March 10, 2023 | By Saraphin Dhanani | Lawfare |
On Jan. 25, Judge Rudolph Contreras of the U.S. District Court for the District of Columbia handed down an opinion in the case of United States v. Rhine denying Jan. 6 rioter David Harles Rhine’s motion to suppress evidence obtained from a geofence warrant.
Searches stemming from a geofence warrant can be likened most succinctly to “fishing expedition[s]”: Law enforcement compels a third-party provider, like Google, to disclose user location history (LH) data of “cell phones in the vicinity of [an] alleged criminal activity under investigation” in order “to narrow the pool” and “fish” out the identity of the criminal suspect. Unlike traditional search warrants, where courts compel a third-party provider to disclose a suspect’s location data after a suspect has been identified, geofence warrants place the cart before the horse. A third-party provider is compelled to disclose LH data of all individuals present in a particular vicinity during an alleged crime before a suspect has been identified.
Geofence warrants fall under Fourth Amendment protections in theory. The government must show probable cause that the geofence area contains evidence of the crime and, with particularity, tailor the scope of the warrant in space and time to leave as little discretion as possible to the whims of law enforcement officers.
Rhine was among the thousands of rioters who walked off Capitol grounds scot-free on Jan. 6, 2021, leaving FBI agents scrambling to pin down the insurrectionists. Geofence warrants were used to seize Google LH data for individuals “in and immediately around the Capitol between 2:00 p.m. and 6:30 p.m. on January 6, 2021.” Rhine’s location history data was caught in the geofence warrant and led the Department of Justice to level four misdemeanor charges against him: (a) entering or remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1); (b) disorderly or disruptive conduct in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(2); (c) disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(D); and (d) parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G).
Rhine challenged his culpability and filed a motion to transfer venue, a motion for expanded voir dire, several motions to dismiss the charged counts, and a motion to suppress evidence obtained from the warrant because, according to Rhine, the geofence warrant was unconstitutional. The court denied all of Rhine’s motions (save for expanded voir dire, which it partially denied) and, most importantly, upheld the geofence warrant as constitutional.
With so little precedent on what makes geofence warrants constitutional, Judge Contreras’s holding is a breakthrough for the government as it uses LH data obtained through the geofence warrant to level charges against Jan. 6 rioters. More broadly, the case is also instructive for law enforcement as an example of the kinds of Fourth Amendment guardrails that a geofence warrant must have for it to pass constitutional muster.
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