Steve: Alright, it is time Lawyer Talk Q and A. The long awaited delay is over. We are back with QA. Steve Palmer here with Lawyer Talk Q and A series at the Lawyer Talk podcast dot com. So what's going on here? People submit their questions and I try to answer them. Everybody knows all summer I've been jammed up with my real job. That is my law practice, representing folks charged with crimes. Just finished up a huge trial down in Hocking County, Ohio. We got an acquittal, my close friend and colleague Mark Satow up in Michigan. He uh, and I went down there and tried to self defense homicide case. The jury with rapid results agreed with us and uh, it was the right verdict, at least in our estimation. The Ohio attorney generals may see that differently. Well, that's their problem. Anyway, I'm uh, back. That means al summer I've been tied up with that and a couple of other sort of we'll uh, just call them heavy weighty legal matters that I've had to resolve. So I've done that. That means I am going to start answering the questions that have been piling up and I'm going all the way back to June and I'm going to answer a question from Samuel Spade. I presume this is a, uh, nondeploom, as they say, or a pseudonym. Sam Spade, the great Sam Spade from the old detective novels, I think uh, most known for The Maltese Falcon. Old Humphrey Bogart in the classic So I uh, looked up a quick quote. I'm not going to lie to you, Google for this, but uh, he was asked in The Maltese Falcon you always have a very smooth explanation ready and Sam Spade's response is telling. What do you mean to do? Learn to stutter. Well, without stuttering any more than I have to hear, I'm going to try to get through this question from Sam Spade. And here's the question in a nutshell. It has to do with geo fencing and what the hell is geo fencing and how does it work and what do I think about geofencing? So here's, uh, the question. Sam Spade writes geofencing warrants are the new tool that local law enforcement is using to soak up data for further criminal investigations. And he says geofencing in a nutshell, is a particular area local law enforcement have a warrant for. And in that geofence they can suck up data from any member of the public and track such things as who's going to a known drug house. But he says this could cause such mislabeling problems as what if you're going to a friend's house that happens to live next to a drug house? Uh, Sam has heard through the grapevine that this is going to be possibly one of the next constitutional arguments coming down the pipeline. And he wants my opinion on cops using geofencing and do I believe it's constitutional? Great question. I um, did a little bit of research on this, and I'm going to do my best to answer the question. So Geofencing works basically this way. The cops will say, look, here's this area, uh, where a crime was committed, say, a bank robbery down, uh, at Broad and High in Columbus, Ohio. And uh, they get surveillance videos and they see that there's lots of people around that have cell phones, either in or out of there. Maybe they see them out of their pockets, or maybe even they just say, we think that lots of people around have cell phones. Because let's face it, folks, most people have cell phones. So they write out to Google a warrant that says, we want all the data of all the phones that are in this particular area, this geographic area, say, within 100 yards of the bank, or half mile of the bank in this big circle. And this is different than other what, uh, we call tower dumps, where they uh, go to um, the uh, cell phone providers. And they would say, we want to know who was ping and where. And they get a particular number and they can, uh, find out if uh, a suspect was in a particular area. And I'm, uh, not going to go into the differences, but we're talking about a warrant for Google to release location information. So it's not necessarily tied to the phone, it's tied to Google account users. And uh, most people these days are using Google in some capacity, whether they know it or not, on their cell phones, and they can opt in and out of sharing their location data. So back to the Geofence warrant. The government says, we want all this data in this particular area. Give, uh, it to us. Uh, is it constitutional? Well, there is a case, and this uh, is as Sam Spade aptly, uh, points out, this is an emerging constitutional issue. And it happens that recently, uh, this issue came up in a case of United States versus Chattri, C-H-A-T-R-I-E in Richmond, Virginia, in a Federal District court, eastern Division of Virginia, where uh, there was in fact, a bank robbery. And surveillance video at the bank showed uh, that the robber had a cell phone, and there was a guy, uh, outside the bank building making a cell phone call. And I don't think they knew this guy was the robber, but they wanted to figure out his identity. This prompted search warrant to, uh, Google to identify who this individual was. The warrant issued, uh, for pertinent data from Google in three steps. Step one, begin with the government requesting Google provide anonymous location records for any, quote, google account that is associated with a device within, um, 150 meters of the bank. So they're saying any Google account that is associated with a device within a 1 hour window within 150 meters of the bank, they um, wanted Google to search across every existing Google account and compute which records matched the parameters of the warrant. And within two weeks, Google disclosed anonymous location information of 19 accounts that had been near the bank. Step two involved the government requesting another round of anonymous data for, uh, those 19 accounts. They were expanding now to a two hour time frame, 1 hour on either side of the robbery. The government alleged that the account had identified as suspicious, traveled to a residence after visiting the bank, and using that address, they were able to obtain records linking the individual's name to the location data. So they expanded the warrant and figured out who the person was that they wanted to identify. And step three, the, uh, cops requested Google give them subscriber information for the account, plus two other accounts. The presumed holder of the first account was indicted as the defendant. So, um, that is the backdrop of the case. The defense said, no, we don't think this is constitutional. They filed a motion to suppress. And that's a fancy uh, legal talk for saying they were uh, asking the court to throw the evidence out because they claimed the search warrant or the action of, uh, the police violated their clients Fourth Amendment rights. And going uh, way back to several US. Supreme Court cases in the late 60s, that means, uh, they suppress from use at trial any information found. So they were trying uh, to get the uh, information and data thrown out and not used against their client at trial. Now, this is uh, a broader question about Fourth Amendment search warrants, etc. But generally speaking, if we have a reasonable expectation of privacy in some activity that we're doing, then the government needs a warrant and they can't just go get the information. And if they have to get a warrant, it has to be based on probable cause. And probable cause is more than just saying, hey, we want to know what's going on here, so please give us this generalized information or a generalized broad based search warrant that, uh, uh, cast a dragnet over all uh, sorts of information, and then the government gets to sift through it. That is the argument that Sam Spade is concerned about here. That geofence warrants do just that. There are these broad swath warrants that throw this net out there and can drag innocent folks and subject, uh, them to government intrusion in searches and activity for which they have a reasonable expectation of privacy. So, um, at the outset, the US. Supreme Court, back in a case called Carpenter Versus United States, decided in uh, 2018, for those who want uh, to cite it's, 138 Supreme Court Two, uh, 20 six, or if you like, lawyers Edition, which is another way you can look it up, 20 one, Lawyer's Edition, 2nd 507, that's 2018. And basically what they said is that uh, there is uh, a Fourth Amendment implication, uh, when the police search a cell phone or cell site records of individuals. So everybody, uh, that's got a cellphone has legitimate expectation of privacy, and the record of his physical movements is the quote of carpenter so how does that play into geofence warrants? Well, it all played out in chatter, and basically, uh, the defense was asserting that the warrants are the modern day incarnation of the reviled general warrant, the one we just talked about, where the government gets a warrant to get everything at once. And it's, um, the digital equivalent of searching every home in the neighborhood of a reported burglary, or searching the, uh, bags of every person walking along Broadway because of a theft that allegedly occurred in Times Square. And the idea here, uh, is that, uh, erratic, uh, they're killing too many birds with 1 st maybe is the best way to say it. What they're doing is, under the guise of searching for one particular bit of information. Um, they're really throwing a dragnet out there and getting all sorts of information to which they would, uh, not normally be entitled to get without a specific warrant for that information. So that's what the defense was arguing. Um, so what they really said is that the police failed to show that they had probable cause to believe that the bank was robbed by a Google user. In other words, the warrant didn't identify how and why and the specific details of whether the information sought was connected, uh, with some nexus to the robbery, uh, itself. So what the defense is saying is, look, this is a general warranty. You have no idea cops, you have no idea government, that the person who robbed the bank was using a phone, or had a phone even. And if they did have a phone, was it activated and being in use at the time of the robbery? This was just a fishing expedition, and the net that they used to fish was thrown out there, too, uh, broadly, the government said, no, we can do this. The defendant had no reasonable expectation of privacy, and the information disclosed by Google, it, um, argued that the Google data was less revealing than even cell site data at issue. And Carpenter, uh, there was only, um, 2 hours of location data obtained. Google data did not provide all encompassing record of the holder's whereabouts in an intimate window of a person's life that the defense was arguing, uh, about in. Carpenter the government also argued against the defense here that even if Google data is more precise in cell site records, such a distinction was really sort of immaterial. And they said, it's, um, just like the cell site tower dumps, and we can do it as long as we warrant it's. Um, interesting that Google, um, actually intervened here, and they filed a brief, amicus, uh, brief, where some third party has an interest in the outcome. Now, they didn't really take a position one way or another, other, uh, than just to describe what's going on with the data. And they both supported uh, the defense and the state, uh, with their arguments. The first Google, one of the big issues, uh, here was whether when we have our cell phones, um, are we automatically, uh, subject to uh, what's the best way to say this? When we have our cell phones, are we voluntarily opting into Google or anyone else recording our data, and therefore giving it to a third party, giving it to somebody else? And if we voluntarily give our location information to somebody else, well, then the prosecution would argue, well, you uh, don't have any reasonable expectation of privacy. After all, you've given it to a third party. Well, the defense said, well, that's a bunch of hogwash, because these are unique. Most people use their cell, uh, phones, and either they don't even know that they can opt in or out of location services, or it's so ubiquitous, um, now that you have to have location services, that you're always, uh, opted in, whether you it's not really a choice. Uh, it's just happening. And in today's society, everybody's got a phone. In fact, even uh, the government uh, asked for your cell numbers now in places. So the defense would, uh, say that's a distinction without merit. It doesn't make any sense, it's nonsense, because just having a phone is automatic sharing data, uh, like that. Google sort of agreed with the defense on this one. Google said, look, it's um, not the same as business records typically covered by this third party situation, or a third party doctrine. Google, uh, says the data is, quote, essentially a history or journal that Google users can choose to create, edit, and store to record their movement and travels. Um, they suggested that, uh, given the nature of this data, the government's analogies of the geofence warranty cell site information, uh, is off target. In other words, it's uh, not the same as um, specifically going after tower pings and location data that way. This is more akin to an intimate uh, involvement, uh, with Google and the user to record their uh, history and electronic history and data to use for other purposes. But then Google um, sort of stressed against the defense that users did in fact, have to opt in to take advantage of the location history services. So they um, claim the defense in that case, and chatter thus aired in asserting that individuals do not voluntarily share their location information with Google. In other words, they say, no, it is a choice that the user has to make. So in that regard, the Google brief did not really support the defense. It looks like Google was really trying to take an independent third party position. Uh, and really what they're doing is saying, look, if we have to be responsible for all this information all the time from government requests, this could get insane. Uh, it requires a warrant and it's got to be particularly enough so it doesn't create these significant burden on Google to produce information. And they cited some acts of Congress that basically talk about electronic, uh, data storage and what their responsibilities are. But Google is saying, no, you got to get a warrant. Now, what does, um, the court do here? The court so often happens in criminal defense and really other areas of law, it splits the baby. Judge, um, Hannah Lauke from the US. District, uh, court in the Eastern Division of Virginia, they said no. She, uh, says no. The search, uh, warrant, uh, breached the Fourth, uh, Amendment protections against unreasonable searches by scooping up information on innocent people without evidence that they might be suspects. In other, uh, words, it was too broad. But the judge stopped short of throwing out the evidence as a result of this warrant. And the judge, in doing so, relied on something called I guess I'll just call, uh, it the good faith doctor. And so here's the deal. So the police are allowed to make reasonable mistakes in getting warrants. So if the police I'll give you the classic example the police could get a warrant for 1234 Main Street, uh, Columbus, Ohio. Uh, but really, they meant, uh, to say 12345. So they search the house next door, or whatever it would be, and they followed the information, uh, in the warrant. They just clerically put down the wrong information. They searched the house next door, and let's say they found a big cache of cocaine, uh, when, in the other original warrant, they were actually looking for guns. Well, the question is, can they use the cocaine as evidence against the owner of the house if, in fact, they are going to prosecute that person? Uh, and the answer generally is yes, if they relied on the warrant in good faith. Now, the other thing that can happen is, say, the police don't intentionally draft or write out a warrant that doesn't spell out enough probable cause. They don't do it intentionally, but they do it in good faith. And the judge issues the warrant. The police generally can rely on that as long as they're, um, doing it in good faith. I don't happen to agree with how this doctor has been evolved, because I think too often the police hide behind the good faith exception. Maybe it's not so good faith, but at any rate, the court here says, uh, look, the police have done this kind of warrants before. They consulted, um, with prosecutors about it. So I'm not going to suppress the information or throw it out in this particular case. But the court says, I don't like this type of practice. And going forward beware and generally, um, speaking, what the court says is, despite the court finding good faith here, the court nonetheless strongly cautions that this exception may not carry the day in the future. This court will simply not rubber stamp geofence warrants. If the government is to continue to employ these warrants, it must take care to establish particularized probable cause as the legal landscape confronts newly developed technology and further illuminates Fourth Amendment rights in the faces of geofence practices. Future geofence warrants may require additional efforts to seek court approval in between the steps that were employed here, uh, or to limit the geographic and temporal information sought. But in light of complex legal issues that lead to this court's conclusion, the Court cannot say that the detective's reliance on the warrant was objectively unreasonable, meaning the detective acted in good faith, so the judge, the defendant lost. But maybe there's a small win for, uh, those of us who champion the Fourth Amendment protections, uh, and any limitation on government intrusion into our private lives. I happen to be one of those people which gets me to Sam Spade's question, what do I feel about this? What do I think is going to happen? And how do I see the, uh, constitutional issues playing out? Well, first, cases like Chatter's case that are going to go up to the US. Supreme Court, and they're ultimately going to pronounce on this, and they're going to come up with some doctrine that applies to this. And this is the age old debate. I had this with my colleague and friend, Mark Satowa, as we were trying our case on. How far do we interpret I'll put that in, uh, quotes the Constitution. The Fourth Amendment says nothing about geofence warrants. So how in the heck? Here we are, a couple of hundred years later, talking about cell phone towers, geo fences, and all this stuff that our founders would have no information or knowledge about. So how do we play that out? Well, there is a Fourth Amendment. It says we should be protected from warrantless searches and seizures. There are already lots of exceptions to the warrant requirement that exists in our lives that we become accustomed to. Like getting pulled over by a police, uh, officer does not require a warrant, even though that's an intrusion. Um, under the Fourth Amendment, maybe even getting your car searched, uh, doesn't necessarily, uh, require a warrant if they've got some probable cause, uh, even if they don't go put it on paper, uh, and get a warrant, they can search your car. And the courts have said, generally speaking, that we have less expectation of privacy when we're traveling around in our cars, because we're just out in public. So I'm telling you this because I think I got a gut feeling that this geofence issue is going to play out in a similar way. I don't necessarily agree with it, but I think that the US. Supreme Court is going to say that we are naturally or implicitly giving up certain expectations of privacy, uh, with our cell phone usage. I think they're going to say, look, everybody knows in this day and age that your cell phone puts you out there. That's not a legal term of art. That's a lawyer talk term to try to simplify things. But we're putting ourselves out there with their cell phones. We're posting stuff where most people are even putting location data out there intentionally so they can track themselves or their kids or whatever. And I think the court ultimately is going to, uh, say that by doing that, we are acknowledging that we have less expectation of privacy in activities that involve our cell phones. Uh, now, I'm not saying I agree with this, but I think that's how it's going to shake out. So I think ultimately, there will be some limit on this. It may end up being a congressional act or some sort of law governing how the data services maintain and keep their records. But I think ultimately, there's going to be some limit, a Fourth Amendment limit. Um, but it's a dangerous, slippery slope, because, as Sam Spade says, what about the people next door? So I think what's going to happen is there's going to be some prophylactic measure where courts are going to say, look, if it is irrelevant, uh, you have to throw it, uh, out, or you can't use it. I'm not exactly sure how it will shake out, but I think it's just too impractical to say that the government can't use this tool of geofencing to track down, uh, crimes. Too many crimes are solved that way. Again, look, I represent people charging crimes for a living. I challenge these things all the time. Generally speaking, I square that with my belief that I'd rather see 100 innocent people go free than, uh, 100 guilty people go free than one innocent person convicted. Wrongfully. And I think wrongful convictions happen at the hands of government all the time. And, uh, I don't think it's intentional. I think power corrupts, and absolute power corrupts absolutely. So we need to limit the power of the government even though we need it. We need to limit it, and we need to keep a constant check and balance on it. And that's why I believe in these, uh, Fourth Amendment protections, even for guilty people, even for people who are horrible, even for people who have done such horrible things that I can't even talk about. But, uh, this is why I do it. Now, that's not, uh, to say that I'm not realistic about how things play out, because so often law reflects society, and society sort of leads the way. Uh, and here the law is, uh, going to have to reflect the realistic situation that's going on out there. That we all have warrants, that these are great tools for law enforcement. And I think no matter what the Constitution, uh, says, the courts are going to find a way to let law enforcement use it. How it all shakes out, I don't know. So what's the takeaway here? I think geofence issues, uh, are emerging as the predominant fourth Amendment issues of the day. I think we're going, uh, to see a lot more on this. I think this chatter case very well could go all the way up. Actually, it may or may not go all the way up. I don't know what the current status, uh, is. I probably should have done an update, but anyway, I think the US. Supreme Court eventually will rule on this and we'll get some answers. Uh, my takeaway is this, uh, uh, I always turn off my location data. I always opt out of sharing any location, uh, information. If I need to use my phone to get somewhere, I specifically turn on the Google Maps only, uh, for that occasion. Then I turn it off. I'm not perfect about, um, it, but that's what I try to do. Not because I'm out there committing crimes, I assure everybody I am. Not because I'm out there doing things that I shouldn't be doing, whether they're criminal or not. I assure people that that is not going on, but because I just generally don't. I like my privacy. And I think Americans like we like our privacy. I'm one of those people that believes in individual rights, individual freedoms. And I strongly believe that we need, uh, to limit the power of government, because, again, power corrupts, and absolute power corrupts absolutely. The old Lord Acton quote I don't know how a couple of hundred years, uh, ago still, uh, holds true today. And government is run by people, for the people. But people inherently are capable of horrible things, whether they've been elected, um, to a government position or not. And all too often, the most horrendous, uh, governmental action is, uh, done in the name of some noble cause, like fighting a horrible crime. And we don't need to review history in too much detail. But, uh, that's my lawyer talk. Q and a take on Sam Spade's question. It is a great question. It was one of the more complicated answers I've had to give. So forgive me for, uh, the rambling. And Sam, I hope I have answered, um, your question effectively. If you want more on it or you want to follow up, let, um, me know. Like I said, I am back in action. You got your own question, go to Lauretalkpodcast.com. You can submit it. There's a question portal, like an email thing. I don't know what you would call that, but I got one. And as always, you can tune in every, um, Wednesday for 90, uh, nine, seven blitz here in Columbus, Ohio, where I take legal questions week in and week out from listeners there. If you like the longer discussions, check out our Lawyer Talk Roundtable with Norm Murdoch these days and Brett from Circle 270 Media. We are taking on some of the weightier topics politically and socially of the day, uh, there, and I always try to put my legal spin on it. And recently, for whatever it's worth, I got word that our podcast here is second rated second by somebody, somewhere in criminal defense podcast. So I appreciate, uh, everybody downloading and listening. If you want to check out more, just go to lawyertalkpodcast. Uh.com, you get some BIOS, get some info, even become a patreon, if that's what you want to do until the next Q and A session. And this is lawyer talk. Off the record, on the air, at least until now. al summer I've been tied up with that and a couple of other sort of we'll uh, just call them heavy weighty legal matters that I've had to resolve. So I've done that. That means I am going to start answering the questions that have been piling up and I'm going all the way back to June and I'm going to answer a question from Samuel Spade. I presume this is a, uh, nondeploom, as they say, or a pseudonym. Sam Spade, the great Sam Spade from the old detective novels, I think uh, most known for The Maltese Falcon. Old Humphrey Bogart in the classic So I uh, looked up a quick quote. I'm not going to lie to you, Google for this, but uh, he was asked in The Maltese Falcon you always have a very smooth explanation ready and Sam Spade's response is telling. What do you mean to do? Learn to stutter. Well, without stuttering any more than I have to hear, I'm going to try to get through this question from Sam Spade. And here's the question in a nutshell. It has to do with geo fencing and what the hell is geo fencing and how does it work and what do I think about geofencing? So here's, uh, the question. Sam Spade writes geofencing warrants are the new tool that local law enforcement is using to soak up data for further criminal investigations. And he says geofencing in a nutshell, is a particular area local law enforcement have a warrant for. And in that geofence they can suck up data from any member of the public and track such things as who's going to a known drug house. But he says this could cause such mislabeling problems as what if you're going to a friend's house that happens to live next to a drug house? Uh, Sam has heard through the grapevine that this is going to be possibly one of the next constitutional arguments coming down the pipeline. And he wants my opinion on cops using geofencing and do I believe it's constitutional? Great question. I um, did a little bit of research on this, and I'm going to do my best to answer the question. So Geofencing works basically this way. The cops will say, look, here's this area, uh, where a crime was committed, say, a bank robbery down, uh, at Broaden High in Columbus, Ohio. And uh, they get surveillance videos and they see that there's lots of people around that have cell phones, either in or out of there. Maybe they see them out of their pockets, or maybe even they just say, we think that lots of people around have cell phones. Because let's face it, folks, most people have cell phones. So they write out to Google a warrant that says, we want all the data of all the phones that are in this particular area, this geographic area, say, within 100 yards of the bank, or half mile of the bank in this big circle. And this is different than other what, uh, we call tower dumps, where they uh, go to um, the uh, cell phone providers. And they would say, we want to know who was ping and where. And they get a particular number and they can, uh, find out if uh, a suspect was in a particular area. And I'm, uh, not going to go into the differences, but we're talking about a warrant for Google to release location information. So it's not necessarily tied to the phone, it's tied to Google account users. And uh, most people these days are using Google in some capacity, whether they know it or not, on their cell phones, and they can opt in and out of sharing their location data. So back to the Geofence warrant. The government says, we want all this data in this particular area. Give, uh, it to us. Uh, is it constitutional? Well, there is a case, and this uh, is as Sam Spade aptly, uh, points out, this is an emerging constitutional issue. And it happens that recently, uh, this issue came up in a case of United States versus Chattri, C-H-A-T-R-I-E in Richmond, Virginia, in a Federal District court, eastern Division of Virginia, where uh, there was in fact, a bank robbery. And surveillance video at the bank showed uh, that the robber had a cell phone, and there was a guy, uh, outside the bank building making a cell phone call. And I don't think they knew this guy was the Robert, but they wanted to figure out his identity. This prompted search warrant to, uh, Google to identify who this individual was. The warrant issued, uh, for pertinent data from Google in three steps. Step one, begin with the government requesting Google provide anonymous location records for any, quote, google account that is associated with a device within, um, 150 meters of the bank. So they're saying any Google account that is associated with a device within a 1 hour window within 150 meters of the bank, they um, wanted Google to search across every existing Google account and compute which records matched the parameters of the warrant. And within two weeks, Google disclosed anonymous location information of 19 accounts that had been near the bank. Step two involved the government requesting another round of anonymous data for, uh, those 19 accounts. They were expanding now to a two hour time frame, 1 hour on either side of the robbery. The government alleged that the account had identified as suspicious, traveled to a residence after visiting the bank, and using that address, they were able to obtain records linking the individual's name to the location data. So they expanded the warrant and figured out who the person was that they wanted to identify. And step three, the, uh, cops requested Google give them subscriber information for the account, plus two other accounts. The presumed holder of the first account was indicted as the defendant. So, um, that is the backdrop of the case. The defense said, no, we don't think this is constitutional. They filed a motion to suppress. And that's a fancy uh, legal talk for saying they were uh, asking the court to throw the evidence out because they claimed the search warrant or the action of, uh, the police violated their clients Fourth Amendment rights. And going uh, way back to several US. Supreme Court cases in the late 60s, that means, uh, they suppress from use at trial any information found. So they were trying uh, to get the uh, information and data thrown out and not used against their client at trial. Now, this is uh, a broader question about Fourth Amendment search warrants, etc. But generally speaking, if we have a reasonable expectation of privacy in some activity that we're doing, then the government needs a warrant and they can't just go get the information. And if they have to get a warrant, it has to be based on probable cause. And probable cause is more than just saying, hey, we want to know what's going on here, so please give us this generalized information or a generalized broad based search warrant that, uh, uh, cast a dragnet over all uh, sorts of information, and then the government gets to sift through it. That is the argument that Sam Spade is concerned about here. That geofence warrants do just that. There are these broad swath warrants that throw this net out there and can drag innocent folks and subject, uh, them to government intrusion in searches and activity for which they have a reasonable expectation of privacy. So, um, at the outset, the US. Supreme Court, back in a case called Carpenter Versus United States, decided in uh, 2018, for those who want uh, to cite it's, 138 Supreme Court Two, uh, 20 six, or if you like, lawyers Edition, which is another way you can look it up, 20 one, Lawyer's Edition, 2nd 507, that's 2018. And basically what they said is that uh, there is uh, a Fourth Amendment implication, uh, when the police search a cell phone or cell site records of individuals. So everybody, uh, that's got a cellphone has legitimate expectation of privacy, and the record of his physical movements is the quote of carpenter so how does that play into geofence warrants? Well, it all played out in chatter, and basically, uh, the defense was asserting that the warrants are the modern day incarnation of the reviled general warrant, the one we just talked about, where the government gets a warrant to get everything at once. And it's, um, the digital equivalent of searching every home in the neighborhood of a reported burglary, or searching the, uh, bags of every person walking along Broadway because of a theft that allegedly occurred in Times Square. And the idea here, uh, is that, uh, erratic, uh, they're killing too many birds with 1 st maybe is the best way to say it. What they're doing is, under the guise of searching for one particular bit of information. Um, they're really throwing a dragnet out there and getting all sorts of information to which they would, uh, not normally be entitled to get without a specific warrant for that information. So that's what the defense was arguing. Um, so what they really said is that the police failed to show that they had probable cause to believe that the bank was robbed by a Google user. In other words, the warrant didn't identify how and why and the specific details of whether the information sought was connected, uh, with some nexus to the robbery, uh, itself. So what the defense is saying is, look, this is a general warranty. You have no idea cops, you have no idea government, that the person who robbed the bank was using a phone, or had a phone even. And if they did have a phone, was it activated and being in use at the time of the robbery? This was just a fishing expedition, and the net that they used to fish was thrown out there, too, uh, broadly, the government said, no, we can do this. The defendant had no reasonable expectation of privacy, and the information disclosed by Google, it, um, argued that the Google data was less revealing than even cell site data at issue. And Carpenter, uh, there was only, um, 2 hours of location data obtained. Google data did not provide all encompassing record of the holder's whereabouts in an intimate window of a person's life that the defense was arguing, uh, about in. Carpenter the government also argued against the defense here that even if Google data is more precise in cell site records, such a distinction was really sort of immaterial. And they said, it's, um, just like the cell site tower dumps, and we can do it as long as we warrant it's. Um, interesting that Google, um, actually intervened here, and they filed a brief, amicus, uh, brief, where some third party has an interest in the outcome. Now, they didn't really take a position one way or another, other, uh, than just to describe what's going on with the data. And they both supported uh, the defense and the state, uh, with their arguments. The first Google, one of the big issues, uh, here was whether when we have our cell phones, um, are we automatically, uh, subject to uh, what's the best way to say this? When we have our cell phones, are we voluntarily opting into Google or anyone else recording our data, and therefore giving it to a third party, giving it to somebody else? And if we voluntarily give our location information to somebody else, well, then the prosecution would argue, well, you uh, don't have any reasonable expectation of privacy. After all, you've given it to a third party. Well, the defense said, well, that's a bunch of hogwash, because these are unique. Most people use their cell, uh, phones, and either they don't even know that they can opt in or out of location services, or it's so ubiquitous, um, now that you have to have location services, that you're always, uh, opted in, whether you it's not really a choice. Uh, it's just happening. And in today's society, everybody's got a phone. In fact, even uh, the government uh, asked for your cell numbers now in places. So the defense would, uh, say that's a distinction without merit. It doesn't make any sense, it's nonsense, because just having a phone is automatic sharing data, uh, like that. Google sort of agreed with the defense on this one. Google said, look, it's um, not the same as business records typically covered by this third party situation, or a third party doctrine. Google, uh, says the data is, quote, essentially a history or journal that Google users can choose to create, edit, and store to record their movement and travels. Um, they suggested that, uh, given the nature of this data, the government's analogies of the geofence warranty cell site information, uh, is off target. In other words, it's uh, not the same as um, specifically going after tower pings and location data that way. This is more akin to an intimate uh, involvement, uh, with Google and the user to record their uh, history and electronic history and data to use for other purposes. But then Google um, sort of stressed against the defense that users did in fact, have to opt in to take advantage of the location history services. So they um, claim the defense in that case, and chatter thus aired in asserting that individuals do not voluntarily share their location information with Google. In other words, they say, no, it is a choice that the user has to make. So in that regard, the Google brief did not really support the defense. It looks like Google was really trying to take an independent third party position. Uh, and really what they're doing is saying, look, if we have to be responsible for all this information all the time from government requests, this could get insane. Uh, it requires a warrant and it's got to be particularly enough so it doesn't create these significant burden on Google to produce information. And they cited some acts of Congress that basically talk about electronic, uh, data storage and what their responsibilities are. But Google is saying, no, you got to get a warrant. Now, what does, um, the court do here? The court so often happens in criminal defense and really other areas of law, it splits the baby. Judge, um, Hannah Lauke from the US. District, uh, court in the Eastern Division of Virginia, they said no. She, uh, says no. The search, uh, warrant, uh, breached the Fourth, uh, Amendment protections against unreasonable searches by scooping up information on innocent people without evidence that they might be suspects. In other, uh, words, it was too broad. But the judge stopped short of throwing out the evidence as a result of this warrant. And the judge, in doing so, relied on something called I guess I'll just call, uh, it the good faith doctor. And so here's the deal. So the police are allowed to make reasonable mistakes in getting warrants. So if the police I'll give you the classic example the police could get a warrant for 1234 Main Street, uh, Columbus, Ohio. Uh, but really, they meant, uh, to say 12345. So they search the house next door, or whatever it would be, and they followed the information, uh, in the warrant. They just clerically put down the wrong information. They searched the house next door, and let's say they found a big cache of cocaine, uh, when, in the other original warrant, they were actually looking for guns. Well, the question is, can they use the cocaine as evidence against the owner of the house if, in fact, they are going to prosecute that person? Uh, and the answer generally is yes, if they relied on the warrant in good faith. Now, the other thing that can happen is, say, the police don't intentionally draft or write out a warrant that doesn't spell out enough probable cause. They don't do it intentionally, but they do it in good faith. And the judge issues the warrant. The police generally can rely on that as long as they're, um, doing it in good faith. I don't happen to agree with how this doctor has been evolved, because I think too often the police hide behind the good faith exception. Maybe it's not so good faith, but at any rate, the court here says, uh, look, the police have done this kind of warrants before. They consulted, um, with prosecutors about it. So I'm not going to suppress the information or throw it out in this particular case. But the court says, I don't like this type of practice. And going forward beware and generally, um, speaking, what the court says is, despite the court finding good faith here, the court nonetheless strongly cautions that this exception may not carry the day in the future. This court will simply not rubber stamp geofence warrants. If the government is to continue to employ these warrants, it must take care to establish particularized probable cause as the legal landscape confronts newly developed technology and further illuminates Fourth Amendment rights in the faces of geofence practices. Future geofence warrants may require additional efforts to seek court approval in between the steps that were employed here, uh, or to limit the geographic and temporal information sought. But in light of complex legal issues that lead to this court's conclusion, the Court cannot say that the detective's reliance on the warrant was objectively unreasonable, meaning the detective acted in good faith, so the judge, the defendant lost. But maybe there's a small win for, uh, those of us who champion the Fourth Amendment protections, uh, and any limitation on government intrusion into our private lives. I happen to be one of those people which gets me to Sam Spade's question, what do I feel about this? What do I think is going to happen? And how do I see the, uh, constitutional issues playing out? Well, first, cases like Chatter's case that are going to go up to the US. Supreme Court, and they're ultimately going to pronounce on this, and they're going to come up with some doctrine that applies to this. And this is the age old debate. I had this with my colleague and friend, Mark Satowa, as we were trying our case on. How far do we interpret I'll put that in, uh, quotes the Constitution. The Fourth Amendment says nothing about geofence warrants. So how in the heck? Here we are, a couple of hundred years later, talking about cell phone towers, geo fences, and all this stuff that our founders would have no information or knowledge about. So how do we play that out? Well, there is a Fourth Amendment. It says we should be protected from warrantless searches and seizures. There are already lots of exceptions to the warrant requirement that exists in our lives that we become accustomed to. Like getting pulled over by a police, uh, officer does not require a warrant, even though that's an intrusion. Um, under the Fourth Amendment, maybe even getting your car searched, uh, doesn't necessarily, uh, require a warrant if they've got some probable cause, uh, even if they don't go put it on paper, uh, and get a warrant, they can search your car. And the courts have said, generally speaking, that we have less expectation of privacy when we're traveling around in our cars, because we're just out in public. So I'm telling you this because I think I got a gut feeling that this geofence issue is going to play out in a similar way. I don't necessarily agree with it, but I think that the US. Supreme Court is going to say that we are naturally or implicitly giving up certain expectations of privacy, uh, with our cell phone usage. I think they're going to say, look, everybody knows in this day and age that your cell phone puts you out there. That's not a legal term of art. That's a lawyer talk term to try to simplify things. But we're putting ourselves out there with their cell phones. We're posting stuff where most people are even putting location data out there intentionally so they can track themselves or their kids or whatever. And I think the court ultimately is going to, uh, say that by doing that, we are acknowledging that we have less expectation of privacy in activities that involve our cell phones. Uh, now, I'm not saying I agree with this, but I think that's how it's going to shake out. So I think ultimately, there will be some limit on this. It may end up being a congressional act or some sort of law governing how the data services maintain and keep their records. But I think ultimately, there's going to be some limit, a Fourth Amendment limit. Um, but it's a dangerous, slippery slope, because, as Sam Spade says, what about the people next door? So I think what's going to happen is there's going to be some prophylactic measure where courts are going to say, look, if it is irrelevant, uh, you have to throw it, uh, out, or you can't use it. I'm not exactly sure how it will shake out, but I think it's just too impractical to say that the government can't use this tool of geofencing to track down, uh, crimes. Too many crimes are solved that way. Again, look, I represent people charging crimes for a living. I challenge these things all the time. Generally speaking, I square that with my belief that I'd rather see 100 innocent people go free than, uh, 100 guilty people go free than one innocent person convicted. Wrongfully. And I think wrongful convictions happen at the hands of government all the time. And, uh, I don't think it's intentional. I think power corrupts, and absolute power corrupts absolutely. So we need to limit the power of the government even though we need it. We need to limit it, and we need to keep a constant check and balance on it. And that's why I believe in these, uh, Fourth Amendment protections, even for guilty people, even for people who are horrible, even for people who have done such horrible things that I can't even talk about. But, uh, this is why I do it. Now, that's not, uh, to say that I'm not realistic about how things play out, because so often law reflects society, and society sort of leads the way. Uh, and here the law is, uh, going to have to reflect the realistic situation that's going on out there. That we all have warrants, that these are great tools for law enforcement. And I think no matter what the Constitution, uh, says, the courts are going to find a way to let law enforcement use it. How it all shakes out, I don't know. So what's the takeaway here? I think geofence issues, uh, are emerging as the predominant fourth Amendment issues of the day. I think we're going, uh, to see a lot more on this. I think this chatter case very well could go all the way up. Actually, it may or may not go all the way up. I don't know what the current status, uh, is. I probably should have done an update, but anyway, I think the US. Supreme Court eventually will rule on this and we'll get some answers. Uh, my takeaway is this, uh, uh, I always turn off my location data. I always opt out of sharing any location, uh, information. If I need to use my phone to get somewhere, I specifically turn on the Google Maps only, uh, for that occasion. Then I turn it off. I'm not perfect about, um, it, but that's what I try to do. Not because I'm out there committing crimes, I assure everybody I am. Not because I'm out there doing things that I shouldn't be doing, whether they're criminal or not. I assure people that that is not going on, but because I just generally don't. I like my privacy. And I think Americans like we like our privacy. I'm one of those people that believes in individual rights, individual freedoms. And I strongly believe that we need, uh, to limit the power of government, because, again, power corrupts, and absolute power corrupts absolutely. The old Lord Acton quote I don't know how a couple of hundred years, uh, ago still, uh, holds true today. And government is run by people, for the people. But people inherently are capable of horrible things, whether they've been elected, um, to a government position or not. And all too often, the most horrendous, uh, governmental action is, uh, done in the name of some noble cause, like fighting a horrible crime. And we don't need to review history in too much detail. But, uh, that's my lawyer talk. Q and a take on Sam Spade's question. It is a great question. It was one of the more complicated answers I've had to give. So forgive me for, uh, the rambling. And Sam, I hope I have answered, um, your question effectively. If you want more on it or you want to follow up, let, um, me know. Like I said, I am back in action. You got your own question, go to Lauretalkpodcast.com. You can submit it. There's a question portal, like an email thing. I don't know what you would call that, but I got one. And as always, you can tune in every, um, Wednesday for 90, uh, nine, seven blitz here in Columbus, Ohio, where I take legal questions week in and week out from listeners there. If you like the longer discussions, check out our Lawyer Talk Roundtable with Norm Murdoch these days and Brett from Circle 270 Media. We are taking on some of the weightier topics politically and socially of the day, uh, there, and I always try to put my legal spin on it. And recently, for whatever it's worth, I got word that our podcast here is second rated second by somebody, somewhere in criminal defense podcast. So I appreciate, uh, everybody downloading and listening. If you want to check out more, just go to lawyertalkpodcast. Uh.com, you get some BIOS, get some info, even become a patreon, if that's what you want to do until the next Q and A session. And this is lawyer talk. Off the record, on the air, at least until now.