A third geofence warrant to attempt to determine who was around stolen prescription medication. It too is denied as overbroad. In re Search of Info. Stored at Premises Controlled by Google, 2020 U.S. Dist. LEXIS 152712 (N.D. Ill. Aug. 24, 2020):
Before the Court is the government’s Amended Application for a Google Geofence Search Warrant (“the Amended Application”) (D.E. 6). While investigating the suspected theft of prescription medications, the government has developed evidence indicating that an unknown individual (“the Unknown Subject”) entered two physical locations to receive and ship the stolen medication at specific times. To try to identify the Unknown Subject, the government wants to know which mobile or smartphone devices that transmit their location information to service provider Google, Inc. (“Google”) can be known by Google to have been at those two locations at the times when the Unknown Subject was there. The government has proposed a “geofence” search warrant to obtain Google’s historical information about what devices were at those locations at those times.
INTRODUCTION
The idea behind a geofence warrant is to cast a virtual net — in the form of the geofence — around a particular location for a particular time frame. The government seeks to erect three geofences. Two would be at the same location (but for different time frames), and one would be at a second location. The window for each geofence is a 45-minute time period on a particular day. As to each of these geofences, the government proposes that Google be compelled to disclose a list of unique device identifiers for devices known by Google to have traversed the respective geofences. The purpose of the geofences is to identify the devices known by Google to have been in the geofences during the 45-minute time frames around the Unknown Subject’s appearances on surveillance video entering the two locations on three occasions. By identifying the cell phones that traversed any of the geofences, the government hopes to identify the person suspected in the theft of the pharmaceuticals, under the theory that at least one of the identified devices might be associated with the Unknown Subject.
The government’s application is the third submitted by the government in this investigation. …
. . .
Conclusion
The technological capability of law enforcement to gather information, from service providers like Google and others, continues to grow, as demonstrated here by the Amended Application. Our appeals court has recognized, for quite some time now, that “[t]echnological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive.” United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007). In Carpenter and Riley, the Supreme Court recognized that as the use of mobile electronic devices becomes more and more ubiquitous, the privacy interests of the general public using these devices, including the privacy interest in a person’s physical location at a particular point in time, warrants protection. 138 S. Ct at 2217; see Riley, 573 U.S. at 393. Longstanding Fourth Amendment principles of probable cause and particularity govern this case, and the technological advances making possible the government’s seizure of the type of personal information sought in this case must not diminish the force and scope of Fourth Amendment protections with roots in the reviled abuses of colonial times. Simply because Google can collect this information, or because the government can obtain it from Google under a “constrained” approach “justified” by the investigation’s parameters, does not mean that the approach clears the hurdles of Fourth Amendment probable cause and particularity. But nor does the Court intend to suggest that geofence warrants are categorically unconstitutional. Each specific proposed application must comply with longstanding Fourth Amendment constitutional protections of individual privacy rights, which should not be diminished by increased technical capability for intrusion, or by how effective those capabilities might be at solving crimes. The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting. But if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons without probable cause and in a manner that allows officials to “rummage where they please in order to see what turns up,” Sanchez-Jara, 889 F.3d at 421, even if they have reason to believe something will turn up, a federal court in the United States of America should not permit the intrusion. Nowhere in Fourth Amendment jurisprudence has the end been held to justify unconstitutional means.
For the foregoing reasons, and by applying the Fourth Amendment to the government’s proposed warrant in the Amended Application, the Court must deny the Amended Application and the warrant requested under it.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)