Courts Authorizing “Reverse Location” Warrants in Virginia

FBI “reverse location” warrant in Henrico County…. Photo credit: Forbes

Big brother Google is watching you. Back in October, 2018,  Forbes reported that a Virginia court had authorized the FBI to use a “reverse location” warrant to try to solve a series of crimes in Henrico County, Va. This warrant, also known as a geofence warrant, allows police to compel Google to provide all cellphone activity for all people in a general area over a specified period of time. The resulting handover of data includes locations and other information on potentially hundreds, if not thousands, of people. While Google has complied with the warrants in the past, it is unclear whether the company complied in the Henrico case.

In for a dime, in for a dollar. The situation in Henrico County involved a series of crimes committed against a specific Dollar Store on Patterson Ave.  Unidentified armed criminals robbed the Dollar Store on four separate occasions between March and September, 2018. Additionally. the store manager was robbed while dropping off money at a night-deposit box at a Wells Fargo bank down the road. The Forbes article states, “The warrant asks for location histories held by Google for anyone within three separate areas—including regions around the Dollar Tree store and the Wells Fargo address—during the times and days the five robberies took place. The FBI also wanted identifying information of Google account holders in those areas, two of which had a 375-meter radius. The other had a 300-meter radius.” For some reason, no records were returned in conjunction with this warrant. Google may have appealed. Neither prosecutors nor Google were willing to comment. However, in other cases around the country, these warrants have been used and data has been provided.

Can I borrow your car? In a Phoenix suburb police used a “reverse location warrant” to try to solve a murder. A hazy security video showed Joseph Knight being shot and killed by an assailant in a white Honda Civic. The video was not clear enough to make out the suspect or the license plate number. Enter the “reverse warrant.” Police served Google with a geofence warrant and Google provided the data. Lo and behold, a man named Jorge Molina was put on the scene by the Google data. Molina lived two miles away and owned a white Honda Civic. Molina was arrested for the murder and taken to jail. An open and shut case? Not so fast. After a week in jail police realized that Molina wasn’t the shooter based on an alibi witness and an Uber receipt. Police also found out that his mother’s ex-boyfriend, Marco Gaeta, sometimes used Molina’s car. Gaeta was arrested for another homicide in California and will eventually be extradited to Arizona for trial in the slaying of Joseph Knight.

Growing like a weed. Knowing the number of “reverse location warrants” nationally is a challenge. Search warrants are not always public information.  Sometimes they are sealed by the courts and sometimes they are misfiled. However, in Minnesota the Google “reverse location” warrants that can be found show their growth. Authorities issued their first geofence warrants to Google in September, 2018.  By Feb, 2019 22 of these warrants had been issued. Geofence warrants have been found in Maine and North Carolina in addition to Minnesota and Virginia.

Orwell was an optimist. There is a long list of problems with geofence warrants. The most obvious is the Fourth Amendment to the US Constitution which reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Where is the probable cause for the seizure of data from innocent people who just happened to be in a particular place over a period of time? It would be great to hear from the attorneys who frequent this blog: Do these warrants even sound constitutional? Another problem is that the data becomes public information once the investigation is closed. As the Naked Capitalism article states:

And another wee problem, from the MPR News story:

Don Gemberling, an attorney who managed data practices issues at the Minnesota Department of Administration for more than 30 years, pointed to another consequence of these data sweeps: once the investigation is closed, all the data law enforcement collects become public information.

“That’s probably something that we’re going to have to navigate in the near future,” said Bruley. He said all the data are saved as part of case files.”

Virginia’s political class. Where are the members of Virginia’s General Assembly on the question of “reverse location” warrants? Where are the member of Virginia’s congressional delegation on this issue? These warrants have already been issued in Virginia. Do our elected officials believe these warrants are a legitimate law enforcement tool or an unconstitutional violation of privacy? Tim Kaine? Mark Warner? Mark Herring? Anybody?

— Don Rippert

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13 responses to “Courts Authorizing “Reverse Location” Warrants in Virginia

  1. Hey Alexa! What are you telling Big Brother today? ….Yes, Orwell was an optimist. Somehow I don’t actually feel safer knowing this, DJ. Now that the U.S. intel team spying on the Trump campaign and transition has been disbanded, time to move on to other things. (Sadly, Barr was dead on right about that.)

    A search of 2019 state legislation using “reverse location” or “geofence” produced no proposed legislation…2020 may different.

    • People laughed at Trump when he talked about “the Deep State”. I’m not sure it’s so humorous anymore. No surprise on the dearth of legislation. Between dinner with lobbyists at Bookbinders and exhibition basketball games there is precious little time during the legislative session for dealing with threats to personal liberty.

  2. A global search warrant it truly disturbing regardless of who is seeking it. The standard for a search warrant is that there must be probable cause that the target was involved the criminal activity being investigated. The search warrant must also be specific – I am looking for cell phone activity on 571-555-1234. It cannot be every 571-555 phone used in Richmond, VA on April 1, 2019.

    All Virginia elected officials and wannabes should be denouncing this violation of civil liberties.

  3. Fascinating that you should use the example of the Dollar Tree on Patterson Ave. That’s about a mile from my house. I regularly visit the CVS located literally next door to the Dollar Tree, and I regularly use the Wells Fargo bank where the store manager was robbed. I never heard of the incident, and the Richmond Times-Dispatch, which appears to be too busy writing about racism and autism to worry much about civil liberties, never picked up on the story.

    I’d like to hear what someone in law enforcement says about the reverse location warrants, but I’d say that every issue you raise is one that we, as a society, unquestionably need to grapple with. Where indeed are our elected officials?

    • Not to worry, Jim, it is only Blackface Northam and is sidekick Herring listening in on your phone calls 24/7. Better lawyer up, buddy.

    • Given that the Dollar Store has been robbed at gunpoint four times and the manager robbed at the bank once more …

      On your next visit to that CVS you might want to open carry. I’d recommend a Sig Sauer P365 High Capacity Micro-Compact Pistol.

      The good news is that you’ll be able to lighten the load by leaving your cell phone at home.

  4. There’s a conceptual similarity, I think, between these “reverse location” searches, and identity searches relating DNA evidence found at a crime scene to apparent relatives determined and identified by geneology labs from all the samples submitted by countless individuals worldwide merely seeking information about their ancestry. Are you telling us that all their DNA data, ancestry and relationships become in the public domain after trial, just like the cell-phone geo-location data you describe?

    • Probably not. The results of the “reverse location” warrants go into the public domain, not all google tracking records. The DNA matches were made against GEDMatch using its advertised search function. I’d guess that the results of those searches would go into the public domain but not the entire database.

      https://en.wikipedia.org/wiki/GEDmatch

  5. Consider it like security cameras that capture images of everyone in the vicinity and then after the crime – law enforcement gets the tapes and replays.

    That’s what this is. When there is a crime – LE wants to know who was in that vicinity when the crime was committed.

    There is no law that video cameras cannot capture you – nor that LE can’t then go get them and look at them – without a warrant or even with a very-easy-to-get warrant.

    So the REAL QUESTION is – are there other ways that your presence at a given location can be “recorded” – more or less anonymously until or unless someone goes back and looks at the older tapes and sees that it IS you?

    Can GOOGLE … (or anyone including the cell phone companies) – LEGALLY capture wherever you go by grabbing the info your phone is exchanging with the cell towers? You CAN turn off your GPS in your cell phone but not sure that completely prevents capturing your location anyhow AND Google Maps and other apps that need your
    location to “work” won’t “work” without that data.

    • The real question is whether you have a reasonable expectation of privacy. When you are walking down the street you are in plain view in a public place and anybody can see, photograph or film you. You should have no expectation of privacy. When you are innocently sitting on your back porch with a cellphone in your pocket you have an expectation of privacy. At least that’s my opinion. Remember, those cell phone records track people in their houses, at doctor’s appointments, etc. If you are in the radius of the warrant you will be part of the data capture. This essentially says that there is no expectation of privacy for anyone anywhere. Is that what we want?

      I’m not a lawyer and I don’t play one on TV. So, any actual lawyer who would like to weigh in are welcome to do so.

      • “I’m not a lawyer and I don’t play one on TV. So, any actual lawyer who would like to weigh in are welcome to do so.”

        You would have made a good one, Don. Your thinking goes back to the abusive forces of the British King and his local colonial elite who’s acts drove finally the American Revolution, and your thinking then proceeds deeply into earlier British Common Law, first to the Magna Carta the nobles forced on King John at Runnymede in June of 1215 to protect their rights, then later those of Parliament, then finally those of the people in their homes, from an abusive, and intrusive King of England who assumed that God had given him alone the right to do anything to his subjects that he damn well pleased. We got pretty much the same problem now. And it is getting worse by the day.

  6. The use of these warrants has only recently become widely known to the public–thanks in part to a recent excellent series on privacy concerns in The New York Times that is one of Don’s cites. (I did not realize that Don gave credence to anything in the NYT!) Bill introductions in the General Assembly tend to reflect recent trends or topics. Therefore, I expect that there will be bills introduced on this issue next session. It will be interesting to see how they fare in the House Courts of Justice Committee, particularly if the Republicans retain control of the House

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