California Supreme Court Decides There’s No Reason To Generate Precedent On Geofence Warrants

The government’s preference for geofence (a.k.a. “reverse”) is well known. There have been enough cases and enough litigation in recent years to demonstrably show the government will go to data havens when searching for suspects rather than engage in in-person investigative work.

Why canvass a neighborhood for potential suspects when you can ask Google to do the work for you without leaving your desk? Sure, warrants are involved but they pervert the “probable cause” ideal. Rather than demonstrate Google (or any random data broker) is involved in a criminal act, all a geofence warrant requires of investigators is that they demonstrate Google et al are probably in possession of data that might be helpful in locating an actual criminal suspect.

Geofence warrants demand data on anyone who possessed a functioning cell phone in any area a crime was committed. Sure, some limits are generally placed on searches, but many cases involve plenty of people and the businesses they frequent that are not, in any way, connected to the suspected crime. Investigators may include time frames to limit the acquisition of garbage data, but it appears that’s the only thing pushing investigators towards time/place restrictions in geofence warrant requests.

In 2018, the Supreme Court declared warrants were needed to obtain weeks or months of cell site location info. Implicit in the decision was the court’s determination that geolocation data was no longer considered a mere “third party” record.

And it appears law enforcement has at least paid attention to part of that ruling. Geofence warrants — those capable of gathering info of anyone in the area of suspected criminal activity — are warrants. But they’re unlike any of the warrants that have come before them. Instead of searching property or things or persons suspected to be connected to criminal acts, the warrants grant investigators permission to indiscriminately search location data collected by third parties — something that forces data collectors to search millions of users’ geolocation points to give the government what it wants.

This issue remains unsettled, as the lawyers say. There is no controlling precedent that governs the use of these warrants, nor established baselines for searches that converts anyone in a certain area into a criminal suspect.

Geofence warrants aren’t a new development. And government agencies have found ways to obtain a lot of this same data without having to trouble the courts, tangentially related Supreme Court precedent, or major tech companies that might push back on their requests.

Courts have rarely considered the issue. These searches involve warrants, so courts are inclined to believe they’re less likely to violate rights than warrantless searches, even if the probable cause asserted (“Google has the data”) has nothing to do with the crime being investigated.

And here we have another pass by a court that had an opportunity to establish case law in a state that houses some of the largest tech companies on the planet. An evidentiary challenge involving a geofence warrant has reached a dead end in a California state appellate court, which has decided this isn’t an issue worthy of definitive discussion. (h/t FourthAmendment.com)

A murder case involving two defendants who were linked to the crime by geolocation data resulted in a suppression attempt that was denied by the trial court. The trial court said that even if rights were violated by the six(!!) geofence warrants, the good faith exception applies.

The appellate court doesn’t even bother to say one way or another before affirming the lower court’s decision. It just says “good faith ftw” and moves on. From the decision [PDF]:

The warrant in this case sufficiently described the place to be searched (Google’s database of users’ location history) and the items to be retrieved from that search (designated records for users found within the boundaries of certain coordinates at certain times). Indeed, Mesa and Meneses do not argue there was any ambiguity in the warrant that would lead law enforcement or Google personnel to search an incorrect database or to identify individuals not contemplated by the text of the warrant.

So, a good warrant then? Nope, says the same court.

However, the warrant here failed to meet the particularity requirement because it provided law enforcement with unbridled discretion regarding whether or how to narrow the initial list of users identified by Google. Once the step one search had been conducted, law enforcement officials were able to enlarge the geographic parameters of the search and request additional information on any of the potentially thousands of users identified without any objective criteria limiting their discretion. Again, at step three law enforcement could seek 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.

This failure to place any meaningful restriction on the discretion of law enforcement officers to determine which accounts would be subject to further scrutiny or deanonymization renders the warrant invalid.

So, reading the decision starting from the top, one might be (mis)led to believe the warrants and the evidence were tossed. But, no. Having an invalid warrant — one that was both not particular and overbroad — somehow doesn’t prevent cops from engaging in (an unconstitutional search). Why? Well, because of the dearth of case law that would inform them that such searches would be unconstitutional.

At the time law enforcement officers sought and executed the search warrant, geofence warrants were still a novel investigative tool. The warrant was only the third prepared by Haas, and she had not yet had much of the training on the practice that she would eventually receive. In early 2019 when this warrant was drafted and executed, there were no published cases anywhere in the country, let alone in California, analyzing the constitutionality of geofence warrants.

First off, as of “early 2019,” geofence warrants were not unheard of, much less “novel.” Second of all, the lack of precedent placing limits on geofence warrants is the fault of the courts, not the fault of the defendants.

And, despite pointing out the lack of precedent, the appeals court can’t be bothered to create any of its own. The good faith exception is applied and the court moves on without declaring future geofence warrants with similar particularity/overbreadth problems to be unconstitutional.

The dissent says this is wrong. The court can’t say a warrant is facially invalid but treat it as valid by only considering only the parts it likes about the good faith exception.

The consequences of this decision are potentially significant. Despite finding that the warrant violated the Fourth Amendment, the Court of Appeal declined to apply the exclusionary rule under the good faith exception of United States v. Leon (1984) 468 U.S. 897.

Even if the court didn’t want to upset the apple cart during a murder trial, it could have at least established baselines for geofence warrants. Instead, it examined the issues, declared them to be important, and then… changed nothing about them. This means cops are free to engage in the same behavior in the future, freed from any judicial assumption they might adhere to long-held law about particularity in warrant affidavits. And this late pass on the issue means the court can grant further passes on bad behavior by pointing to its own lack of activity, ensuring the issue remains unsettled even though it’s no longer possible for judges to credibly claim geofence warrants are “novel.” Inactivity gives the government wins it hasn’t actually earned. And giving a different branch of the government what it wants is not why courts exist.