Author: Jim Chapman
In United States v. Smith, ___ F.4th ___, 2024 WL 3738050 (5th Cir. Aug. 9, 2024), the United States Court of Appeals for the Fifth Circuit disagreed with the United States Court of Appeals for the Fourth Circuit’s opinion in United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024). Contrary to the Fourth Circuit’s conclusion, the Fifth Circuit held that law enforcement’s use of geofence warrants, at least under the circumstances of this case, is unconstitutional under the Fourth Amendment. The relevant facts are as follows.
On February 5, 2018, three individuals robbed Sylvester Cobbs, who was a Contract Route Driver with the United States Postal Service. As a Route Driver, Cobbs delivered and picked up mail from five rural post offices in DeSoto County and Tunica County, Mississippi. At the time of the robbery, Cobbs was headed to Lake Cormorant, the fourth of five stops he would make along his route. The mail that Cobbs collected included registered mail bags, which contained cash receipts collected by the Postal Service from the sale of items such as money orders and stamps. By the time that Cobbs arrived at Lake Cormorant, he had already collected registered mail bags from three other post offices along his route.
At approximately 5:20 p.m., Cobbs arrived at the Lake Cormorant Post Office. As he normally would, Cobbs backed his mail truck up to the back door, where he would retrieve mail bags waiting for him inside the Post Office. Before Cobbs could open the back door to the Post Office, however, an unknown assailant—later determined to be Defendant/Appellant Gilbert McThunel—sprayed Cobbs with pepper spray, struck Cobbs multiple times with a handgun, threatened to kill him, and grabbed the registered mail bags from Cobbs’ truck. The mail bags contained $60,706. Thereafter, McThunel fled, Cobbs drove his truck to the front of the Post Office, and Cobbs called 911.
Approximately three days later, Postal Inspector Stephen Mathews began his investigation and was able to locate a video of the incident taken from a camera located at a farm office across the street from the Post Office. The video showed a red Hyundai and a large white SUV in the area. The video also showed McThunel getting out of the SUV before the robbery, walking behind the building, and waiting for Cobbs to arrive. While behind the building, McThunel had his hand up to his ear and elbow out for multiple minutes, consistent with talking on a cell phone, but the video does not show an actual cell phone. After assaulting Cobbs, McThunel went back behind the building, squatted down, and began looking at something in his hand, which appeared indicative of cell phone use. Based upon his examination of the video, Mathews surmised that three suspects were involved.
Sometime after obtaining the video footage but prior to applying for any warrants, Mathews located a witness, Forrest Coffman, who lived across the street. Coffman had seen the red Hyundai circling the area back and forth, and he decided to ask the driver if he was lost. The driver stated that he was looking for the highway. Coffman gave the driver directions, turned around, and went back inside his house. A few moments later, Coffman heard a “bunch of commotion,” stepped outside, and saw officers at the Post Office. Coffman walked over and spoke with law enforcement, where he described the person in the red Hyundai as a black male with a reddish color goatee. After meeting with law enforcement on the day of the incident, Coffman had no further involvement with the matter for approximately fifteen months.
Nine months after the robbery, the Postal Inspection Service had not been able to identify any suspects from video footage or witness interviews, and Postal Inspector Todd Matney testified that they were having a problem identifying the individuals. However, during the course of their investigation, Matney and Mathews learned about a new type of search warrant—a “geofence warrant”—designed to identify who might have been present at the scene of a robbery. Believing that this warrant could help them rekindle their investigation, on November 8, 2018, Matney and Mathews applied for a geofence warrant seeking information from Google to locate potential suspects and witnesses in connection to the robbery.
Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique that law enforcement has increasingly utilized when the crime location is known but the identities of suspects are not. Geofence warrants work in reverse from traditional search warrants. In requesting a geofence warrant, law 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.
Google has been the primary recipient of geofence warrants in large part due to its extensive Location History database known as the “Sensorvault.” Google collects data from accounts of users who opt in to Google’s Location History service. Location History is disabled by default. For Location History to collect data, a user must make sure that the device-location setting is activated, and that Location Reporting is enabled. This is not to say that enabling Location Reporting is a difficult task. Users are often asked to opt in to Location History multiple times across multiple apps. In fact, manually deactivating all Location History sharing remains difficult and discouraged. As of October 2018, Google estimated that approximately 592 million—or roughly one-third—of Google’s users had Location History enabled.
Once a person enables Location History, Google begins to log the device’s location into the Sensorvault, on average, every two minutes by tracking the user’s location across every app and every device associated with the user’s account. In other words, once a user opts into Location History, Google is always collecting data and storing all of that data in the Sensorvault. Location History is stored within the Sensorvault for at least eighteen months, but users may also request that the information be deleted themselves.
That being said, Location History cannot estimate a device’s location with absolute precision. Instead, when Google reports a device’s location, it includes both the source from which the specific datapoint was derived and a confidence interval indicating Google’s confidence in that estimated location. The smaller the radius, the more confident Google is in that phone’s exact location. According to Google, it aims to accurately capture roughly sixty-eight percent (68%) of users within its confidence intervals. In other words, there is a sixty-eight percent (68% ) likelihood that a user is somewhere inside the confidence interval. Using the raw data that it collects, Google builds aggregate models using a proprietary and, therefore, un-reviewed algorithm that transforms the data to assist with improving Google’s services, including, for example, decision-making in Google Maps. It also uses the data to analyze its customers’ travel patterns, their history patterns, to make recommendations and sell advertising. In short, Google does not store this data for the purpose of law enforcement; rather, Google uses the data for commercial purposes.
In this case, the Inspectors applied for a geofence warrant, which included an affidavit from Matney that Mathews helped write. The affidavit stated that “there is probable cause to believe that the Google accounts identified in Section I of Attachment A, associated with a particular specified location at a particular specified time, contain evidence, fruits and instrumentalities of a violation of 18 U.S.C. section 2114(a), Robbery of a U.S. Postal Service Employee.” However, as with any geofence warrant, no specific Google accounts were identified in Section I of Attachment A. Instead, the Attachment only gave specific coordinates around the Lake Cormorant Post Office. The box created by those coordinates covered approximately 98,192 square meters.
The affidavit also provided a specific Probable Cause Statement. In that statement, the Inspectors detailed the two vehicles implicated in the robbery, Cobbs’ description of the assailant, and a statement that, through a review of the video surveillance footage, it appeared that the robbery suspect was possibly using a cellular device both before and after the robbery occurred. Finally, the Inspectors included language in the application stating that law enforcement “will seek any additional information regarding [relevant] devices through further legal process.”
The application and affidavit were submitted to a United States Magistrate Judge who issued the geofence warrant on November 8, 2018. The language of the geofence warrant largely tracked Google’s approved three-step process for complying with geofence warrants. In response to the files that Google provided, Mathews was able to identify Appellants Jamarr Smith and Gilbert McThunel’s email accounts.
Thereafter, Mathews and Matney sent additional non-geofence warrants to Google regarding Smith and McThunel’s Google accounts, accessing their CLEAR database profiles, investigating cell tower data related to Smith and McThunel, and sending non-geofence warrants to phone companies for Smith and McThunel’s account information. These additional steps revealed multiple phone calls between Smith and McThunel during the time of the robbery and allowed for further geolocation of Appellants using historical cell phone record analysis.
Additionally, through a search of Smith’s phone records and his friends on Facebook, the Inspectors were able to identify Thomas Iroko Ayodele as a suspect. Finally, on July 1, 2019, Postal Inspector Dwayne Martin re-approached witness Forrest Coffman and asked him to participate in a photo lineup. Although Coffman was unable to identify McThunel or Ayodele in their respective lines, Coffman did identify Smith as the person he saw driving the red Hyundai. In sum, all of the evidence connecting Appellants to the robbery crime was derived from information that the Inspectors had obtained from Google pursuant to the geofence warrant.
Thereafter, the Government indicted Appellants for conspiracy and for the robbery of the Post Office. Appellants, then, filed a motion to suppress the evidence obtained as a result of the geofence warrant. Appellants raised several arguments in support of their motion to suppress, but essentially, Appellants argued that the geofence warrant violated their Fourth Amendment rights. On February 10, 2023, after considering the Parties’ briefing and the evidence presented at the evidentiary hearing conducted on the Appellants’ motion to suppress, the United States District Court for the Northen District of Mississippi denied Appellants’ motion to suppress. Trial commenced on February 21, 2023, and after a four-day trial, the jury returned a guilty verdict against all three Appellants as to both counts. Appellants were sentenced by the District Court on June 13, 2023, to prison terms ranging from 121 to 136 months. Thereafter, Appellants filed a motion for new trial and motion for judgment of acquittal. The District Court denied the motions, and this timely appeal followed.
The Fifth Circuit began its consideration of the Appellants’ appeal by noting that the Fourth Amendment guarantees individuals the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The basic purpose of this Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. Moreover, the United States Supreme Court has established that the Fourth Amendment protects people, not places, and the Supreme Court has expanded its conception of the Fourth Amendment to protect certain expectations of privacy as well.
When an individual seeks to preserve something as private and when his expectation of privacy is one that society is prepared to recognize as reasonable, the Supreme Court has held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. Evidence seized in violation of the Constitution is subject to suppression.
Accordingly, the Fifth Circuit noted that the threshold question presented in 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. To assess whether a reasonable expectation of privacy exists, the Supreme Court has applied a two-step approach. First, for Fourth Amendment protections to attach to a person’s privacy interest, the person first must have exhibited an actual (subjective) expectation of privacy. Second, that expectation must be one that society is prepared to recognize as reasonable.
Smith and McThunel argued that they had a reasonable expectation of privacy in their respective location information retrieved in response to a geofence warrant. Under the facts presented in this case, the Fifth Circuit agreed and held that the law enforcement conducted a search for Fourth Amendment purposes when the Inspectors sought Location History data from Google. Moreover, the Fifth Circuit found that, given the intrusiveness and ubiquity of Location History data, Smith and McThunel correctly contend that they had a reasonable expectation of privacy in their respective data.
In addition, the Fifth Circuit (contrary to the Fourth Circuit’s holding) held that geofence warrants are general warrants that are unconstitutional because they violate the Fourth Amendment. Specifically, the Fifth Circuit opined that geofence warrants are emblematic of general warrants and are highly suspect per se, in part, because they permit searches of vast quantities of private, personal information without identifying any particular criminal suspects or demonstrating probable cause to believe evidence will be located in the corporate databases they search. As such, the Fifth Circuit stated that it could not forgive the requirements of the Fourth Amendment in the name of law enforcement and held that geofence warrants are general warrants that are categorically prohibited by the Fourth Amendment.
Nevertheless, the Fifth Circuit found that the good faith exception to the exclusionary rule applied and that the District Court did not err in denying the Appellants’ motion to suppress. According to the Fifth Circuit, the Inspectors were utilizing a cutting-edge investigative technique with which neither Inspector had personal experience. The Inspectors diligently attempted to make sure that their warrant comported with the Fourth Amendment by communicating with other law enforcement agencies and the U.S. Attorney’s Office, and the Inspectors exhibited no malicious intent through the actions that they took. Therefore, the Fifth Circuit stated that the court could not fault law enforcement’s actions considering the novelty of the technique and the dearth of court precedent to follow.
In sum, the Fifth Circuit held that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment. However, considering law enforcement’s reasonable conduct in this case in light of the novelty of this type of warrant, the Fifth Circuit upheld the District Court’s determination that suppression was unwarranted under the good-faith exception to the exclusionary rule. The Fifth Circuit, therefore, affirmed the jury verdict finding the Appellants guilty of the two counts charged in the indictment.
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