New Surveillance Tactic in Florida – Is it Unconstitutional?

July 12, 2022 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

There is a new form of surveillance tactic that is being used by Florida police, which collects data digitally for investigating crimes. While it seems beneficial to the authorities, many are calling the new technology a violation of privacy by spying on everyday citizens. Some even claim it is in direct violation of the constitution.

Based on information from the Harvard Law Review, thousands of people each year are made suspects for crimes by using “geofencing.” Many people are wrongly accused of crimes just because of the technology, and in 2019 a federal judge in Virginia stated that the digital system was unconstitutional. In one case, a burglary was pinned on an individual who had been riding their bike through the area which was being geofenced.

Even with the negative backlash against geofencing already available, the Tampa Police Department (TPD) is actively using the strategy to try and solve crimes. We will define geofencing, its potential troubles, and the responses around Florida.

What is Geofencing?

The controversial technological process is called “geofencing” and is designed to collect data from any electronic device in an area designated by the police during a specific time frame. Florida is not the only state to have tested out this technology—police across the U.S. have been using geofencing. Unfortunately, geofencing has been an ongoing problem across the board, with many police departments misusing geofencing to spy on citizens.

Tampa Police Department (TPD) is actively using geofencing in their everyday policing, despite the potential issues it causes for the privacy of citizens.

What are the Potential Issues with Geofencing?

Since finding out about the use of geofencing, both defense attorneys and civil rights advocates have highlighted the potential dangers it poses for everyday civilians. The main issue is that it is unconstitutional, and violates the Fourth Amendment which is meant to protect the privacy of citizens from police. The Fourth Amendment protects you from “unreasonable searches and seizures.” Under the Fourth Amendment, the police department is suppose to secure a search warrant from the Court that is supported by an affidavit that there is probable cause to believe that there is evidence of a crime at a specific place. Alternatively, the police can utilize many of the warrant exceptions, but even with an exception the police must still have probable cause to believe that there is evidence of a crime in a specific place. Read more about search warrants and there requirements here.

Geofences are used when police are unsure of who they are looking for but want to identify them using the special technology. This causes a direct conflict with the constitution. In addition, there are no established federal regulations for geofence warrants.

The Deputy Director for Security and Surveillance at the Center for Democracy & Technology, Jake Laperruque, explained that receiving a geofence warrant is approved on a judge-by-judge basis. The police are then not required to dispose of any additional information for the geofencing process by any federal mandate.

Jennifer Lynch, the Surveillance Litigation Director at the Electronic Frontier Foundation (EFF), works with investigating geofencing by police. She has said the big issue is that there is no particular suspect for the process to begin with, like in the typical method of obtaining a warrant. Lynch also explained that the Fourth Amendment requires specific searches, like when there is reason to believe a specific person or device is linked to a crime.

Now with the geofencing warrants, police are able to search for a suspect that they do not yet have. This leads to more room for error, and in the worst cases, turns innocent people into suspects.

“I think the biggest concern is that this is a dragnet search,” Lynch said. “So the police don’t have a suspect when they ask for the data to begin with, and that runs the huge risk that you’re identifying people who are wholly innocent. That puts those people under suspicion for no other reason than they were in the area when a crime occurred.”

Example Cases Involving Geofencing

Now that TPD is actively using geofencing, it is impacting the citizens in the city. For one specific case, an officer requested  a geofencing warrant to investigate a suspected burglary. The Hillsborough County judge approved the warrant on February 10^th, 2022, which granted the officer permission to receive the Google location data for two hours, in an attempt to track everyone who entered and left the property.

The main targets of the geofencing were two stores—Entourage Streetwear and Diva Beauty Supply near 22^nd Street in Belmont Heights. One of the employees from Diva Beauty Supply said he had no idea the premise was being geofenced by the police.

“No one told me and I don’t think the owner knew about it either,” the employee commented.

Even though the employee was not a suspect in the case, this shows the bigger problem that geofencing creates. If the employee had left his device in the area that was associated with Google, then his information could have been tied to the suspected crime.

It would be the same for any person who was in the area or had their device within the specified area. For example, if a customer from one of the two stores left their device on the property or someone passing by got too close to the geofence, they could have been added as suspects for the crime.

In another example, TPD used a form of geofencing that did not require a court-ordered warrant. The authorities used a Google geofencing method to look at a specific apartment unit in East Tampa. They were looking for a robbery suspect and were tracking anyone who came in or left the unit.

Shown through email exchanges, TPD was attempting to help the Hillsborough County Sheriff’s Office find a suspect who had supposedly committed a theft crime previously in the year. TPD was asked to check license plates with the reader camera to search for a Chevy Tahoe. To accomplish this, a TPD crime analyst scanned surveillance videos of all the cars with a technology called Vigilant Solutions. It was announced by the EEF in 2018 that Vigilant was using its information for Immigration and Customs Enforcement (ICE).

The TPD analyst gave the following comment: “I ran all scans within 2 miles of the offense location from 0250-0415 hours and there wasn’t a single scan. Vigilant is also basically useless for make and model searches so I just do a geofence of all vehicles and sort through them.”

Although the analyst refused to provide further comments on what they meant by geofencing all of the vehicles, Lynch said the most likely case was that the Vigilant database was asked to show every vehicle within a 2-mile radius since the normal way of searching a camera system wasn’t working. Unlike with searching cellphone data, searching a license’s plate is not protected under the Fourth Amendment. However, the issue with this is that the Vigilant technology is violating the privacy of citizens by sorting through all the vehicles in the area by spying on them.

“In many police departments, searches like this are completely standard procedure,” Lynch said. “But that doesn’t mean that I think that it’s constitutional.”

In short, geofencing creates the potential to assume innocent people are criminal suspects by violating the Fourth Amendment.

Responses

For many TPD officers, they are attempting to figure out how to use geofencing without violating the Fourth Amendment. There have even been discussions with the state attorney to figure out a way to navigate the nuances of obtaining a geofence warrant.

Detective Sgt. Gregory Van Heyst from TPD sent an email to Michelle Doherty, the Administrative Chief of Major Crimes at the State Attorney’s District 13 office. Within the email was a link to a 2019 ruling in Virginia that claimed geofencing was unconstitutional. “Maybe you’ve seen this ruling but it reads to me that the best course of action is to get a search warrant at each stage of the geofence process,” Van Heyst wrote.

In the response, Doherty agreed that geofencing needs to be used in a careful manner. Police should be able to explain how the private information of civilians won’t be used in these searches. “If LEO cannot articulate this, then a search warrant should not be sought or approved,” Doherty wrote. “So searches utilizing this process should be extremely limited.”

Doherty summarized that probable cause for a search warrant will exist if TPD can show and choose how the alleged suspect can be narrowed down and identified. In such a case she said, “we should be able to survive any attacks in court.”

One area in which geofencing could cause even more issues is the ability to pursue criminal charges for people looking to receive an abortion procedure. Now with the Supreme Court’s overturn of Roe v. Wade, reproductive rights activists worry that geofencing could be used to prosecute any individual who has violated the state’s ban on abortion.

There are still plenty of questions about geofencing and Florida’s active use of them. Harvard Law Review has called for the government to protect citizens from being spied on by the police. “Rather than waiting for challenges to geofence warrants to percolate and make their way up the court system, Congress must engage in proactive legislation — as it has done with other technologies, to ensure that law enforcement across the country does not continue to abuse geofence warrants,” the group wrote.

Harvard Law Review’s main piece of advice for anyone who believes they have been spied on or pinned to a criminal case due to geofencing? Reach out to a skilled defense attorney.

Finding a Defense Attorney in Tallahassee, Florida

If you believe your right to privacy has been violated by a police officer using the geofencing tactic, make it your first priority to reach out to a Florida criminal defense attorney in your area. Getting accused of a crime you did not commit is a very serious issue, especially when the consequences could result in expensive fines and potential jail time. Don Pumphrey and his team at Pumphrey Law Firm have represented clients all across Florida for various criminal charges. We strive to build a strong defense for your case and will stand in your corner throughout the entire process. For a free consultation call (850) 681-7777 or leave an online message today.

Written by Karissa Key

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