[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Maryland has permitted use of a geofence warrant. Geofence Search Warrant Held Valid (Jun. 28, 2024).
However, there is a split over those warrants between a panel of the U.S. Court of Appeals for the Fourth Circuit, with the case being reconsidered en banc, and the Fifth Circuit. Are Geofence Warrants Permissible? – A Circuit Split (Aug. 12, 2024); Possible Clarity About Geofence Search Warrants (Nov. 7, 2024); Keeping an Eye on Geofence Warrants (Jan. 22, 2025); Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent (Mar. 7, 2025).
In Wells v. State, __ S.W.3d __, 2025 WL 980996 (Ct. Crim. Apls. Tex. Apr. 2, 2025), the court wrote:
This case involves a question about the constitutionality of a “geofence” warrant. We conclude that use of the geofence warrant in this case to obtain location history data did not violate the Fourth Amendment of the United States Constitution. Accordingly, the judgment of the court of appeals is affirmed.
In Wells v. State, __ S.W.3d __, 2025 WL 980996 (Ct. Crim. Apls. Tex. Apr. 2, 2025).
The underlying crime was a melee at the home Mr. Giddings, a drug dealer, shared with Ms. Dickerson, on the one hand; and, four armed, masked men, on the other. Mr. Giddings died.
Security camera footage showed that the men were near a church immediately before and after the offense. Police “obtained a warrant to search Google’s records for information on devices located within a rectangular geofence encompassing [Giddings and Dickerson’s] house and the portion of the church directly across the street between 2:45 a.m. and 3:10 a.m. on June 24.”
The Wells court described geofence warrants:
While traditional court orders permit searches related to known suspects, geofence warrants are issued specifically because a suspect cannot be identified. Law 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.
Id. at n. 1, quoting Note, “Geofence Warrants and the Fourth Amendment,” 134 Harv. L. Rev. 2508, 2509 (May 2021).
A dissenting and concurring opinion in Wells explained that: “Geofence warrants, like the one at issue, have been said to ‘work in reverse’ to the traditional search warrant.”
While they often help solve crimes, geofence warrants present obvious concerns:
Imagine you go for a bike ride around your neighborhood and decide to track it using a fitness app. Unbeknownst to you, there is a home burglary along your route. Google then notifies you that they will be releasing your data to the police unless you block it in court within the next seven days. Or imagine someone commits a crime while carrying your cell phone with them. Police then acquire data from Google about your phone’s location and arrest you for six days, costing you your job. … All … are real life scenarios that illustrate a modern problem: new police technology has the potential to encroach on personal privacy.
M. Radford, “Back to the Future: Revising State Constitutions to Protect Against New Technological Intrusions,” 81 Wash. & Lee L. Rev. 1641, 1643-44 (Fall, 2024).
In Wells, a cell phone associated with the defendant/appellant, Mr. Wells, was identified as being at the scene. Phone records and a search of social media identified the other men.
The warrant at issue in this case was directed to “Google LLC[.]” It ordered Google to turn over to the police “GPS, WiFi or Bluetooth sourced location history data” corresponding to “Initial Search Parameters” generated from devices that Google’s electronic records showed to have been within certain, particularly circumscribed time and location specifications. The warrant required disclosure in three steps.
In Wells v. State, __ S.W.3d __, 2025 WL 980996 (Ct. Crim. Apls. Tex. Apr. 2, 2025).
In Step 1, anonymized information was provided.
In Step 2, for accounts identified as relevant, Google was to provide additional location history to determine the path of travel that was not more than 60 minutes before or after the relevant time. “This step was intended to aid the police in ruling out any devices flagged by the Anonymized List so that the identity of obvious non-witnesses and non-participants would not be revealed.” Id. at *2.
Step 3 required disclosure of subscriber information for those identified as relevant.
The geographic scope of the warrant was identified by four latitude and longitude coordinates. The Wells court wrote:
Thus, the affidavit sought location history data for an area that encompassed no more than a part of the church and the church grounds, including the parking lot where the assailants waited, a small segment of Veterans Drive between the church and the house at 4923 Veterans Drive, and the house itself, including front and back yards, for a twenty-five minute interval corresponding to the approximate time of the offense.
Id. at *3.
The affidavit requesting the warrant described Google’s capabilities and asserted that it was “likely” that at least one of the four suspects had an Android device. The affiant stated: “It is common practice that home invasion robbery suspects keep an open line with someone outside of the residence while committing this type of offense to keep an eye out for responding police officers.”
The Wells court explained what happened after the warrant was served:
Pursuant to Step One of the procedure, as outlined in both the warrant and the warrant affidavit, Google identified three devices within the geofence. Once the search was expanded via Step Two, [Detective] Leob was able to determine that one of those three devices belonged to an individual who was involved in the offense. Step Three revealed that Appellant was that individual. From there, by separate warrants, Loeb was able to obtain Appellant’s Google account information plus additional cell phone records to confirm his presence at the crime scene.
Id.
At trial, Mr. Wells moved to suppress, asserting that the search was pursuant to an improper general warrant and that there was not probable cause to show that any of the assailants carried an Android phone.
The State responded that the parameters were so narrow that every device operating in that area would have to have been in the possession of a suspect or witness.
The intermediate court wrote
The geofence warrant cases to date can generally be divided into two categories—those in which the geofence search warrant was found constitutionally infirm because it was not sufficiently limited as to time and place so as to restrict the executing officer’s discretion and minimize the danger of searching uninvolved persons, and those in which the warrant satisfied the Fourth Amendment because it established probable cause to search every person found within the geofence area.
Id.
The Wells appellate court agreed with that analysis, adding.
Which category a given case falls into depends upon the size of the area covered by the requested geofence, the length of time specified, and the circumstances of the offense under investigation. Geofence warrants that are confined, covering a relatively small space over a relatively short time, in a remote or rural area, or at a time of day when only the perpetrators of the offense or witnesses would be likely to be present, have generally been found to pass constitutional muster. But warrants that cover larger or more congested urban areas over a longer span of time generally have not, since they are much more likely to infringe upon a greater number of innocent, uninvolved bystanders. Indeed, the issue is often not so much whether there is probable cause to believe the search will uncover evidence of the offense as it is whether the warrant is “overbroad”—that is, whether the search it authorizes outstrips the probable cause that justifies it by casting too wide a net and thereby impacting an unacceptable number of people who cannot possibly have any connection to the offense. [Emphasis added].
Id.
Which category a given case falls into depends upon the size of the area covered by the requested geofence, the length of time specified, and the circumstances of the offense under investigation. Geofence warrants that are confined, covering a relatively small space over a relatively short time, in a remote or rural area, or at a time of day when only the perpetrators of the offense or witnesses would be likely to be present, have generally been found to pass constitutional muster.
Wells v. State, __ S.W.3d __, 2025 WL 980996 (Ct. Crim. Apls. Tex. Apr. 2, 2025).
In Wells, the appellate court held that there was probable cause to find that the Google location history database would contain evidence of the offense, “if it revealed any information at all.” Id. at *7.
As to the affidavit about one suspect “likely” carrying an Android device, it is a “well-established fact that, in this day and age, almost everyone possesses a cell phone on or about his person at practically any time of day or night—they are, indeed, ubiquitous…. The core inquiry here is probability, not certainty, and it is eminently reasonable to assume that criminals, like the rest of society, possess and use cell phones to go about their daily business.” Id. at *8 (citation and quotation omitted); cf. id. at *17 (dissenting opinion asserting that “likely” was conclusory and lacking in facts).
Further, the Wells court determined that “the geofence warrant in this case provided sufficient particularity with respect to both the ‘place to be searched’ and the ‘things to be seized.’” Id. at *8. The “place” was Google’s storage of location data. The “thing to be seized’ was location history and latitudinal and longitudinal coordinates were narrowly drawn. The time range was limited to 25 minutes.
Moreover, the “Initial Search Parameters” were sufficiently tailored in terms of time and place as to minimize the potential for infringing on the privacy rights of persons who could not reasonably be regarded as either suspects or witnesses to the offense. The area to be searched was small and restricted to the places where police knew that the unidentified suspects were located: a part of the church grounds, where the suspects hid in waiting for Giddings to arrive home; the street between the church and the home, which the suspects rushed across; and the front yard and interior of the house itself, where the assaults on Dickerson and Giddings took place. These were not high traffic areas—especially not during the brief period of time in the middle of the night when the offense occurred. It was not at all likely that the geofence in this case would have identified many innocent bystanders or passersby who would not have been relevant to the investigation.
Id. at *9.
The Wells court wrote: “Assuming that the Fourth Amendment generally requires police to obtain a search warrant for corporate-held location history data, we conclude that the geofence warrant in this case was supported by probable cause and that it satisfied the particularity requirement of the Fourth Amendment. The judgment of the court of appeals is affirmed.”
Assuming that the Fourth Amendment generally requires police to obtain a search warrant for corporate-held location history data, we conclude that the geofence warrant in this case was supported by probable cause and that it satisfied the particularity requirement of the Fourth Amendment.
Wells v. State, __ S.W.3d __, 2025 WL 980996, *9 (Ct. Crim. Apls. Tex. Apr. 2, 2025).
A concurring opinion argued: “Law enforcement did not conduct an unreasonable search under the Fourth Amendment because Appellant did not have a reasonable expectation of privacy in the information he voluntarily turned over to a third party.” Id. at *10, passim (discussing Fourth and Fifth Circuit decisions). The opinion stated: “Appellant undertook affirmative steps on his Android device to enable location sharing: He logged in to his Google account on the device and opted in to the Location History services in the account’s settings…. Thus, Appellant voluntarily exposed his location to Google.” Id.
A concurring and dissenting opinion “disagree[d] that the geofence warrant in this case was adequately supported by probable cause. I would hold instead that Appellant did not have a legitimate expectation of privacy in the limited information sought through the geofence warrant’s first and second steps. These two steps sought temporally and spatially limited location history data consistent with existing case law regarding cell phone location information.”
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