RICHMOND, Va. (WRIC) — A detective investigating an armed bank robbery in Midlothian turned to Google when other leads in the case didn’t work out, obtaining a search warrant for the location history data of the active cellphones near the crime scene in order to find a suspect.

The use of this type of warrant – a geofence warrant – has surged across the country, but a federal judge in Richmond raised concerns about their legality in an opinion that privacy advocates have called a landmark decision.

When reviewing the geofence warrant used in the Midlothian case, U.S. District Judge Hannah Lauck ruled that it violated the constitutional protections against unreasonable searches of the people near the bank who were swept up in the process.

“The warrant simply did not include any facts to establish probable cause to collect such broad and intrusive data from each of these individuals,” Lauck wrote in a March 3 opinion.

While Lauck denied the suspect’s motion to suppress the evidence found through the warrant, concluding the detective had consulted with prosecutors before getting a magistrate judge to sign off, the decision could have far-reaching implications on the future of the controversial law enforcement tool.

How geofence warrants work

Geofence search warrants seek the location data for the active cellphones and devices around the time and area where a crime took place. If granted a warrant by a magistrate, investigators then ask a tech company for an anonymous list of all the active devices within a designated area around the time of the crime.

Law enforcement agencies review the list and then ask the tech companies to share personal data for the devices that investigators believe could be connected to the crime. Police across the country have asked several tech companies, including Google, Apple and Uber, for geofence warrants.

Google collects location history data on its hundreds of millions of users, including those with Androids or other devices that have popular apps such as Google Maps. The company does not check location data unless a geofence warrant is granted.

People must enable their devices’ location history feature before their location data can be stored. The feature is off by default, Google says, but users are frequently asked whether they would like to turn it on when opening an app or checking a website.

After receiving its first request in 2016, Google had over a 1,500% increase in geofence warrant requests in 2018 compared to 2017, and the rate ticked up over 500% from 2018 to 2019, according to Lauck’s ruling.

Bank robbery suspect challenges geofence warrants

The detective investigating that armed robbery at Call Federal Credit Union in Midlothian in 2019 was granted a geofence warrant by a magistrate judge after other leads failed and surveillance video showed the suspect, who had threatened a teller and left with $195,000, holding a cellphone.

The warrant asked Google for the active devices within a 150-meter radius of the crime scene and police were provided with data for 19 devices without any personal information, which led authorities to narrow down their request for identifying information on three devices.

This ultimately led to the arrest of Okello Chatrie, whose cellphone location history matched the movements of the suspect seen in the surveillance video, according to police. Chatrie’s lawyer challenged the evidence from the geofence warrant in court, leading to a nearly two-year review of the case from Lauck.

Lauck declined to suppress the evidence found through the warrant, ruling that the detective acted in good faith and relied on his experience after having applied for three geofence warrant requests in the past. The judge did rule that the warrant had violated the Fourth Amendment safeguards against unreasonable searches.

“Despite the Court finding good faith here, the Court nonetheless strongly cautions that this exception may not carry the day in the future,” Lauck wrote in her ruling. “This Court will not simply rubber stamp geofence warrants.”

Chatrie’s lawyers and the prosecutors in the case declined to comment for this story.

What the ruling means for the future of geofence warrants

Moving forward, Lauck added, those seeking a geofence warrant “must take care to establish particularized probable cause.” The judge for the U.S. District Court for the Eastern District of Virginia also called on lawmakers to address geofence warrants and the collection of personal data by Google and other tech companies.

While authorities have pointed to cases where geofence warrants have helped lead to convictions, including violent suspects, groups and advocates have raised privacy concerns. Some have noted investigations where geofence warrants have led to innocent people being arrested.

“It’s really a landmark ruling,” said Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project (STOP). “These geofence warrants are so broad and invade so many people that they are almost guaranteed to be unconstitutional.”

Cahn told 8News about an Arizona man who was arrested for murder after investigators found that his phone was at the crime scene. The man, who sued the city of Avondale, had lent his phone to another person who was eventually charged in the killing.

“This isn’t much different than having every person wear an ankle monitor. It’s been the wild-wild-west for far too long and I expect one day the U.S. Supreme Court to rule them unconstitutional, but we shouldn’t allow police to put people in the commonwealth at risk in the years to reach that ruling.”

According to Lauck’s ruling, Google stores detailed location data on “numerous tens of millions of its users” who use Android software, have accessed apps such as Google Maps or go online with their location history enabled. The filing also states that Google reports that geofence warrants make up more than 25% of all warrants it receives in the country.

“We are reviewing the court’s decision. We vigorously protect the privacy of our users, including by pushing back on overly broad requests, while supporting the important work of law enforcement,” a Google spokesperson said in a statement.

The rise of geofence warrants in Virginia

According to Google, geofence warrant requests for the company in Virginia jumped from 72 in 2018 to 304 in 2019 and 484 in 2020. Law enforcement agencies in Virginia acknowledged using geofence warrants for investigations, but many said they don’t keep records of the requests.

Virginia State Police spokeswoman Corinne Geller said the department does not track or collect data on geofence warrants and does not “discuss investigative tools or strategies.”

“Henrico Police has used these after legally obtaining a search warrant. These are part of individual case files and there is no overall record to be obtained,” Henrico County Police spokesman Lt. Matt Pecka said in an email. “The department has used this investigative tool in a variety of cases, but no there are no records of numbers, therefore no data would be obtained via FOIA.”

Hanover Sheriff’s Office spokesman Lt. James Cooper wrote in an email that the sheriff’s office uses geofence warrants “quite regularly” but doesn’t have data on the requests because it’s tracked as a search warrant.

“Geofence warrants are seldom used; when they are used, it’s typically in violent cases or ‘whodunit’ cases,” Chesterfield police spokeswoman Elizabeth Caroon said in an email.

Caroon pointed to a 2021 burglary where a suspect drove into a gun store and stole an unknown number of firearms as an example of a “whodunit” case where a geofence warrant was used. She said the case has not yet gone to trial.