Federal Appeals Court Declares Geofence Warrants Unconstitutional; California Courts' Decisions Remain Valid

The Constitutionality of Geofence Warrants debated:   

On August 9th, the federal Fifth Circuit Court of Appeals, in United States v. Smith (5th Cir. Aug. 9, 2024) __ F.4th __ [2024 U.S.App. LEXIS 20149], ruled that “geofence” warrants (AKA; “Reverse Location Warrants”) are in violation of the U.S. Constitution—that such warrants are “categorically prohibited by the Fourth Amendment”—and, thus, are illegal.  But before everyone panics, it must first be noted that the Fifth Circuit covers only Louisiana, Mississippi and Texas.  This decision is not binding on California, nor even the Ninth Circuit Court of Appeals. 

The legality of geofence warrants has been a hotly contested issue for some time.  While neither the U.S. nor California Supreme Courts, nor the federal Ninth Circuit Court of Appeals, has yet to rule on the legality of geofence warrants, California’s state appellate court cases have held that if properly written, geofence warrants are lawful.  To date, two California appellate court cases have discussed this issue.   

People v. Meza (Apr. 13, 2023) 90 Cal.App.5th 520:  In Meza, California’s Second District Court of Appeals discussed three important issues that must meet constitutional standards for a warrant to be lawful:  Probable cause, particularity, and breadth.  As for “probable cause,” the Court held that it was sufficient to merely include in the affiant’s affidavit the fact that “most people carry cellular phones on their person and will carry them whenever they leave their place of residence.” In this case, the affiant also explained: “Suspects involved in criminal activity will typically use cellular phones to communicate when multiple suspects are involved.”  Per the Court in Meza, his was sufficient to establish probable cause.  As for “particularity,” the Court first recognized that this requirement fluctuates depending upon the circumstance.  However, at the very least, the description of the place to be searched (and the property to be seized) must be sufficiently definite that the officer conducting the search “can, with reasonable effort ascertain and identify the place intended” (as well as what it is he is looking for). In Meza, the affiant failed to meet this requirement.  Also, ....

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