The increasing use of technology is giving law enforcement new ways to investigate potential crimes and obtain search warrants. Police are using a new type of warrant called a reverse warrant with increasing frequency. This is also known as a geofence warrant.
Reverse warrants are not for police to conduct searches based on individualized suspicion—like normal warrants. Instead, police will seek information from cell phone providers and other companies that can provide data about who was in a certain area at the time specified in the warrant.
When Police Use Reverse Warrants
Police will use reverse warrants when they know that a crime occurred in a particular area. Reverse warrants help police cast a wide net when they have no other leads to pursue when investigating crimes, such as homicides and robberies. Their hope is that receiving a broad list of people in the area will give them a point from which to begin following leads. However, this could lead them to far exceed the scope of what the Fourth Amendment allows when it comes to warrants.
Citizens often find out that they are subject to a reverse warrant when they receive a notification from their cell phone provider. They are informed that their information will be turned over to the police unless they go to court within a short period of time to block its release. This takes people who have no idea a reverse warrant existed completely by surprise. In most cases, they feel powerless to even stop it.
Some people only find out that they have been subject to a reverse warrant when they are arrested or taken in for questioning. By that point, the damage to their constitutional rights has already been done, especially when they have been subjected to an illegal arrest.
Reverse Warrants May Be Overbroad
The scope of Fourth Amendment protections is based in part on the reasonableness of a particular search. Law enforcement does not have the ability to conduct an unlimited search. Fourth Amendment cases often focus on searches as being overbroad and untailored as reasons for finding them unreasonable. There is a real fear that reverse warrants can violate an individual’s rights by subjecting them to a search that is not particularized.
While the Fourth Amendment protects individuals from unreasonable searches and seizures, law enforcement certainly believes that reverse warrants are legal based on the growing number of times that they have been seeking them from magistrates. Google reports that the number of requests for reverse warrant data that it has received increased more than tenfold from 2018 to 2020.
However, some federal courts have begun to find that reverse warrants are unconstitutional under the Fourth Amendment. Citing U.S. Supreme Court precedent in Ybarra v. Illinois, one federal magistrate in Illinois denied a law enforcement application for a reverse warrant. Specifically, in Ybarra, the U.S. Supreme Court held that law enforcement could not search everyone who happened to be in a bar when they were executing a search warrant. This case limits the government’s discretion to search all people in a given area.
In general, courts have not yet conclusively weighed in on the constitutionality of reverse warrants, although some magistrates are starting to push back on these warrants. The use of these warrants is relatively new, and it has been starting to grow dramatically in the past few years. New York is pushing to outlaw reverse warrants, and it could be followed by other states as this type of warrant becomes more controversial.
How to Deal with Reverse Warrants
If you have been subject to a reverse warrant, you have two general legal options:
- You can challenge the warrant when you receive notice from the technology company that your information is being sought. You may have as few as seven days to file this legal challenge.
- You can argue that you have been subject to an illegal arrest because the search warrant on which the arrest was based was not particularized and overbroad. If the court agrees, the charges could be dropped because the arrest itself was illegal.
If you are subject to a reverse warrant, or you have been arrested based on information obtained from one, call Cantin Mynarich.