Judges Gavel

A groundbreaking Fourth Amendment challenge with national implications is brewing in federal court in Richmond over a search warrant for Google data in a $195,000 bank robbery case.

Authorities used a “geofence” warrant to obtain Google location history data that led to the identification of Okello T. Chatrie, 24, as a suspect in the takeover-style armed robbery of the Call Federal Credit Union in Midlothian in May.

Such warrants are increasingly being used by law enforcement across the country. In Chatrie’s case, the warrant sought location histories kept by Google of cellphones and other devices used within 150 meters (500 feet) of the bank during a period of one to two hours surrounding the time of the crime.

In a pending motion to suppress the evidence, Chatrie’s lawyers argue that “this is no ordinary warrant. It is a general warrant purporting to authorize a classic dragnet search of every Google user who happened to be near a bank in suburban Richmond during rush hour on a Monday evening.”

They assert that the search area potentially includes a Ruby Tuesday restaurant, a Hampton Inn hotel, a ministorage facility, apartment complexes and Journey Christian Church — in addition to a major road, U.S. 360.

The warrant “required Google to identify a large cache of deeply private data ... and then allowed police the discretion to obtain private information from devices of interest.”

Prosecutors argue that Chatrie “voluntarily disclosed his location information to Google and Google’s disclosure of that information to the government did not infringe upon his reasonable expectation of privacy.”

Prosecutors cited Google’s own description of how the location data is used: “From driving directions, to making sure your search results include things near you, to showing you when a restaurant is typically busy, location can make your experiences across Google more relevant and helpful.”

“Investigators knew that Google stored location information that could help them apprehend and convict the robber,” said the U.S. attorney’s office.

In a brief filed in the case, Google took no position on the constitutionality question but said its location history data can be more accurate than cell tower location data that has been subjected to search and seizure challenges in other cases. Google location history is not a business record, but a journal of a user’s location and travels that is created, edited and stored by Google users who have opted into the service and for their benefit, according to the company.

The law requires the government to obtain a warrant compelling the production of such information. Typically in the past, authorities have sought data on a particular person of interest in an investigation.

“This case, in contrast, concerns a novel but rapidly growing technique in which law enforcement seeks to require to search across [location history] data, using legal requests sometimes called ‘geofence’ requests,” wrote Google lawyers.

They said the company saw a 1,500% increase in the number of such requests from 2017 to 2018 and a 500% increase from 2018 until last month.

Geofences are virtual perimeters for actual geographic areas.

At the conclusion of a hearing on a discovery motion in Chatrie’s case on Tuesday, U.S. District Judge M. Hannah Lauck said, “What we have here before us is a case of first impression.”

She noted that the case involves technology that both sides concede is not fully understood and said that the warrant potentially could have netted data from a million or more people.

“We have to be really careful about what we’re doing,” Lauck said.

Lauck asked for more information from both sides and will reschedule a two-day suppression hearing that had been set to begin Feb. 20.

Chatrie’s lawyers with the federal public defender office and the National Association of Criminal Defense Lawyers argue in their suppression motion that Lauck “should treat the geofence warrant here as any other general warrant: repugnant to the Constitution. Geofence warrants represent an unprecedented expansion of the government’s surveillance capabilities.”

In its brief opposing the motion, the U.S. attorney’s office countered that “the geofence warrant did not remotely resemble a general warrant.”

“The GeoFence warrant authorized the government to obtain from Google limited and specified information directly tied to a particular robbery at a particular place and time,” said the government.

“In response to a ‘geofence’ warrant, Google could produce location and identity information from accounts associated with electronic devices present in a specified area at a specified time,” prosecutors wrote.

The credit union robbery occurred at 4:50 p.m. May 20.

Authorities said that when the robber reached a teller’s station, he presented a handwritten note that read, in part, “I got your family as hostage and I know where you live, If you or your coworker alert the cops or anyone your family and you are going to be hurt ... I need at least 100k.”

After the teller said she did not have access to that much cash, the robber pulled out a handgun, waved it around and ordered credit union employees and customers to move to the center of the lobby and get on the floor.

He then ordered employees to move behind the teller counter into a back room, told them to get on their knees at gunpoint, and demanded that the bank manager open a safe. The manager opened the safe and handed over $195,000.

Surveillance video from the credit union showed that the armed robber approached from an area behind a nearby church, held a cellphone to his ear when entering the credit union, and ran back toward the church after the robbery. A church employee told law enforcement that he saw a suspicious person in a newer-model, blue Buick sedan before the robbery.

The warrant authorized disclosure of data in a three-step process.

In the first step, Google was to disclose location information for devices present in the robbery area during the hour of the robbery — from 4:20 to 5:20 p.m. — but not turn over identifying information associated with the devices.

In the second step, law enforcement reviewed the “anonymized” location information from Google looking for accounts of interest where location data might be consistent with what was known or suspected about the robber’s movement before, during and after the robbery.

In the third step, Google turned over identifying information for accounts that law enforcement officials determined were of interest.

Chatrie’s lawyers said step one concerned 19 Google users; step two, nine users; and in step three, law enforcement officials were given identifying information for three users, including Chatrie, that was used to pursue the investigation.

Kenneth R. Simon Jr., an assistant U.S. attorney, conceded at Tuesday’s hearing that everything in the case flowed from the search warrant.

At Tuesday’s hearing, a defense expert witness testified that cellphone users are not necessarily aware of what they are agreeing to when they opt to use Google services.

Simon told Lauck that “we’ve produced everything that Google has provided us” to the defense.

Chatrie’s lawyers, Michael W. Price, with the National Association of Criminal Defense Lawyers, and Laura Koenig, with the public defender office, argued that more information was needed about how Google came up with the data that was turned over to the government.

In its brief, Google wrote that “given the capacity of geofence searches to intrude on personal privacy, their use should be supervised by a neutral magistrate and restricted to cases in which the government can establish probable cause.”

Chatrie was charged in a Sept. 17 indictment with using a firearm during a crime of violence and “forced accompaniment during armed credit union robbery.”

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