 Carol M. Highsmith, photographer. The Elbert Parr Tuttle U.S. Court of Appeals located on 56 Forsyth Street, Atlanta, Georgia. Designed by James Knox Taylor and built in 1907-1911.... 2005. Library of Congress Prints and Photographs Division. PPSA is mapping for the U.S. Court of Appeals for the Eleventh Circuit the ways in which modern geofence warrants invert the process spelled out by the Constitution’s Fourth Amendment. A geofence warrant directs a technology company to search its location records for every device found within specified areas and time periods. Instead of identifying a suspect and then establishing probable cause to search that person’s records, the government reverses that process – searching a large pool of people to discover whom it might suspect. In our brief concerning the carjacking conviction of Johnnie Davis in Alabama, PPSA explains: “A traditional investigation moves from suspicion, to probable cause, to a particular warrant, to a search. A geofence warrant reverses that sequence: search everyone’s records, then filter the results, and only then decide whom to search further. The search does not follow probable cause; it backfills it.” That reversal of the constitutional sequence is the central problem in United States v. Davis. The warrant directed Google to search every account in its database for devices present at six locations during specified windows of time. Investigators could then obtain additional information about selected accounts without returning to a judge. PPSA demonstrates that the U.S. Supreme Court’s recent decision in Chatrie v. United States requires probable cause and particularity “at each stage of the search process.” The government therefore cannot justify an indiscriminate initial search by pointing to the narrower searches that followed. The brief takes the warrant in this case apart stage by stage. At step one, Google searched “every user account in their user database” for devices appearing within the six geofences. Yet the government had no probable cause to search any specific person’s location history. As PPSA puts it, the warrant was “like opening every drawer in six neighborhoods to learn which drawer matters.” At steps two and three, investigators could request more data – including information from outside the original geographic and temporal boundaries – without renewed judicial approval. The warrant did not tell investigators which accounts could be examined further or establish criteria for choosing them. Those decisions were left to the officers’ discretion. This is precisely what the Fourth Amendment’s particularity requirement was adopted to prevent. PPSA told the court: “Here, the warrant directed Google to search every user account in their database for accounts inside certain areas, then allowed investigators, not a magistrate, to decide whose data to pursue. That is a general search wearing a particular search costume.” Anonymizing the initial results does not solve the problem. The search, for constitutional purposes, occurs when the government gains access to protected location information, not merely when officers later learn the account holder’s name. Nor does the government’s eventual use of a narrow portion of the data retroactively validate the dragnet that produced it. PPSA told the court: “The government’s use of only the juicy bits that it found after unconstitutionally rummaging through protected information is no justification for the initial violation.” PPSA offers the Eleventh Circuit a straightforward rule: “Each warrant stage must be constrained by antecedent probable cause and particularity independent of its results. A valid digital warrant searches individual records the government already has probable cause to search; a digital general warrant searches records to decide whom to suspect.” In the wake of the Supreme Court’s Chatrie decision, PPSA hopes this distinction will guide law enforcement long before the courts have to impose these clear principles. Comments are closed.
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