California Court of Appeal: Geofence Warrant Violates ‘Particularity’ Requirement of Fourth Amendment and Is ‘Overbroad’ but Good Faith Exception Applies Because of the Novelty of Geofence Warrants at Time Sought and Executed
by Richard Resch
The Court of Appeal of California, Second Appellate District, held that a geofence warrant used to gather evidence in a homicide investigation that resulted in two murder convictions lacked the requisite particularity and was overbroad in violation of the Fourth Amendment. Nevertheless, the Court affirmed the convictions based on the good faith exception to the exclusionary rule due to the newness of geofence warrants as an investigative tool at the time the warrant was sought and executed.
Facts of the Case
On the morning of March 1, 2019, Adbadalla Thabet was shot and killed as he exited his car at a bank in Paramount, California. Surveillance video showed a gray sedan and red sedan following him. The driver of the gray car pulled slowly up to Thabet, fatally shot him, and sped away. The driver of the red car retrieved Thabet’s backpack and fled the scene.
Investigators learned that Thabet managed several local gas stations and had just picked up cash receipts from multiple locations prior to arriving at the bank. Upon reviewing surveillance video from those locations, the red and gray cars are seen tailing Thabet at two pick-up locations, but their license plate numbers are not legible in any of the footage. Investigators concluded that the two cars had been following Thabet that morning in anticipation of him making a large cash deposit at the bank.
The Search Warrant
Detective Jonathan Bailey applied for a search warrant directing Google to identify all persons whose location history data (“LHD”) showed they were near the six locations visited by Thabet on the morning of March 1, 2019. In his supporting affidavit, Bailey recounted the facts surrounding Thabet’s murder, the various surveillance videos, and the gray and red cars. He did not disclose how many of the six locations in question had available surveillance footage or which locations the two cars were spotted.
Bailey provided generic boilerplate language in his affidavit about how Google tracks and stores LHD and wrote: “I know most people in today’s society possess cellular phones and other items (e.g. tablets, watches, laptops) used to communicate electronically.… Most people carry cellular phones on their person and will carry them whenever they leave their place of residence.” He added: “Suspects involved in criminal activity will typically use cellular phones to communicate when multiple suspects are involved.” Thus, he claimed that identifying the individuals near Thabet’s various locations on the morning of his murder would help investigators identify the drivers of the two cars seen on video.
Bailey’s warrant application targeted six separate locations and sought the LHD of individuals near those locations during a specific timeframe as follows: (1) Thabet’s apartment located in the center of a large city block and surrounded by residential and retail buildings – the targeted search area comprised about seven-and-a-half acres with the timeframe being 6:00 a.m. to 7:15 a.m.; (2) a gas station in Downey located on the corner of a busy intersection surrounded by retail businesses – the targeted search area comprised more than four acres with the timeframe being 7:00 a.m. to 7:30 a.m.; (3) a gas station in Bellflower surrounded by other businesses – the targeted search area comprised nearly two acres with the timeframe being 7:30 a.m. to 9:40 a.m.; (4) a strip mall in Compton surrounded by other businesses and parking lots – the targeted search area comprised about one-and-a-half acres with the timeframe being 9:40 a.m. to 10:15 a.m.; (5) a gas station in Lynwood surrounded by other buildings, including an apparent residential building – the targeted search area comprised about three acres with the timeframe being 10:15 a.m. to 10:30 a.m.; and (6) the bank in Paramount where the shooting occurred surrounded by neighboring businesses and parking lots – the targeted search area comprised more than four acres.
The warrant in question contained a three-step process: (1) investigators instruct Google to search LHD for the six locations during the timeframes and provide an anonymized list of devices located within the search areas; (2) investigators review list to determine which devices not relevant to investigation and can request additional LHD from Google if needed to make that determination, even if that data is beyond the initial search parameters; and (3) without additional legal process, investigators demand Google provide identifying information for all devices deemed relevant to the investigation.
On March 21, 2019, a Los Angeles Superior Court judge, acting as magistrate, signed the geofence warrant.
The three-step warrant procedure was not strictly followed. Google advised that the location search at the strip mall produced “voluminous results.” Upon consultation with investigators, Google narrowed the search to those devices present at two or more of the six locations during the timeframes set forth in the warrant. Google provided a list of eight anonymized accounts that satisfied the modified search parameters.
Following a review of the anonymized data provided by Google, investigators requested identifying information for the eight devices. Google complied and provided associated email addresses. Investigators obtained search warrants for two of the email addressed, which ultimately resulted in the identification of Daniel Meza and Walter Meneses. They were both charged with numerous offenses related to the killing of Thabet.
They filed a motion to quash the geofence warrant and suppress all evidence obtained as a result of its execution, arguing that Bailey’s affidavit failed to establish probable cause and that the geofence warrant lacked the particularity required under the Fourth Amendment. A suppression hearing was held on April 12, 2021.
An expert on geolocation and mobile devices named Spencer McInvaille testified for the defendants that Google cannot pinpoint a user’s location with 100% accuracy. In fact, he explained that a device’s recorded location provided by Google is “not a physical actual location of the device … just the estimate derived from the measurement that they took [from GPS, Bluetooth signals, cellular network data, and strength of nearby WiFi networks].” He further testified that Google’s goal is to estimate a device’s location with 68% accuracy, i.e., there is a 68% chance the device is actually located within the circle created by the confidence interval – measured in meters reflecting Google’s confidence in the location of the target device.
The trial court ruled that there was sufficient probable cause for the issuance of the geofence warrant and also concluded that the warrant satisfied the particularity requirement of the Fourth Amendment. It thus denied the motion.
Meza pleaded guilty to first-degree murder and was sentenced to 25 years to life, and Meneses pleaded no contest to second-degree murder and was sentenced to 15 years to life. They timely appealed the denial of their motion to suppress.
The Court began its analysis by recounting the governing rules of law. The Fourth Amendment prohibits unreasonable searches and seizures and provides 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.” U.S. Const., 4th Amend.; see People v. Robinson, 224 P.3d 55 (Cal. 2010). A search is presumed to be reasonable when supported by a warrant that describes with sufficient particularity the items and places to be searched. See People v. Weiss, 978 P.2d 1257 (Cal. 1999). The reason for the particularity requirement is to prevent “general searches” that constitute “the wide-ranging exploratory searches the Framers intended to prohibit.” People v. Amador, 9 P.3d 993 (Cal. 2000); see Maryland v. Garrison, 480 U.S. 79 (1987).
The Court noted that courts must evaluate three factors when determining the validity of a warrant: (1) probable cause, (2) particularity, and (3) overbreadth. See Illinois v. Gates, 462 U.S. 213 (1983); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847 (9th Cir. 1991); United States v. Weber, 923 F.2d 1338 (9th Cir. 1990). Probable cause exists if “the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” People v. Westerfield, 433 P.3d 914 (Cal. 2019). Particularity requires the warrant to “clearly state what is sought,” In re Grand Jury, with sufficient precision that investigators can determine with reasonable effort the place to be searched, Steele v. United States No. 1, 267 U.S. 498 (1925). Overbreadth requires that “the scope of the warrant be limited by the probable cause on which the warrant is based.” In re Grand Jury. Although related to particularity, overbreadth is a distinct concept that “prevents the magistrate from making a mistaken authorization to search for particular objects in the first instance, no matter how well the objects are described.” Weber; see also United States v. Purcell, 967 F.3d 159 (2d Cir. 2020).
Turning to the present case, the Court first addressed the claim that the search warrant was not supported by probable cause because there was no evidence that either defendant was using a cellphone during the relevant timeframes. The Court rejected their argument, explaining that it was reasonable for the magistrate to conclude the suspects were using cellphones to coordinate their movements on the morning of the shooting. In reaching its conclusion, the Court relied on Bailey’s opinion that, based on his training and experience, suspects use cellphones to coordinate their criminal activity, commenting that such an inference is “reasonable in today’s society.” See Riley v. California, 573 U.S. 373 (2014) (cellphones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”; cellphones “have become important tools in facilitating coordination and communication among members of criminal enterprises”).
The Court then addressed the particularity issue, concluding that the warrant failed to satisfy the Fourth Amendment’s particularity requirement “because it provided law enforcement with unbridled discretion regarding whether or how to narrow the initial list of users identified by Google.” The Court reasoned that at Step 2 of the warrant process, investigators were authorized to expand the geographic boundaries of the search and request information on “potentially thousands of users identified without any objective criterial limiting their discretion.” Similarly, at Step 3, investigators were permitted to demand “identifying information of any of the users found within the search parameters without restriction on how many users could be identified or any further showing that information concerning each individual user would be relevant to the case.” Thus, the Court ruled that the lack of any “meaningful restriction” on the investigators’ discretion “renders the warrant invalid.” (See full opinion for citations to cases from other jurisdictions that are in accord with the Court’s ruling.)
Next, the Court addressed whether the search warrant was overbroad. It reiterated that courts must determine (1) “whether probable cause existed to seize all items of a category described in the warrant” and (2) “whether the government could have described the items more particularly in light of the information available at the time the warrant issued.” United States v. Shi, 525 F.3d 709 (9th Cir. 2008).
The Court concluded that the geofence warrant violated both requirements. Regarding the first requirement, the warrant permitted the identification of all individuals within six large, urban search locations without any particularized probable cause with respect to each person or their location, the Court stated. Of particular concern to the Court was the fact the warrant allowed the search of both residential and commercial buildings despite there being no evidence or reasonable inference that the suspects ever left their vehicles during the timeframes under scrutiny. Additionally, the geographic boundaries described in the warrant included “more surface area where the suspects were not believed to have been present (inside buildings) than area where they were (adjacent roads and intersections),” the Court noted disapprovingly.
Moving on to the second requirement, the Court criticized law enforcement for not drawing the search boundaries as narrowly as possible in light of the information available to them at the time. For instance, at the first location described in the warrant (the victim’s apartment building), the search location encompassed the entire building and surrounding areas, but the suspects were not believed to have been in any buildings. The roads surrounding the victim’s apartment building were the legitimate target search location because the suspects were believed to have been following the victim in their vehicles, but the search location described in the warrant was not confined to just the roads.
Similarly, the Court determined that the timeframes for search locations provided in the geofence warrant were not narrowly tailored sufficiently to pass constitutional muster. The Court noted that the victim met a relative at the Bellflower gas station at about 9:00 a.m., and they left at about 9:40 a.m. However, the warrant sought information on devices at that location from 7:30 a.m. to 9:40 a.m. There was no evidence suggesting that either the victim or the suspects were located at the gas station 90 minutes before the victim met with his relative. Thus, the Court concluded that the warrant was unconstitutionally overbroad.
It is worth noting that the Court issued the following instructive statement: “The failure to sufficiently narrow the search parameters potentially allowed a location-specific identification of thousands of individuals – likely a search within the ambit of the Fourth Amendment – for whom no probable cause existed. While we recognize it may be impossible to eliminate the inclusion of all uninvolved individuals in a geofence warrant, it is the constitutionally imposed duty of the government to carefully tailor its search parameters to minimize infringement on the privacy rights of third parties.”
Finally, the Court considered whether the good faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897 (1984), applies in this case. The good faith exception holds that a suppression motion must be denied in those situations where a search has been conducted “in objectively reasonable reliance on a subsequently invalidated search warrant.” Leon. The Leon Court described four scenarios in which the good faith exception does not apply: (1) “[T]he magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth”; (2) if “the issuing magistrate wholly abandoned his [or her] judicial role”; (3) the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) if the warrant was “so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the executing officers cannot reasonably presume it to be valid.” Id. The burden is on the government to establish that the exception applies. People v. Willis, 46 P.3d 898 (Cal. 2002).
Meza and Meneses argued that the third and fourth scenarios apply and thus preclude the application of the good faith exception, but the Court ruled that the standard for neither was satisfied. The Court already concluded that probable caused existed to support the issuance of the warrant, so the third scenario is inapplicable.
Turning to the fourth scenario, the Court explained that at the time investigators sought and executed the geofence warrant, they were still a new investigative tool, so law enforcement had very little experience in seeking and executing them. Furthermore, there were no published cases at that time anywhere in the country evaluating their constitutionality. See United States v. Chatrie, 590 F. Supp. 3d 901 (E.D. Va. 2022) (when the warrant was obtained in June 2019, “no court had yet ruled on the legality” of geofence warrants). Although the investigators failed to follow the steps provided for in the warrant, the Court pointed out that their deviation from the procedures outlined in the warrant actually “narrowed, not expanded, the search authorized by the warrant.” Finally, the Court reasoned that in light of the “dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid, even if the issue, upon close legal examination, is not a particularly close one [Writer’s note: The Court appears to be signaling to law enforcement that the police in this case are being given a pass because of the novelty of the issue at the time, but going forward, any geofence warrants resembling this one will not be evaluated with the deference shown here.].” See United States v. Smith, 2023 U.S. Dist. LEXIS 22944 (N.D. Miss. 2023) (applying good faith exception to geofence warrant given lack of legal authority on the issue). Thus, the Court held that the good faith exception applies in this case and upheld the trial court’s denial of the defendants’ motion to suppress.
Accordingly, the Court affirmed the judgments. See: People v. Meza, 2023 Cal. App. LEXIS 282 (2023).
Writer’s note: The Court’s opinion appears to be the first by an appellate court anywhere in the nation to review the constitutionality of a geofence warrant. But undoubtedly, it will not be the last. As the Court observed: “The government filed its first geofence search warrant in 2016, and by the end of 2019, Google was receiving about 180 search warrant requests per week from law enforcement officials across the country.… Between 2018 and 2020, Google received about 20,000 geofence warrant requests for data, including over 11,500 in 2020 alone.” Owsley, “The Best Offense Is a Good Defense: Fourth Amendment Implications of Geofence Warrants,” 50 Hofstra L. Rev. 829, 834 (2022).
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