Challenges growing to use of Cell Phone location- “Geofencing” Warrants by Law Enforcement

Law enforcement is increasing its use of reverse-location warrants with companies like Google, known as “geofence” warrants. Instead of asking Google, or Verizon, or AT&T for the specific history of a person, these warrants ask for the identifying information of all the people in a certain area. For instance, a bank is robbed, and the authorities file a warrant on Google demanding that all of the Google Maps users with a certain radius of that bank be turned over to authorities. While the perpetrator may be included in that group, it could also potentially include the private data of dozens or even hundreds of innocent people. That’s where the biggest privacy concern arises.

The use of geofence warrants is growing, Google indicated that they were receiving 180 requests per week at the end of last year, and the numbers have been steadily increasing. The cases challenging these searches, generally most will target the lack of specificity and the invasion of privacy, have not yet resulted in many appellate decisions detailing when such warrants may be appropriate. One judge wrote in denying a warrant application, “The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting, but if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons … a federal court in the United States of America should not permit the intrusion.”

There is likely a path to make such reverse-location warrants valid, but it will likely encounter strict scrutiny to ensure limiting the request as narrowly as possible by size, time, and other factors to target the likely offenders, and not invade the privacy of law-abiding citizens. The concerns about unconstitutional intrusions were brought to light when NYC sought geofence data for people protesting and counter-protesting last year in the hunt for data about criminal rioters. The concern here is not only the invasion of privacy, but also the chilling effect on the 1st Amendment rights of lawful protestors. There are a lot of complex issues here, and it will likely be some time for the courts to develop guidance as to when geofence warrants are permissible, and when they are not.

Punta Gorda man Charged with Manslaughter in Accidental Drowning Death of Child

An arrest was made this week in the tragic death of a 1-year-old in Charlotte County in October. Deputies have charged Shahzad Sayed in relation to the drowning of his young child in the pool of their Deep Creek home on October 3, 2020. The primary charge Sayed is facing is Aggravated Manslaughter: the charge is aggravated because a child was the victim. The bigger hurdle for the state will be convincing a jury to convict the grieving father of manslaughter for a tragic, accidental drowning.

The Florida statute on manslaughter does permit a conviction for manslaughter by culpable negligence: it does not require an intentional act if the negligence of a caretaker is especially egregious. That is, someone can be found guilty of the crime by omission instead of an act; but the law saw the omission must evince a state of mind so wanton or reckless it could be considered intentional. Case law has said that the state must prove a gross and flagrant violation of the duty of care that causes injury; a course of conduct showing reckless disregard for human life or the entire want of care raising the presumption of indifference of consequences. A jury may find that the facts support such a finding, but it’s a high bar.

According to news reports, detectives claim that Mr. Sayed “knowingly” went to bed while his two small children were still up. The resultant injury to the child is per se evidence of negligence, but whether it rises to the level of culpable negligence is less clear. The child opened a door and went out to the pool area, where there were no safety devices. Certainly, pool gates are expected safety devices in homes where small children reside, but that omission alone is not enough to rise to the level of culpable negligence. Does the fact that the father fell asleep demonstrate a reckless indifference to life? It’s an issue on which reasonable minds could certainly disagree, and will likely be difficult to convince a jury beyond and to the exclusion of any reasonable doubt.

Mr. Sayed has also been charged with some drug related offenses, reportedly due to videos the detectives found that purportedly show drug transactions, and evidence of drugs in the common areas of the home. However, there’s no indication that there was any harm to the children due to the drugs, which means it’s a non-factor as to the manslaughter charge. Those charges may even be severed from the other for trial, so that the jury doesn’t consider them together. (Though, if they have evidence of his drug use the night of the accident, that may be admissible.) The legal aspects of the case are interesting, though the loss of a young child is obviously tragic. Regardless of what Mr. Sayed is convicted of, he will have to live with this the rest of his life.