• Search warrant probable cause, overbreadth and particularity requirements  
• Search warrant traversals 
• Good faith 
• California’s Electronic Communications Privacy Act (CalEPA) 

To be lawful, search warrants must establish probable cause for the requested search while not being overly broad. A warrant must also be particular in time, location and scope. To survive a motion to traverse, a warrant affidavit must not include any material falsehoods or make any material omissions.  

Absent some reason for an investigator to believe a geofence warrant is invalid, good faith will generally allow for the admission in court of the resulting evidence even if the warrant is legally deficient.  

The California Electronic Communications Privacy Act (CalECPA) applies to geofence warrants. Pursuant to CalECPA, notice of the existence of a geofence warrant must be provided to the target of an investigation. Notice may be delayed where such notice would have an adverse result upon a continuing investigation. Failure to seek extensions of such notice may be excused, however, where it is apparent that the magistrate would have granted such a request.  

On Oct. 29, 2019, Jovany R. was home with his brother, Samuel R., and a friend in Jarupa Valley, Riverside County, when someone rang the front doorbell. Jovany R. answered the door, went outside and spoke with the person on the front porch. When he came back inside, he said the person claimed to be having car problems. After retrieving jumper cables and a charging box from his bedroom, Jovany R. went back outside. Samuel R. – concerned about home invasion robberies for reasons explained below – followed him. On the front porch, the brothers were suddenly confronted by two males, at least one of whom was armed with a pistol. One of the males commanded the brothers not to move. Despite the warning, Samuel R. attempted to push Jovany R. back into the house. As he did so, one of the two males shot Jovany R. in the leg, back and head, killing him. Fleeing the scene, at least one of the two males got into a silver vehicle parked nearby. Jovany R. was later determined to be armed himself, but never had the chance to use his weapon. Six .45-caliber shells were recovered from the scene.  

There was some inference that the brothers had been selling marijuana from their home, although Samuel R. denied this, telling police that any marijuana in the house was intended for personal and medicinal use only. 

Nevertheless, it was suspected by investigators that the murder was the result of an attempted drug rip-off, based on the large quantity of marijuana found in the house and because Samuel R. and Jovany R. had a social media account in which it appeared that they were advertising marijuana for sale. Neither suspect had been seen in possession of a cellphone (an issue later in court, as noted below).  

Investigators had no idea who the culprits were. However, surveillance video recordings were obtained from a gas station located less than a half a mile east of the victims’ house, showing a silver car heading east shortly after the shooting.  

Riverside County sheriff’s investigator Ryan Deanne led the investigation. He drafted a geofence warrant with supporting affidavit requesting from Google the identity of any electronic devices, including smartphones, that Google was tracking and that were located inside a specific “geofence” (explained below) at or around the time of the murder.  

The geofence for the warrant was limited to the front yard of Jovany R.’s house, including the front porch area where the shooting occurred and the street in front of the house for two house-lengths in each direction, between 10 p.m. and 10:22 p.m., on the day of the murder. 

Deanne went to Google because Google tracks the locations of smartphones and other devices that use at least one Google application (e.g., Google Maps), regardless of whether the device runs on the Google-supported Android or Apple-supported (iOS) operating systems.  

Google does not track device locations while the device is turned off, but a Google application itself does not have to be running at the time to allow Google to track the device. 

In the case decision, the court describes in detail (pages 27-28, a description every investigator who attempts a geofence warrant needs to read) Google’s three-stage protocol for releasing information on smartphones found to be within the geofence area during the relevant time period and along the route that those phones are shown to have taken – in this case, from the victims’ house to the nearby gas station, where video showed the silver car passing.  

The phones tracked can be limited to those used by the suspects within the relevant time period.  

This process led to the defendant, Ahmad Raheem Price, being identified as the owner of one of the cellphones found to be within the geofence area at the time of the shooting. A subsequent records check showed that the defendant had been involved in a traffic collision some days after the murder while driving a silver 2017 Ford Fusion that appeared to be the same car shown in the gas station video. Samuel R. was unable to identify the defendant from a photo lineup, but Deanne learned that West Covina police had arrested Price for unlawfully possessing a .45-caliber handgun (the defendant being a felon on parole) two and a half months after the murder – the same caliber as the six shell casings found at the scene of the shooting. Ballistics testing determined that the shell casings matched those fired from the defendant’s gun.  

A second warrant was obtained from AT&T, the carrier for the cellphone shown via the geofence warrant to be at the scene of the murder. This warrant verified that the defendant was in fact the owner of the cellphone during the relevant time periods.  

Based upon all this, the defendant was arrested in December, 2020. Upon arrest, the defendant was provided with notice of the existence of the geofence warrant and the evidence retrieved as a result. The defendant was charged in state court with murder, robbery-murder with special-circumstance enhancements and other charges.  

The defendant’s motion to suppress the evidence (pursuant to P.C. § 1538.5) obtained via the geofence warrant and other subsequent warrants was denied by the preliminary hearing magistrate. His renewed motion at the trial court level (pursuant to P.C. § 995) was similarly denied, other than to dismiss the robbery-murder special-circumstance allegation for reasons that were not discussed. Price appealed these rulings pretrial.  

The Fourth District Court of Appeal (Div. 2), in a 50-page decision, affirmed. 

The issues on appeal centered on whether the geofence warrant satisfied the “probable cause,” “particularity,” and “overbreadth” requirements for a search warrant. The defendant also argued that the geofence warrant violated California's Electronic Communications Privacy Act. 

Probable Cause 

The rules relative to probable cause are relatively standard. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The Fourth Amendment further 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.” Probable cause for a search exits so long as “there is a fair probability that…evidence of a crime will be found in a particular place.” (“Fair probability,” being the operative phrase here; see Illinois v. Gates [1983] 462 U.S. 213, 238). For a warrant to meet the requirements of the Fourth Amendment, neither “[c]omplete precision” nor “near certainty” is required. (People v. Amador (2000) 24 Cal.4th 387, 392) 

The defendant’s argument, in a nutshell, was that the investigator’s warrant affidavit lacked sufficient probable cause. Specifically, the defendant argued that the geofence warrant failed to show probable cause to believe that the murder suspects were carrying cellphones, given the fact that the affidavit was “devoid of any facts that someone saw” either of the suspects with a cellphone.  

While it was true that no one could attest to seeing either of the suspects with cellphones, the court ruled that such evidence is not necessary to a finding of probable cause. Remembering that it is only necessary to show a “fair probability” that a geofence warrant search would reveal the suspects’ identities, the court noted that the affiant, investigator Deanne, averred in his affidavit that in his experience, people who plan and commit crimes together use cellphones to communicate, and – perhaps more importantly – that “most people in today’s society” possess and carry “cellular phones and other...devices,” which “may include global positioning systems (GPS) and other technology for determining a more precise location of the [phone or] device.” Prior cases have held this to be a fair assumption, i.e., that it is a matter of indisputable common knowledge that most people carry cellphones virtually all the time, a fact about which courts may take judicial notice. [See Evid. Code § 452(g).]  

Even the U.S. Supreme Court has held that just about everyone “compulsively carry cell phones with them all the time.” (Carpenter v. United States (2018) 138 S.Ct. 2206, 2218.) Other lower courts have agreed: “Even if nobody knew for sure whether the [suspect] actually possessed a cell phone, the judges were 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.’” (Italics in original; D.C. Federal Crimes (2021) 579 F.Supp.3rd 62, 78.)  

The appellate court therefore held here that it was unnecessary for the affidavit to show that anyone actually saw either suspect with a cellphone. It can be assumed that they both carried one.  

The defendant further argued, however, that there was no evidence the suspects’ cellphones were sending location data to Google, or that Google had location data and identifying information associated with the suspects’ cellphones that would reveal their identities. The Court rejected this argument as well, noting that the affidavit cited a February 2018 study showing that around 99.9% of all smartphones were supported by Google’s Android operating system or Apple’s iOS operating system.  

It was further averred that (1) all Android-supported devices have a Google account; (2) the use of a Google application requires a Google account; (3) Apple iPhones, like Google’s Android devices, support Google applications; and (4) a Google account cannot be activated without providing Google with a name and phone number for the Google account. Also, the Court noted that Google collects and retains location data from all Android-operated devices and devices using Google applications, as long as the device’s location services are enabled, such information being “stored forever” unless the user deletes it.  

This degree of likelihood that Google would have stored within its coffers the requested information again met the “fair probability” standard necessary for a warrant affidavit.  

Overbreadth 

To be constitutional, a warrant affidavit cannot be “overbroad.”  

“The vice of an overbroad warrant is that it invites the police to treat it merely as an excuse to conduct an unconstitutional general search.” (People v. Frank (1985) 38 Cal.3rd 711, 726.) (Referred by some to as a “fishing expedition.” See United States v. Cole (7th Cir. 2021) 21 F.4th 421.)  

In this case, the court held that because the warrant affidavit described the places to be searched with sufficient particularity (see below), and “because it narrowly identifie[d] the place[s] by time and location,” ...it was “not overbroad in scope.” In so ruling, the court rejected the defendant’s argument that Google’s multistep production protocol, the process followed in executing the warrant, is overbroad and unconstitutional on its face. To the contrary, the court held that “(i)t is difficult to imagine how the warrant could have been more narrowly tailored to focus on identifying only the suspects and minimizing the potential for seizing location data and identifying information associated with devices carried by uninvolved individuals.”  

Particularity 

Any warrant – including a geofence warrant – must be “particular in time, location and scope.”  

In determining whether a warrant is sufficiently particular in describing the place to be searched or the things to be seized, courts look to “such factors as the purpose for which the warrant was issued, the nature of the items to which it is directed and the total circumstances surrounding the case.” (People v. Rogers (1986) 187 Cal.App.3rd 1001, 1008.)  

The court here found Deanne’s affidavit to be “a model of particularity in geographic scope and time period.” Specifically, the court found the geofence warrant to be narrowly tailored in its initial search parameters (i.e., its geographic scope and time period), thus maximizing the probability that it would capture cellphone information only for suspects and witnesses, and to minimize searches of location data and identifying information of uninvolved individuals, those for whom there is no probable cause to believe were suspects or witnesses.  

As such, the court determined that the discretion afforded to the executing officer by Google’s multistep production protocol was constitutionally immaterial. The court noted that “the Fourth Amendment deals in probabilities and reasonableness, and not exactness and pinpoint accuracy.” (Quoting Arson Investigation (N.D. Ill. 2020) 497 F.Supp.3rd 345, 356.)  

The bottom line is that it is not unusual, and not relevant, that there is a possibility that “one uninvolved individual’s privacy rights (may be) indirectly impacted by a search.” (Ibid, at p. 361.) The court thus concluded that the geofence warrant at issue here described the places to be searched with sufficient particularity “because it narrowly identifie[d] the place[s] by time and location,” and it was “not overbroad in scope.”  

Warrant Traversal Attempt 

In conjunction with the above, the defendant filed a motion to traverse the warrant, challenging the completeness and truthfulness of the warrant affidavit’s probable cause showing. (See Franks v. Delaware (1978) 438 U.S. 154, 155-156.) In what is sometimes referred to as a “Franks hearing,” the court is asked to go behind the face of the warrant affidavit and determine whether there are any material false statements made “knowingly and intentionally, or with a reckless disregard for the truth.” This includes any “material omissions” that should have been in the warrant. If such false statements or omissions are found, the court is to determine whether “the allegedly false statement (or omission) is necessary to the finding of probable cause.” (People v. Hobbs (1994) 7 Cal.4th 948, 974.) If so, the warrant must be voided and the fruits of that warrant suppressed.  

It is the defendant’s burden to prove that there were material false statements or omissions in the warrant affidavit. In this case, the defendant claimed that the geofence warrant affidavit omitted the fact that there was no evidence that the two murder suspects knew about an alleged illegal marijuana grow the victim’s house. The court here agreed with the preliminary hearing magistrate that such an omission is immaterial to a finding of probable cause: “Whether the suspects knew there was a marijuana grow in the house is relevant to whether the suspects had a motive for the shooting..., but motive is not an element of murder.” The magistrate’s ruling on this issue denying the defendant’s motion, therefore, was upheld. 

Good Faith 

The U.S. Supreme Court has held that 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.’” (People v. Lazarus (2015) 238 Cal.App.4th 734, at p. 766, quoting United States v. Leon (1984) 468 U.S. 897, at pp. 920, 922.)  

In other words, the purposes behind the exclusionary rule (i.e., to discourage illegal acts) are not benefited by suppressing evidence in those cases where the affiant is acting in good faith.  

Exceptions to the Good Faith Rule 

When “(i) the issuing magistrate was misled by information that the officer knew or should have known was false, (ii) the magistrate ‘wholly abandoned his judicial role,’ (iii) the affidavit was ‘so lacking in indicia of probable cause’ that it would be ‘entirely unreasonable’ for an officer to believe such cause existed, and (iv) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid.” (People v. Camarella (1991) 54 Cal.3rd 592, 596.)  

The defendant argued that exceptions iii and iv applied to his case. The court disagreed. Noting that there was no controlling case authority at the time to provide guidance for either the officer or the court in so far as geofence warrants are concerned, a well-trained officer in Deanne’s position had no reason to believe the warrant affidavit failed to establish probable cause, that Deanne should not have applied for the warrant or that Deanne should have sought an additional warrant before seeking stage two or stage three information from Google.  

Neither the magistrate nor Deanne had any reason to believe that the warrant, as written, and the procedures used might have been constitutionally invalid. Thus, even if the geofence warrant is invalid under the Fourth Amendment, the good faith exception applies. No deterrent purpose would be served by suppressing the geofence warrant evidence or its fruits.  

California’s Electronic Communications Privacy Act 

The defendant’s last argument dealt with California’s Electronic Communications Privacy Act, or CalECPA.  

The defendant argued that the geofence warrant violated CalECPA’s particularity requirement. [P.C. § 1546.1(d)(1)] And, in the execution of the warrant, he was not given notice of the warrant and the evidence seized as required in P.C. § 1546.2. Due to these violations, the defendant argued that CalECPA’s remedy provision (i.e., P.C. § 1546.4) requires the suppression of the warrant evidence and its fruits.  

Although CalECPA does not specifically mention geofence warrants, the court ruled that the act does in fact apply. However, it found nothing inappropriate, or unreasonable, in the geofence warrant as used in this case. In so finding, the court rejected the defendant’s argument that the geofence warrant violated CalECPA’s particularity requirement for the same reasons as discussed above.  

The court disagreed with the defendant when he argued that the geofence warrant insufficiently described “the types of information” sought, as required by P.C. § 1546(d)(1). The warrant included a detailed description of the types of information it sought: location data and identifying information associated with devices found to be traversing the geofence, specified by date, time, and geographical location.  

However, it was noted that the investigator did in fact fail to comply with CalECPA’s notice provisions. Per P.C.§ 1546.2(a)(1), the government entity executing a warrant for electronic information is required to “serve notice or deliver to...the identified targets of the warrant…a notice that informs the recipient that information about the recipient has been compelled or obtained, and states with reasonable specificity the nature of the government investigation under which the information is sought.”  

Delaying such notice, however, is also provided for by statute when “there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.” An “adverse result” means “[d]anger to the life or physical safety of an individual,” “[f]light from prosecution,” “[d]estruction of or tampering with evidence,” “[i]ntimidation of potential witnesses,” or “[s]erious jeopardy to an investigation or undue delay of a trial.” (P.C. § 1546(a).)  

A court may grant successive extensions of the notice delay period, of up to 90 days each, based on a continued showing of an adverse result. (P.C. § 1546.2(b)(2).) Deanne did in fact seek, and was granted, the court’s permission to delay notice for 90 days. That 90-day delay of notice expired, however, on February 5, 2020. Further extensions should have been sought, but were not, putting Deanne in violation of CalECPA’s notice requirements, per P.C. § 1546.2(c).  

The court ruled, however, that the investigator’s statutory omission part did not require the suppression of the resulting evidence. Per the court, while section 1546.4(a) “authorizes” any person in a trial, hearing, or proceeding to “move to suppress” any electronic information obtained or retained in violation of CalECPA, such suppression is not required. Its only requirement is that the motion “be made, determined, and be subject to review” in accordance with the procedures set forth in P.C.§ 1538.5(b) through (q), the procedures governing suppression motions in criminal proceedings. 

In this case, the court found that if Deanne had filed for the required further extensions, the magistrate would have granted such requests. This is because if the defendant had been told of the existence of the warrant prior to his arrest in December, 2020, the murder investigation could have been jeopardized, leading to other adverse results. (P.C. § 1546(a).)  

For the same reasons the magistrate ordered the warrant sealed in the first place, the magistrate later would have without doubt granted the further extension requests. Because the notice violations did not undermine the purpose of the notice provisions, the court held that Deanne’s failure to seek the required extensions did not justify suppressing the geofence warrant evidence or its fruits.  

I found this whole decision – all 50 pages of it – to be extremely convoluted and confusing, making it hard for me to brief. That’s mainly because the court intermixed its discussions of “probable cause,” “particularity,” and “overbreadth.” This is not really the court’s fault, however, in that these three legal concepts are indeed intertwined.    

Aside from this, parts of the CalECPA discussion are well beyond the comprehension of any mortal human being. But the bottom line is that geofence warrants, if done properly, are lawful. 

Also, it should be noted that Riverside County Sheriff’s investigator Deanne did an excellent job here, given the lack of guidance from any prior case law. The only other California geofence case – People v. Meza (Apr. 13, 2023) 90 Cal.App.5th 520 (See California Legal Updates Vol. 28 #5, May 6, 2023) – had yet to be decided.  

Deanne’s only mistake, at least as the law stands today, was his failure to ask for successive 90-day extensions of the magistrate’s order to delay giving Price the statutorily required notice.  

But what an amazing investigative tool geofence warrants are. Unless, and if ever, crooks learn to leave their cellphones at home when committing premeditated crimes, it’s hard to imagine how geofence warrants – as confusing and involved as they are – can’t be used to solve just about any crime where the identity of the suspect is the issue.  

It’s undoubtedly a useful tool with which every investigator absolutely must become familiar. 

Note also that the California Supreme Court has since denied review of the Meza case. (2023 Cal. LEXIS 4055, July 12, 2023.) But in so doing, Supreme Court Justice Goodwin Liu wrote a well-reasoned dissenting statement suggesting that the Meza decision was possibly wrong in holding that CalECPA can so easily be distinguished from the Fourth Amendment’s suppression requirements. At the very least, per Justice Liu, it’s an issue – merely glossed over in Meza as well as this new case – that needs further discussion.  

So, you can expect Price to make this same argument in his case to the California Supreme Court. But as we await that inevitability, and to provide investigators with the tools they need to become familiar with geofence warrants, I’ve put together a memo that includes everything I’ve been able to find on the topic, to date, including both this and the Meza briefs. You need merely ask and I’ll send it to you.