Supreme Court weighs phone searches to find criminals amid complaints of ‘digital dragnets’

WASHINGTON- A man carrying a gun and a cellphone walked into a federal credit union in a small central Virginia town in May 2019 and demanded money.

He left with $195,000 in a bag and no clue as to his identity. But his smartphone was following him.

What happened next could result in a landmark Supreme Court ruling on the 4th Amendment and its restrictions against “unreasonable searches.”

Typically, police use clues or leads to track down suspects and then request a search warrant from a judge to enter a home or other private space to seize evidence that may prove a crime.

Civil liberties advocates say the new “digital nets” work in reverse.

“It’s data scrape and search first. Suspicion later. It’s the opposite of how our system has worked, and it’s really dangerous,” said Jake Laperruque, an attorney with the Center for Democracy & Technology.

But these new data analyzes can be effective in tracking down criminals.

Lacking leads in the Virginia bank heist, a police detective turned to what a judge in the case called a “revolutionary investigative tool… enabling the relentless collection of eerily precise location data.”

Cell phones can be tracked through towers and Google has stored this location history data for hundreds of millions of users. The detective sent Google a request for information known as a “geofence warrant,” referring to a virtual fence around a particular geographic area at a specific time.

The officer searched for phones that were within 150 meters of the bank at the time of the robbery. He used this data to locate Okello Chatrie and then obtained a search warrant at his home where the cash and hold-up notes were found.

Chatrie entered a conditional guilty plea, but the Supreme Court will hear his appeal on April 27.

The justices agreed to decide whether geofence warrants violated the 4th Amendment.

The result could go beyond location tracking. The problem is more broadly that of the legal status of the large quantity of data stored privately and which can be easily analyzed.

This may include words or phrases found in Google searches or in emails. For example, investigators may want to know who searched for a particular address in the weeks before an arson or murder or who searched for information about making a particular type of bomb.

The justices are deeply divided on how this fits the 4th Amendment.

Two years ago, the conservative 5th Circuit Court of Appeals in New Orleans ruled that “geofence warrants are general warrants categorically prohibited by the 4th Amendment.”

Chief Justice John Roberts sided with the Court’s liberals in a 4th Amendment privacy case in 2018.

(Alex Wong/Getty Images)

Historians of the 4th Amendment say the constitutional ban on “unreasonable searches and seizures” grew out of anger in the American colonies over British officers who used general warrants to search homes and stores, even though they had no reason to suspect any particular person of wrongdoing.

The Assn. National. criminal defense lawyers rely on this assertion to oppose geofence warrants.

His lawyers argued that the government obtained Chatrie’s “private location information…with an unconstitutional blanket mandate that required Google to conduct an investigation of millions of Google accounts, without any basis to believe that any of them contained incriminating evidence.” »

Meanwhile, Virginia’s more liberal 4th Circuit was divided 7-7 in rejecting Chatrie’s appeal. Several judges explained that the law was unclear and that the police officer had done nothing wrong.

“There has been no research here,” Justice J. Harvie Wilkinson wrote in a concurring opinion defending the use of this tracking data.

He pointed to Supreme Court decisions from the 1970s stating that check records held by a bank or dialing records held by a telephone company were not private and could be searched by investigators without a warrant.

Chatrie had agreed to Google keeping its location records. If several months’ worth of financial records are not private, the judge wrote, “this request for a two-hour snapshot of his public movements” is surely not private either.

Google changed its policy in 2023 and no longer stores the location history data of all its users. But cell phone carriers continue to receive warrants seeking tracking data.

Wilkinson, a prominent Reagan-era conservative, also argued that it would be a mistake for the courts to “thwart law enforcement’s ability to keep pace with tech-savvy criminals” or to cause “more cold cases to remain unsolved. Think of a murder where the culprit leaves behind his encrypted phone and nothing else. No fingerprints, no witnesses, no murder weapon. But because the killer allowed Google to locate his location, a geolocation warrant can solve the matter,” he wrote.

Los Angeles judges have upheld the use of a geofence warrant to find and convict two men of a robbery and murder in a Paramount bank parking lot.

The victim, Adbadalla Thabet, collected money at gas stations in Downey, Bellflower, Compton and Lynwood early in the morning before going to the bank.

After he was robbed and shot, a Los Angeles County sheriff’s detective discovered surveillance video showing he had been followed by two cars whose license plates could not be seen.

The detective then sought a geolocation warrant from a Superior Court judge who asked Google for location data for six designated locations on the morning of the murder.

This led to the identification of Daniel Meza and Walter Meneses, who pleaded guilty to the crimes committed. A California appeals court rejected their 4th Amendment request in 2023, even though the justices said they had legal doubts about the “novelty of the particular surveillance technique at issue.”

The Supreme Court is also divided on how to apply the 4th Amendment to new types of surveillance.

By a 5-4 vote, the court ruled in 2018 that the FBI should have obtained a search warrant before demanding that a cell phone company turn over 127 days of records relating to Timothy Carpenter, a suspect in a series of store robberies in Michigan.

The data confirmed that Carpenter was nearby when four of the stores were burglarized.

Chief Justice John G. Roberts, joined by four liberal justices, said this prolonged surveillance violated privacy rights protected by the 4th Amendment.

“Seismic technological shifts” could enable total public surveillance, Roberts wrote, and “we refuse to grant the state unfettered access” to these databases.

But he called the Carpenter decision “narrow” because it was based on many weeks of surveillance data.

Disagreeing, four conservatives questioned how tracking a person’s conduct violates their privacy. Surveillance cameras and license plate readers are commonly used by investigators and have rarely been challenged.

Solicitor General D. John Sauer relies on this argument to defend Chatrie’s conviction. “An individual has no reasonable expectation of privacy in movements that anyone could see,” he wrote.

The judges will make their decision by the end of June.