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, as to “breadth” (or “overbreadth”) courts must 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.” The affiant in this case also failed in this regard as well. Either way, however, the officer’s “good faith” saved the warrant in the end. The point to be made in Meza, however, is that while the warrant was deficient in this case, if properly written, it can be made to be illegal.
Meza was followed up by Price v. Superior Court (July 3, 2023) 93 Cal.App.5th 13. In Price, the Fourth District Court of Appeals, in a long, convoluted decision, also considered the same constitutional standards for a warrant to be lawful. Recognizing that “probable cause” only requires a “fair probability,” the Court determined (as the Meza Court did) that it could be assumed that the defendants were carrying cellphones at the time they committed the robbery at issue in this case. The ”overbreadth” issue is resolved so long as the warrant affidavit is “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.” This requirement here was met to the satisfaction of the Court. As for “particularity,” to be lawful, a warrant must be “particular in time, location, and scope.” In this case, the Court found the investigator’s affidavit to be “a model of particularity in geographic scope and time period.” The Court also found it was not relevant that there is always the possibility that “one uninvolved individual’s privacy rights (may be) indirectly impacted by a search.” Overall, the warrant in this case met constitutional muster, and was therefore held to be lawful.
Both Mesa and Price, by the way, rejected the respective defendants’ arguments that California’s Electronic Communications Privacy Act, or “CalECPA,” provided grounds for suppressing the warrants in issue.
In addition to the above, there are a host of other lower federal district (i.e., trial) court decisions from throughout the country on geofence warrants, going both ways, deciding for and against their constitutionality. This only highlights the fact that until decided by the U.S. Supreme Court, whether or not geofence warrants as a general rule (assuming they are written properly) are in fact legal is an open question. Until then, it is the Legal Update’s recommendation that you, as a California police investigator, continue to use them while being sure to follow the “probable cause,” “breadth,” and “particularity” requirements, as discussed in Mesa and Price. At the very least, your “good faith,” in relying on the above, will save your warrant pending any further input from a higher court.
