In re Search of Info. That Is Stored At the Premises Controlled By Google, LLC

542 F.Supp.3d 1153

In the MATTER OF the SEARCH OF INFORMATION THAT IS STORED AT the PREMISES CONTROLLED BY GOOGLE, LLC

Case No. 21-MJ-5064-ADM

United States District Court, D. Kansas.

Signed June 4, 2021

Jared S. Maag, Office of United States Attorney, Topeka, KS, for USA.

MEMORANDUM AND ORDER

Angel D. Mitchell, United States Magistrate Judge

This matter comes before the court on the United States’ Application for a Warrant by Telephone or Other Electronic Means. The government seeks a geofence warrant directed to Google, LLC for location history data covering a defined area that surrounds and includes a building where a federal crime allegedly occurred. Applications for geofence warrants are becoming more commonplace and have drawn scrutiny because of the possibility that they will reveal the identities of potentially numerous individuals who happened to be in the vicinity when a crime was committed but who were not involved in and did not witness the crime. See Geofence Warrants and the Fourth Amendment , 134 HARV. L. REV. 2508, 2511–12 (2021) (listing examples). "As a result, it is easy for a geofence warrant, if cast too broadly, to cross the threshold into unconstitutionality because of a lack of probable cause and particularity, and overbreadth concerns under Fourth Amendment jurisprudence." Matter of Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation ("Arson") , 497 F. Supp. 3d 345, 353 (N.D. Ill. 2020).

The court issues this written order not only to address the subject application, but also to provide guidance for future search warrant applications involving geofence technology given the relatively sparse authority on this issue. Here, the application and accompanying affidavit are not sufficiently specific or narrowly tailored to establish probable cause or particularity. The court therefore denies the application without prejudice.

I. GEOFENCE WARRANTS

The Fourth Amendment requires both probable cause and "particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. AMEND. IV ; Groh v. Ramirez , 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004).¹ Its basic purpose "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."

Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2213, 201 L.Ed.2d 507 (2018). Fewer than a handful of cases have addressed the Fourth Amendment's limitations on geofence warrants. Three from the Northern District of Illinois provide helpful guidance.

In Matter of Search of Information Stored at Premises Controlled by Google (" Pharma I " and " Pharma II ") , two different judges denied the government's original and subsequent applications for a geofence warrant that encompassed two physical locations that an unknown suspect had entered to steal and ship stolen pharmaceuticals. No. 20 M 297, 2020 WL 5491763, at *1 (N.D. Ill. July 8, 2020) (denying the first application); 481 F. Supp. 3d 730, 756 (N.D. Ill. 2020) (denying the third application). Both judges were troubled by (among other things) the proposed geographic boundaries of the geofences, which encompassed two physical locations within a busy commercial and residential area on major arterial streets in a major metropolitan area. In Pharma I , the court found the geographic scope of the geofence warrant was not narrowly tailored in that "the vast majority of cellular telephones likely to be identified in this geofence will have nothing whatsoever to do with the offenses under investigation." Pharma I , 2020 WL 5491763, at *5. Likewise, in Pharma II , the court pointed out that the geofence would have captured not only the pertinent business establishments but also the residential units above those business establishments and neighboring sidewalks, streets (including one "busy arterial street"), and a parking lot that served other retail businesses. 481 F. Supp. 3d at 752.

In contrast, the court in Matter of Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation ("Arson") issued a geofence warrant based on a more robust showing of probable cause and particularity. 497 F. Supp. 3d 345. In Arson , the government sought geofence data concerning six target locations connected with an arson investigation. Id. at 351-352. The government had established probable cause that the crimes were committed by coconspirators, and it was "reasonable to infer that suspects coordinating multiple arsons across the city in the middle of the night, as well as any passersby witnesses, would have cell phones." Id. at 354-55. Furthermore, the government had "structured the geofence zones to minimize the potential for capturing location data for uninvolved individuals and maximize the potential for capturing location data for suspects and witnesses." Id. at 353.

Fundamentally, the difference between the Pharma cases and the Arson case is that the government's proposed geofence warrant application in Arson (1) established probable cause to believe that the results of the warrant would reveal the identities of suspects or witnesses, and (2) was sufficiently particular in time, location, and scope. Id.

II. THE APPLICATION BEFORE THE COURT

Because this case concerns on ongoing criminal investigation, the court will not describe in detail the circumstances of the alleged crime other than to say that the affidavit has sufficiently established probable cause to believe that a federal crime occurred at a particular location on a particular date. The application seeks geofence data from an area surrounding the alleged crime location, which is a sizeable business establishment, during a one-hour period on the relevant date. But, unlike in Arson , the application and affidavit leave too many questions unanswered for the court to find that the application is supported by probable cause or that the proposed warrant is sufficiently particular in time, location, and scope.

A. Probable Cause

An affidavit in support of a search warrant application establishes probable cause if "it evinces a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Cotto , 995 F.3d 786, 796 (10th Cir. 2021) ; Illinois v. Gates , 462 U.S. 213, 238–39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (same). Whether probable cause exists is a "flexible, common-sense standard," and no single factor or factors is determinative. Illinois , 462 U.S. at 239, 103 S.Ct. 2317. In examining whether the government has established probable cause, the court must determine whether there is probable cause that a crime has been committed and that evidence of the crime will be located at the place to be searched. Id. at 238, 103 S.Ct. 2317. In the context of a geofence warrant application, "[t]he government's affidavit must provide sufficient information on how and why cell phones may contain evidence of the crime, as well as credible information based on the agent's training and experience, to support the assertions." Arson , 497 F. Supp. 3d at 356.

The application here establishes probable cause that a crime was committed at the subject business establishment during the relevant one-hour time period. However, it does not establish probable cause that evidence of the crime will be located at the place searched—that is, Google's records showing the location data of cell phone users within the geofence boundaries. To be clear, Google's location data would undoubtedly show that "a certain device was located at a particular place at a particular point in time." Pharma II , 481 F. Supp. at 734. However, the application in Pharma II provided a more meaningful explanation as to how GPS/location data feeds into Google's location data. The affidavit explained that Google collects location information via its Android operating system and Google accounts and, even as to non-Android devices (like iPhones), when a user enables location sharing. Id. The application stated that Google Android phones account for approximately 74% of the smartphone market whereas Apple phones are about 23%, and it gave specific examples of well-known applications (like Gmail, Google Maps, Google Chrome, and YouTube) by which even Apple devices communicate location information to Google. Id. at fn.1. Furthermore, "[p]ublished reports have indicated that many Google services on Android and Apple devices store the device users’ location data even if the users seek to opt out of being tracked by activating a privacy setting that says it will prevent Google from storing the location data." Id. at fn.3. The record therefore established that it would be a "relatively rare" device that would not transmit that device user's location information to Google. Id. at 734.

Similarly, the affidavit in Arson explained how Google collects location information, including via Google apps that run on non-Android operating systems, like iPhones. 497 F. Supp. 3d at 350. The affidavit provided no evidence that any of the suspects possessed cell phones or used cell phones to commit the offenses, or that they used Google applications or operating systems that would store location data, but the court relied on the agent's training and experience to establish probable cause. Id. at 355. The agent's affidavit explained that: (1) it is common for criminal coconspirators to use cell phones to plan and commit criminal offenses, particularly where, as there, they targeted two different locations on two different dates; (2) "there was a reasonable probability that a cell phone, regardless of its make, is interfacing in some manner with a Google application, service, or platform"; and (3) given the agent's familiarity with the investigation so far, he "believed that anyone passing near or through the target locations during those locations’ time parameters could be perpetrators or witnesses to the arsons." Id. at 356....