Federal Court Expresses Skepticism About Validity Of Geofence Warrants But Declines Suppression Remedy

• Published date: 11 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation
• Law Firm: Covington & Burling
• Author: Mr Jim Garland, Alexander Berengaut, Megan Crowley and Chloe Goodwin

Last Thursday, the Eastern District of Virginia in United States v. Chatrie, No. 19-cr-00130, 2022 WL 628905, denied a motion to suppress evidence obtained from Google pursuant to a geofence search warrant. Geofence warrants are a relatively new investigative tool that target private companies' databases of location data, compelling these companies to produce the location data of every user that was in a particular area over a particular span of time. The court invalidated the warrant for lack of particularized probable cause, but declined to suppress the evidence obtained from Google'which linked the defendant to the scene of a 2019 bank robbery'because the officers sought the warrant in good faith.

The 63-page opinion made extensive findings of fact regarding the geofence warrant at issue and Google's three-step warrant execution process. For example, the court detailed how Google's Location History database, the Sensorvault, collects and stores location information from a variety of sources, including GPS, Bluetooth, cellular tower, IP address, and Wi-Fi. Google users are prompted to opt-in to Location History when setting up a Google account or when setting up an application with Location History-powered features. The kind of notice provided to the user at the point of opting in differs depending on which pathway the user took to enable the service. While the record showed that the defendant had enabled Location History on his device, no one could determine how he enabled Location History or what information he was given when he did so.

The court also explained Google's three-step process for responding to geofence requests, which Google developed in...