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United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-60321
____________ FILED
August 9, 2024
United States of America, Lyle W. Cayce
Clerk
Plaintiff—Appellee,
versus
Jamarr Smith; Thomas Iroko Ayodele; Gilbert
McThunel, II,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:21-CR-107-1
______________________________
Before King, Ho, and Engelhardt, Circuit Judges.
King, Circuit Judge:
A jury found Appellants guilty of robbery and conspiracy to commit
robbery based on evidence obtained through a geofence warrant. On appeal,
Appellants challenge the constitutionality of this novel type of warrant under
the Fourth Amendment and maintain that the district court erred by failing
to suppress all evidence derived therefrom.
We hold that the use of geofence warrants—at least as described
herein—is unconstitutional under the Fourth Amendment. In doing so, we
part ways with our esteemed colleagues on the Fourth Circuit. See United
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States v. Chatrie, 107 F.4th 319 (4th Cir. 2024). With that said, we agree with
the district court that, here, law enforcement acted in good faith in relying on
this type of warrant. Accordingly, we AFFIRM the district court’s denial of
Appellants’ motion to suppress.
I. Factual & Procedural Background
A. Underlying Offense
On February 5, 2018, three individuals acting in concert robbed
Sylvester Cobbs, a Contract Route Driver with the United States Postal
Service. As a Route Driver, Cobbs delivered and picked up mail from five
rural post offices in DeSoto County and Tunica County, Mississippi. At the
time of the robbery, Cobbs was headed to Lake Cormorant, the fourth of five
stops he would make along his route.
The mail that Cobbs collected included registered mail bags, which
contained cash receipts collected by the Postal Service from the sale of items
such as money orders and stamps. By the time that Cobbs arrived at Lake
Cormorant, he had already collected registered mail bags from three other
post offices along his route.
At approximately 5:20 p.m., Cobbs arrived at the Lake Cormorant
Post Office. As he normally would, Cobbs backed his mail truck up to the
back door, where he would retrieve mail bags waiting for him inside the post
office. Before Cobbs could open the back door to the post office, however, an
unknown assailant—later determined to be Defendant-Appellant Gilbert
McThunel—sprayed Cobbs with pepper spray, struck Cobbs multiple times
with a handgun, threatened to kill him, and grabbed the registered mail bags
from Cobbs’s truck. The mail bags contained $60,706. Thereafter, the
assailant fled, and Cobbs drove his truck to the front of the post office and
called 911.
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No suspect was arrested in connection to the robbery on the day of the
occurrence. However, around three days after the robbery, Postal Inspector
Stephen Mathews began his investigation and was able to locate a video of
the incident taken from a camera located at a farm office across the street
from the post office. The video showed a red Hyundai and a large white SUV
in the area. The video revealed the assailant getting out of the SUV before
the robbery, walking behind the building, and waiting for Cobbs to arrive.
While behind the building, the assailant had his “hand up to his ear and
elbow[] out” for multiple minutes, consistent with talking on a cell phone.
However, the video does not show an actual cell phone. Later, after assaulting
Cobbs, the assailant went back behind the building, squatted down, and began
“looking at something in his hand” which appeared “indicative of” cell
phone use. Although not visible on video, it is inferred that the suspect got
back into the SUV before fleeing the scene. Based upon his examination of
the video, Mathews surmised that three suspects were involved.
Sometime after obtaining the video footage, but prior to applying for
any warrants, Mathews located a witness, Forrest Coffman, who lived across
the street. Coffman had seen the red Hyundai “circling the area back and
forth,” and he decided to ask the driver if he was lost. The driver stated that
he was looking for the highway. Coffman gave the driver directions, turned
around, and went back inside his house. A “few moments later,” Coffman
heard a “bunch of commotion,” stepped outside, and saw officers at the post
office. Coffman walked over and spoke with law enforcement, where he
described the person in the red Hyundai as a black male with a reddish color
goatee. After meeting with law enforcement on the day of the incident,
Coffman had no further involvement with the matter for approximately
fifteen months.
By November 2018, nine months after the robbery, the Postal
Inspection Service had not been able to identify any suspects from video
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footage or witness interviews, and Postal Inspector Todd Matney testified
that they “were having a problem identifying the individuals.” However,
during the course of their investigation, Matney and Mathews learned about
“a new type of search warrant”—a “geofence warrant”—designed to
“identify who might be present at the scene of a robbery.” Believing that this
warrant could help them rekindle their investigation, on November 8, 2018,
Matney and Mathews applied for a geofence warrant seeking information
from Google to locate potential suspects and witnesses in connection to the
robbery.
B. Geofence Warrants: A Primer
As a relic of their novelty, “[t]here is a relative dearth of case law
addressing geofence warrants.” United States v. Chatrie, 590 F. Supp. 3d 901,
906 (E.D. Va. 2022) [hereinafter Chatrie (Dist.)]. As such, we provide a brief
history of geofence warrants, as well as a description of law enforcement’s
process for obtaining them. 1
Google received its first geofence warrant request in 2016. 2 Id. at 914;
United States v. Chatrie, 107 F.4th 319, 323 (4th Cir. 2024) [hereinafter
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1
Congress has not yet taken a stance on law enforcement’s use of geofence
warrants. However, members have expressed their marked disapproval. In July 2020,
Alphabet (Google’s parent company) CEO Sundar Pichai appeared before the House
Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law. See C-SPAN,
CEOs Mark Zuckerberg, Tim Cook, Jeff Bezos & Sundar Pichai Testify Before House Judiciary
Cmte, YouTube (July 29, 2020), https://perma.cc/7K5T-ACHJ (discussion at 1:45:17-
1:47:50). During the hearing, Representative Kelly Armstrong called geofence warrants
“the single most important issue” before the Subcommittee and contended that geofence
warrants violate the Fourth Amendment. Id. In particular, Representative Armstrong
believed that “people would be terrified to know that law enforcement can grab general
warrants and get everybody’s information anywhere.”
Id.
2
Companies such as Apple, Lyft, Snapchat, and Uber have all received geofence
warrant requests, but Google is the most common recipient and “the only one known to
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Chatrie (App.)]. Since then, requests for geofence warrants have
“skyrocketed in number.” Chatrie (App.), 107 F.4th at 323–24. From 2017 to
2018 alone, requests to Google for geofence warrants increased over 1,500%.
Id.; Brian L. Owsley, The Best Offense Is a Good Defense: Fourth Amendment
Implications of Geofence Warrants, 50 Hofstra L. Rev. 829, 834 (2022).
In 2019, Google was receiving about 180 geofence warrant requests per week
from law enforcement around the country, amounting to about 9,000
geofence requests for that year. Owsley, Best Offense, supra at 834; Chatrie
(Dist.), 590 F. Supp. 3d at 914. By 2020, that number went up to 11,500
geofence warrant requests. Owsley, Best Offense, supra at 834. By 2021,
geofence warrants comprised more than 25% of all warrant requests Google
received in the United States. See Google, Supplemental
Information on Geofence Warrants in the United
States
1, https://perma.cc/XEU3-KEXJ; Haley Amster & Brett Diehl, Note,
Against Geofences,
74 Stan. L. Rev. 385, 389 & n.11 (2022). Moreover, the
use of these warrants has not been limited to egregious or violent crimes. Law
enforcement officials have obtained geofence warrants for investigations into
stolen pickup trucks and smashed car windows. Amster & Diehl, Against
Geofences, supra at 396; see also In re Search of Info. Stored at Premises Controlled
by Google, as Further Described in Attachment A, No. 20 M 297,
2020 WL
5491763, at *8 (N.D. Ill. July 8, 2020) (“The government’s undisciplined and
overuse of this investigative technique in run-of-the-mill cases that present
no urgency or imminent danger poses concerns to our collective sense of
privacy and trust in law enforcement officials.”).
“Unlike a warrant authorizing surveillance of a known suspect,
geofencing is a technique law enforcement has increasingly utilized when the
_____________________
respond.” Note, Geofence Warrants and the Fourth Amendment, 134 HARV. L. REV. 2508,
2512–13 (2021).
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crime location is known but the identities of suspects [are] not.” United
States v. Rhine, 652 F. Supp. 3d 38, 66 (D.D.C. 2023). Thus, geofence
warrants effectively “work in reverse” from traditional search warrants.
Amster & Diehl, Against Geofences, supra at 388 (internal quotation omitted).
In requesting a geofence warrant, “[l]aw enforcement simply specifies a
location and period of time, and, after judicial approval, companies conduct
sweeping searches of their location databases and provide a list of cell phones
and affiliated users found at or near a specific area during a given timeframe,
both defined by law enforcement.” Geofence Warrants and the Fourth
Amendment, supra at 2509.
So far, Google has been the primary recipient of geofence warrants, in
large part due to its extensive Location History database, known as the
“Sensorvault.” 3 Amster & Diehl, Against Geofences, supra at 389. Google
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3
In December 2023, Google authored a blog post where it announced its intent to
modify how and where it stores Location History data. See Marlo McGriff, Updates to
Location History and New Controls Coming Soon to Maps, Google: The Keyword (Dec.
12, 2023), https://perma.cc/DN4Z-7CTA; see also Cyrus Farivar & Thomas Brewster,
Google Just Killed Warrants that Give Police Access to Location Data, Forbes (Dec. 14,
2023, 5:43 PM EST), https://perma.cc/WM83-DAXM. Google’s decision should make it
“impossible for the company to access” Location History data in a move made “explicitly
[to] bring an end to . . . dragnet location searches.” Farivar & Brester, Google Just Killed
Warrants that Give Police Access to Location Data, supra. In other words, these changes, in
theory, “will eventually render the company unable to fulfill geofence warrants.” Prathi
Chowdri, Emerging Tech and Law Enforcement: What Are Geofences and How Do They Work?,
Lexipol (Jan. 4, 2024) (internal quotation omitted), https://perma.cc/DNL3-XC56.
However, Google has not fully implemented its new storage methods; the
migration will only be complete within “the next several months.” See Stan Kaminsky,
Google Location History Is Now Stored Offline . . . Or Maybe Not, Kaspersky Daily (Mar.
1, 2024), https://perma.cc/ZM6X-92JZ. In fact, the Government concedes that it “is still
seeking Google geofences,” and that even after Google changes its storage techniques,
“the United States . . . may in the future seek geofence warrants from sources other than
Google.” Regardless, these facts do not affect this court’s Fourth Amendment analysis
regarding the constitutionality of the practice itself.
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collects data from accounts of users who opt in to Google’s Location History
service. Location History is disabled by default. Chatrie (App.), 107 F.4th at
322. For Location History to collect data, a user must make sure that the
device-location setting is activated, and that Location Reporting is enabled.
This is not to say, however, that enabling Location Reporting is a difficult
task. Users are often asked to opt in to Location History “multiple times
across multiple apps.” Id. at 358 n.9 (Wynn, J., dissenting) (quoting Chatrie
(Dist.), 590 F. Supp. 3d at 908–09). In fact, “manually deactivating all
[Location History] sharing remains difficult and discouraged.” Amster &
Diehl, Against Geofences, supra at 396–97 (“In 2018, an internal Google email
explained that ‘[t]he current [user interface] feels like it is designed to make
[limiting Location History collection] possible, yet [it is] difficult enough that
people won’t figure it out.’” (internal citation omitted)); see also In re Search
of Info. Stored at Premises Controlled by Google, 481 F. Supp. 3d 730, 737 n.3
(N.D. Ill. 2020) (“Published reports have indicated that many Google
services on Android and Apple devices store the device users’ location data
even if the users seek to opt out of being tracked by activating a privacy setting
that says it will prevent Google from storing the location data.”).
Google’s Android cell phones, which “comprise about 74% of the total
number of smartphones worldwide,” “automatically have an Android
operating system, as well as various Google apps that could potentially store
a user’s location.” Owsley, Best Offense, supra at 834. Apple, which makes
approximately 23% of the world’s smartphones, does not keep location data
associated with its phones, but its phones still “often have various apps
that . . . provide Google with a specific device’s location.” Id. at 834–35. In
October 2018, Google estimated that approximately 592 million—or roughly
one-third—of Google’s users had Location History enabled.
Once a person enables Location History, Google begins to “log[] [the]
device’s location [into the Sensorvault], on average, every two minutes” by
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“track[ing] [the] user’s location across every app and every device associated
with the user’s account.” Chatrie (Dist.), 590 F. Supp. 3d at 908–09; see also
Chatrie (App.), 107 F.4th at 323 n.6. In other words, “‘[o]nce a user opts into
Location History, Google is always collecting data and storing all of that data’
in the Sensorvault.” Rhine, 652 F. Supp. 3d at 67 (quoting Chatrie (Dist.), 590
F. Supp. 3d at 909). Location History is stored within the Sensorvault for at
least eighteen months, but users may also request that the information be
deleted themselves. Amster & Diehl, Against Geofences, supra at 394; Rhine,
652 F. Supp. 3d at 67.
Moreover, not only is the volume of data comprehensive, so is the
quality. “Location History appears to be the most sweeping, granular, and
comprehensive tool—to a significant degree—when it comes to collecting
and storing location data.” Chatrie (App.), 107 F.4th at 349 (Wynn, J.,
dissenting) (quoting Chatrie (Dist.), 590 F. Supp. 3d at 907). The data is
“considerably more precise than other kinds of location data, including cell-site location information because [Location History] is determined based on
multiple inputs, including GPS signals, signals from nearby Wi-Fi networks,
Bluetooth beacons, and cell towers.” Rhine, 652 F. Supp. 3d at 67 (internal
quotations omitted). Google refers collectively to this data, regardless of its
source, as “Location History.” Amster & Diehl, Against Geofences, supra at
394. Location History data allows Google to “potentially locate an individual
within about sixty feet or less,” and in certain circumstances, down to three
meters. Owsley, Best Offense, supra at 835; Chatrie (Dist.), 590 F. Supp. 3d at
909. In fact, Location History data can “even discern elevation, locating the
specific floor in a building where a person might be.” Chatrie (App.), 107 F.4th
at 349 (Wynn, J., dissenting); see also Chatrie (Dist.), 590 F. Supp. 3d at 908
(noting that Location History data can “determine if you are on the second
[or first] floor of [a] mall”). However, Location History cannot estimate a
device’s location with absolute precision. Instead, when Google reports a
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device’s location, it includes both the source from which the specific
datapoint was derived, and a “confidence interval” indicating Google’s
confidence in that estimated location. The smaller the radius, the more
confident Google is in that phone’s exact location. According to Google, it
“aims to accurately capture roughly 68 percent of users within [its]
confidence intervals.” Chatrie (Dist.), 590 F. Supp. 3d at 909 (internal
quotation omitted); Chatrie (App.), 107 F.4th at 323. “[I]n other words, there
[is] a 68 percent likelihood that a user is somewhere inside the confidence
interval.” Chatrie (Dist.), 590 F. Supp. 3d at 909 (internal quotation
omitted); Chatrie (App.), 107 F.4th at 323.
Using the raw data that it collects, Google builds “aggregate models”
using a “proprietary, and therefore un-reviewed, algorithm” that transforms
the data to assist with improving Google’s services, including, for example,
“decision-making in Google Maps.” Wells v. State, 675 S.W.3d 814, 830
(Tex. App.—Dallas 2023, pet. granted); Chatrie (Dist.), 590 F. Supp. 3d at
908; Chatrie (App.), 107 F.4th at 323. It also uses the data to analyze “[its]
customers[’] . . . travel patterns, their history patterns, to make
recommendations and sell advertising.” In short, Google does not store this
data for the purpose of law enforcement, but rather for commercial purposes.
Wells, 675 S.W.3d at 830.
But, if you build it, they will come. See Geofence Warrants and the
Fourth Amendment, supra at 2508. Early on, when law enforcement officials
first started requesting geofence warrants, they would simply ask Google to
identify all users who were in a geographic area during a given time frame.
However, Google began taking issue with these early warrants, believing
them to be a “potential threat to user privacy.” Chatrie (App.), 107 F.4th at
324. Thus, Google developed an internal procedure on how to respond to
geofence warrants. Id. This procedure is divided into three steps.
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Step 1
At Step 1, law enforcement provides Google with the geographical and
temporal parameters around the time and place where the alleged crime
occurred. Following, Google searches its Sensorvault for all users who had
Location History enabled during the law enforcement-provided timeframe.
Chatrie (Dist.), 590 F. Supp. 3d at 914–15. Google is not capable of storing
data in a way that enables it to search a specific area, nor does Google know
which users have saved their Location History prior to its search. Id. at 915.
Thus, for every single geofence warrant Google responds to, it must search
each account in its entire Sensorvault—all 592 million—to find responsive
user records. It cannot just look at individual accounts. See Chatrie (App.),
107 F.4th at 324 (“Google does not keep any lists like this on-hand. So it must
first comb through its entire Location History repository to identify users
who were present in the geofence.”).
After Google searches its Sensorvault, it determines which accounts
were within the geographic parameters of the warrant and lists each of those
accounts with an anonymized device ID. Google also includes the date and
time, the latitude and longitude, the geolocation source used, and the map
display radius (i.e., the confidence interval). The volume of geofence data
produced “depends on the size and nature of the geographic area and length
of time covered by the geofence request.” Chatrie (Dist.), 590 F. Supp. 3d at
915. “Google does not impose specific, objective restraints on the size of the
geofence, the length of the relevant timeframe, or the number of users for
which it will produce data.” Id. Rather, a Google Legal Investigation
Specialist employee reviews the geofence warrant, consults with legal
counsel, and works with law enforcement to assuage any of Google’s
concerns before turning the data over and moving on to Step 2. Id. at 907,
915–16; see also Chatrie (App.), 107 F.4th at 324.
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Step 2
At Step 2, law enforcement contextualizes and narrows the data.
During this step, law enforcement reviews the anonymized list provided by
Google and determines which IDs are relevant. As part of this review, “[i]f
law enforcement needs additional de-identified location information for a
certain device to determine whether that device is actually relevant to the
investigation, law enforcement . . . can compel Google to provide
additional . . . location coordinates beyond the time and geographic scope of
the original request.” Chatrie (Dist.), 590 F. Supp. 3d at 916 (cleaned up);
Chatrie (App.), 107 F.4th at 324. The purpose of this additional data is to
assist law enforcement in eliminating devices that are, for example, “not in
the target location for enough time to be of interest, [or] were moving through
the target location in a manner inconsistent with other evidence.” Chatrie
(Dist.), 590 F. Supp. 3d at 916. As a general matter, “Google imposes no
geographical limits on this Step 2 data.” Id. (internal quotation omitted);
Chatrie (App.), 107 F.4th at 324. “Google does, however, typically require
law enforcement to narrow the number of users for which it requests Step 2
data so that the Government cannot . . . simply seek geographically
unrestricted data for all users within the geofence.” Chatrie (Dist.), 590 F.
Supp. 3d at 916; Chatrie (App.), 107 F.4th at 324.
Step 3
Finally, at Step 3, law enforcement compels Google to provide
account-identifying information for the users that they determine are
“relevant to the investigation.” Chatrie (App.), 107 F.4th at 324. This
identifying information includes the names and emails associated with the
listed device IDs. Using this information, law enforcement can then pursue
further investigative techniques, such as cell phone tracking, or sending out
additional warrants tailored to the specific information received.
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…
As a final note, even given the vast amount of data Google has, and the
unprecedented precision of Google’s Location History, the results are not
always spectacular. First, “[m]any geofence warrants do not lead to arrests.”
Geofence Warrants and the Fourth Amendment, supra at 2520. Moreover,
“[m]any are rendered useless due to Google’s slow response time, which can
take as long as six months because of the Sensorvault’s size and the large
number of warrants that Google receives.” Id. Second, as to warrants that are
issued, the data Google returns is not always perfect, and sometimes contains
false positives. In fact, there are already documented accounts of innocent
bystanders being swept into geofence warrants based solely on their
proximity to a crime. 4 In short, while false negatives appear to be “more
extremely rare”—given the accuracy of Google’s data—false positives are
still an area of concern.
C. Geofence Application and Warrant at Issue
Returning to the matter at hand, the warrant here, like any other
warrant, began with an Application for a Search Warrant. That application
contained an attached affidavit from Matney, which Mathews helped write.
_____________________
4
For example, Zachary McCoy, an avid bike rider, was swept into a geofence
search because on the day of a burglary, he biked past the victim’s house three times within
an hour. Jon Schuppe, Google Tracked His Bike Ride Past a Burglarized Home. That Made
Him a Suspect., NBC News (Mar. 7, 2020, 5:22 AM CST), https://perma.cc/9WJK-
67TW. In another case, based on a Google geofence warrant, Arizona police officers jailed
Jorge Molina for six days on suspicion of murder. Meg O’Connor, Avondale Man Sues After
Google Data Leads to Wrongful Arrest for Murder, Phx. New Times (Jan. 16, 2020),
https://perma.cc/GLJ8-AHP9. As it turns out, Molina’s stepfather—the man ultimately
arrested for the murder—had been using one of Molina’s old cell phones, which
inadvertently remained logged in to Molina’s email and social media accounts. Id. As a
result, Molina lost his job, was unable to pass a background check, and even lost title to his
vehicle because police impounded his car during the investigation. Id.
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Because this type of warrant was new, particularly to Mathews, the Postal
Inspectors consulted with other law enforcement agencies when writing the
application. Additionally, the Inspectors used several different “go-bys”—
or form documents—to ensure that their application had all the necessary
“technical language.” Finally, the Inspectors also consulted with the U.S.
Attorney’s Office prior to seeking their warrant.
The affidavit stated that “there is probable cause to believe that the
Google accounts identified in Section I of Attachment A, associated with a
particular specified location at a particular specified time, contain evidence,
fruits and instrumentalities of a violation of 18 U.S.C. section 2114(a),
Robbery of a U.S. Postal Service Employee.” However, as with any geofence
warrant, no specific Google accounts were identified in Section I of
Attachment A; rather, the Attachment only specified specific coordinates
around the Lake Cormorant Post Office. The box created by those
coordinates covered approximately 98,192 square meters.
The affidavit also provided a specific Probable Cause Statement. In
that statement, the Inspectors detailed the two vehicles implicated in the
robbery, Cobbs’s description of the assailant, and a statement that, through
a review of the video surveillance footage, “it appears the robbery suspect
[was] possibly using a cellular device both before and after the robbery
occur[ed].” Finally, the Inspectors included language in the application
stating, in regard to Step 2 outlined above, that law enforcement “will seek
any additional information regarding [relevant] devices through further legal
process.”
The application and affidavit were submitted to a U.S. magistrate
judge, who issued the warrant on November 8, 2018. The language of the
warrant largely tracked Google’s three-step process outlined above:
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To the extent within the Provider’s possession, custody, or
control, the Provider is directed to produce the following
information associated with the Subject Accounts, which will
be reviewed by law enforcement personnel (who may include,
in addition to law enforcement officers and agents, attorneys
for the government, attorney support staff, agency personnel
assisting the government in this investigation, and outside
technical experts under government control) are authorized to
review the records produced by the Provider in order to locate
any evidence, fruits, and instrumentalities of 18 U.S.C. section
2114(a), Robbery of a U.S. Postal Service Employee.
1. Location information. All location data, whether
derived from Global Positioning System (GPS) data, cell
site/cell tower triangulation/trilateration, and precision
measurement information such as timing advance or per call
measurement data, and Wi-Fi location, including the GPS
coordinates, estimated radius, and the dates and times of all
location recordings, between 5:00 p.m. CT and 6:00 p.m. CT
on February 5, 2018;
2. Any user and each device corresponding to the
location data to be provided by the “Provider” will be
identified only by a numerical identifier, without any further
content or information identifying the user of a particular
device. Law enforcement will analyze this location data to
identify users who may have witnessed or participated in the
Subject Offenses and will seek any additional information
regarding those devices through further legal process.
3. For those accounts identified as relevant to the
ongoing investigation through an analysis of provided records,
and upon demand, the “Provider” shall provide additional
location history outside of the predefined area for those
relevant accounts to determine the path of travel. This
additional location history shall not exceed 60 minutes plus or
minus the first and last timestamp associated with the account
in the initial dataset. (The purpose of path of travel/contextual
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location points is to eliminate outlier points where, from the
surrounding data, it becomes clear the reported point(s) are not
indicative of the device actually being within the scope of the
warrant.)
4. For those accounts identified as relevant to the
ongoing investigation through an analysis of provided records,
and upon demand, the “Provider” shall provide the
subscriber’s information for those relevant accounts to
include, subscriber’s name, email addresses, services
subscribed to, last 6 months of IP history, SMS account
number, and registration IP.
In summary, as to Step 1, the warrant authorized an hour-long search from
5:00 p.m. to 6:00 p.m. on February 5, 2018, within a geofence covering
approximately 98,192 square meters around the Lake Cormorant Post Office.
As to Step 2, the warrant authorized law enforcement to obtain additional
Location History for a registered device identified as relevant within “60
minutes plus or minus the first and last timestamp associated with the
account in the initial dataset.” However, prior to reaching Step 2, law
enforcement was required to conduct “further legal process.”
Google returned the Step 1 data in April 2019. Notably, Google’s
search was much broader than that specifically sought by the warrant,
producing data from a circular area that was approximately 378,278 square
meters, not 98,192 square meters. The search of Google’s 592 million
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accounts returned three anonymous device IDs within the requested
parameters:
Inspector Matney testified that after receiving this data, he reviewed the
devices to ensure that they fell within the geofence coordinates.
However, prior to submitting Step 2, neither Matney nor Mathews
applied for another warrant. Instead, Matney and Mathews decided
themselves which device IDs were relevant and requested additional de-anonymized information for all three devices. The Inspectors determined
that all three devices were relevant to their Step 2 inquiry because devices
1091610859 and 1577088768 registered multiple times within the geofence,
and the third device—1353630479—could have been a potential witness. The
Step 2 request was placed in May 2019, and the expanded information was
received on May 30. However, no new devices were added through the
information gained at Step 2.
Again, without seeking any new warrants, Matney and Mathews sent
off their Step 3 request for all three devices on June 7, 2019. They received
the de-anonymized information from Google on June 10, 2019. The following
files were returned:
• 2165781.Key.cvs
• bleek2004.AccountInfo.txt
• jamarrsmith33.AcountInfo.txt
• permanentwavesrecords.AccountInfo.txt
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Through these files, Mathews was able to determine that
“jamarrsmith33.AcountInfo.txt” was Jamarr Smith’s email account and
“bleek2004.AcountInfo.txt” was Gilbert McThunel’s email account. The
third email account associated with “permanentwavesrecords.AccountInfo.
txt” was deemed irrelevant to the investigation.
Now, no longer devoid of leads, Mathews and Matney took “[a]
bunch of investigative steps” related to Smith and McThunel, including
sending additional non-geofence warrants to Google regarding Smith and
McThunel’s Google accounts, accessing their CLEAR database profiles,
investigating cell tower data related to Smith and McThunel, and sending
non-geofence warrants to phone companies for Smith and McThunel’s
account information. These additional steps revealed multiple phone calls
between Smith and McThunel during the time of the robbery, and allowed
for further geolocation of Appellants using historical cell phone record
analysis.
Additionally, through a search of Smith’s phone records and his
friends on Facebook, the Inspectors were able to identify Thomas Iroko
Ayodele as a suspect. Finally, on July 1, 2019, Postal Inspector Dwayne
Martin reapproached witness Forrest Coffman and asked him to participate
in a photo lineup. Although Coffman was unable to identify McThunel or
Ayodele in their respective lines, Coffman did identify Smith as the person
he saw driving the red Hyundai. In sum, all evidence connecting Appellants
to this crime was derived from information obtained from Google pursuant
to the geofence warrant.
D. Pretrial & Trial Posture
The Government initiated the instant action by issuing an indictment
on October 27, 2021. Count I of the indictment alleged that Appellants had a
conspiracy to rob the Lake Cormorant Post Office, and Count II alleged the
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actual robbery. On November 4, 2022, Smith filed a Motion to Suppress—
which the other Appellants joined—seeking to suppress all evidence derived
from the November 2018 geofence warrant which was used to identify them
as suspects.
Appellants raised multiple arguments related to the constitutionality
of the geofence warrant. First, Appellants contended that they had a
reasonable expectation of privacy in their Google Location History data, and
that this geofence warrant violated that privacy interest as a categorically
unconstitutional general warrant. Second, Appellants argued that the specific
warrant at issue was invalid from its inception because it lacked probable
cause and particularity. Third, Appellants argued that even if the warrant was
valid, the Government did not undertake “further legal process” to obtain
additional information from Google as required by the warrant, making Step
2 and Step 3 of the search warrantless and illegal. Finally, Appellants
maintained that the good-faith exception set forth in United States v. Leon,
468 U.S. 897 (1984), did not excuse the defects of the warrant, especially in
light of the fact that the affidavit in support of the warrant contained a
knowing and intentionally false statement—specifically, that “it appear[ed]
the robbery suspect [was] possibly using a cellular device both before and
after the robbery occur[ed]”—making the warrant invalid pursuant to Franks
v. Delaware,
438 U.S. 154, 164–65 (1978). As such, Appellants concluded, the
exclusionary rule should apply, and all the evidence seized should be
suppressed as fruit of the poisonous tree.
On January 31, 2023, the district court conducted a hearing on
Appellants’ Motion to Suppress. At the hearing, the Government called its
two Investigators, Matney and Mathews, and Appellants called an expert,
Spencer McInvaille. In relevant part, Matney and Mathews testified as to:
their unfamiliarity with geofence warrants; the steps they took to request a
geofence warrant and receive information from Google; their consultation
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with the U.S. Attorney’s Office; their review of surveillance footage
purporting to show the robbery suspect acting consistently with cell phone
usage (e.g., holding his hand up to his ear); and their understanding that the
language in the warrant requiring “further legal process” at Steps 2 and 3
meant the process of law enforcement “demand[ing]” information from
Google, not the process of law enforcement seeking any additional warrants
from the court.
McInvaille provided expert testimony to the court about digital
forensics and geolocation analysis, including, in relevant part, Google
Location History data. McInvaille explained to the district court that
warrants submitted to Google are typically used to seek information about
suspects when law enforcement knows the suspect has a Google account. In
contrast, law enforcement utilizes geofence warrants and Google Location
History when they do not have any leads, but nevertheless want to search
through Google’s data (i.e., the Sensorvault) to find suspects. McInvaille
outlined the three-step geofence warrant process described supra, and
explained that as part of that process, Google is required to search every
Google account with Location History enabled. Finally, McInvaille testified
that, given his experience in other cases, the language requiring “further legal
process” in this warrant would have required additional warrants at each step
of the geofence process.
On February 10, 2023, after considering the parties’ briefing and the
evidence presented at the hearing, the district court denied Appellants’
motion to suppress. Trial commenced on February 21, 2023. After a four-day
trial, the jury returned a guilty verdict against all three Appellants as to both
counts. Appellants were sentenced on June 13, 2023, to prison terms ranging
from 121 to 136 months. Following, Appellants filed a Motion for New Trial
and Motion for Judgment of Acquittal. The district court denied the motion.
Appellants timely appealed.
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II. Standard of Review
“When reviewing the denial of a motion to suppress evidence, this
court reviews the district court’s factual findings for clear error and the
district court’s conclusions regarding the sufficiency of the warrant and the
constitutionality of law enforcement action de novo.” United States v. Perez,
484 F.3d 735, 739 (5th Cir. 2007). We view the evidence in the light most
favorable to the prevailing party below—here, the Government. See United
States v. Pack,
612 F.3d 341, 347 (5th Cir. 2010).
III. Analysis
The Fourth Amendment guarantees individuals the right “to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend IV. The “basic purpose of
this Amendment . . . is to safeguard the privacy and security of individuals
against arbitrary invasions by governmental officials.” Carpenter v. United
States, 585 U.S. 296, 303 (2018) (quoting Camara v. Mun. Ct. of City and
Cnty. of S.F.,
387 U.S. 523, 528 (1967)). Moreover, the Supreme Court has
established that “the Fourth Amendment protects people, not places,” and
the Court has “expanded [its] conception of the Amendment to protect
certain expectations of privacy as well.”
Id. at 304 (quoting Katz v. United
States,
389 U.S. 347, 351 (1967)). “When an individual ‘seeks to preserve
something as private,’ and his expectation of privacy is ‘one that society is
prepared to recognize as reasonable,’ [the Court] ha[s] held that official
intrusion into that private sphere generally qualifies as a search and requires
a warrant supported by probable cause.”
Id. (quoting Smith v. Maryland,
442
U.S. 735, 740 (1979)). Evidence seized in violation of the Constitution is
subject to suppression. See Hudson v. Michigan,
547 U.S. 586, 590 (2006).
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A. Reasonable Expectation of Privacy
The threshold question posed by this case is whether geofencing is a
search under the Fourth Amendment. “A Fourth Amendment privacy
interest is infringed when the government physically intrudes on a
constitutionally protected area or when the government violates a person’s
‘reasonable expectation of privacy.’” United States v. Turner, 839 F.3d 429,
434 (5th Cir. 2016) (quoting United States v. Jones,
565 U.S. 400, 406 (2012)).
To assess whether a “reasonable expectation of privacy” exists, the Supreme
Court has applied Justice Harlan’s two-fold approach as explained in his
concurrence in Katz v. United States,
389 U.S. 347. See Jones,
565 U.S. at 406.
Specifically, for Fourth Amendment protections to attach to a person’s
privacy interest, the person first must “have exhibited an actual (subjective)
expectation of privacy.” Katz,
389 U.S. at 361 (Harlan, J., concurring).
Second, that expectation must “be one that society is prepared to recognize
as ‘reasonable.’”
Id. (Harlan, J., concurring).
Smith and McThunel contend that they have a reasonable expectation
of privacy in their respective location information retrieved in response to a
geofence warrant. 5 This argument is rooted in the application of Carpenter v.
_____________________
5
Ayodele also attempts to join Smith and McThunel’s arguments. However, as
noted above, Ayodele’s information was never retrieved in response to a geofence
warrant—his involvement in this robbery was deduced through a search of Smith’s phone
records and Smith’s friends on Facebook performed after the geofence search. As such,
Ayodele may lack Fourth Amendment standing to join Smith and McThunel because even
if he has an expectation of privacy in his own Google Location History data, he may not
have an expectation of privacy in the Google Location History data of an unrelated third-party. See United States v. Davis, No. 23-10184, 2024 WL 3573478, at *5–7 (11th Cir. 2024)
(concluding that a defendant lacked Fourth Amendment standing to challenge a geofence
warrant that produced his girlfriend’s Google Location History data because “[e]ven if a
person has a privacy interest in the data on his own phone, he does not have that interest in
the data on someone else’s phone.”).
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United States, 585 U.S. 296, arguably the most relevant Supreme Court
precedent addressing law enforcement’s investigatory use of cellular
consumer data. See Amster & Diehl, Against Geofences, supra at 406. In
Carpenter, prosecutors, without a warrant supported by probable cause,
received from a criminal defendant’s wireless carriers cell-site location
information (“CSLI”) that tracked the defendant’s whereabouts over the
course of several days. 6
585 U.S. at 302. From this data, prosecutors were
able to produce maps that placed the defendant’s phone near four robberies.
Id. at 302–03. The court of appeals affirmed the defendant’s convictions,
concluding that the defendant’s privacy interest in CSLI was not entitled to
Fourth Amendment protection because “cell phone users voluntarily convey
cell-site data to their carriers as a means of establishing communication.”
Id.
at 303 (internal quotation omitted).
The Supreme Court reversed. Id. at 321. As a starting point, the Court
acknowledged that a majority of the Court had “already recognized that
individuals have a reasonable expectation of privacy in the whole of their
physical movements.”
Id. at 310; see Jones,
565 U.S. at 430 (Alito, J.,
concurring in the judgment) (“[T]he use of longer term GPS monitoring in
investigations of most offenses impinges on expectations of privacy.”);
Jones,
565 U.S. at 415 (Sotomayor, J., concurring). The Court then expressed
_____________________
Regardless, we do not and need not answer this question today—as discussed
further infra, Smith and McThunel do have Fourth Amendment standing to bring their
respective constitutional challenges, and our ultimate disposition as to all three Appellants
hinges on the good faith exception. See Byrd v. United States, 584 U.S. 395, 411 (2018)
(“Because Fourth Amendment standing is subsumed under substantive Fourth
Amendment doctrine, it is not a jurisdictional question and hence need not be addressed
before addressing other aspects of the merits of a Fourth Amendment claim.”).
6
As the Supreme Court in Carpenter explained, CSLI is the time-stamped record
that is generated each time a phone connects to “cell sites,” the network of radio antennas
that provide signal to cell phones. 585 U.S. at 300–01.
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concern with the government having unfettered access to CSLI, noting that
this data provides “an intimate window into a person’s life, revealing not
only his particular movements, but through them his ‘familial, political,
professional, religious, and sexual associations.’” Carpenter, 585 U.S. at 311
(quoting Jones,
565 U.S. at 415 (Sotomayor, J., concurring)). The Court
further expressed concern that this precise, sensitive data could be accessed
by the government “[w]ith just the click of a button.”
Id. And, in contrast to
a GPS device attached to a person’s car, a cell phone “faithfully follows its
owner beyond public thoroughfares and into private residences, doctor’s
offices, political headquarters, and other potentially revealing locales.”
Id.
“Accordingly, when the Government tracks the location of a cell phone it
achieves near perfect surveillance, as if it had attached an ankle monitor to
the phone’s user.”
Id. at 311–12. The Court concluded that the criminal
defendant had a “reasonable expectation of privacy in the whole of his
physical movements.” Id. at 313.
The Court then addressed the third-party doctrine, which provides
that generally, “a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.” Id. at 308 (quoting
Smith, 442 U.S. at 743–44). The Court declined to apply the third-party
doctrine to the collection of CSLI, notwithstanding the fact that this data is
technically voluntarily provided from users to private wireless carriers. As
the Court noted, there is a “world of difference between the limited types of
personal information” addressed in the Court’s prior third-party doctrine
precedent “and the exhaustive chronicle of location information casually
collected by wireless carriers today.” Id. at 314. Furthermore, the Court
found the notion that users “voluntarily” provide this information to private
entities dubious. Carrying a cell phone is “indispensable to participation in
modern society,” and, “[a]part from disconnecting the phone from the
network, there is no way to avoid leaving behind a trail of location data.” Id.
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at 315. “As a result, in no meaningful sense does the user voluntarily
‘assume[] the risk’ of turning over a comprehensive dossier of his physical
movements.” Id. (quoting Smith, 442 U.S. at 745).
Chief Justice Roberts’s majority opinion in Carpenter speaks at length
about the privacy interests inherent in location data, and it expresses grave
concern with the government being able to comprehensively track a person’s
movement with relative ease due to the ubiquity of cell phone possession.
The Court acknowledged “some basic guideposts” in resolving questions
related to the Fourth Amendment’s protections of privacy interests,
including securing “the privacies of life against arbitrary power,” and placing
“obstacles in the way of a too permeating police surveillance.” Carpenter,
585 U.S. at 305 (internal quotations omitted). The Court also recognized the
necessity of applying the Fourth Amendment to systems of advanced
technology, expressing concern that CSLI is approaching “GPS-level
precision,” with wireless carriers having the capability to “pinpoint a
phone’s location within 50 meters.”
Id. at 313; see also Riley v. California,
573
U.S. 373, 396 (2014) (acknowledging the privacy concerns implicated by cell
phone location data that “can reconstruct someone’s specific movements
down to the minute, not only around town but also within a particular
building”).
Many of the concerns expressed by Chief Justice Roberts in his
Carpenter opinion are highly salient in the context of geofence warrants.
Perhaps the most alarming aspect of geofences is the potential for
“permeating police surveillance.” As Chief Justice Roberts explained,
modern cell phones enable the government to achieve “near perfect
surveillance”; carrying one of these devices is essentially a prerequisite to
participation in modern society, and users “compulsively carry cell phones
with them all the time.” Id. at 311–12, 315. Geofences also exemplify the
Court’s concern with pinpoint location data—this technology provides more
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precise location data than either CSLI or GPS. Geofence Warrants and the
Fourth Amendment, supra at 2510. Furthermore, obtaining data through
geofences, like obtaining data through CSLI, is “remarkably cheap, easy,
and efficient compared to traditional investigative tools.” Carpenter, 585
U.S. at 311. With “just the click of a button,” the government can search the
pinpoint locations of over half a billion people with Location History enabled.
See
id.
But while we see the parallels between CSLI and Location History
data, our colleagues on the Fourth Circuit—the first federal Circuit to
address whether geofencing is a “search” subject to the Fourth
Amendment—saw Location History data differently. See Chatrie (App.), 107
F.4th at 330. Characterizing Location History data as nothing more than a
“record of a person’s single, brief trip,” the Fourth Circuit found that
geofencing does not contravene a person’s “reasonable expectation of
privacy” because the data implicated by geofences is “far less revealing than
that obtained in Jones[ or] Carpenter.” Id. at 330–31. 7 With great respect to
our colleagues on the Fourth Circuit, we disagree. While it is true that
geofences tend to be limited temporally, the potential intrusiveness of even a
snapshot of precise location data should not be understated. As two
commentators noted:
_____________________
7
In United States v. Davis, the Eleventh Circuit appeared to agree with the Fourth
Circuit that geofence warrants “do[] not implicate the same privacy concerns raised in
Carpenter.” See 2024 WL 3573478, at *6. However, Davis ultimately concerned a
defendant’s Fourth Amendment standing to challenge a geofence warrant that obtained his
girlfriend’s Google Location History data, not his own data. Id. at *6. Thus, the Eleventh
Circuit’s discussion of the intrusiveness of Google Location History data ultimately does
not appear to have been dispositive to its holding. See id. at *6–7 (“Because the geofence
revealed the location of an open program that was not [the defendant’s] and was not on a
phone in his exclusive possession or control, he cannot argue that he had a privacy interest
in this data that gives him Fourth Amendment standing to challenge the search.”).
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[E]ven a brief snapshot can expose highly sensitive
information—think a visit to “the psychiatrist, the plastic
surgeon, the abortion clinic, the AIDS treatment center, the
strip club, the criminal defense attorney, the by-the-hourmotel, the union meeting, the mosque, synagogue or church,
[or] the gay bar,” or a location other than home during a
COVID-19 shelter-in-place order.
Amster & Diehl, Against Geofences, supra at 408 (quoting Jones, 565 U.S. at
415 (Sotomayor, J., concurring)). Plus, such location tracking can easily
follow an individual into areas normally considered some of the most private
and intimate, particularly residences. As another commentator described:
Even a geofence warrant that limits itself to a single day could
follow a person from the interior of their home, among the
rooms of their dwelling, to the location of a crime, then to a
place of worship, then perhaps to a new home, such as that of
a relative or friend, and among the rooms of that second
dwelling.
A. Reed McLeod, Note, Geofence Warrants: Geolocating the Fourth
Amendment, 30 Wm. & Mary Bill Rts. J. 531, 549 (2021). 8 In short,
_____________________
8
The Fourth Circuit acknowledged and dismissed these considerations because,
inter alia, the defendant—like the defendants in the case at bar—“d[id] not contend that
the warrant revealed his own movements within his own constitutionally protected space,”
and thus the defendant lacked Fourth Amendment standing to challenge geofencing on
those grounds. See Chatrie (App.), 107 F.4th at 330 n.17, 337 n.26. We disagree—this
conclusion directly conflicts with Carpenter.
In Carpenter, the Supreme Court’s analysis of whether the government’s access of
the defendant’s CSLI impeded his reasonable expectation of privacy was not based on a
review of the specific results of the search in that case. See generally 585 U.S. at 309–13.
Rather, the Supreme Court analyzed the general capabilities of CSLI, and asked whether
the ability for CSLI “to chronicle a person’s past movements through the record of his cell
phone signals” created an expectation of privacy. Id. at 309. In other words, it did not
matter whether that defendant happened to stay outside of a constitutionally protected area
during a search or not. The question was whether the technology utilized by law
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geofence location data is invasive for Fourth Amendment purposes. Of
particular concern is the fact that a geofence will retroactively track anyone
with Location History enabled, regardless of whether a particular individual
is suspicious or moving within an area that is typically granted Fourth
Amendment protection. 9
Moreover, Carpenter’s application to the third-party doctrine in this
case is straightforward. As the Court in Carpenter explained, while cell phone
data is held by private corporations, on a practical level, it is unreasonable to
think of cell phone users as voluntarily assuming the risk of turning over
_____________________
enforcement had the capability of providing data that offered “an all-encompassing record
of [a person’s] whereabouts,” regardless of whether that person actually entered spaces
that are traditionally considered protected under the Fourth Amendment. Id. at 311. And,
when a person has a “reasonable expectation of privacy in the place or thing searched or
seized,” he or she has Fourth Amendment standing. See United States v. Gaulden, 73 F.4th
390, 392 (5th Cir. 2023).
Here, the analysis is no different. The question is whether Location History data
has the capability of revealing intimate, private details about a person’s life, thus conferring
a “reasonable expectation of privacy.” This is general inquiry, not a retroactive, post-hoc
examination based on the results of the search in our case. A conclusion to the contrary
would be enigmatic. See Chatrie (App.), 107 F.4th at 351 (Wynn, J., dissenting) (“The
government . . . cannot circumvent the Constitution merely because, by sheer luck, its
target did not stray from the safe zone.”).
9
Some have argued that the privacy concerns presented by geofences are
ameliorated by the fact that information sent to law enforcement is, at first, anonymized.
See, e.g., In re Search of Info. Stored at Premises Controlled by Google, No. 2:22-MJ-01325,
2023 WL 2236493, at *8 (S.D. Tex. Feb. 14, 2023). However, it is undisputed that the data
is eventually de-anonymized. And, even setting that point aside, the effectiveness of data
anonymization has been called into question by researchers, given that anonymous data can
be cross-referenced to reveal identities. See Amster & Diehl, Against Geofences, supra at
409; see also Charlie Warzel & Stuart A. Thompson, They Stormed the Capitol. Their Apps
Tracked Them., N.Y. Times (Feb. 5, 2021), https://perma.cc/KMP3-3QSV (detailing
journalists’ efforts to identify individuals contained in anonymized datasets of smartphone
locations); Gina Kolata, Your Data Were ‘Anonymized’? These Scientists Can Still Identify
You, N.Y. Times (July 23, 2019), https://perma.cc/L5DL-MPZM. Thus, we find this
argument wanting.
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comprehensive dossiers of their physical movements to third parties.
Carpenter, 585 U.S. at 315. In a way, Carpenter acknowledged that, at least in
some instances, the third-party doctrine is “ill suited to the digital age, in
which people reveal a great deal of information about themselves to third
parties in the course of carrying out mundane tasks.” Jones,
565 U.S. at 417
(Sotomayor, J., concurring). Given the ubiquity—and necessity—in the
digital age of entrusting corporations like Google, Microsoft, and Apple with
highly sensitive information, the notion that users voluntarily relinquish their
right to privacy and “assume[] the risk” of this information being divulged
to law enforcement is dubious. See Smith,
442 U.S. at 745.
It is true that this case is slightly distinguishable from Carpenter;
namely, that users opt in to having their Location History monitored. Indeed,
this was the other consideration that persuaded the Fourth Circuit that
geofencing is not a “search” subject to the Fourth Amendment. See Chatrie
(App.), 107 F.4th at 331–32. Again, with great respect, we are not convinced.
As anyone with a smartphone can attest, electronic opt-in processes
are hardly informed and, in many instances, may not even be voluntary. See
Daniel J. Solove, Privacy Self-Management and the Consent Dilemma, 126
Harv. L. Rev. 1880, 1884–88 (2013). See generally Hannah J. Hutton &
David A. Ellis, Exploring User Motivations Behind iOS App Tracking
Transparency Decisions, Proc. of the 2023 CHI Conf. on Hum.
Factors in Computing Sys., Apr. 2023, at 1, 7–8, 10 (detailing
general “confusion” with, and “misconceptions” about, Apple’s datatracking opt-in prompts due, in part, to those prompts’ “lack of clarity”).
Google’s Location History opt-in process is no different. As described above,
users are bombarded multiple times with requests to opt in across multiple
apps. See Chatrie (Dist.), 590 F. Supp. 3d at 908–09. These requests typically
innocuously promise app optimization, rather than reveal the fact that users’
locations will be comprehensively stored in a “Sensorvault,” providing
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Google the means to access this data and share it with the government. See
Chatrie (App.), 107 F.4th at 359–60 (Wynn, J., dissenting); see also Defendant
Okello Chatrie’s Supplemental Motion to Suppress Evidence Obtained from
a “Geofence” General Warrant at 15–17, United States v. Chatrie, No. 19-cr-
00130 (E.D. Va. May 22, 2020), 2020 WL 4551093, ECF No. 104. Even
Google’s own employees have indicated that deactivating Location History
data based on Google’s “limited and partially hidden” warnings is “difficult
enough that people won’t figure it out.” Chatrie (App.), 107 F.4th at 360, 367
(Wynn, J., dissenting) (quoting Chatrie (Dist.), 590 F. Supp. 3d at 913, 936);
Amster & Diehl, Against Geofences, supra at 396–97.
But you don’t have to take our word for it—others have similarly
questioned the “voluntary” nature of Google’s opt-in process. See, e.g., In re
Search of Info. Stored at Premises Controlled by Google, 481 F. Supp. 3d at 737
& n.3 (“The Court finds it difficult to imagine that users of electronic devices
would affirmatively realize, at the time they begin using the device, that they
are providing their location information to Google in a way that will result in
the government’s ability to obtain—easily, quickly and cheaply—their
precise geographical location at virtually any point in the history of their use
of the device.”); McLeod, Geolocating the Fourth Amendment, supra at 543
(“[C]onsider a Google user’s consent to Location History . . . . [u]sers either
opt in with less than explicit notice given to them, or even with good notice,
without a full realization of the potential consequences to their privacy if they
opt in. Second, users may understand the notice they have been given, but
misunderstand the accuracy of the movement patterns as expressed in the
location data collected by tech companies.”); Chatrie (Dist.), 590 F. Supp. 3d
at 935 (acknowledging that users take “some affirmative steps to enable
location history,” yet concluding that “those steps likely do not constitute a
full assumption of the attendant risk of permanently disclosing one’s
whereabouts during almost every minute of every hour of every day”); see
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also Chatrie (App.), 107 F.4th at 356–61 (Wynn, J., dissenting); Amster &
Diehl, Against Geofences, supra at 396–97, 409–10.
Not to mention, the fact that approximately 592 million people have
“opted in” to comprehensive tracking of their locations itself calls into
question the “voluntary” nature of this process. In short, “a user simply
cannot forfeit the protections of the Fourth Amendment for years of precise
location information by selecting ‘YES, I’M IN’ at midnight while setting up
Google Assistant, even if some text offered warning along the way.” Chatrie
(Dist.), 590 F. Supp. 3d at 936.
…
To conclude, we hold that law enforcement in this case did conduct a
search when it sought Location History data from Google. Given the
intrusiveness and ubiquity of Location History data, Smith and McThunel
correctly contend that they have a “reasonable expectation of privacy” in
their respective data. Additionally, per Carpenter, the third-party doctrine
does not apply.
B. General Constitutionality
Having concluded that the acquisition of Location History data via a
geofence is a search, it follows that the government must generally obtain a
warrant supported by probable cause and particularity before requesting such
information. Carpenter, 585 U.S. at 316. Accordingly, we turn to the issue of
whether geofence warrants satisfy this mandate, addressing Appellants’
argument that these novel warrants resemble unconstitutional general
warrants prohibited by the Fourth Amendment. 10
_____________________
10
Because the Fourth Circuit concluded that law enforcement did not conduct a
search when it sought Location History data from Google, it did not reach the question of
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“[T]he Fourth Amendment was the founding generation’s response
to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,
which allowed British officers to rummage through homes in an unrestrained
search for evidence of criminal activity.” Riley, 573 U.S. at 403. “General
warrants” are warrants that “specif[y] only an offense,” leaving “to the
discretion of the executing officials the decision as to which persons should
be arrested and which places should be searched.” Steagald v. United States,
451 U.S. 204, 220 (1981); Geofence Warrants and the Fourth Amendment, supra
at 2518.
It is undeniable that general warrants are plainly unconstitutional.
Indeed, “it would be a needless exercise in pedantry to review again the
detailed history of the use of general warrants as instruments of oppression
from the time of the Tudors, through the Star Chamber, the Long
Parliament, the Restoration, and beyond.” Stanford v. Texas, 379 U.S. 476,
482 (1965). Thus, courts have recognized that no warrant “can authorize the
search of everything or everyone in sight.” Geofence Warrants and the Fourth
Amendment, supra at 2518; cf. Marks v. Clarke,
102 F.3d 1012, 1029 (9th Cir.
1996) (“[A] warrant to search ‘all persons present’ for evidence of a crime
may only be obtained when there is reason to believe that all those present
will be participants in the suspected criminal activity.”); Owens ex rel. Owens
v. Lott,
372 F.3d 267, 276 (4th Cir. 2004) (“[A]n ‘all persons’ warrant can
pass constitutional muster if the affidavit and information provided to the
magistrate supply enough detailed information to establish probable cause to
believe that all persons on the premises at the time of the search are involved
in the criminal activity.”).
_____________________
whether geofence warrants pass muster under the Fourth Amendment’s warrant
requirement.
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When law enforcement submits a geofence warrant to Google, Step 1
forces the company to search through its entire database to provide a new
dataset that is derived from its entire Sensorvault. In other words, law
enforcement cannot obtain its requested location data unless Google searches
through the entirety of its Sensorvault—all 592 million individual accounts—
for all of their locations at a given point in time. Moreover, this search is
occurring while law enforcement officials have no idea who they are looking
for, or whether the search will even turn up a result. Indeed, the
quintessential problem with these warrants is that they never include a
specific user to be identified, only a temporal and geographic location where
any given user may turn up post-search. 11 That is constitutionally insufficient.
Geofence warrants present the exact sort of “general, exploratory
rummaging” that the Fourth Amendment was designed to prevent. Coolidge
v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley, 573 U.S. at 403;
Geofence Warrants and the Fourth Amendment, supra at 2519. In fact, Google
Maps creator Brian McClendon has called these warrants “fishing
expedition[s],” and explained that Google employees originally assumed law
enforcement would only seek Location History data on specific people—a
reality that did not come true. Jennifer Valentino-DeVries, Tracking Phones,
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11
As Professor Stephen Henderson explains in his discussion of CSLI, focusing
probable cause on the group rather than the individual “would mean that a larger database
is always preferred” by law enforcement, because “by definition there will be evidence of
crime in that larger set.” Stephen E. Henderson, Response, A Rose by Any Other Name:
Regulating Law Enforcement Bulk Metadata Collection, 94 Tex. L. Rev. See Also 28, 40–
41 (2016). Doing so leads to an “absurd” understanding of probable cause: “[A] prosecutor
confident that a bank customer is committing tax fraud could access the combined records
of all customers of that bank because, somewhere in there, she is very sure is evidence of
crime.” Id. at 41. Henderson argues, in the context of CSLI, it must be the case that
probable cause is required for “each person’s obtained records,” meaning here “each
phone number contained within the dump.” Id. The same argument applies with full force
to Google accounts containing Location History data.
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Google Is a Dragnet for the Police, N.Y. Times (Apr. 13, 2019),
https://perma.cc/NCF3-H5DP. “Awareness that the government may be
watching chills associational and expressive freedoms.” Jones, 565 U.S. at
416 (Sotomayor, J., concurring.). And, when these core rights are at issue,
the warrant requirement must “be accorded the most scrupulous
exactitude.” See Stanford,
379 U.S. at 485.
Here, the Government contends that geofence warrants are not
general warrants because they are “limited to specified information directly
tied to a particular [crime] at a particular place and time.” This argument
misses the mark. While the results of a geofence warrant may be narrowly
tailored, the search itself is not. A general warrant cannot be saved simply by
arguing that, after the search has been performed, the information received
was narrowly tailored to the crime being investigated. These geofence
warrants fail at Step 1—they allow law enforcement to rummage through
troves of location data from hundreds of millions of Google users without any
description of the particular suspect or suspects to be found. 12
_____________________
12
The Fourth Circuit—albeit in the context of determining whether law
enforcement’s acquisition of Location History data qualified as a “search” under the
Fourth Amendment—appeared to contend that Google’s search at Step 1 is irrelevant to
our inquiry because Google, rather than law enforcement, conducts that search. See Chatrie
(App.), 107 F.4th at 330 n.16. Instead, the Fourth Circuit concluded that “the proper focus
of our inquiry [should be] . . . the government’s access of two hours’ worth of [defendant’s]
Location History data,” i.e., Step 2, because “a search only occurs once the government
accesses the requested information.” Id.
This proposition is breathtaking. In essence, the Fourth Circuit appears to
conclude that law enforcement may flaunt the Fourth Amendment by simply offloading
their act of “searching” on to a third party, and waiting to see if that third party’s search
produces any fruit before applying for a warrant. Moreover, by implication, if the third
party’s search produces zero evidence, law enforcement never conducted any search at all.
But the Supreme Court has clearly stated that the Fourth Amendment protects
against both searches and seizures “effected by a private party . . . if the private party acted
as an instrument or agent of the Government.” Skinner v. Ry. Lab. Execs.’ Ass’n, 489 U.S.
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In sum, geofence warrants are “[e]mblematic of general warrants”
and are “highly suspect per se.” Geofence Warrants and the Fourth
Amendment, supra at 2520; Amster & Diehl, Against Geofences, supra at 433–
34; Chad Marlow & Jennifer Stisa Granick, Celebrating an Important Victory
in the Ongoing Fight Against Reverse Warrants, ACLU (Jan. 29, 2024),
https://perma.cc/SC2R-S7PJ (“The constitutionality of reverse warrants is
highly suspect because, like general warrants that are prohibited by the
Fourth Amendment, they permit searches of vast quantities of private,
personal information without identifying any particular criminal suspects or
demonstrating probable cause to believe evidence will be located in the
corporate databases they search.”); Chatrie (App.), 107 F.4th at 353 (Wynn,
J., dissenting) (“[A] [geofence] warrant is uncomfortably akin to the sort of
‘reviled’ general warrants used by English authorities that the Framers
intended the Fourth Amendment to forbid.”).
This court “cannot forgive the requirements of the Fourth
Amendment in the name of law enforcement.” Berger v. New York, 388 U.S.
41, 62 (1967). Accordingly, we hold that geofence warrants are general
warrants categorically prohibited by the Fourth Amendment. We now move
on to suppression and the good-faith exception to the warrant requirement.
C. Good-Faith Exception
In United States v. Leon, 468 U.S. 897, 913 (1984), the Supreme Court
evaluated the Fourth Amendment exclusionary rule, and opined that
_____________________
602, 613–14 (1989). And, here, all of Google’s actions, including at Step 1, are “conducted
in response to legal compulsion and ‘with the participation or knowledge of [a]
governmental official.’” Geofence Warrants and the Fourth Amendment, supra at 2516
(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Accordingly, law enforcement
must abide by the Fourth Amendment not only when Google provides them with a final list
of names, but also when they instruct Google to search its entire Sensorvault to produce
those names.
Id. Put differently, the proper focus of our inquiry does include Step 1.
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evidence seized by officers reasonably relying on a warrant issued by a
detached and neutral magistrate judge should be admissible. 13 However, the
Court articulated four circumstances where this “good faith” exception does
not apply:
(1) when the issuing magistrate was misled by information in an
affidavit that the affiant knew or reasonably should have known
was false; (2) when the issuing magistrate wholly abandoned
his judicial role; (3) when the warrant affidavit is so lacking in
indicia of probable cause as to render official belief in its
existence unreasonable; and (4) when the warrant is so facially
deficient in failing to particularize the place to be searched or
the things to be seized that executing officers cannot
reasonably presume it to be valid.
United States v. Woerner, 709 F.3d 527, 533–34 (5th Cir. 2013) (citing Leon,
468 U.S. at 921–25).
Appellants argue that three of the Leon circumstances apply in this
case. First, Appellants contend that Inspectors knowingly or recklessly
included a false statement in the warrant affidavit, specifically, the statement
that “it appear[ed] the robbery suspect [was] possibly using a cellular device
_____________________
13
Appellants argue that “[t]here is no such thing as relying on a general warrant in
good-faith,” and that an application of Leon is categorically unnecessary. Their argument
is well taken, but we decline to adopt that stance today. Appellants point the court to Groh
v. Ramirez, 540 U.S. 551, 558, 563 (2004), which held that “no reasonable officer could
believe that a warrant that plainly did not comply with [the particularity] requirement was
valid,” and which cited Leon even though the issue in Groh was ultimately about qualified
immunity. However, Groh did not involve a novel advancement in law enforcement
technology—in fact, Groh involved an essentially run-of-the-mill warrant to search for guns
in a house.
Id. at 554–57. Given the novelty and complexity of geofence warrants, as well as
the dearth of legal authority on the topic of geofence warrants to guide law enforcement,
Groh is distinguishable on its facts. Moreover, the other cases cited by Appellants are also
unavailing, as a majority were decided prior to Leon. Accordingly, we hold that Leon applies
to our analysis.
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both before and after the robbery occur[ed].” Appellants maintain that
Matney and Mathew’s use of a “go-by” is indicative of the fact that they had
no idea whether a cell phone was used, and that this is “by definition reckless
at best.” We disagree. As the district court noted, video evidence of the
assailant appears to show body language consistent with cell phone use.
Mathews and Matney reviewed this video footage in addition to using a “go-by.” In essence, Appellants ask this court to ignore Matney’s testimony that
the Inspectors based their probable cause statement in the warrant affidavit,
in part, on this footage. Because this court is highly deferential to the district
court’s factfinding, and because the court reviews evidence in the light most
favorable to the Government, see Pack, 612 F.3d at 347, Appellants’ argument
fails.
Appellants’ second and third Leon arguments pertain to probable
cause and particularity—i.e., that the warrant was “completely devoid” of
probable cause, or that it was “facially deficient” in particularity, rendering
the Inspectors’ conclusions unreasonable. Again, we disagree. Here, we find
the rationale behind the Fourth Circuit’s opinion in United States v. McLamb,
880 F.3d 685 (4th Cir. 2018), persuasive. In McLamb, the Fourth Circuit
declined to suppress evidence when officers were utilizing “cutting edge
investigative techniques” and consulted with attorneys from the Department
of Justice.
Id. at 690–91. Here, the Inspectors likewise had conversations with
other law enforcement officials and the U.S. Attorney’s Office prior to
submitting their warrant. To this end, we, like the district court “struggle[]
to see any wrongful conduct to deter,” because “the conduct of law
enforcement in this case seem[ed] reasonable and appropriate when
considering the specific circumstances with which the investigators were
faced.”
At bottom, “but-for causality is only a necessary, not a sufficient,
condition for suppression.” Hudson, 547 U.S. at 592. This court must also
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weigh the “substantial social costs” of exclusion against “deterrence
benefits,” the “existence of which [is also] a necessary condition for
exclusion.” Id. at 594–96 (internal quotations omitted). Here, the social costs
of exclusion are admittedly considerable, including the consequences “that
exclusion of relevant incriminating evidence always entails (viz., the risk of
releasing dangerous criminals into society).”
Id. at 595. Additionally, the
deterrence benefits here are not clear. The Inspectors were utilizing a
cutting-edge investigative technique with which neither Inspector had
personal experience. To that end, the Inspectors diligently attempted to
make sure that their warrant comported with the Fourth Amendment by
communicating with other law enforcement agencies and the U.S.
Attorney’s Office, and the Inspectors exhibited no malicious intent through
the actions that they took. Thus, we cannot fault law enforcement’s actions
considering the novelty of the technique and the dearth of court precedent to
follow. 14 Accordingly, none of Leon’s circumstances apply, and the district
court correctly declined to suppress evidence under the good-faith exception
to the warrant requirement. 15
_____________________
14
For the same reasons, we agree with the district court that the Inspectors’
mistaken belief regarding the meaning of the phrase “further legal process,” and their
failure to apply for additional warrants at Steps 2 and 3, do not preclude the applicability of
the good faith exception.
15
Appellants also argue that the district court erred by failing to exclude the
Government’s expert witness, Christopher Moody, at trial as unreliable under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We disagree. “District courts enjoy
wide latitude in determining the admissibility of expert testimony, and the discretion of the
trial judge and his or her decision will not be disturbed on appeal unless manifestly
erroneous.” Watkins v. Telsmith, Inc.,
121 F.3d 984, 988 (5th Cir. 1997) (internal quotation
omitted). “‘Manifest error’ is one that is ‘plain and indisputable, and that amounts to a
complete disregard of the controlling law.’” Kim v. Am. Honda Motor Co.,
86 F.4th 150,
159 (5th Cir. 2023) (quoting Bear Ranch, L.L.C. v. Heartbrand Beef, Inc.,
885 F.3d 794, 802
(5th Cir. 2018)).
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IV. Conclusion
We hold that geofence warrants are modern-day general warrants and
are unconstitutional under the Fourth Amendment. However, considering
law enforcement’s reasonable conduct in this case in light of the novelty of
this type of warrant, we uphold the district court’s determination that
suppression was unwarranted under the good-faith exception.
AFFIRMED.
_____________________
Here, Moody testified about two technological areas: (1) CSLI; and (2) Google
Location History. First, Appellants acknowledge that this court has accepted historical
cellular site analysis in the past as the subject of expert testimony. See United States v.
Schaffer, 439 F. App’x 344, 347 (5th Cir. 2011). Second, it is undisputed that Google
Location History is a collection of data that is itself derived from a combination of three
forms of geolocation—CSLI, GPS, and Wi-Fi. Thus, Moody’s extensive knowledge, skill,
experience, training, and education in historically reliable forms of geolocation, such as
CSLI, GPS, and Wi-Fi, allowed him to discuss Google Location History data, which is
itself derived from those very sources. At bottom, the district court did not commit error,
let alone manifest error, by allowing Moody to testify.
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James C. Ho, Circuit Judge, concurring:
Geofence warrants are powerful tools for investigating and deterring
crime. The defendants here engaged in a violent robbery—and likely would
have gotten away with it, but for this new technology. So I fully recognize
that our panel decision today will inevitably hamper legitimate law
enforcement interests.
But hamstringing the government is the whole point of our
Constitution. Our Founders recognized that the government will not always
be comprised of publicly-spirited officers—and that even good faith actors
can be overcome by the zealous pursuit of legitimate public interests. “If
men were angels, no government would be necessary.” The Federalist
No. 51, at 349 (J. Cooke ed. 1961). “If angels were to govern men, neither
external nor internal controls on government would be necessary.” Id. But
“experience has taught mankind the necessity of auxiliary precautions.”
Id.
It’s because of “human nature” that it’s “necessary to control the abuses of
government.”
Id.
Our decision today is not costless. But our rights are priceless.
Reasonable minds can differ, of course, over the proper balance to strike
between public interests and individual rights. Time and again, modern
technology has proven to be a blessing as well as a curse. Our panel decision
today endeavors to apply our Founding charter to the realities of modern
technology, consistent with governing precedent. I concur in that decision.
39
