As geofence warrants have become a more prevalent law enforcement tool, the debate concerning whether they are unconstitutional has intensified. According to Morristown criminal defense lawyers, a number of New Jersey courts have recently expressed concerns over potential misuse. Those concerns led Bergen County, for instance, to put forth procedures that its law enforcement officers must adhere to when requesting such a warrant.
A geofence warrant is a reverse location warrant. A typical search warrant applies to a specific individual. A reverse warrant applies to a group of people who may be suspects in a crime. The geofence or location limits the search to people who were in proximity to the crime when it took place. Google is currently the face of the discussion over geofence warrants, but other companies have received them as well, including Apple, Facebook, Lyft, Snapchat and Uber.
The Fourth Amendment to the United States Constitution was introduced in 1789 and is part of the Bill of Rights. It not only prohibits unreasonable searches and seizures but sets forth requirements for issuing a warrant. All warrants must be issued by a judge or magistrate, supported by an oath or affirmation, justified through probable cause and particular in their descriptions.
Many legal professionals contend that geofence warrants are unconstitutional based on two aspects of the Fourth Amendment. The first is probable cause. Solely being in the vicinity of a crime does not provide probable cause to search a person. The second has to do with a warrant being particular in its description. Many argue that such searches are inherently not particularized because what will be searched and seized is left up to the company that received the warrant.
Another problematic aspect of geofence warrants is that a person generally has a reasonable expectation of privacy when it comes to location data collected about them by a website. This reasonable expectation is established through Carpenter v. United States and passes what is known as the Carpenter test. Your location history not only reveals data that may be germane to the criminal case but sensitive information referred to in the Constitution as “privacies of life.”
There are generally three phases of a geofence warrant. In the first phase, the government requests time-stamped location data from a company, such as Google. During the second phase, the government reviews the data and culls it through investigative techniques in order to pare it down to only the information relevant to the case. Through a subpoena, the government then requests identifying information that allows it to associate data with a particular person.
It is important to note that the process varies between jurisdictions. In the case of Bergen County mentioned earlier, all geofence warrants must be reviewed by an assistant prosecutor before being sent to the courts. These warrants are limited to specific degrees of crimes without the approval of a high-level prosecutor, and all warrant requests must meet specific tests for particularized probable cause.
Whether or not geofence warrants are, in general, unconstitutional will not be settled until the U.S. Supreme Court makes a decision. That will not happen until a relevant case makes it way to the highest court and it chooses to hear the case. This takes time, and this is compounded by the fact that this is new ground. The National Association of Criminal Defense Lawyers notes that reasonable expectation of privacy has traditionally been protected through practical limitations. Technology has removed those barriers, and we will need to restore them explicitly through new laws.
If you believe that your rights have been violated by a geofence warrant issued in New Jersey, Gregg Wisotsky is a Morristown criminal defense lawyer who can help. Gregg has more than 25 years of experience representing clients whose Fourth Amendment rights have been violated. To schedule a consultation, call Gregg at (973) 379-4200 extension 3600 or submit our online contact form.