Investigations

Last month, as dozens of people gathered for a vigil to remember and honor 16-year-old Tyree Smith, a Jefferson Circuit Court judge was signing search warrants that police hoped would help them track down his killer.

Police had no suspects in the shooting that killed Smith on the morning of September 22, while he waited for the school bus at the intersection of West Chestnut and Dr. W.J. Hodge streets. They had little evidence beyond a description of a Jeep Cherokee that pulled up to the bus stop before someone got out and shot at a group of students, according to a search warrant filed earlier this month with the Office of the Jefferson Circuit Court Clerk.

Warrants typically focus on a suspect. But for this case, the LMPD turned to a tactic that police across the country are using more than ever before: a geofence warrant for the area. 

Tyree Smith's 9th grade year book photo. He was killed in his junior year while waiting for his school bus.Courtesy of Eastern High School

Tyree Smith’s 9th grade year book photo.

LMPD Detective Jason Maguire’s geofence search warrant ordered Google to turn over user data collected near the scene of the shooting and a second location of interest, in hopes of pinpointing potential suspects.

A KyCIR review of court and police records found that the LMPD uses these warrants most frequently in homicide cases, as detectives are overwhelmed with murder investigations. Last year was an all-time high in the city, and LMPD had already reported 155 homicides by October 3 this year. Nearly 74 percent of those cases are still open, according to police data. 

And so far, the geofence warrants aren’t leading the LMPD to close many cases. Of the 41 homicides from 2020-21 in which a victim is identified in police affidavits and officers used a geofence warrant, 33 are still listed on LMPD’s website as open and unsolved.

An LMPD spokesperson did not respond to an interview request. 

LMPD officers have used geofence warrants at least 73 times since January 2020 in hopes of solving bank robberies, burglaries, sexual assault, and at least one kidnapping, according to a review of search warrants filed publicly with the Office of the Jefferson Circuit Court Clerk. Nearly three-fourths are tied to a homicide investigation. 

The warrants are rarely used by smaller police departments in the county — Shively Police filed one and St. Matthews Police filed three.

The warrant in the Tyree Smith killing designates a search area that spans a two block section of Dr. W. J. Hodge Street — including nearby homes and apartments. The detective asked Google to compile a list of every user that was within the area for nine hours before the shooting, and also from a residential property that reported a stolen Jeep prior to the shooting. Maguire also got a search warrant for any cell device that may have connected to the stolen Jeep’s internal computer system.

Police have yet to make an arrest in the case.

Warrants use growing nationwide

The relatively new policing tool is controversial, but increasingly popular.

Google maintains a trove of data about virtually everyone who uses a cellular device and will share user information with police who obtain a search warrant. In 2018, the tech giant received 980 geofence warrants from law enforcement nationwide, according to a recent Google report.

Last year, they got 11,500.

Kentucky police submitted 126 geofence warrants to Google between 2018 and 2020. The data doesn’t specify which departments.

When police don’t have a specific suspect, they can obtain an anonymized list of everyone using a Google-connected device within a given area at a certain time — even if police have no evidence to tie them to the crime being investigated. Police can then narrow in on specific accounts and obtain users’ names, location data, and communication records.

Google did not respond to multiple requests for comment. In court records, the company points to judges as the party responsible to ensure police have the probable cause needed to obtain a geofence warrant — which Google’s attorneys describe as broad and intrusive.

The new tactic has raised flags for those concerned that civil liberties are compromised by the search.

Traditionally, police identify a person they suspect of committing a crime before obtaining a warrant to search a home, vehicle or device, and a geofence warrant “turns that on its head,” said Jennifer Lynch, the surveillance litigation director at the Electronic Frontier Foundation.

Lynch argues the warrants violate Fourth Amendment protections against illegal search and seizure because they’re too broad, in nature. The threat to privacy outweighs any potential benefits for law enforcement, she said.

“They’re hugely problematic,” she said. “People could become under suspicion for a crime that they were not connected to, in any way. That means the criminal justice system is not working the way it’s supposed to.”

Keeping the balance between people’s privacy and legitimate police interests falls on judges, who approve law enforcement requests for search warrants. In Louisville, Jefferson Circuit Judge McKay Chauvin has signed at least 10 geofence warrants this year, including those related to Tyree Smith’s murder.

headshot of Judge McKay Chauvin, wearing a black robe and bow tieJefferson Circuit Court

Judge McKay Chauvin

Cell device data can provide police with invaluable evidence they’ve never before been able to get, Chauvin said in a recent interview.

“Your probable cause has to be very clear to get in there, because once you’re in there you’re in that person’s life in a way that, previously, you couldn’t have been,” he said.

Chauvin said he looks for a tightly focused area with added clues — like similar crimes that happened at multiple locations, eyewitness accounts or video footage — that would increase the likelihood of ensnaring a specific suspect.

“It’s not a fishing net, it’s more of a line,” he said.

If geofence warrants are going to be allowed, they need strict regulation from the legislature or the courts to ensure transparency and oversight, said Brad Clark, the president of the Kentucky Association of Criminal Defense Lawyers.

“There’s little that violates a person’s privacy more than tracking their movements,” he said.

Wide nets, few arrests

Police often paint grim pictures of grisly crime scenes with scant evidence when they submit an affidavit for a geofence warrant. Cell phone data, they argue, could really help.

To explain how, police use boilerplate language that details the scope of Google’s precise tracking capabilities via applications, online searches and network connections.

The search areas can span several blocks and include businesses, busy streets, churches and parking lots. The window of collection can be a few hours or more than a day.

The widest net in warrants KyCIR reviewed was cast by LMPD Detective Ethan Guetig, who in April got a judge’s permission to collect data from a six-block radius that encompassed more than 120 homes, apartments, a bar, a gas station, a dollar store, a church, a fire department and the busy 4th Street thoroughfare that connects the neighboring University of Louisville campus to downtown. 

Guetig didn’t have many leads on who killed 18-year-old Kevon Dickerson in March on Montana Avenue. Witnesses said only the shooters had fled eastbound. The geofence warrant, he said in his affidavit, could help point him to the suspects. 

But more than six months later, police have not solved the case. 

In another case, a detective obtained a geofence warrant in July in hopes of identifying the person responsible for the June murder of a 34-year-old Jessie Smith, found in his home in Chickasaw with a single gunshot to the head. Witnesses pointed to a potential suspect, but police got the warrant to collect nearly two days worth of user data from the man’s home, the street out front and at least four neighboring houses.

In both affidavits, detectives said that “capturing data before and after the time of the crime allows investigators to rule out innocent devices.”

The case hasn’t been solved, according to LMPD’s homicide database.

Metro Council

Jessica Green

Police-led fishing expeditions of any type concern District 1 Louisville Metro Councilmember Jessica Green, a Democrat representing far western Louisville.

Green is a former prosecutor who chairs the council’s public safety committee and will be vying for a seat on the Jefferson Circuit Court bench next year. She said she wants police to aggressively target violent crime and get killers off the street.

“But to what end?” she asked. “It’s not OK to target crime on the backs of violating citizens’ constitutional rights.”

Louisville Metro Councilmember Jecorey Arthur, a District 4 Democrat, represents downtown and the surrounding neighborhoods, including the area where Tyree Smith was killed. He believes the practice can put people who were near a crime in real danger of retaliation.

Metro TV

Fourth District Metro Council Member Jecorey Arthur

“The streets talk,” he said. “How are you protecting people who you might end up engaging in the process who otherwise would have steered clear?”

Arthur and Green both said police should have strict policy to dictate when and how officers can utilize a geofence warrant. LMPD has no warrant policy that’s specific to geofence warrants, or the data collected, according to an agency spokesperson.  The warrants direct law enforcement to seek only detailed information from those devices deemed relevant to the investigation.

“It becomes dangerous when you don’t have a process,” Arthur said. “This is something that we definitely need more information on before we dive into it.”

Asked if there is a place for geofence warrants in Louisville, Arthur said LMPD should first address issues that plague the agency before deploying new techniques that could further the divide between people and the police.

The agency has been under national scrutiny since officers killed Breonna Taylor in March 2020. Federal investigators with the Department of Justice are investigating whether LMPD has a pattern or practice of civil rights violations in policing.

“We have to clean up what we already have, before adding to it,” Arthur said. 

‘For better or worse’

Recent court rulings vary on how geofence warrants can be used in criminal investigations, according to Matthew Tokson, a law professor at the University of Utah. 

“When we talk about the scope of the geofence warrant, that’s the issue,” Tokson said.

Tokson anticipates many legal battles in the future over geofence warrants. The big question: Can police collect user data on everyone in an area if they believe that just one, or a few, people actually committed a crime?

Tech-based investigations will become more commonplace as companies continue to develop new surveillance capabilities, he said. Police this year have also obtained traditional search warrants for data from Facebook, Instagram, Snapchat, Ring, Cashapp and Lyft, according to KyCIR’s review. 

“For better or worse,” Tokson said.

Police aren’t highlighting their use of geofence warrants when they do make arrests.

In March, after a man shot and killed another man outside a nightclub on W. Broadway, police obtained a geofence warrant for three different locations in hopes of catching the killer.

They made an arrest about two months later.

In the arrest citation, police attributed the bust to video surveillance footage — which traced the man from the scene of the shooting to his home in Smoketown. 

Officers make no mention of whether the geofence warrant helped crack the case.

After Tyree Smith was killed, as the city mourned his death, LMPD Chief Erika Shields held a press conference. She said the police got to work immediately to solve the case. 

“Gathering information, pulling videos, cameras, and putting any and every resource towards solving this heinous crime,” she said.

She didn’t mention the geofence warrant.
Contact Jacob Ryan at 502-814-6559 or at jryan@kycir.org.

Jacob Ryan is a reporter for the Kentucky Center for Investigative Reporting.