Page 33 - TPA Journal November December 2024

records and his friends on Facebook, the Appellants concluded, the exclusionary rule
Inspectors were able to identify Thomas Iroko should apply, and all the evidence seized should
Ayodele as a suspect. Finally, on July 1, 2019, be suppressed as fruit of the poisonous tree.
Postal Inspector Dwayne Martin reapproached On January 31, 2023, the district court conducted
witness Forrest Coffman and asked him to partic- a hearing on Appellants’ Motion to Suppress. At
ipate in a photo lineup. Although Coffman was the hearing, the Government called its two
unable to identify McThunel or Ayodele in their Investigators, Matney and Mathews, and
respective lines, Coffman did identify Smith as the Appellants called an expert, Spencer McInvaille.
person he saw driving the red Hyundai. In sum, all In relevant part, Matney and Mathews testified as
evidence connecting Appellants to this crime was to: their unfamiliarity with geofence warrants; the
derived from information obtained from Google steps they took to request a geofence warrant and
pursuant to the geofence warrant. receive information from Google; their consulta-
The Government initiated the instant action by tion with the U.S. Attorney’s Office; their review
issuing an indictment on October 27, 2021. Count of surveillance footage purporting to show the
I of the indictment alleged that Appellants had a robbery suspect acting consistently with cell
conspiracy to rob the Lake Cormorant Post Office, phone usage (e.g., holding his hand up to his ear);
and Count II alleged the actual robbery. On and their understanding that the language in the
November 4, 2022, Smith filed a Motion to warrant requiring “further legal process” at Steps
Suppress—which the other Appellants joined— 2 and 3 meant the process of law enforcement
seeking to suppress all evidence derived from the “demand[ing]” information from Google, not the
November 2018 geofence warrant which was used process of law enforcement seeking any addition-
to identify them as suspects. al warrants from the court.
Appellants raised multiple arguments related to McInvaille provided expert testimony to the court
the constitutionality of the geofence warrant. First, about digital forensics and geolocation analysis,
Appellants contended that they had a reasonable including, in relevant part, Google Location
expectation of privacy in their Google Location History data. McInvaille explained to the district
History data, and that this geofence warrant vio- court that warrants submitted to Google are typi-
lated that privacy interest as a categorically cally used to seek information about suspects
unconstitutional general warrant. Second, when law enforcement knows the suspect has a
Appellants argued that the specific warrant at Google account. In contrast, law enforcement uti-
issue was invalid from its inception because it lizes geofence warrants and Google Location
lacked probable cause and particularity. Third, History when they do not have any leads, but nev-
Appellants argued that even if the warrant was ertheless want to search through Google’s data
valid, the Government did not undertake “further (i.e., the Sensorvault) to find suspects. McInvaille
legal process” to obtain additional information outlined the three-step geofence warrant process
from Google as required by the warrant, making described supra, and explained that as part of that
Step 2 and Step 3 of the search warrantless and process, Google is required to search every
illegal. Finally, Appellants maintained that the Google account with Location History enabled.
good-faith exception did not excuse the defects of Finally, McInvaille testified that, given his experi-
the warrant, especially in light of the fact that the ence in other cases, the language requiring “fur-
affidavit in support of the warrant contained a ther legal process” in this warrant would have
knowing and intentionally false statement— required additional warrants at each step of the
specifically, that “it appear[ed] the robbery sus- geofence process.
pect [was] possibly using a cellular device both On February 10, 2023, after considering the par-
before and after the robbery occur[ed]”—making ties’ briefing and the evidence presented at the
the warrant invalid pursuant to Franks. As such, hearing, the district court denied Appellants’

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