United States v. RhineUnited States v. Rhine
DENYING DEFENDANT’S MOTION TO TRANSFER VENUE, GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR EXPANDED VOIR DIRE; DENYING DEFENDANT’S MOTIONS TO DISMISS COUNTS 1–4, DENYING DEFENDANT’S MOTION TO SUPPRESS GEOFENCE EVIDENCE
I. INTRODUCTION
Defendant David Charles Rhine is charged with four misdemeanor counts arising out of his alleged participation in the riot at the Capitol on January 6, 2021. Specifically, the Government charged Defendant by information with (1) entering or remaining in a restricted building or grounds in violation of
II. FACTUAL BACKGROUND
At approximately 1:00 p.m. on January 6, 2021, Congress convened to count the votes of the Electoral College and certify the results of the 2020 presidential election. Vice President Mike Pence was present to preside over the session in his role as President of the Senate. About an hour later, at approximately 2:00 p.m., the crowd that had gathered outside the Capitol building began to force its way inside. The Government alleges that Defendant, who resides in Bremerton, Washington, was among that crowd. Specifically, the Government alleges that Defendant entered the capitol at approximately 2:42 p.m. wearing a dark blue hooded jacket, a red hat, and a backpack, and carrying a blue flag with white stars and white cow bells. Gov’t’s Statement of Facts, ECF No. 1-1 at 4. Defendant allegedly proceeded to walk through the Capitol until he encountered a U.S. Capitol Police (“USCP“) officer at approximately 2:57 p.m. Id. at 6. The officer allegedly detained Defendant and conducted a search that yielded two knives and pepper spray, which USCP officers seized before placing Defendant in flex cuffs with his hands behind his back. Id. After escorting Defendant through the hallways for a few minutes, at approximately 3:02 p.m. the USCP officer that detained Defendant allegedly released him, still in flex cuffs, to attend to other responsibilities after Defendant told the officer that he would leave the building. Id. at 8. The Government alleges that one minute later an unidentified individual cut the flex cuffs from Defendant’s hands, and one minute after that, at approximately 3:04 p.m., Defendant left the building. Id. at 8–9.
The Court first considers Defendant’s motion to transfer venue and for expanded voir dire, followed by Defendant’s motions to dismiss and motion to suppress.
A. Defendant’s Motion to Transfer Venue and for Expanded Voir Dire
Criminal defendants have a constitutional right to trial by “an impartial jury of the State and district wherein the crime [was allegedly] committed.”
The Supreme Court has recognized the principle that transfer of venue is a “basic requirement of due process” where “extraordinary local prejudice will prevent a fair trial,” but emphasized that a pre-voir dire “presumption of prejudice . . . attends only the extreme case.” Skilling v. United States, 561 U.S. 358, 378, 381 (2010) (internal citation omitted). Because “juror impartiality . . . does not require ignorance,” even “pervasive, adverse publicity” does not necessarily compel a presumption of prejudice, unless the press coverage is so intense as to “utterly corrupt[]” the trial. Id. at 380–81 (emphasis in original). Accordingly, the “default practice of this jurisdiction [is] to conduct voir dire in order to determine whether a fair and impartial jury can be seated.” United States v. Eicher, No. 22-cr-0038, 2022 WL 11737926, at *2 (D.D.C. Oct. 20, 2022) (citing United States v. Haldemann, 559 F.2d 31, 41 (D.C. Cir. 1976)). “‘[A]dequate voir dire to identify unqualified jurors’ is the primary safeguard against jury prejudice.” United States v. Ballenger, No. 21-cr-0719, 2022 WL 16533872, at *1 (D.D.C. Oct. 28, 2022) (quoting Morgan v. Illinois, 504 U.S. 719, 729 (1992)).
In Skilling, the Supreme Court identified three main factors to guide the inquiry into whether prejudice should be presumed before voir dire: (1) the “size and characteristics of the community in which the crime occurred;” (2) whether press coverage of the crime “contain[s] a confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight;” and (3) the time that elapsed between the crime and the trial. 561 U.S. at 382–83. Courts in this district have considered a large number of motions to transfer venue similar to that submitted by Defendant in this case. In every case, the court has denied the motion after evaluating the Skilling factors, finding that the defendant failed to establish extraordinary local prejudice that would prevent a fair trial. See Eicher, 2022 WL 11737926, at *1 (denying motion to transfer by defendant charged in connection with January 6, 2021 “[l]ike every other court of this jurisdiction to consider the same argument“); Gov’t’s Opp’n to Mot. Transfer Venue (“Gov’t’s Transfer Opp’n“) at 1 n.1, ECF No. 55 (explaining that “[e]very judge on this Court to have ruled on a motion for change of venue in a January 6 prosecution has denied the motion” and listing cases). After thorough review of Defendant’s motion, the Government’s opposition, and Defendant’s reply, the Court is convinced that the same result should obtain here.
1. Size and Characteristics of the Community
Defendant argues that the District of Columbia’s size and characteristics weigh in favor of a presumption of prejudice. Regarding size, Defendant explains that the population of D.C. is
Defendant next argues that the “events of January 6 have impacted D.C. residents much more directly than persons outside the District,” such that “the aftershocks of January 6 continue to reverberate.” Def.’s Mot. Transfer at 9. This is unpersuasive, as surely most crimes “more directly” impact the local area than elsewhere, and courts have held that a fair trial is possible
In sum, the size and characteristics of D.C. weigh against a presumption of prejudice. The Court is confident that thorough voir dire will be sufficient to root out any prejudice along the lines suggested by Defendant that calls into question a potential juror’s ability to be impartial.
2. Pretrial Publicity
Defendant emphasizes the “extent and the negative tenor of media coverage of the events that Mr. Rhine’s charges link him to.” Def.’s Mot. Transfer at 11. However, “prominence does not necessarily produce prejudice,” and even “pervasive, adverse publicity” does not necessarily compel a presumption of prejudice. Skilling, 561 U.S. at 381–384; see also Haldeman, 559 F.2d at 61 (finding no prejudice from pretrial press coverage despite the presence of articles “hostile in tone and accusatory in content“). While there has certainly been significant media coverage of January 6, as other courts in this district have pointed out, much of it has consisted only of “straightforward, unemotional factual accounts of events and of the progress of official and unofficial investigations.” Ballenger, 2022 WL 16533872, at *4. Moreover, “much of the coverage of January 6 has been national, not local, in nature,” such that the “influence of that coverage would be present wherever trial is held.” Id. (quoting Bochene, 579 F. Supp. 3d at 182); see also United States v. Chapin, 515 F.2d 1274, 1288 (D.C. Cir. 1975) (“[P]recedent demands that the court take into account whether the publicity is sufficiently localized that potential jurors in another area would be free of any taint from exposure to the press, enabling the change to serve its purpose.“); Eicher, 2022 WL 11737926, at *3 (“[M]ost communities throughout the country have been exposed to the exact same coverage [of January 6] as Washingtonians“).
Defendant argues that media coverage of January 6 is analogous to that in Rideau v. Louisiana, 373 U.S. 723 (1963), in which the Supreme Court reversed a conviction based on a finding that pretrial publicity made a fair trial impossible. See Def.’s Mot. Transfer at 11
The Court agrees that the questionable methodology and unpersuasive results of the Select Litigation survey here do nothing to overcome the D.C. Circuit’s preference for voir dire over a privately commissioned survey. The survey includes tendentious question phrasing that calls its results into question. For example, Defendant emphasizes that 85% of D.C. residents described the actions of “people who forced their way into the U.S. Capitol on January 6, 2021” with the phrase “Trying to overturn the election to keep Donald Trump in Power,” versus 63%
3. Time Elapsed
More than two years have elapsed since January 6, 2021. It may be that the “decibel level of publicity about the crimes” has lowered in that time, Tsarnaev, 780 F.3d at 22, but the Court acknowledges that recent events, including Congressional hearings and reports and ongoing and potential high-profile criminal prosecutions and civil suits arising out of the events of that day, have likely kept January 6 more toward the top of the public mind than it would be otherwise. However, as Defendant has not suggested that his case in particular has been the subject of any D.C. or national press attention, any residual press coverage of January 6 is merely “a factor that must be taken into consideration in jury selection.” Garcia, 2022 WL 2904352, at *9.
For the reasons stated above, the Court finds that rigorous voir dire will be sufficient to guarantee an impartial jury in the District of Columbia and therefore denies Defendant’s motion to transfer venue. To guarantee a searching voir dire, and in line with the approach taken by other courts in this district, the Court grants Defendant’s alternative request for individual questioning during voir dire, but denies as unnecessary Defendant’s request for a written juror questionnaire. See Gov’t’s Transfer Opp’n at 29 n.8 (noting that only one judge in this district has granted a request to use a juror questionnaire in a January 6 trial); Nassif, 2022 WL 4130841, at *11 (declining to adopt any special voir dire procedures, including individual questioning, and
B. Defendant’s Motion to Dismiss Counts 1 and 2
Defendant moves to dismiss Counts 1 and 2 of the Information, which charge Defendant with entering and remaining in a restricted building or grounds in violation of
1. Failure to State an Offense
Counts 1 and 2 of the Information charge Defendant under
(a) Whoever--
(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;
. . .
[shall be punished as provided in the statute.]
(c) In this section--
(1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area--
(A) of the White House or its grounds, or the Vice President‘s official residence or its grounds;
(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance; and
(2) the term “other person protected by the Secret Service” means any person whom the United States Secret Service is authorized to protect under section 3056
of this title or by Presidential memorandum, when such person has not declined such protection.
Defendant makes two arguments as to why Counts 1 and 2 fail to state an offense. First, he contends that the Information does not allege that the U.S. Secret Service (“USSS“) in fact restricted the area Defendant allegedly encroached upon. Def.’s 1st MTD at 3–7. Second, he argues that Vice President Pence was not “temporarily visiting” the restricted area. Id. at 7–9. Despite the fact that the Court rejected nearly identical arguments in United States v. Andries, No. 21-cr-0093, 2022 WL 768684, at *12–17 (D.D.C. March 14, 2022), Defendant makes no attempt to distinguish the present case. In fact, notwithstanding the Government’s repeated references to Andries in its opposition, Defendant only references the case a single time in its motion or reply—in a footnote for an unrelated proposition. See Def.’s 1st MTD at 18 n.4. Nor does Defendant engage with any of the several other opinions from courts in this district similarly rejecting such arguments in January 6 cases. See, e.g., United States v. Puma, 596 F. Supp. 3d 90, 109–114 (D.D.C. 2022); United States v. Bingert, No. 21-cr-0091, 2022 WL 1659163, at *14–15 (D.D.C. May 25, 2022); United States v. McHugh, 583 F. Supp. 3d 1, 31–35 (D.D.C. 2022); United States v. Anthony Williams, No. 21-cr-0377, ECF No. 88 (D.D.C. June 8, 2022); United States v. Riley Williams, No. 21-cr-0618, 2022 WL 2237301, at *18–20 (D.D.C. June 22, 2022); United States v. Mostofsky, 579 F. Supp. 3d 9, 27–28 (D.D.C. 2021).
Accordingly, the Court sees no basis on which to depart from the reasoning Andries or the other substantially similar cases. Like in these other cases, Defendant first argues that
Defendant’s second argument is that the Vice President was not “temporarily visiting” the restricted area because “he had a permanent office” at the Capitol in his role as President of the Senate. Def.’s 1st MTD at 7–8. Again, other courts in this district have rejected this
2. Non-Delegation Doctrine
Defendant argues that
Defendant claims that Congress impermissibly delegated legislative authority because the statute “does not provide any parameters, purposes, or other guidance to the Secret Service in deciding the spatial area to restrict or the length of time to so restrict it” and because “Congress did not specify what methods should be used to restrict access, whether it be by creating barriers, staffing security, etc.” Def.’s 1st MTD at 15. The Government contends that Defendant’s argument fails at the threshold, as
A conceptual distinction clarifies the disagreement between the parties: criminal delegations can be either explicit or implicit. An explicit delegation occurs where Congress passes a law granting an agency or government official some authority to define a crime, while an implicit delegation attaches to every criminal statute as a “necessary byproduct of
The Court need not reach the questions of whether
Recall that
(c) In this section--
(1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area--
(A) of the White House or its grounds, or the Vice President‘s official residence or its grounds;
(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance; and
(2) the term “other person protected by the Secret Service” means any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.
Now consider a hypothetical in which
[W]e have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the “public interest.” We have sustained authorizations for agencies to set “fair and equitable” prices and “just and reasonable” rates. We more recently affirmed a delegation to an agency to issue whatever air quality standards are “requisite to protect the public health.” And so forth.
Gundy, 139 S. Ct. 2116, 2129 (citations omitted). Accordingly, the method-based (e.g., “posted, cordoned off“), place-based (e.g., “a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting“), and purpose-based (“a
3. Vagueness and Overbreadth
Defendant argues that “section 1752 is so broad and its parameters so unclear that an ordinary person could not discern what conduct is criminalized by the statute.” Def.’s 1st MTD at 17–18. Defendant treats the doctrines of vagueness and overbreadth together. While overlapping, they are meaningfully distinct, so the Court analyzes Defendant’s arguments under the applicable legal framework.
With respect to Defendant’s facial vagueness challenge, due process requires that a criminal statute not be “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). “[T]he touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant‘s conduct was
With respect to Defendant’s facial overbreadth challenge, a statute is facially overbroad under the First Amendment if it “punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (internal quotations omitted).6 The overbreadth analysis requires the Court first to “construe the challenged statute” to determine “what [it] covers,” and then to determine if it “criminalizes a substantial amount of protected expressive activity.” United States v. Williams, 553 U.S. 285, 293, 297 (2008). The doctrine guards against the chilling effect that an overbroad law can have
Defendant makes a few combined arguments as to why the Court should find
Next, Defendant argues that
The alleged lack of temporal or spatial limitations also does not render
With respect to
4. Content-Based Speech Regulation
Finally, Defendant claims that
For the foregoing reasons, Defendant’s Motion to Dismiss Counts 1 and 2 is denied.
C. Defendant’s Motion to Dismiss Counts 3 and 4
Defendant moves to dismiss Counts 3 and 4 of the Information, which charge Defendant with engaging in disorderly and disruptive conduct in the Capitol with the intent to impede, disrupt, and disturb the orderly conduct of a session of Congress, in violation of
Defendant argues that the statute under which these counts are brought is unconstitutionally vague and overbroad, that the statute is an unconstitutional content-based restriction on protected expression, and that the Information fails to state an offense as to these counts.
1. Vagueness and Overbreadth
The legal framework for evaluating vagueness and overbreadth, as laid out supra Section III.B.3 in relation to Defendant’s Motion to Dismiss Counts 1 and 2, also applies here. With respect to Counts 3 and 4, Defendant argues that
(D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress; [or]
. . .
(G) parade, demonstrate, or picket in any of the Capitol Buildings.
With respect to vagueness, Defendant claims that subparagraph (e)(2)(D) is unconstitutionally vague because it criminalizes “disorderly or disruptive conduct” but “provides no definition of these terms.” Def.’s 2d MTD at 7. Defendant makes substantially similar arguments to support this position as he did with respect to the same term—“disorderly or disruptive conduct”—as used in
Overbreadth presents a closer question. Taking subparagraph (e)(2)(D) first, unlike
The scope of that “legitimate sweep” depends on an inquiry into the type of public property—the “forum”—where the speech regulation applies. See Initiative and Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1313 (D.C. Cir. 2005) (engaging in forum analysis before explaining that “one way in which the regulation would be overbroad is if a substantial number of [relevant public properties] constitute public forums”). Forum analysis “divides government property into three categories, and the category determines what types of restrictions will be permissible.” Initiative and Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066, 1070 (D.C. Cir. 2012). The “traditional public forum” includes places like public streets and parks “which by long tradition or by government fiat have been devoted to assembly and debate.” Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 802 (1985) (quotation omitted). Content-based government regulation of speech in traditional public forums is subject to strict scrutiny, under which the regulation must be “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). However, content-neutral regulations are subject only to the “less
The Court addresses
Turning to
All of these requirements are met here. As another court in this district found in upholding regulations on demonstration activity on the Capitol grounds against a facial First Amendment challenge, “[i]t is well established that ‘ensuring public safety and order’ is a significant government interest,” and “[t]hat interest is amplified near the Capitol . . . where prominent public officials are present and conducting official government business.” Mahoney v. United States Capitol Police Bd., 566 F. Supp. 3d 1, 9 (D.D.C. 2022) (quoting United States v. Mahoney, 247 F.3d 279, 286 (D.C. Cir. 2001)). If there was any doubt, the events of January 6 and subsequent prosecutions of suspected participants under
Finally,
2. Content-Based Speech Regulation
Similar to Defendant’s arguments as to
3. Failure to State an Offense
Finally, Defendant’s brief assertion that the Information fails to state an offense as to Counts 3 and 4 largely just rehashes his vagueness and overbreadth arguments. The Court finds that the Information meets the requirement to provide “a plain, concise, and definite written statement of the essential facts constituting the offense charged,”
D. Defendant’s Motion to Suppress
Defendant moves to suppress Google Location History data obtained by the Government pursuant to a “geofence” warrant (the “Geofence Warrant”). A geofence warrant authorizes the seizure of location data collected from smartphones of individuals within a particular area over a specified range of time. The Geofence Warrant in question here created a multi-step process authorizing the seizure of Google Location History data for individuals in and immediately around the Capitol building between 2:00 p.m. and 6:30 p.m. on January 6, 2021, subject to certain limitations. Defendant argues that the Geofence Warrant was overbroad and lacked particularity. The Government responds that Defendant does not have a reasonable expectation of privacy over his location that day, or over his Google Location History data during the relevant period more generally. In the alternative, the Government contends that the warrant was
As the relatively few other courts to consider the validity of geofence warrants have noted, technological advances coupled with corporate data collection practices have rapidly expanded law enforcement surveillance capabilities in ways that present new and consequential Fourth Amendment questions, the answers to which are not neatly directed by existing precedent. See, e.g., United States v. Chatrie, 590 F. Supp. 3d 901, 905 (E.D. Va. 2022). Accordingly, after providing relevant legal and factual background, the Court will review the state of the law on this evolving and important topic before turning to consider the merits of the parties’ arguments. Ultimately, the Court finds that, based on the unique facts at issue here, suppression is not warranted in this particular case.
1. Background: Geofences and Location History Data
Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects is not.12 At a basic level, a geofence warrant seeks cell phone location data stored by third-party companies like Google, which offers the Android operating system on which millions of smart phones run and offers other applications commonly used on phones running on other operating systems. See Ex. A to Def.’s Mot. Suppress (“Geofence Warrant & Application”) at 21, ECF No. 45-1. The scope of location data captured by a geofence is limited by geographic
The type of location data at issue here—Google Location History (“LH”)—comes from “a service that Google account holders may choose to use to keep track of locations they have visited while in possession of their compatible mobile devices.” Ex. D. to Def.’s Mot. Suppress, Chatrie Declaration of Marlo McGriff – Google Location History Product Manager (“Decl. of Marlo McGriff”) ¶ 4, ECF No. 43-2.13 LH is “considerably more precise than other kinds of location data, including cell-site location information” because LH is determined based on “multiple inputs,” including GPS signals, signals from nearby Wi-Fi networks, Bluetooth beacons, and cell towers. Id. ¶ 12; see Chatrie, 590 F. Supp. 3d at 907 (describing LH as “the most sweeping, granular and comprehensive tool—to a significant degree—when it comes to collecting and storing location data”). Google obtains LH data from users with Google accounts who opt in.14 Decl. of Marlo McGriff ¶ 4. Specifically, after logging into a Google account, a user must enable “Location Reporting,”15 at which point LH data is sent to Google “for processing and storage” in Google’s “Sensorvault.” Id. ¶ 9. LH “logs a device’s location, on
LH location data points, which are reflected in geographic coordinates, represent Google’s “estimate” of the user’s location. Id. ¶ 24. However, the “user’s actual location does not necessarily align perfectly with any one isolated LH data point.” Id. As such, each location data point comes with an error radius (which Google refers to as a “Map Display Radius”)—for example, 100 meters around the specified coordinates—the size of which varies depending on the quality of the data inputs, such as the strength of the GPS signal. See id. Google LH is designed to be correct that a user actually is within the error radius of where they appear to be approximately 68% of the time. See id. Google considers this to be reliable enough for its purposes to allow users to “store and visualize their location and movements in a journal,” and to allow Google to serve location-based advertisements. Id. ¶ 26.
2. Background: The Geofence Warrant
On January 13, 2021, the Government applied for and a magistrate judge approved the Geofence Warrant. See Geofence Warrant & Application at 1. The application sought LH data between 2:00 p.m. and 6:30 p.m. on January 6, 2021 for individuals in a target area slightly larger than but roughly tracing the contours of the Capitol building itself, excluding most of the plazas and lawns on both sides of the building and the abutting streets.
Geofence Warrant & Application at 5.
The warrant approved a three-step process for obtaining the LH data. See Def.’s Mot. Suppress at 6–11; Gov’t’s Opp’n to Mot. Suppress at 5–8, ECF No. 59. At step one, Google was to provide the Government with three anonymized lists of devices—a primary list and two control lists. The primary list consisted of devices that Google “calculated were or could have been (based on the associated margin of error for the estimated latitude/longitude point) within the TARGET LOCATION.” Geofence Warrant & Application at 6. The two control lists were “similar to the [primary] list” for time ranges of 12:00 p.m. to 12:15 p.m. and 9:00 p.m. to 9:15
The process that played out largely, though not entirely, adhered to process laid out in the warrant. On January 13, 2021, Google produced the three lists required under step one. See Supp. Affidavit, Ex. B to Def.‘s Mot. Suppress at 6, ECF No. 45-2. The primary list, which “was based on Google data as it existed on January 13, 2021,” consisted of 5,653 unique devices. Gov‘t‘s Opp‘n to Mot. Suppress at 6; Supp. Affidavit at 6. The control lists included 176 devices for the 12:00–12:15 p.m. time frame and 159 devices for the 9:00–9:15 p.m. timeframe. See id. Two days later, on January 15, 2021, Google also produced two additional versions of the primary list, one “based on data as it existed in the evening of January 6, 2021” that included
Based on the Government‘s analysis, the combined primary lists contained a total of 5,723 unique devices. Id. at 7. After culling the devices from the control lists, that number shrank to 5,518. Id. Out of those 5,518 devices, “1,498 of them ha[d] at least one location associated with the device that [was] within the [Capitol] building and the margin of error [fell] entirely within the Geofence.” Id. The Government filed a supplemental affidavit seeking the account identifiers and basic subscriber information for those 1,498 devices. See Gov‘t‘s Opp‘n to Mot. Suppress at 7; Supp. Affidavit at 7. In addition, 70 devices appeared on either of the two versions of the primary list based on data as of the evening of January 6, 2021 and the morning of January 7, 2021, but did not appear on the version of the primary list based on data as of January 13, 2021. Id. The Government suspects that the account data was deleted from those 70 devices in order to cover up the users’ participation in criminal activity on January 6, 2021. Id. Accordingly, the Government also sought account identifiers and subscriber information for a subset of 37 of those devices that had “at least one record that [was] located within the Geofence but some part of their margin of error [fell] outside of the Geofence.” Id. at 8. Based on the Government‘s supplemental affidavit, which included a list of all of the anonymized device identifiers for which it sought deanonymized information, on January 18, 2021 the same magistrate judge who approved the initial warrant approved an order requiring Google to
3. Background: Investigation and Arrest of Defendant
The affidavit of probable cause attached in support of an application for a warrant to search Defendant, which was submitted and approved on November 5, 2021, summarizes the Government‘s investigation as to Defendant in particular and the geofence data‘s place in that investigation. According to the affidavit, the Government received two tips on January 10 and January 12, 2021 that Defendant had been inside the Capitol on January 6. See Rhine Search Warrant Affidavit, Ex. M to Def.‘s Mot. Suppress at 12, ECF No. 45-6. The FBI also reviewed surveillance footage from inside the Capitol on January 6. See id. at 15. In a March 2021 interview, one of the tipsters provided a text message exchange with Defendant and his wife in which Defendant stated, “I witnessed ZERO violence. I saw no ‘proud boys.’ Capitol police removed barriers and let people in.” Id. at 14. Also in March 2021, investigators received returns from the Geofence Warrant and from another search warrant for cell-site location information (“CSLI“) associated with Defendant‘s Verizon cell phone number. See Ex. 1 to Gov‘t‘s Opp‘n to Def.‘s Mot. Suppress, ECF 59-1. The Geofence Warrant returns show that Defendant‘s cell phone was present in at least 26 points within the geofence, of which 22 were in the Capitol itself, between 2:24 p.m. and 4:37 p.m. on January 6. See Location Map, Ex. H to Def.‘s Mot. Suppress, ECF No. 45-4; see also Location Spreadsheet, Ex. G to Def.‘s Mot.
Based on this evidence, on November 5, 2021, the Government applied for and a magistrate judge approved a warrant to search Defendant and his cell phone(s). See Ex. M to
4. Legal Framework
The
Assessing probable cause requires a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “Probable cause is more than bare suspicion but is less than beyond a reasonable doubt and, indeed, is less than a preponderance of the evidence.” United States v. Burnett, 827 F.3d 1108, 1114 (D.C. Cir. 2016). As probable cause is a “fluid concept” that turns on “factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act,” the “duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Gates, 462 U.S. at 232, 238–39, 241 (internal quotation omitted); see also United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017) (explaining that “great deference to the judge‘s initial determination of probable cause” is required (internal quotation omitted)).
The requirement that a warrant state with particularity the place to be searched and the items to be seized serves the “manifest purpose . . . to prevent general searches.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). Accordingly, a warrant must be “no broader than the probable cause on which it is based.” United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006) (quoting United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002)). “By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to
Violations of the
5. Relevant Precedent
Having set the stage, the Court now turns to existing precedent concerning the validity of geofence warrants. The collection is limited. The Court has identified just one written opinion by a federal district court and one written opinion by a federal magistrate judge reviewing the validity of a search warrant after issuance.18 In addition, the Court has found five written opinions by federal magistrate judges considering the issue before issuance. As will be revealed by the Court‘s summary of these cases below, important factors on which the approval or rejection of geofence warrants has turned are whether the location and time parameters of the geofence in question were appropriately tailored to the scope of probable cause under the facts of each case, and whether the warrant required additional judicial approval before LH data could be deanonymized.
a. United States v. Chatrie
The lone district court case to directly consider the validity of a geofence warrant after issuance is United States v. Chatrie, 590 F. Supp. 3d 901 (E.D. Va. 2022) (Lauck, J.). Chatrie involved an armed bank robbery in a suburb near Richmond, Virginia in which law enforcement
The court concluded that the “warrant [was] invalid for lack of particularized probable cause,” but that suppression was inappropriate “because the Leon good faith exception applie[d].” Id. at 925. Because the court denied the motion based on the good faith exception, it declined to decide whether defendant had a reasonable expectation of privacy in data obtained through the geofence warrant in the first place. Id. In doing so, however, the court provided insightful commentary on the ways that “Fourth Amendment doctrine may be materially lagging behind technological innovations.” Id. In particular, the court emphasized how the existence of Google‘s vast library of “near exact location information for each user who opts in” provides the
Moving to the question of probable cause, the court found that the warrant was not supported by probable cause as to each person whose data was obtained. The court expressed disbelief at the government‘s assertion that “law enforcement established probable cause to obtain all information (Steps 1, 2, and 3) from all users within the geofence without any narrowing measures.” Id. at 929. It explained that “the Geofence Warrant is completely devoid of any suggestion that all—or even a substantial number of—the individuals searched had participated in or witnessed the crime.” Id. The court highlighted the “breadth of this warrant, particularly in light of the narrowness of the Government‘s probable cause showing,” emphasizing that the geofence was drawn to encompass “the entirety of [a] Church, and the Church‘s parking lot” and that the error radius for one user was as large as 387 meters, a radius that included a hotel, a restaurant, a storage facility, an apartment complex, a senior living facility, and multiple public streets. Id. at 930–31. Still, the court found that the good faith exception to the exclusionary rule applied principally because law enforcement‘s reliance on the warrant was reasonable in light of the unclear legality of this novel technology and the fact that the detective “sought advice from counsel before applying for the warrant.” Id. at 937–38 (internal quotation omitted).
The Court has identified six opinions by magistrate judges that consider the validity of applications for geofence warrants. The only one of these six to consider the subject after issuance of the warrant does not offer a useful comparison to the present case, as the court found that the defendant had no reasonable expectation of privacy over LH data associated with an account that was not owned by him and therefore declined to “journey into the quagmire of geofence search warrants.” United States v. Davis, No. 21-cr-0101, 2022 WL 3009240, at *8–9 (M.D. Ala. July 1, 2022) (Adams, Mag. J.). The other magistrate judges to consider the question have, to varying degrees, all been drawn into the quagmire. The Court reviews those cases in chronological order to place them in conversation with each other and bring out developments in this new area of law over time.
The first three of these are cases from the summer and fall of 2020 in the Northern District of Illinois. The first, which was decided on July 8, 2020, concerned an investigation into the theft and resale of pharmaceuticals. In re Search of Info. Stored at Premises Controlled by Google, as Further Described in Attch. A (“Pharma I“), No. 20 M 297, 2020 WL 5491763 (N.D. Ill. July 8, 2020) (Weisman, Mag. J.). Law enforcement applied for a geofence warrant to obtain Google LH data at two locations during three forty-five-minute periods on different dates. Id. at *1. The first location was where law enforcement believed “the suspect received the stolen pharmaceuticals from a commercial enterprise located within the designated geofence area.” Id. The geofence area encompassed a “100-meter radius . . . in a densely populated city,” an area that included “restaurants, various commercial establishments, and at least one large residential complex.” Id. The second location encompassed a different 100-meter radius “extending from the commercial establishment where the suspect [allegedly] shipped the pharmaceuticals” and
The court found that the warrant suffered from “two obvious constitutional infirmities:” overbreadth and lack of particularization. Id. at *3. With respect to overbreadth, the court highlighted that, despite the fact that the “government‘s evidence of probable cause is solely focused on one user of a cellular telephone,” the geofence area “is large, and the majority of the area sought encompasses structures and businesses that would necessarily have cell phone users who are not involved in these offenses.” Id.. The court rejected the government‘s proffered justification that the geofence area would include “possible co-conspirators” on grounds that “[t]here is no evidence in the application‘s supporting affidavit that the suspect is conspiring with anyone to commit these offenses.” Id. at *4. The court also rejected the government‘s related suggestion that the geofence area would include witnesses on grounds that the only witnesses “are the employees at the targeted businesses who assisted the suspect in the transactions” and because “the notion that individuals in the area would be witnesses to the offense is not mentioned in the government‘s affidavit.” Id. at *5. At bottom, the court agreed that “the date and time are sufficiently prescribed,” but held that “the location clearly is not,” emphasizing again that the “congested urban area” included numerous businesses and residences such that the
With respect to particularity, the court explained that “the warrant application is completely devoid of any meaningful limitation, seeking only ‘evidence or instrumentalities’ of the listed offenses. Id. at *3. In light of the “urban nature of the encompassed area,” the court lamented the lack of any “objective measure that limits the agents’ discretion” such as a limitation that agents could “only seek[] identifying information as to the ‘five phones located closest to the center point of the geofence’ or some similar objective measure of particularity.” Id. at *6. The court noted that, in an unrelated case, a geofence warrant “for an almost empty commercial parking lot where only one vehicle was located” avoided “any overbreadth issue and addressed the particularity requirement necessary for a valid warrant.” Id. at *6 n.8. The court concluded by explaining that the “government could easily have sought a constitutionally valid search warrant” if it “had constrained the geographic size of the geofence and limited the cellular telephone numbers for which agents could seek additional information to those numbers that appear in all three defined geofences.” Id. at *7.
As part of the same investigation, the government tried again about six weeks later. See In re Search of: Info. Stored at Premises Controlled by Google (“Pharma II“), 481 F. Supp. 3d 730, 733 (N.D. Ill. 2020) (Fuentes, Mag. J.) (explaining the denial of the first renewed application). The renewed application changed the geographic boundaries of the geofence, “shrinking the geofences to . . . square or polygon-shaped boundaries around [the two locations].” Id. at 744. Still, a different magistrate judge from Pharma I found that the “modifications the government made to the geofence boundaries do not solve the constitutional problem because although the modifications may well reduce the number of devices Google
About a month after that, the government tried a third time. In the second renewed application the government retained the same geographic boundaries from the first renewed application, but “altered the proposed search protocol to eliminate the third of the three stages proposed in the first two applications.” Id. at 733. That is, the government‘s application no longer sought authorization to compel Google to produce “subscriber information identifying the account holders or users” of devices selected by the government off of the anonymized list. The renewed application also “limit[ed] the ‘anonymized’ information to that which ‘identifies individuals who committed or witnessed the offense,‘” though it provided “[n]o further methodology or protocol . . . as to how Google would know which of the sought-after anonymized information identifies suspects or witnesses.” Id.
The same magistrate judge that rejected the first renewed application again rejected the second renewed application. After a lengthy and useful review of relevant Fourth Amendment principles, the court first found that the government had “forfeited” any argument that seeking geofence data did not amount to a “search” for Fourth Amendment purposes, though it noted that there is “much to suggest” that it does. Id. at 736–37. Moving to the question of probable cause, the court reiterated all of the issues it identified with the geographic boundaries in its order
With respect to particularity, the court again found the list of items to be seized insufficiently particular because it “does not identify any of the persons whose location information the government will obtain from Google.” Id. at 754. The warrant thus gave the government “unbridled discretion as to what device IDs would be used as the basis for” obtaining identifying information. Id. The Court concluded by noting that some geofence warrants could pass muster under the Fourth Amendment, if the government could “establish independently that only the suspected offender(s) would be found in the geofence, or where probable cause to commit an offense could be found as to all present there.” Id. at 756.
Some two months later, in October 2020, another magistrate judge in the same district but presiding over a different case was presented with similar issues. See In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (“Arson“), 497 F. Supp. 3d 345 (N.D. Ill. 2020) (Harjani, Mag. J.). In that case, the government applied for a geofence warrant as part of an investigation into approximately 10 arsons, some of which caused significant destruction, in commercial lots in the Chicago area. Id. at 351. Law enforcement sought Google LH data for six locations. The first location was a triangle about “a
Similar to the warrants in Chatrie, Pharma I, and Pharma II, the Arson warrant contemplated a multi-step process whereby Google would first provide “anonymized lists of devices with corresponding device IDs, timestamps, location coordinates, margins of error, and data sources for the devices that Google calculates were or could have been (i.e. the margin of
After warning that “it is easy for a geofence warrant, if cast too broadly, to cross the threshold into unconstitutionality because of the lack of probable cause and particularity,” the court approved the warrant on grounds that, “[i]n this particular case, the government has structured the geofence zones to minimize the potential for capturing the location data for uninvolved individuals and maximize the potential for capturing location data for suspects and witnesses.”19 Id. With respect to overbreadth, the court first found that the government‘s time limitations—15–30 minutes in the middle of the night—were “tailored and specific to the time of the arson incidents only.” Id. at 357. Next, the court found the geographic boundaries to be “narrowly crafted to ensure that location data, with a fair probability, will capture evidence of the crime only,” based on the evidence provided by the government. Id. The court elaborated:
Each of these target locations is drawn to capture location data from locations at or closely associated with the arson. In each of these locations, there is a fair probability that the location data of perpetrators, co-conspirators and witnesses to the incidents will be uncovered. More specifically, because of the visible nature of the crime, namely arson, it is likely that individuals that happen to be in the commercial lot at that hour or on the street would have information about the crime.
Id. at 358. Relatedly, the court distinguished the case from Pharma I and Pharma II on grounds that, unlike those cases, in which the geofences had the “potential to capture vast swaths of location data of individuals not connected to the crime,” the Arson warrant was “constructed to
The next written opinion concerning the validity of a geofence warrant that the Court identified was issued in June 2021 by a magistrate judge in the District of Kansas. See In re Search of Info. That Is Stored at the Premises Controlled by Google (“Kansas“), 542 F. Supp. 3d 1153 (D. Kan. 2021) (Mitchell, Mag. J.). The court did not provide detailed factual background to protect the ongoing investigation, but noted that the warrant application sought “geofence data from an area surrounding the alleged crime location, which is a sizeable business establishment, during a one-hour period on the relevant date.” Id. at 1155. The subject building also “contain[ed] another business” and the geofence area “encompasse[d] two public streets,” with “residences and other business” just outside the geofence area and potentially within the margin of error. Id. at 1158. On this basis, the court found that the “geofence boundary appears to potentially include the data for cell phone users having nothing to do with the alleged criminal activity.” Id. Moreover, it found the “nexus between the alleged criminal activity and [the] one-hour duration [to be] weak,” as video surveillance showed the suspect at “three discrete times,” while the “geofence‘s temporal scope ranges from just before the second sighting to
Finally, a magistrate judge in this district considered a geofence warrant application in December 2021. In re Search of Info. that is Stored at the Premises Controlled by Google (“DC“), 579 F. Supp. 3d 62 (D.D.C. 2021) (Harvey, Mag. J.).21 Again, the court did not describe the alleged offense to protect the ongoing investigation, but it did provide detail about the warrant application. Specifically, the government requested a geofence covering a building “in an industrial area” which “share[d] a building with another business.” Id. at 72. However, the triangular geofence area covered only “a portion of the front-half of the [building], plus its parking lot,” such that “[n]o other structures [were] included in the geofence area” including “the part of the building . . . share[d] with the other business.” Id.. The court estimated the size of the geofence area at 875 square meters, or approximately 30–35 meters on the short sides of the triangle, and 45–50 meters on the long side. Id.. This was not the first warrant application presented to the court. A prior version contained a target area in the shape of a circle with a “radius of approximately 35 meters” which “appeared to capture part of the road abutting the building” and “included part of a building behind” the subject building “as well as the business that shares the [subject] building.” Id. at 72 n.12. However, “[f]ollowing discussions with the Court, the government further limited the scope of the geofence to exclude these areas in which it had no evidence that criminal activity occurred.” Id.. The geofence timeframe was a total of
In the initial warrant, the government proposed the familiar steps included in the warrant applications under review in the other cases: Google would produce an anonymized list, the government would identify, at its discretion, a subset for which it wanted identifying information, which Google would then provide. However, “[t]he court had concerns about this protocol, namely the fact that the government could, ‘at its discretion,’ order Google to disclose the identifying information for certain accounts without any guardrails on the exercise of that discretion or further review by the Court.” Id. at 73. Accordingly, “[a]fter discussions with the government regarding the issue, it submitted a revised warrant application” in which, after selecting the subset of devices for which it sought identifying information, the government then had to identify those devices “in additional legal process to the Court.” Id.. At that point, the court had discretion to “order Google to disclose” that information. Id. at 74. In the court‘s view, this revised process vested “discretion as to what devices falling within the geofence to deanonymize” with the court, not the government. Id..
Turning to the merits, the court found that the warrant was supported by probable cause. Specifically, the court found that there was probable cause to believe that the suspects were within the geofence during the designated time windows and that the suspects were actually using cell phones during those time windows, based on evidence provided by the government, including surveillance footage. Id. at 77. Regarding particularity, the court found that the government had “appropriately contoured the temporal and geographic windows in which it [was] seeking location data.” Id. at 80. While the court acknowledged that the 185 minutes sought in the application before it was more than the 139 minutes approved in Arson, it found
Accordingly, the court held that the warrant was not overbroad because “the duration and location of the requested geofence closely track[ed] the probable cause presented in the government’s warrant application.” Id. The court acknowledged that the geofence, “when considering its margin of error, will capture the location information for other customers inside the [subject building] or motorists merely driving by the [subject building] on the abutting road or an employee in the adjoining business during the requested time.” Id. at 85. But the court held that this did not make the warrant constitutionally infirm because “constitutionally permissible searches may infringe on the privacy interests of third persons” and “in this case it appears physically impossible for the government to have constructed its geofence to exclude everyone but the suspects.” Id. at 82, 85 (citing cases approving searches that swept in third-party text messages, emails, and business records, among other contexts). Besides, the court reasoned, the “request for location information here does not have the potential of sweeping up the location data of a substantial number of uninvolved persons,” unlike in Pharma I, Pharma II, and Kansas. Id. at 85 (emphasis added). The court continued that, unlike in Pharma I and Pharma II, “the geofence drawn here is located in an industrial area, not a congested urban area,
The court also emphasized that “any overbreadth concerns raised by the requested geofence are further addressed by the warrant’s two-step search procedure, which ensures identifying information associated with devices found within the geofence will be produced only pursuant to a further directive from the Court.” Id. at 87 (distinguishing this procedure from the procedures at issue in Pharma I and Pharma II, which would have vested discretion to obtain identifying information entirely with the government). In this way, “the ultimate decision as to which subscribers, if any, Google will be compelled to identify lies with the Court.” Id. at 88. Accordingly, the court granted the warrant as based on its finding of particularized probable cause. Id. at 90–91.
6. Analysis
The Court turns now to the merits of Defendant’s motion to suppress. The Court finds that the Geofence Warrant was supported by particularized probable cause, and regardless that its alleged infirmities would fall into the good faith exception to the exclusionary rule, so suppression is unwarranted in this case.
a. Reasonable Expectation of Privacy
The Government first argues that Defendant’s motion fails at the threshold because Defendant had no reasonable expectation of privacy over his location within the Capitol building or over his LH data, so no Fourth Amendment search occurred. Gov’t’s Opp’n to Mot. Suppress at 11–25. Because the Court denies Defendant’s motion on other grounds, it follows the approach of the courts in Chatrie, Pharma I, Pharma II, and Arson in declining to reach the issue of Fourth Amendment standing. See United States v. Sheffield, 832 F.3d 296, 304–05 (D.C. Cir. 2016) (explaining that Fourth Amendment standing is “non-jurisdictional” and “merely an aspect of the substantive merits of a Fourth Amendment claim”). Still, the Court feels a brief and non-exhaustive review of recent Supreme Court opinions addressed to this question is relevant to the extent that it reveals principles helpful in guiding application of Fourth Amendment doctrine to law enforcement’s increasing use of new technologies.
In Riley v. California, 573 U.S. 373 (2014), the Supreme Court held the search-incident-to arrest requirement generally inapplicable to cell phones. The Court noted how cell phone location data “can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building,” and further how “[c]ell phone users often may not know whether particular information is stored on the device or in the cloud.” Riley v. California, 573 U.S. 373, 396–97 (2014). In doing so, it emphasized the central role of the warrant in safeguarding the “privacies of life” contained on modern cell phones, concluding that the “answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Id. at 403 (citation omitted). In United States v. Jones, 565 U.S. 400 (2012), the Court held that attaching a GPS tracker to a vehicle constituted a Fourth Amendment search generally subject to the warrant requirement. In Carpenter v. United States, 138 S. Ct. 2206 (2018), the Court interpreted Jones to stand for the rule that “individuals have a reasonable expectation of privacy in the whole of their movements.” Id. at 2217. It explained that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.” Id. The Carpenter Court also identified two “basic guideposts” to steer application of the “Fourth Amendment to innovations in surveillance tools:” first, that the Fourth Amendment’s purpose is to “secure the privacies of life against arbitrary power;” and second, that the Framers intended to “place obstacles in the way of a too permeating
While the Court does not decide the question of whether Defendant had a reasonable expectation of privacy over his LH data, it bears in mind the principles reflected in the Supreme Court’s recent opinions as it turns to evaluate the sufficiency of the Geofence Warrant.
b. Overbreadth
Defendant does not dispute that there was probable cause to believe that the geofence area would contain evidence of a crime, but rather argues that the Geofence Warrant was overbroad; that is, that the warrant’s authorization exceeded the scope of probable cause on which it issued. Def.’s Mot. Suppress at 23–26.
Specifically, Defendant first argues that step one, in which Google provided the Government with an anonymized list of devices falling within the geofence’s geographic and temporal parameters, was overbroad because it required Google to query its entire Sensorvault without probable cause “to search untold millions of unknown accounts in a massive fishing expedition.” Id. at 24. But, as the Government points out, the relevant question is not how Google runs searches on its data, but what the warrant authorizes the Government to search and
Defendant’s challenges to step two are unpersuasive for similar reasons. Defendant first argues that Google should not have disclosed the two additional versions of the primary list from step one on January 15, 2021. See Def.’s Mot. Suppress at 25. These were the lists based on Google’s data as it existed on the evening of January 6 and the morning of January 7. Defendant also claims that Google violated its own policies with respect to preserving data from the “deleted devices.” Id. These are quarrels with Google, and Defendant makes no allegation that the Government requested or compelled these actions even if they were in excess of the warrant’s authorization. See Burdeau v. McDowell, 256 U.S. 465, 475 (1921) (explaining, where the defendant’s papers were stolen by a third party who turned them over to the government, that the Fourth Amendment “was not intended to be a limitation upon other than governmental agencies” so because “no official from the federal government had anything to do with the wrongful seizure . . . or any knowledge thereof until several months after the property had been taken . . . there was no invasion of the security afforded by the Fourth Amendment”). Besides, the two additional primary lists consisted only of anonymous step one data falling under the warrant’s authorization.
Defendant next takes issue with the control lists, which contained anonymized device information for two fifteen-minute periods at 12:00 p.m. and 9:00 p.m. on January 6, because these windows of time fall outside the “geofence time limit.” Def.’s Mot. Suppress at 25. But again, these lists contained only anonymized device identifiers.23 And while it is true that these
That said, the Court acknowledges that the scope of legally obtainable anonymous data made possible by geofencing technology could present potentially significant risks to privacy, even if those privacy interests cannot be expressed through Defendant’s challenge to step one of this particular warrant, on these particular facts, under current law. See Jennifer Valentino-DeVries, Natasha Singer, Michael H. Keller & Aaron Krolik, Your Apps Know Where You Were Last Night, and They’re Not Keeping It Secret, N.Y. TIMES (Dec. 10, 2018), https://www.nytimes.com/interactive/2018/12/10/business/location-data-privacy-apps.html (explaining various ways that anonymous data can be used to establish identity). The Court aligns itself with the Chatrie court’s impression that “[i]t is not within this Court’s purview to decide” broad questions raised by geofencing technology on the facts of this case, but that these questions’ increasing importance “urges legislative action.” Chatrie, 590 F. Supp. 3d at 926.
Defendant’s overbreadth claim as to step three, in which the court authorized the Government to obtain deanonymized account information for the narrowed list from Google, presents a closer question.24 At the outset, because a warrant’s authorization may be “no broader than the probable cause on which it is based,” Hurwitz, 459 F.3d at 473 (citation omitted), it is necessary to define the scope of that probable cause. January 6 was a unique event in a
Having established the unusually broad scope of probable cause that supports the Geofence Warrant based on the unique facts of this case, the Court turns to Defendant’s claim that the warrant’s authorization under step three is nonetheless overbroad. Defendant’s principal argument is that the steps taken to narrow the primary list at step two were insufficient, such that there was “no meaningful showing of probable cause in [the Government’s] follow up warrant affidavit.” Def.’s Mot. Suppress at 26, 30. In support of this argument, Defendant points to the size of the geofence area, particularly in light of the relevant error radius for each given location point. Id. at 29–30.
With respect to the narrowing process at step two, given the broad scope of probable cause, the Court finds the use of control lists to narrow the step three universe to be a reasonable approach that reflected the relevant “factual and practical considerations” under the circumstances—namely, the large volume of suspects and the unusually well-documented timeline of events indicating when they, as opposed to uninvolved bystanders, would have been present within the Geofence area. Gates, 462 U.S. at 241; see, e.g., Ryan Goodman & Justin Hendrix, January 6 Clearinghouse, JUST SECURITY (Dec. 22, 2022), https://www.justsecurity.org/77022/january-6-clearinghouse/ (showing, under the “Timelines” drop-down tab, numerous detailed timelines of events on January 6, including multiple from official government sources). Moreover, the Court’s step three deanonymization order was based on further averment by the Government that the 1,498 devices from the primary list for which it sought subscriber information “ha[d] at least one location associated with the device that
Similarly effective narrowing measures were not taken in any of the geofence cases discussed above, all of which involved significantly narrower probable cause. As explained above, the absence of such measures was critical in Chartrie, Pharma I, Pharma II, and Kansas, but even the two magistrate judges to approve the geofence warrants insisted on less stringent procedures. See Arson, 497 F. Supp. 3d at 362 (finding that the “government has established probable cause to seize all location and subscriber data within the geofence locations identified” with no required limiting procedures); DC, 579 F. Supp. 3d at 73 (requiring only that the government “review [the] list to identify devices, if any, that it can determine are not likely to be relevant to the investigation”). The Court sees no cause, based on the step two narrowing
Moving to Defendant’s arguments about the geographic area covered by the geofence, at the outset, the Court reiterates that the geofence area closely, although not perfectly, contours the Capitol building itself, and does not include the vast majority of the plazas or grounds surrounding the building. More importantly, two main factors convince the Court that the geofence area is not overbroad. First, recall that the error radius only extends outside the boundary of the geofence for 37 of the 1,535 devices for which the Government sought subscriber information—the “deleted devices.” The other 1,498 devices “ha[d] at least one location associated with the device that [was] within the [Capitol] building and the margin of error [fell] entirely within the Geofence.” Supp. Affidavit at 7. Recognizing that there is still a roughly 32% chance that any given data point is inaccurate, error radius notwithstanding, Supp. Affidavit at 7, there is still a “substantial basis” for the magistrate judge to have identified a “fair probability” that all of these 1,498 devices were linked to suspects or witnesses, Gates, 462 U.S. at 238–39; Burnett, 827 F.3d at 1114 (“Probable cause is . . . less than a preponderance of the evidence.”).
Second, as relevant to the 37 deleted devices, the area around the Capitol is unusual for its lack of nearby commercial businesses or residences. Indeed, while Defendant does not make any specific allegations about any such nearby buildings, the Court’s best estimate is that the nearest is no less than about a quarter of a mile away, or approximately 400 meters.27 By Defendant’s own admission, the error radius is not known to exceed 387 meters, Def.’s Mot.
residential complex . . . .”); Kansas, 542 F. Supp. 3d at 1158 (taking issue with the fact that the geofence “boundary encompasses two public streets” and “another business”, and that the “area just outside of the perimeter of the geofence includes residences and other businesses that could be implicated by the margin of error”).
With respect to the timeframe, Defendant repeatedly references the “four-and-a-half-hour period” for which the Geofence Warrant authorized seizure of LH data, but does not directly argue that the time period is overbroad. See Def.’s Mot. Suppress at 6, 7, 10, 26, 29. The Court thus has no occasion to second-guess the magistrate judge’s determination that this period was at most co-extensive with the scope of probable cause, a determination that the Court notes is corroborated by the January 6 timelines referenced above. See, e.g. Press Release, Department of Defense, Planning and Execution Timeline for the National Guard’s Involvement in the January 6, 2021 Violent Attack at the U.S. Capitol (Jan. 8, 2021), https://www.defense.gov/News/Releases/Release/Article/2467051/planning-and-execution-timeline-for-the-national-guards-involvement-in-the-janu/ (showing that the Commanding General of the D.C. National Guard received a “request for immediate assistance” from the Chief of the U.S. Capitol Police by 1:49 p.m. and that the Capitol building was not declared secure until 8:00 p.m.). While this period is longer than previous geofence timeframes, this is simply because more criminal activity occurred over a longer period of time than in those cases, and therefore this fact does not undermine the reasonableness of the time parameter used here. See DC, 579 F. Supp. 3d at 81 (finding that “[a]lthough a total of 185 minutes of geofence data is more than the [Arson] court sanctioned, the government’s request in this case [was] reasonable” because the time windows were “closely keyed to the periods during which the” criminal activity occurred) ; see Hearing Transcript at 27, United States v. Cruz, Jr., No. 22-cr-0064 (D.D.C. Jan. 13, 2023) (“Here we’re talking about a distinct location where a crime was being committed at a particular time and they sought information to find out who was there at a particular time. I think that’s clearly reasonable.”).
In sum, the Court finds that the Geofence Warrant’s authorization was no greater than the scope of probable cause on which it issued, and therefore that it was not overbroad.
c. Particularity
With respect to particularity, Defendant’s main argument is that the Geofence Warrant vested too much discretion in the Government. Surprisingly, Defendant cites Pharma I and Pharma II for the proposition that “Courts have repeatedly held that the Court must be more involved in narrowing at steps 2 and 3.” Def.’s Mot. Suppress at 30–31. But more involved than what? Pharma I and Pharma II involved geofence warrants that contemplated no role for the Court beyond the issuance of the initial warrant. See, e.g., Pharma I, 2020 WL 5491763, at *1 (“The warrant application includes no criteria or limitations as to which cellular telephones the government agents can seek additional information.”). By contrast, here, the terms of the initial warrant precluded disclosure of deanonymized device information except after separate order of the court based on a supplemental affidavit. This same approach was approved in DC, and the Chatrie court also suggested this approach was constitutionally permissible because, “crucially, the [DC] warrant left ultimate discretion as to which users’ information to disclose to the reviewing court, not to Google or law enforcement.” Chatrie, 590 F. Supp. 3d at 933 (“Although the instant warrant is invalid, where law enforcement establishes such narrow, particularized probable cause through a series of steps with a court’s authorization in between, a geofence warrant may be constitutional.”). The Court accordingly finds that the approach taken here did not vest too much authority in the Government. See Dalia v. United States, 441 U.S. 238, 257 (1979) (“Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that . . . search warrants also must include a specification of the precise manner in which they are to be executed.”); United States v. Riley, 906 F.2d 841, 844–45 (2d Cir. 1990) (finding that the “particularity requirement is not so exacting” as to “eliminate all discretion of the officers executing the warrant”).
Defendant also takes issue with the list of items to be seized attached to the Geofence Warrant on grounds that it includes the language, “Information that constitutes evidence concerning persons who either (i) collaborated, conspired, or assisted (knowingly or unknowingly) . . . .” Geofence Warrant & Application at 8 (emphasis added). Defendant argues that this permits officers to seize information that is “not evidence of a crime.” Def.’s Mot. Suppress at 31 (alterations omitted). This is a dubious assertion, as surely even unwitting accomplices can provide witness testimony. More importantly, as the Government points out, Defendant misreads the structure of the Warrant. This language appears in the second of twelve subparagraphs in Section II setting out categories of items to be seized. However, the entirety of Section II is limited to “information described in Section I that constitutes evidence of” listed offenses. Geofence Warrant & Application at 8; Gov’t’s Opp’n to Def.’s Mot. Suppress at 36–37. Section I authorizes search only of LH data and account information for devices with responsive data. Geofence Warrant & Application at 4. In this way, contrary to Defendant’s claim that the “breadth and vagaries of the items to be seized was an invitation to do a general search,” the items to be seized are cabined by (1) Section I; (2) the offenses listed in the umbrella paragraph to Section II; and (3) the description in the twelve subparagraphs in Section II. The Court is satisfied that the terms of the Geofence Warrant did not permit “unbridled rummaging” by the executing officers. See In re Search Warrant Dated July 4, 1977, for Premises at 2125 S St. Northwest Washington, D.C., 572 F.2d 321 (D.C. Cir. 1977) (Robinson III, J., concurring in declining to request rehearing en banc); see also United States v. Vaughn, 830 F.2d 1185, 1186 (D.C. Cir. 1987) (“When judging questions of particularity, we are concerned with realities of administration of criminal justice. It is sufficient if the warrant signed by the judicial officer is particular enough if read with reasonable effort by the officer executing the warrant.” (cleaned up)).
d. Good Faith Exception
Finally, though it need not dwell on the topic, having found the Geofence Warrant to be constitutionally valid, the Court notes that the alleged lack of particularized probable cause would not have been grounds for suppression anyway. Under the good-faith exception, “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant” need not be suppressed. Leon, 468 U.S. at 922. Thus, the exclusionary rule only applies where the affidavit of probable cause is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Griffith, 867 F.3d at 1278 (quotation omitted). Defendant reasserts his complaints regarding Google’s search protocols as reasons to infer bad faith on the part of the Government in executing the warrant. Def.’s Reply Mot. Suppress at 9–10, ECF No. 64. But, in line with its rejection of these same arguments in the context of Defendant’s overbreadth claim, the Court does not find that Defendant’s allegations that Google provided an excessive response to the Government’s request sufficient grounds to assume bad faith by the Government. Defendant’s other arguments as to why the good faith exception should not apply simply rehash his arguments regarding overbreadth and particularity. See id. at 11–15. For the reasons stated above, the Court is not persuaded by these arguments, and would not suppress the evidence obtained from the Geofence Warrant under the
Accordingly, Defendant’s motion to suppress evidence obtained from the Geofence Warrant is denied.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Transfer Venue (ECF No. 42) is DENIED, Defendant’s Motion for Expanded Voir Dire (ECF No. 42) is GRANTED IN PART and DENIED IN PART, Defendant’s Motion to Dismiss Counts 1 and 2 (ECF No. 46) is DENIED, Defendant’s Motion to Dismiss Counts 3 and 4 (ECF No. 47) is DENIED, and Defendant’s Motion to Suppress (ECF No. 43) is DENIED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: January 24, 2023
RUDOLPH CONTRERAS
United States District Judge