Defective Search Warrant to Google Still Valid?

Investigating an unsolved crime has become more effective in the last seven years due, in part, to the use of geofences.

“A geofence is a virtual fence or perimeter around a physical location.  Like a real fence, a geofence creates a separation between one location and the area around it . . . It can be any size or shape, even a straight line between two points.”  SecureMac, What are Geofence Warrants?  (Sept. 8, 2020) archived at https://perma.cc/74XS-KWGZ.

“Geofences are created using mapping software, which allow the user to draw a geofence over a desired geographic area.  It is made up of a collection of coordinates (i.e,, latitude and longitude) or in the case of a circular geofence one point that forms the center.”  Id.

“Geofence warrants (sometimes called ‘reverse location searches’) are official requests by law enforcement authorities to access the device location data gathered by large tech companies like Google.  The warrants specify a time and geographic area, and require the companies to turn over information on any devices that were in that area at that time.  While the data is typically anonymized, it can be used in conjunction with other investigative techniques to tie devices to specific users and identify persons of interest in criminal investigations.

Such data, according to Google, includes cell phone Bluetooth signals, cellular network data using nearby Wi-Fi networks and location data in a GPS mode that the cell phone user opts into using on his or her device.  The data can be updated as often as every two minutes.

The government filed its first geofence search warrant in 2016, and by the end of 2019, Google was receiving about 180 search warrant requests per week from law enforcement officials across the country.  Between 2018 and 2020, Google received about 20,000 geofence warrant requests for date, including 11,500 in 2020 alone.  Owsley, The Best Offense is a Good Defense: Fourth Amendment Implications of Geofence Warrants (2022) 50 Hofstra L. Rev. 829, 854.

How such data collection methods stay within the boundaries of a legal search (i.e., not overly broad as to time or location) was recently addressed in the Second Appellate District Court ruling in People v. Daniel Meza, a case that was originally handled by Judge Tammy Ryu and Judge Laura Walton in the Compton Superior Court. 

Daniel Meza and Walter Meneses were identified as suspects in the 2019 murder of Adbadalaa Thabet after a geofence search warrant directed to Google revealed cell phones signed into Google accounts connected to them were in several of the same locations as Thabet on the day of his murder.

After their motions to quash and suppress evidence were denied in the Compton Superior Court, Meza pleaded guilty to first degree murder and Meneses pleaded no contest to second degree murder.  The murders included the special circumstance that both engaged in murder for financial gain (Penal Code § 190.2(a)(1)), murder by means of lying in wait (Penal Code § 190.2(a)(15)) and intentionally discharging a firearm with intent to inflict death (Penal Code § 190.2(a)(21)).

On appeal to the Second Appellate District, both defendants argued that the trial court judges erred in denying their motions to suppress under Penal Code § 1538.5.  The motion contended that the detective’s affidavit in support of the warrant failed to establish probable cause and that the geofence warrant lacked the particularity required by the Fourth Amendment. People v. Weiss (1999) 20 Cal. 4th 1073, 1082.

The Second Appellate District’s analysis began by explaining that if someone is in public and visible to others, that person has no right to privacy in the information that someone is, for example, standing on a street corner.  However, there is a protected privacy interest in information about one’s route of travel or history of location.

The court also explained that while an affidavit must establish probable cause that the evidence requested will be relevant to solving the crime, “probable cause does not require conclusive evidence that a search will uncover relevant evidence, only that there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  People v. Kraft (2000) 23 Cal. 4th 978, at 1041.

Moreover, a warrant that comports with the particularity requirements can still be defective due to overbreadth.  They are related but distinct concepts.  United States v. Purcell (2d Cir., 2020) 967 F. 3d 159, 179.

Turning to the affidavit’s particularity and scope at issue for Mr. Meza’s and Mr. Meneses, the Second Appellate District found the warrant was defective both in particularity and breath, but the officers executing it mistakenly relied upon it in good faith, not knowing it was defective, so the motion to suppress denial was proper.  United States v. Leon (1983) 468 U.S. 897, 920-922.

We bring this decision to the reader’s attention because the ruling states that such good faith reliance may not exist today, in 2023, whereas it did exist in 2019.