Washington, DC – January 6, 2021: Protesters seen all over Capitol building where pro-Trump supporters riot and breached the Capitol. Credit: lev radin/Shutterstock.com
In the world of business and advertisement, geofencing is a location-based service in which an application or other software uses GPS, RFID, Wi-Fi or cellular data to trigger a pre-programmed action when a mobile device or RFID tag enters or exits a virtual boundary set up around a geographical location, known as a geofence. Additionally, for other reasons, the technology has become a standard feature in most new cars. For instance, in these cars you plug your cell phone, iPhone or Android, into the USB port and like magic your location pops up on the dashboard screen in a map-like visual. Law enforcement agencies nationwide have adapted this technology for their own purposes. Geofence search warrants are used by law enforcement to locate and identify anyone in a given area using digital services such as Google location history. Recently, litigation in several of the January 6th cases has disclosed the extensive use of this law enforcement surveillance tool. The Fourth Amendment implications raised by the use of this new investigative tool will be discussed below.
Identifying Suspects
“The Fourth Amendment provides in relevant part that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’“ United States v. Jones, 565 U.S. 400 (2012) (quoting U.S. Const. amend. IV). Location history utilizing GPS, Wi-Fi, and Bluetooth signals is capable of pinpointing a phone within a few yards, and although not precise it is generally more accurate than triangulating signals from cell towers. Accordingly, a geofence warrant is frequently utilized to identify suspects in a geographic area on the date of the crime. “[A] suspect’s identity is not a prerequisite to a search warrant, which itself can be lawfully used to determine who a suspect is or develop a group of potential suspects. In fact, that is the often entire purpose of warrants seeking cell-site location information … via tower dumps.” Matter of Search of Information that Is Stored at Premises Controlled by Google, 2021 WL 6196136, *13 n. 19 (D.D.C. 2021). Probable cause that a specific person committed the crime is not necessary at the search warrant stage. See United States v. Morris, 2022 U.S. Dist. LEXIS 93273 (WDNY, April 12, 2022).
