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UNITED STATES V. SMITH, 2024 WL 3738050 (5th Cir. 2024)
In last month’s Xiphos, in “Busted by his cellphone,” we wrote about the permitted use of a geofence warrant in United States v. Chatrie (2024 WL 3335653 (4th Cir. 2024)). This month, we explore United States v. Smith, another geofence warrant case. In Smith, the Fifth Circuit disagreed with the Fourth Circuit’s decision in Chatrie. The Fifth Circuit cited a Lexipol article by one of my colleagues, Prathi Chowdri, explaining the basics of geofence warrants. We won’t repeat all that here. Nonetheless, I recommend re-reading the Chatrie synopsis and Chowdri’s article and pondering why these two federal appellate courts reached conflicting conclusions.
While the Chatrie case involved the robbery of a credit union, Smith involves a robbery at a rural post office. Sylvester Cobbs, a mail carrier, backed his truck up to the post office in Lake Cormorant, Mississippi, intending to pick up registered mail bags containing cash receipts collected by the Postal Service from the sale of money orders and stamps. Before the mail carrier could open the back door, Gilbert McThunel pepper sprayed him and hit him multiple times with a handgun, threatening to kill him. From the truck, McThunel stole the mail bags containing $60,706 in cash.
A few days after the robbery, a postal inspector obtained a surveillance video from a building opposite the post office. The video showed a red Hyundai and a large white SUV in the area. It also showed McThunel exiting the SUV and walking behind the post office — apparently to wait for Cobbs. McThunel held his “hand up to his ear and elbow out” for multiple minutes, as if he was talking on a cellphone. No actual phone was visible. After assaulting the mail carrier, McThunel went back behind the building, squatted down and began “looking at something in his hand,” again seeming to be using a cellphone.
The postal inspector later learned that a man who lived across the street had seen the red Hyundai from the surveillance video “circling the area back and forth.” The witness asked the driver if he was lost, and the driver stated he was looking for the highway. Shortly after going back inside his house, the witness heard a “bunch of commotion,” stepped outside and saw officers at the post office. Though the witness provided a description of the Hyundai driver, investigators were not able to identify any suspects for many months.
The postal inspector learned about geofence warrants and spoke with other investigators more familiar with the new tool. He also consulted with federal prosecutors. Nine months after the robbery, investigators applied for and obtained a geofence warrant seeking information from Google to locate potential suspects and witnesses in connection to the robbery.
As noted in Chowdri’s article, the process of obtaining information via a geofence warrant involves three steps. Step one articulates the relevant geographical area, or “geofence,” and narrows the search temporally to the time of the incident and a brief surrounding buffer time. Step two follows investigators’ scrutiny of the user data from step one, focusing the search on the devices most likely to have been suspects or witnesses for the incident. Step three involves requesting user identification for the devices most likely relevant to involvement in the incident.
The probable cause statement noted, “It appears the robbery suspect was possibly using a cellular device both before and after the robbery occurred.” The affidavit also stated that investigators would “seek any additional information regarding relevant devices through further legal process” after the first two investigative steps.
The location data obtained from Google after steps one, two and three led to the identification of Jamarr Smith and Gilbert McThunel. After searching Smith’s Facebook page and phone records, investigators saw a number of calls to and from Thomas Ayodele. A postal inspector met with the witness who lived across the street, showing him several photo lineups. Though the witness could not identify McThunel or Ayodele, he did identify Smith as the person he saw driving the red Hyundai.
The three men were convicted of robbery and conspiracy to commit robbery, and they appealed. They first argued that they had a reasonable expectation of privacy in their Google Location History data. Second, the defendants claimed the specific warrant was invalid from its inception because it lacked probable cause and particularity. Third, even if the warrant was valid, the investigators did not undertake any “further legal process” as noted in the affidavit and warrant. Finally, the defendants asserted that the good faith doctrine could not apply to save the warrant because the affidavit allegedly contained a knowing and intentionally false statement — specifically, that “it appeared the robbery suspect was possibly using a cellular device both before and after the robbery occurred.”
In its decision, the Fifth Circuit held that geofence warrants, as used in this particular case, are unconstitutional under the Fourth Amendment because they resemble general warrants, which are constitutionally barred. However, the court affirmed the trial court’s denial of the motion to suppress, relying on the good-faith exception of United States v. Leon (468 U.S. 897 (1984)). The appellate court opined the investigators acted reasonably given the novelty of geofence warrants and the lack of clear legal precedent. Thus, the convictions for the three men were upheld.
We’ll be carefully watching for future developments in this area. The Supreme Court is certainly watching, but don’t expect a decision from that court until other federal appellate courts and/or state supreme courts have ruled on geofence warrants. Also, Google has taken steps to minimize the data that it stores and may take further action to make it difficult for investigators to obtain location information from Google’s massive data stores (or directly from mobile devices). In the meantime, investigators should pay heed to the Smith and Chatrie decisions and avoid similar challenges where possible.
In her excellent article, Prathi Chowdri offers four key points to help withstand a challenge to a geofence warrant:
- Narrow geography: Draw the relevant geofence as tightly as reasonably possible, based on the available information about the crime and who might have committed it. The smaller the geographic area, the more likely the warrant will be considered particularized.
- Limited time period: Similarly, be sure to use the narrowest possible time frame, within reason, to limit the number of irrelevant devices (and their owners) returned in the results of step 1.
- Justify each step: When requesting additional information in steps 2 and 3, document the logic used to narrow down the initial list. Smith and McThunel argued the investigators failed in this step and the court agreed (but still applied the good faith exception).
- Involve the prosecutor: One hopes government attorneys are keeping pace with the rapid developments in this very novel and technical area of the law. Work with them to learn from the most recent decisions addressing geofence warrants.
In a concurring opinion, one judge penned a closing note: “Geofence warrants are powerful tools for investigating and deterring crime. The defendants here engaged in a violent robbery — and likely would have gotten away with it, but for this new technology. So, I fully recognize that our decision today will inevitably hamper legitimate law enforcement interests. Our decision today is not costless. But our rights are priceless. Reasonable minds can differ, of course, over the proper balance to strike between public interests and individual rights. Time and again, modern technology has proven to be a blessing as well as a curse.”
Somebody tell that to Smith and McThunel.
Read more Ken Wallentine case reviews here.
This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
