• Good Faith Exception to the Fourth Amendment
• Geofence Search Warrants and California's Electronic Communications Privacy Act
• Geofence Search Warrants and Probable Cause, Particularity, and Breath
• Geofence Search Warrants and an Investigator’s Unfettered Discretion
• Probable Cause and a Suspect’s Use of a Cellphone

To be in compliance with the Fourth Amendment, a search warrant must reflect sufficient probable cause, particularly describing the thing or place to be searched and the property to be seized.  The breath of a search warrant application must be limited in scope to those items for which there is probable cause to be seized.   Geofence warrants are lawful so long as in compliance with these rules, and while limiting an investigator’s unfettered discretion in deciding whose electronic device to search.

Adbadalla Thabet was tasked with the twice-a-week collection of cash receipts from several of his uncle’s gas stations and depositing those proceeds in a bank in Paramount; a suburb of Los Angeles.  Surveillance footage collected at various sites (later viewed by investigators of the Los Angeles Sheriff’s Department) showed that Thabet left his apartment building in Downey at around 7 a.m. on the morning of March 1, 2019, and drove to one of his uncle’s gas stations in Downey to pick up cash proceeds for deposit.

After remaining there for about 15 minutes, he left that gas station at 7:30 a.m. and drove to a second gas station in Bellflower where, at about 9:00 a.m., he met with his brother-in-law.  Thabet left this gas station at 9:40 and made a brief stop at a strip mall where he and his brother-in-law inspected some possible income property before Thabet drove to a gas station in Lynwood to pick up the cash receipts from that station. 

Thabet drove to the bank in Paramount where surveillance video showed him driving into the parking lot at about 10:30 a.m.  That same video showed that he was followed into the parking lot by two other vehicles; a gray and a red sedan.  The occupants of the gray and red sedans were observed contacting each other; the driver of the red car having gotten out of his vehicle.  The gray car then drove slowly towards Thabet’s parked car while the driver of the red car followed on foot.  As Thabet got out of his vehicle, the gray car pulled up next to him.  An occupant of that car shot Thabet in the torso, leaving him on the ground as the driver sped away. 

The driver of the red car (still on foot) then walked up to Thabet’s body, picked up his backpack containing the gas station receipts, walked back to the red car, and drove away.  Thabet died of his injuries.  Video surveillance later obtained from the gas stations Thabet had visited that morning showed the same two vehicles at two of those locations leading investigators to the conclusion that they had been following Thabet.  The license plate numbers of those two cars, however, were not legible in any of the footage.

In the subsequent investigation, Sheriff’s investigators resorted to what is commonly called a “geofence warrant.”  As the preliminary step in obtaining such a warrant, Los Angeles County Sheriff’s Detective Jonathan Bailey (assisted by Romy Haas; a crime analyst for the Sheriff's Department) applied for a search warrant directing Google to identify individuals whose location history data indicated that they were in the vicinity of the same six locations visited by Thabet on the morning of March 1st, including Thabet’s apartment.   

In the affidavit supporting the warrant application, Detective Bailey described Thabet's murder as seen on the surveillance footage of the bank parking lot. He further stated that he had viewed surveillance camera footage from several of the other locations Thabet had visited that morning and had seen the gray and red sedans in some of that footage.  In the affidavit, Detective Bailey provided a brief overview of the procedures used by Google to track and store location history data, explaining how Google collects data through “Global Position System (GPS) data, cell site/cell tower information, Bluetooth connections, and Wi-Fi access points.” Of significance here, Detective Bailey also included the following in his affidavit: “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.”

In addition, Detective Bailey explained that “(s)uspects involved in criminal activity will typically use cellular phones to communicate when multiple suspects are involved.” Therefore, he concluded, identification of individuals in Thabet's vicinity on the day of the murder would assist investigators in locating the drivers of the vehicles involved in the murder, and who investigators believed had been following Thabet throughout the morning. 

The warrant application sought location history data from Google for individuals within six target locations; Thabet’s apartment, the three gas stations he’d visited, the strip mall Thabet and his brother-in-law had stopped at, and the bank in Paramount.  The description of each location included either circular or rectangular geographical parameters around the individual locations along with specified time parameters in the middle of which it was known that Thabet (and thus, presumably, the red and gray sedans) had been.

The obtaining of such a warrant (commonly referred to as a “geofence” warrant; AKA; “reverse location” warrant) involves a three-step process.  At step one, Google was directed to search location history data for the six designated locations and times, within the parameters as described, and produce an anonymized list of cellphone or similar devices (e.g., iPads, etc.) found within the search areas in the designated timeframes, including the individual times each device was recorded in the search area during the applicable time period.  At step two, law enforcement is to review the anonymized list of devices “to remove devices that are not relevant to the investigation, for example, devices that were not in the location for a sufficient period of time.” Law enforcement has the option at this point of requesting that Google provide additional location history information for each identified device even if that information fell outside of the initial geographic and temporal search parameters.  At step three, law enforcement would then request identifying information from Google for all devices law enforcement deemed, at the investigator’s discretion, relevant to the investigation based primarily on the number of times a device was noted to be within the targeted locations and time periods. The warrant directed Google to provide this identifying information, as selected by the investigator, without additional legal process.

A Los Angeles superior court judge, acting as a magistrate, signed the geofence search warrant on March 21st.  Detective Bailey (with the assistance of the Sheriff’s Crime Analyst Haas) reviewed the anonymized data provided by Google and whittled it down to eight devices that had been at more than just one of the relevant locations, and within the timeframes as provided, on the morning of March 1st. 

At Crime Analyst Haas’ request, Google provided the corresponding e-mail addresses for all eight of the identified devices. Detective Bailey and Crime Analyst Haas then drafted additional search warrants related to two of those e-mail addresses, which had been identified as being at the relevant times and locations (including the murder scene) four and three times, respectively. 

This information eventually led to the identification of defendants Meza and Meneses as the two people observed in the video at the murder scene.  Charged in state court with a special circumstance murder, along with other attached sentencing enhancements, both defendants filed a pre-trial motion pursuant to Pen. Code § 1538.5 to quash and suppress the results of the geofence warrant, challenging the legality of the warrant as used in this case.  They also alleged that the geofence warrant did not comply with California’s Electronic Communications Privacy Act (Pen. Code §§ 1546 et. seq.), arguing that it did not adequately identify the target individuals or accounts and applications to be searched.

The trial court denied the defendants’ motions. Meza thereafter pled guilty to first degree murder and Meneses pled no contest to second degree murder, receiving 25- and 15-years to life, respectively.  Defendants appealed the denial of their motions.

The Second District Court of Appeal (Div. 7) found the geofence warrant to have been in violation of the Fourth Amendment, but declined to suppress the resulting information obtained anyway under the theory that the detective (and crime analyst) acted in good faith. The basic rules are simple:  Searches conducted via the use of a judicially authorized search warrant are presumed to be lawful. 

However, such a search warrant and affidavit are required to particularly describe the thing or the place to be searched and the items to be seized.  “The manifest purpose of this particularity requirement [is] to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” (People v. Amador (2000) 24 Cal.4th 387, 392; Maryland v. Garrison (1987) 480 U.S. 79, 84.)

With these general rules in mind, a court is to examine three main factors:  Probable cause, particularity, and over-breath. 

(1) Probable Cause:  “Probable cause will be found to support the issuance of a warrant if ‘the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.’” (People v. Westerfield (2019) 6 Cal.5th 632, 659–660.)  Defendant argued that Detective Bailey’s warrant was not supported by sufficient probable cause to believe that defendants had cellphones or other electronic implements in their possession when committing this crime.  The Court disagreed.  Noting that a finding of probable cause requires only that there be a “fair probability” that contraband or evidence of a crime will be found in a particular place (Illinois v. Gates (1983) 462 U.S. 213, 238.), the Court here held that this standard was clearly met.  Specifically, as Detective Bailey described in his warrant affidavit, nearly everyone nowadays carries with him a cellphone.  It has been held, for instance, that probable cause for a robbery suspect’s cellphone records was shown “[e]ven if nobody knew for sure whether the robber actually possessed a cell phone. . . . (J)udges (are) not required to check their common sense at the door and ignore the fact that most people ‘compulsively carry cell phones with them all the time’” (United States v. James (8th Cir. 2021) 3 F.4th 1102, 1105.)  It was reasonable, therefore, for the magistrate in this case to conclude that the perpetrators were carrying cellphones the morning of the murder and (traveling in two separate cars) used them in coordinating their movements.

(2) Particularity: “Particularity is the requirement that the warrant must clearly state what is sought.” (In re Grand Jury Subpoenas Dated Dec. 10, 1987 (9th Cir. 1991) 926 F.2nd 847, 856.)  The defendant argued that Detective Bailey’s search warrant lacked sufficient “particularity” to be constitutional.  On this issue the Court agreed.  As noted by the Court, the “purpose of the ‘particularity’ requirement of the Fourth Amendment is to avoid general and exploratory searches by requiring a particular description of the items to be seized.” (People v. Bradford (1997) 15 Cal.4th 1229, 1296.)  However, a warrant affidavit need only be “reasonably specific;” a factor that varies “depending upon the circumstance of the case and the type of items involved.”  (People v. Robinson (2010) 47 Cal.4th 1104, 1132.)  This requirement is expected only to place a “meaningful restriction upon the objects to be seized.”  (People v. Frank (1985) 38 Cal.3rd 711, 724.)  “The description in a search warrant must be sufficiently definite that the officer conducting the search ‘can, with reasonable effort ascertain and identify the place intended.’ Nothing should be left to the (“unbridled” or “unfettered”) discretion of the officer.” (People v. Dumas (1973) 9 Cal.3d 871, 880.)  In this case, the Court found that the warrant sufficiently described the places to be searched (i.e., Google’s database of users’ location history) and the items to be retrieved from that search (i.e., designated records for users found within the boundaries of certain coordinates at certain times).  The particularity requirement was not satisfied in this case, however, because law enforcement was allowed at “step three” of the process (as described above), “with unbridled (or unfettered) discretion,” and without approval of a court magistrate, to request additional information on any of the potentially thousands of users identified without any objective criteria limiting their discretion.  Inferring that either the original warrant should have limited the detective’s discretion in making these choices, or a new search warrant should have been obtained seeking the consensus of a magistrate as to specific suspects, the Court found the procedures used here by the detective to be in violation of the Fourth Amendment.

(3) Breadth: “Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” (In re Grand Jury Subpoenas Dated Dec. 10, 1987, supra, 926 F.2nd at pp. 856–857.)  “In determining whether a warrant is overbroad courts consider ‘whether probable cause existed to seize all items of a category described in the warrant’ and ‘whether the government could have described the items more particularly in light of the information available to it at the time the warrant issued.’” (United States v. Shi (9th Cir. 2008) 525 F.3rd 709, 731–732.)  The Court concluded in this case that Detective Bailey’s geofence warrant ran afoul of both of these requirements. The warrant, for instance, authorized the identification of any individual within six large search areas without any particularized probable cause as to each person or their location.  To be constitutional, both the geographical area and the time parameters needed to be seriously limited, minimizing the number of innocent individuals who may be drawn into the warrant’s reach. As an example, the Court cited the first search location; i.e., the area around Adbadalla Thabet’s apartment complex. The warrant as written, with merely a circle drawn around the apartment complex and all the adjoining streets, allowed law enforcement to obtain information on every individual in a seven-and-a-half-acre area over a 75 minute period during the early morning of March 1st.  Geographically, rather than drawing a general, all-encompassing circle around the target area, Detective Bailey and Crime Analyst Haas could have used box- or rectangular-shaped parameters covering no more than the street in front of Thabet’s apartment.  The same holds true with the other five locations.  As for the time parameters, they could have been more limited to the minutes reflected by the timestamp in the surveillance videos, adding only that much time before and after to reflect the possibility that the time stamps in surveillance videos may not be entirely accurate.  The Court cited as an example the time period used at one of the gas stations where information was requested for a two hour and ten minute time span.  As summarized by the Court: “(I)t is the constitutionally imposed duty of the government to carefully tailor its search parameters to minimize infringement on the privacy rights of third parties.”  The warrant here, being too broad, failed to do this.

(4) Good Faith:  “(T)he [United States] Supreme Court held that when ‘an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope,’ the ‘marginal or nonexistent benefits’ produced by suppressing the evidence obtained ‘cannot justify the substantial costs of exclusion.’”  (United States v. Leon (1984) 468 U.S. 897, 920-922.)  In this case, at the time Detective Bailey and Crime Analyst Haas sought the warrant at issue here, there was very little case law (i.e., “a novel investigative tool”) providing them with guidance on the obtaining of a geofence search warrant.  As testified, neither Detective Bailey nor Crime Analyst Haas had had much experience writing such a warrant nor conducting the resulting searches.  Per the Court, therefore: “Given 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.”  For this reason, the Court declined to suppress the results of the geofence search warrant or reverse the defendants’ convictions.

(5) California’s Electronic Communications Privacy Act:  Defendants complained that the geofence search warrant violated California’s Electronic Communications Privacy Act (or “CalECPA,” at Pen. Code §§ 1546 et seq.)  The Court rejected defendants’ arguments.  Specifically, the Court held that (1) it is not necessary under CalECPA to specifically target specific individuals or accounts.  Rather, CalECPA requires only that a warrant must describe with particularity the information to be seized as is “appropriate and reasonable” to the case at issue.  (P.C. § 1546.1(d)(1)) The warrant in this case described the target individuals and accounts with the greatest degree of particularity available to investigators; i.e., individuals whose devices were located within the search boundaries at certain times. There is no requirement in the statute that a suspect’s name or other identifying information be included in the warrant to ensure its validity.  (2) The Court further held that the warrant was not defective merely because it failed to specify the “applications and services covered” by the warrant. (See Pen. Code § 1524.3(b)) In a geofence warrant, the government is not seeking data or content related to a particular application or service. Rather, what is sought is the service provider’s (i.e., Google’s) record of all electronic contacts with that device, regardless of which applications or services originated the contact. Accordingly, the failure to name a particular application or service in this instance did not result in a violation of CalECPA.  (3) Lastly, the Court rejected the defendants’ argument to the effect that any constitutional infirmities in the warrant create an independent violation of CalECPA.  In so ruling, the Court noted simply that, “(t)here is nothing in the cited language that, without more, converts a Fourth Amendment violation into a statutory violation.”

The Court quickly brushes over (in footnote 10) the idea that no warrant (geofence or otherwise) is necessary absent a reasonable expectation of privacy being involved, with the general rule being that information a defendant exposes to pubic view (which would be his geographical location at specific times in this case) waives any privacy violation arguments.  (See People v. Robles (2000) 23 Cal.4th 789, 794; and Katz v. United States (1967) 389 U.S. 347, 351.) The prosecutor in this case failed to make this argument, and thus forfeited it.

However, I might suggest that in the future, prosecutors make an “expectation of privacy” argument as an alternative—and in addition to—one highlighting the legality of the warrant affidavit in issue.  Note, however, that the Court further cites (again in footnote 10) the U.S. Supreme Court’s case of Carpenter v. United States (2018) 138 S.Ct. 2206, at page 2219, where (as noted by this Court of Appeal) the “United States Supreme Court has suggested that an individual has a right to privacy regarding his or her current and historical location.” 

That would be an interesting issue to resolve:  Which constitutional concept takes precedence; a person’s lack of privacy rights to anything he or she exposes to public view (including his location within a specific timeframe), or the necessity of a geofence search warrant   But back to the main issues in this case: Geofence warrants are indeed an important tool to use in cases such as this one.  Knowing now that we must tighten up the geographical and time parameters, as well as do as much as possible to minimize an investigator’s “unbridled (or “unfettered”) discretion” as to who among the possible suspects he or she is going to concentrate, you now have no excuse for not following the rules.

Good faith will not save the next geofence investigation you might be involved in.  I have to assume that geofence warrant classes are also being offered to investigators via P.O.S.T. and other training venues.  Also, if you’re interested, I have a list of all the published geofence cases in the country (at least that I could find) that I will gladly send you upon request.