Recently, my wife and I were working in our backyard when we noticed a drone, floating by our yard just below tree-top level. As soon as we stood-up to look at the buzzing drone, it came closer to our position hovering just above our heads out of reach. 

Yes, drones have become ubiquitous. In Texas, they shoot them down like game birds. Cases are now starting to percolate into the common law of Michigan that examine the relationship between evidence obtained from invasive devices like drones, and our privacy. 

The Michigan Court of Appeals recently decided Long Lake Township v Maxon, an interesting case pitting evidence gathered by a drone against a couple's right to privacy on their own property. The Township cited the couple for an ordinance violation; the Township was informed relative to the Maxon's alleged zoning ordinance violation via drone surveillance footage; the drone footage was obtained without a warrant. 

The Maxons have a long history of litigation with Long Lake Township in Grand Traverse County over the Township's nuisance ordinance banning certain forms of salvage and junk operations. A settlement agreement had been governing relations between the parties since 2008, and prevented the Township from filing a violation against the homeowners. 

In 2018, however, the Township complained that the Maxons had expanded their salvage operation over the past decade. To prove their contention, they hired Zero Gravity Aerial to make photographic drone flights directly over the Maxon's property in the years 2010, 2016, 2017, and 2018. 

Throughout these years, the Township did not secure a warrant for the drone flights. The evidence collected clearly indicated an increase in the number of junked cars on the property. 

Citing their right to be free from government searches without a warrant based on probable cause, the Maxons moved to supress the evidence obtained from the drones. In denying their motion, the trial court judge ruled that the homeowners had no expectation of privacy in their yard based on the "fixed wing" doctrine; therefore, without a privacy interest, a warrant was not required and the evidence gathered from the Township drones could be used to prove their case. 

If a party has a reasonable justifiable expectation of privacy under the circumstances of a particular case, then the government must obtain a search warrant based on probable cause to invade that private sector. If there is no reasonable expectation under the circumstances, then no warrant is required. Within the jurisprudence of probable cause, warrantless searches are  presumptively disfavored by the courts. This case is interesting because it adds a drone surveillance component that was not present in earlier cases.

Michigan has a drone statute which states:

(1) A person shall not knowingly and intentionally operate an unmanned aircraft system to subject an individual to harassment. As used in this subsection, "harassment" means that term as defined in section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.

  (2) A person shall not knowingly and intentionally operate an unmanned aircraft system within a distance that, if the person were to do so personally rather than through remote operation of an unmanned aircraft, would be a violation of a restraining order or other judicial order.

  (3) A person shall not knowingly and intentionally operate an unmanned aircraft system to violate section 539j of the Michigan penal code, 1931 PA 328, MCL 750.539j, or to otherwise capture photographs, video, or audio recordings of an individual in a manner that would invade the individual's reasonable expectation of privacy.

  (4) An individual who is required to register as a sex offender under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736, shall not operate an unmanned aircraft system to knowingly and intentionally follow, contact, or capture images of another individual, if the individual's sentence in a criminal case would prohibit the individual from following, contacting, or capturing the image of the other individual.

Long Lake v Maxon is one of the first cases to apply this statute to a proceeding. The Court of Appeals characterized the zoning ordinance proceeding as quasi-criminal given the state powers intersecting with private property. The appellate court conducts a tour de force of case law pertaining to our "expectation of privacy" within the Fourth Amendment search warrant context. Drones are distinguished from aircraft in the case; they are characterized as smaller, quieter and more discreet than fixed-wing manned aircraft.

The United States Supreme Court addressed these issues within the "aircraft" context and has opined that a property owner's reasonable expectation of privacy should not be, "at the mercy of advancing technology." The Court of Appeals agreed, holding:

We conclude that; much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We conclude that drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.

 Notably, the published opinion contains a dissent from Judge Karen Fort Hood. She concludes that, since the Township operated the drone flights over the property just like any other drone operator, then the property owners did not have an expectation of privacy. 

Post #629

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Geofence warrants, also known as reverse location warrants, are new to the law enforcement toolbox. Now these warrants are quickly becoming recognized by law enforcement as an effective method to gathering evidence of crime.

In some cases, evidence gathered by multi-step reverse location warrants is the only evidence available in the case. These warrants are also getting attention from the national media and soon could be heading to the SCOTUS for a show-down with our privacy rights and the Fourth Amendment's probable cause requirement.

What is a Geofence Warrant?

In recent years, police, investigating a crime with few or no clues, have increasingly turned to almighty Google to help them find the perpetrator. First, law enforcement issues a warrant to Google requesting data about any and all devices present within certain spatial and temporal parameters matching an unsolved crime.

Google then responds to the multi-step warrant by transmitting to the requesting agency a log designating -anonymously- all registered devices that fit the warrant's parameters. Law enforcement then takes that anonymous raw data and determines which code-designated devices merit further information. These suspect devices then become the subject of a second warrant to Google; more personal and identifying information is requested. [Note: the SCOTUS has already held that law enforcement must first obtain a search warrant pursuant to the Fourth Amendment prior to forcing access to a suspect's password protected cell phone.]

After providing lip service to their policy of narrowly construing such warrant requests, Google responds by tapping into its Sensorvault database, created in 2009. Sensorvault is connected to Google's "Location History" service, as well as other location-based apps such as the Web & App Activity; a separate database.

We've all noticed when our iPhones or Android devices prompt us to enable the location history function. This allows Google to provide you with directions to anywhere in the world along with many other spatially-related information services.

The first-known Geofence warrant was issued in 2017 in North Carolina. The case related to the suspected arson of a 7-story apartment complex. Raleigh Police had no leads to bolster their suspicions; for a year, their investigation bore no fruit until they requested a warrant for information from Google.

Often, judges issue such warrants under seal to protect the privacy of the many users having nothing to do with the crime being investigated. The Raleigh Police, for example, have made reverse location warrant requests in murder and sexual assault cases in addition to the arson suspect.

Google now processes hundreds of such multi-step warrants weekly; that number is expected to rise significantly as law enforcement agencies become aware of this new investigative practice. You don't have to be a tech genius to realize the significance of such warrants for law enforcement.

One of the drawbacks to securing such warrants are the significant processing delays. The multi-step reverse location warrant requests have become so numerous, Google has a separate division dealing exclusively with such requests. 8-weeks to six-month delays are not uncommon; there are also two components to the request.

Geofence Warrants Provide Circumstantial Evidence of Crime.

Law enforcement has been securing location data from a specific suspect’s or witness’ digital devices for over a decade. Reverse location warrants, however, constitute a relatively new digital dragnet for when a case has gone cold, or has no viable clues.

This new multi-step warrant process is much more comprehensive than a cell tower data dump. For decades, police and prosecutors have been using data pulled from cell phone towers to solve crimes. 

Data from cell towers is limited and incomplete relative to the Sensorvault and Web & Activity App databases. For example, Google's data is ultra-precise and historically detailed, even when a suspect or witness does not place a call on their cell. In other words, Google's data depicts every aspect of our lives, not just the patterns elicited when actual calls are placed.

Such comprehensive information about suspects and witnesses constitute a veritable treasure trove of circumstantial evidence for law enforcement. Digital location tracking of a specific Android or iPhone device can produce circumstantial evidence of a suspect’s relationship to an unsolved crime. 

In every criminal jury trial here in Michigan, circumstantial evidence is commonly defined as: 

• Facts can be proved by direct evidence from a witness or an exhibit. Direct evidence is evidence about what we actually see or hear. For example, if you look outside and see rain falling, that is direct evidence that it is raining.

• Facts can also be proved by indirect, or circumstantial, evidence. Circumstantial evidence is evidence that normally or reasonably leads to other facts. So, for example, if you see a person come in from outside wearing a raincoat covered with small drops of water, that would be circumstantial evidence that it is raining.

• You may consider circumstantial evidence. Circumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove the elements of a crime. In other words, you should consider all the evidence that you believe.

Judges always instruct juries that an accused can be convicted solely on the basis of circumstantial evidence. Direct evidence tends to be higher-quality evidence, but circumstantial evidence is often sufficient to convict the accused.

There are no known cases, however, where a suspect has been charged solely on the basis of a geofence warrant. An independent criminal investigation must still be conducted using the reverse location data. 

Over time, however, a case based solely on circumstantial evidence cultivated from a geofence warrant is sure to present itself to the court's. In the proper judicial and appellate hands, a sensible policy can be fashioned going forward. At present, privacy concerns, relative to the law enforcement process -as envisioned by the drafters of the 4th Amendment- is at risk. 

Geofence Warrants Raise Privacy Concerns.

There can be many legitimate –non-criminal- reasons for an individual’s presence within the parameters of a reverse location warrant. In fact, usually, all but one device has a legitimate and potentially relevant reason for leaving a particular digital footprint.

Sensorvault and the Web & Activity App contains an enormous amount of our personal data. The database contains detailed historic records of our locations -both temporal and virtual- the products we use, the products we view, the identities of our friends, and it can match-up times associated with each of these and many other minutia of our daily lives. This, of course, raises significant privacy concerns.

Sometimes, however, law enforcement simply gets it wrong. This was the case for Jorge Molina who was mistakenly charged with murder in Phoenix, Arizona a few months ago. Mr. Molina’s case was recently profiled in the New York Times.

Turns out, Molina’s mother’s boyfriend used his vehicle on occasion. So while the reverse location warrant yielded some eventual fruit for law enforcement, it disrupted Mr. Molina’s life first by violating his privacy and precipitating a week-long incarceration.

Once you are identified as a witness or suspect, turning-off your Location History, opting out, or deleting the history can also be viewed as circumstantial evidence of guilt. Such acts can be held against a suspect, just as wiping a hard drive clean is often used against an accused. Covering your tracks constitutes circumstantial evidence of guilt; or at least it will be portrayed as such by the prosecutor.

Are Multi-Step Reverse Location Warrants Constitutional?

The Fourth Amendment to the United States Constitution states that, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  One concern with multi-step reverse location warrants is their wide spatial temporal breadth. 

Particularity is required under the Fourth Amendment, which calls for a limited search based on probable cause. Most geofence warrants, on the other hand, by their nature, seek raw data covering potentially thousands of individuals over a wide-span of time. 

In addition, the two-step warrant process scoops-up scores of innocent bystanders within its dragnet. Courts usually abhor the fishing-expedition technique for issuing warrants for the main reason that fishing expeditions are not based on probable cause.

Multi-step reverse location warrants can also be technical in nature. A neutral magistrate or judge, as well as law enforcement personnel, defer to Big Data technicians to properly tailor such warrant requests and the raw data resulting from the requests. 

The NYT examined initial warrants used the first-step of the geofence warrant process. Those warrants merely sited the fact that: a) most Americans have cell phones; and b) Google possessed location data for many of those phones.

Geofence Warrants Will Become A Pervasive Law Enforcement Technique.

Reverse location warrants are becoming a well-known jackpot among federal and state criminal investigators. In addition to the increased requests, it will not take long for law enforcement to overreach, placing the process squarely before the appellate courts, on its way to the SCOTUS.

Last year’s series of bombings around Austin, Texas presented a perfect opportunity to utilize geofence warrants. A series of geofence warrants for each bomb site would yield raw anonymous data pertaining to devices around those specific bombing locations at or about the time-frame of the explosions.

This data could then be mined for patterns of activity and for the presence of a common device appearing in several locations. Federal investigators could then bring the resources of the United States to bear on identifying the patterns or the commonly present devices.

This, of course, presumes that the bomber would be simple enough to have a geo-tracking device on his or her possession when committing these crimes. These days, however, try getting off the data grid. Data is collected when your phone is turned-off; when your vehicle is turned on; and with your every key-stroke tracked.

Even if a suspect does not carry a geo-tracking device, or has an older model vehicle not wired to the Internet, the presence of potential witnesses also can be identified. Some witnesses may not even realize they were near the scene of a crime until confronted by law enforcement investigators.


We here at the Law Blogger don't see these warrant requests going away anytime soon. Nor do we anticipate Google changing its stated policy of only providing information they are required by law to provide.

We Can Help.

Our criminal defense and appellate practices have provided us with decades of experience in such matters. If you or a family member are the subject of such a warrant request, or have intersected with law enforcement in any way, give us a call to discuss your options. 

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Post #625

That an outlier POTUS like Trump would pardon a firebrand like former Maricopa [Arizona] County Sheriff Joe Arpaigo should surprise no one; they're views are tightly aligned on the illegal immigration issue. It's just that, in this case, the pardon comes right on the heels of the conviction, and at the beginning of the President's term rather than in the traditional eleventh-hour of an administration.

More than a decade ago, a civil rights lawsuit was filed against the ousted Sheriff, alleging that he systematically violated the U.S. Constitution by profiling Latinos and arresting suspects based solely on their nationality in violation of the 4th Amendment's probable cause requirement. Like Trump, former Sheriff Arpaigo has had his differences with federal judges.

In Arpaigo's case, two judges enjoined the sheriff from detaining Latinos based solely on their appearance, and in the absence of any specific evidence that a law had been violated. The sheriff kept up the practice anyway.

Last month, Arpaigo's defiance resulted in a criminal contempt of court misdemeanor conviction. The swiftness of the presidential pardon made it one-of-a-kind.

Normally, presidential pardons are granted only after the appellate process has been exhausted and the convict has been in the penitentiary for several years, if not decades.

In Arpaigo's case, although federal judges Susan Bolton and G. Murray Snow issued an injunction against Arpaigo back in 2011, Snow followed-up with a series of subsequent orders. Thumbing his nose at the judiciary just like Trump has done over the past 18-monts, the sheriff insisted his law enforcement tactics were legal and he kept-up a rigorous campaign of Latino arrests until his ouster.

Article II of the U.S. Constitution grants the president the power, "to grant reprieves and pardons for offenses against the United States..." The SCOTUS has interpreted this power to extend to all federal crimes thus, its scope certainly includes Sheriff Arpaigo's contempt conviction.

One of the problems with wielding the presidential pardon power in real-time is that it seriously intrudes into the realm of the other branches of government. In the Arpaigo case, this pardon lessens the effectiveness of the Constitution as well as our civil rights laws. Also, the case obviously impedes the effectiveness and the powers of federal Article III judges.

Trump [being Trump] might realize just how much power he really has under the Constitution relative to the legislature and the judiciary. Wielding this power from the 4-corners of the document on a real-time, case-by-case basis to prosecute his political agenda could quickly burgeon into a constitutional crisis.

One of the legal challenges arising from this pardon is whether a chief executive can pardon a government official whose illegal conduct affects the constitutional rights of others. For her part, Judge Bolton has invited briefs on this legal issue rather than simply dismissing Arpaigo's case prior to the sentencing hearing.

There is no question Trump has the power to pardon at any point during his term. The constitutional/legal/political question is, should a chief executive exercise his Article II pardon powers to undo a recent conviction based on the political agenda of his administration, especially where the state actor's conduct affects individuals' constitutional rights.

No doubt, there are well-articulated answers on both sides. We here at the Law Blogger would like to hear from our readers on this one. Should Joe Arpaigo have been pardoned? And so soon after his conviction?

Post #604
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Whether a search of your computer is legal depends, in large part, on where the search takes place.  If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all.  Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools.  Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY.  Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison. 

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US.  Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer.  Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant.  Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images.  Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive. 

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion. 

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal.  A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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