish probable cause to believe—not only that a crime has been committed—but also that evidence of the crime is present in the place to be searched. See Martin, 297 F.3d at 1314. In this case, that means the affiant was required to link Defendant Cable’s geolocation data to the conspiracy in order to search that data. To obtain a search warrant or wiretap for phone communications, for example, law enforcement must establish, not only evidence that someone is engaged in illegal activity, but also probable cause to believe evidence of that illegal activity will be found in those communications. United States v. Booker, 2013 U.S. Dist. LEXIS 80141, 2013 WL 2468694, at *8 (N.D. Ga. June 7, 2013). To obtain a warrant for e-mails or a social media account, law enforcement must show, not only that the person is engaged in illegal activity, but also that evidence of the illegal activity will be found in the e-mails or social media account. See United States v. Wheat, 2022 U.S. Dist. LEXIS 204635, 2022 WL 16851663, at *9 (N.D. Ga. Nov. 10, 2022) (adopting finding warrant affidavit established probable cause to believe evidence of crime would be found in e-mails); United States v. Blake, 868 F.3d 960, 973 (11th Cir. 2017) (probable cause to search Facebook account found where account listed defendant’s occupation as “Boss Lady” at “Tricks R [U]s” thereby linking account to sex-trafficking conspiracy).

The same rule applies when law enforcement seeks—not a search of the phone’s contents—but geolocation data. Absent some allegation linking the movement of the phone to evidence of illegal activity, the mere use of a phone to conduct illegal activity does not establish probable cause to believe the location information tracked by the phone will provide evidence of a crime. People can, of course, use cell phones to speak about a crime without their locations providing evidence of the crime. So the mere use of a phone does not establish probable cause that one’s movements will provide evidence of a crime.

The affidavit includes no factual allegations to suggest Defendant Cable visited stash houses, moved drugs or drug proceeds between locations, or made any other movements as part of the drug trafficking. Merely conferencing together two people on a phone (albeit for illegal purposes) does not make the location from which the call was made (let alone movements while not using the phone) relevant to the investigation. The affidavit needed more factual allegations. It might be as simple as an agent alleging that, in his or her experience, people who play Defendant Cable’s role in an organization often move drugs or drug proceeds between locations, visit those locations, or otherwise travel to places connected to the illegal operation. Perhaps a statement that geolocation data is needed to identify the person using the phone would be enough. But none of that exists here. Certainly factual allegations showing a person acts as a courier for the drug trafficking organization would be enough. But that evidence is not here. In a conclusory manner, the affiant characterizes Defendant Cable as a “courier” (Dkt. 356-1 ¶ 14(b)), but provides no basis for that assertion, and the other facts alleged do not support it. In the light of this, the Court rejects the Magistrate Judge’s conclusion that the warrant application contains sufficient probable cause to support collection of geolocation evidence from Defendant Cable’s phone provider.

Update: techdirt: Just Because CSLI Warrants Are New-Ish Doesn’t Mean You Can You Can Skimp On The Probable Cause by Tim Cushing