Are ‘reverse search warrants’ legal?

| May 20, 2020 | Criminal Defense

Lately, it has become almost commonplace for law enforcement to search for suspects using “reverse search warrants.” What are they?

Traditionally, search warrants were intended to keep the government from unreasonably searching people and their property. Only when a police officer swore before a judge that there was probable cause to believe the evidence of a crime would be found was the search allowed to move forward. Generally, this meant developing an individual case against a suspect.

A reverse search warrant works differently. Instead of investigating a particular suspect, the police can investigate everyone who was near the crime scene at the time of the offense. They do this by seeking location tracking information from cellphone providers, internet service providers and apps. It’s like a drag net. Most of those caught up in the net will be innocent.

Using lists of cellphones that were in the area at the time of the crime, police then investigate everyone who could have been involved due to their mere physical presence. No individualized suspicion is necessary.

When judges grant a reverse search warrant, they may not realize the amount of personal data they are authorizing the police to access. There are potentially hundreds or even thousands of innocent people are affected by the warrant.  This essentially represents a mass surveillance operation.

The information obtained through this form of mass surveillance has the potential for misuse if someone is wrongfully accused of a crime.

Consider the 2018 case of the Proud Boys, a right-wing group. When their founder spoke at a Republican club in New York, “Antifa” protesters chanted and brandished spray paint. Proud Boys members responded with violence. In order to identify those involved, law enforcement used a reverse search warrant to obtain the names of anyone whose cellphone was in the area at the time of the event.

Although four Proud Boys went to trial for assault and rioting, prosecutors revealed that the search warrant had actually been sought to go after the non-violent “Antifa” protesters.

Reverse search warrants have been used to obtain information from Google, Apple, Uber, Lyft and even Snapchat. They have been used by state and federal law enforcement around the country.

Are these reverse search warrants legal? That will depend on the particular facts of the case in which they are used. There are strong arguments to be made that reverse search warrants violate the Fourth Amendment’s prohibition of “unreasonable” searches and seizures..

In the meantime, we can expect to see more use of this tactic, as people continue to utilize technology with location and tracking services.