A burglary case that included evidence found at the scene (broken glass, a canister of pepper spray) and an apparent eyewitness has fallen apart because the government decided going right to Google meant it could ignore Supreme Court precedent and the Constitution.
That’s the story here. Angelique Grace was indicted on burglary charges. Ultimately, a jury trial only found her guilty of complicity to aggravated burglary, something partially achieved with the evidence obtained from Google.
Google has been part of the law enforcement tool kit for years. Warrants seeking information on any phones in the area of reported crimes are just everyday business for cop shops and the tech giant. These “geofence” warrants allow investigators to work backwards from a wealth of location data to find likely suspects. Cops also present Google with warrants for keyword searches, forcing Google to search everyone’s search history for search terms cops believe most likely were used by suspected criminals.
This case doesn’t really involve either of these, although location data collected by Google factored into the whole. What happened in this case — brought to us by FourthAmendment.com — was a bit different. Rather than search Grace’s phone for any evidence of the crime, Detective Alex Sinewe sent a warrant to Google seeking a ton of information from Google related to Grace’s Google accounts and activity.
Here’s a summary of what was sought from Google, taken from the evidence suppression order [PDF] handed down the Ohio Supreme Court:
Detective Sinewe obtained a search warrant for Grace’s Gmail information for two phones and a computer. Detective Sinewe specifically requested location data, services, subscriber information and search history. Detective Sinewe testified that no location data was received by him in response to the search warrant. Detective Sinewe testified that he opened and read the contents of each individual folder that Google had sent, as well as the folders inside those folders. Detective Sinewe read Grace’s Goggle search history and found a search inquiry on April 5, 2020 at 3:46 a.m. looking for how to rinse off mace. Further a search was done for Donato’s Lancaster, Ohio at 9:23 p.m. He admitted that cell phone location information could not be, and in fact, was not, provided by Google, which was the basis for Detective Sinewe’s search warrant. Detective Sinewe could not determine from which device the Google search was made, nor the individual who made the search request.
A few problems present themselves immediately, foremost being the lack of location data that the detective then used to secure another search warrant.
The bigger problem is the breadth of the warrant, which demanded a massive amount of information from Google, almost all of which logically would be expected to be unrelated to the crime being investigated.
Here’s what the warrant requested:
Google search history, Google maps history, historical location information related to Google accounts, IMEI numbers on records related to devices used; Geo-location information, GPS, connection logs and records of user activity (including connection dates, times and associated usernames); subscriber names, user names, screen names, other identifying information, mailing addresses, residential address(es), business address(es), email address(es), and telephone numbers, billing records, correspondence, device serial numbers, MAC address(es) and/or hardware/software identification information relating to devices associated with any account(s) associated with the email address [Grace’s emailaddress] for the time period of 0800 EDT April 3, 2020 to 2359 EDT April 6, 2020…
That’s too much. In addition to the problem the detective created for himself by seeking another warrant using information he hadn’t actually obtained as its basis, this is a “give me everything” demand that suggests Detective Sinewe felt he could bypass two Supreme Court rulings and the Fourth Amendment by dealing with Google exclusively.
The state Supreme Court first recounts the Riley decision, pointing out the Supreme Court’s refusal to treat a phone as analogous to the contents of a person’s pockets — something that can be searched without a particularized, targeted warrant.
We realize that the search in this case was not of a physical cell phone. However, we believe the Supreme Court would find similar concerns as those expressed in Riley surround the police search of one’s Google account and Google search history. The only discernable difference between the location of the digital evidence examined in Riley and that in the case at bar is the location of the data. In Riley the data was contained at least in part on a cell phone. In the case at bar, the location data was contained in the so-called “Cloud,” i.e. computer servers or hard drives located elsewhere.
Then it discusses the Carpenter decision, which erected a warrant requirement for obtaining historical cell site data from cell service providers. The Supreme Court did not explicitly limit its decision to cell providers, but that seems to be what most law enforcement officers have assumed, given their willingness to skirt this warrant requirement by purchasing location data directly from private sector data brokers.
Again, says the state Supreme Court, just because this wasn’t handled in a way the US Supreme Court explicitly anticipated or addressed doesn’t mean it’s OK.
The immensity and complexity of digital data defy common notions that apply to the physical search of a home, physical records, or one’s person, as aptly illustrated by the Court in Riley and Carpenter.
What happened here was a compounding of errors, some of them seemingly deliberate. (Emphasis in the original.)
There is no dispute that in the case at bar, the state had obtained the CSLI data from AT&T for Grace’s phone prior to requesting the Google account and Google search history data. Clearly, and specifically, the Google subpoena suggested that more precise location data could be obtained by looking at Grace’s Google account and her Google search history. Based upon the review of the affidavit in support of the warrant, it is just that – a suggestion, or better still, a hunch.
Detective Sinewe informed the court that “[b]ased upon [his] training and experience…the Google application is a valuable tool in establishing specific whereabouts of the user by using wireless data associated with the subscribers account.” Of course, internet search applications such as Google and Gmail regularly contain personal identifiers and call, text, and internet-browsing and location information. Therefore, the officer’s averment adds nothing to the determination of probable cause in this case. Detective Sinewe did not provide a factual basis in his affidavit that would allow the judge issuing the search warrant to believe that Grace had used her Google account or a Google search to aid in either the planning or the execution of the break-in of D.C.’s apartment.
Saying you know things that most people know about Google accounts and cell phones isn’t “training and experience.” It’s a whole lot of nothing that cannot possibly be used to secure a warrant. (Emphasis added.)
Although the affiant bases his assertion that he “believes” by reviewing the data associated with Grace’s account, specific locations and more accurate range of areas of the phone associated with this Google account could be tracked based on his “training and experience,” he does not venture to explain what that knowledge, training, or experience amounts to, let alone how it relates to the facts of this case. Detective Sinewe provided no background of his expertise in digital cell phone data, ISP data, or CSLI data to support his assertion. Without that information, the affidavit’s language is wholly conclusory as to the existence of probable cause to search Grace’s Google account and her Google search history.
On top of the detective’s vague assertions that he knew things about phones and Google, the data/communication demands sought far more information then what could plausibly be considered relevant to this investigation. This warrant was a time machine, taking Grace and her pursuer back to the days before this nation’s independence and the crafting of the Constitution. (Emphasis in the original.)
What makes the affidavit even more akin to a generalized search in this case is the fact the warrant requested information unrelated to the “more specific” location of the phone at the time of the break-in. For example, the affidavit authorized collecting evidence both before and after the date of the offense. Neither the affidavit nor the trial judge explained how location information a day before or a day after the offense occurred would place the phone or Grace at the scene of the crime. Moreover, the warrant authorizes the search of “any account(s) associated with the email address.” Emphasis added. When combined with the request for “subscriber names, user names, screen names, other identifying information, mailing addresses, residential address(es), business address(es), email address(es), and telephone numbers, billing records, [and] correspondence…,” the warrant more closely resembles the type of general warrant to search for evidence of a crime that our Founding Fathers condemned. These requests give the government explicit information not related to the location of the device at any given time.
The evidence obtained from this search — which includes the “how to rinse off mace” link to the break-in — is gone. The government doesn’t get to handle warrants this way and Detective Sinewe won’t be getting the benefit of a “good faith” ruling. Doing things the detective’s way would basically mean declaring the Fourth Amendment null and void now that Google exists.
On these facts, we hold that the information in the warrant affidavit did not establish a minimal connection between the alleged crime and the Google account and search history that were searched. We therefore find that the good-faith exception to the exclusionary rule does not apply. To hold otherwise would allow bare-bones affidavits like the one at issue here to be used time and time again in future investigations whenever one or more browser search histories, or Google accounts, are in the name of a suspect.
However, this doesn’t mean Grace will receive a new trial. The challenge worked but the state court says enough other evidence exists to support her conviction. But even though it doesn’t work out for her, her fellow state residents are better protected from law enforcement fishing expeditions in Google’s vast ocean of data.
