D.N.M.: Geofence warrant relied on in good faith

A geofence warrant was used to gather information to attempt to find the robber of a postal worker. Geofence warrants are novel, the defendant may not have shown standing, and the government gets to rely on the good faith exception. United States v. Kirkendoll, No. 1:22-cr-00361-MLG, 2024 U.S. Dist. LEXIS 41567 (D.N.M. Mar. 8, 2024):

Here, the United States argues that the good faith exception applies under the reasoning employed in United States v. Chatrie, 590 F. Supp. 3d 901 (E.D. Va. 2022). In Chatrie, a detective sought and received a geofence warrant from Google. Id. at 906. At the time the detective applied for the warrant, “no court had yet ruled on the legality of such a technique.” Id. at 938. The detective therefore sought “advice from counsel before applying for the warrant” and “relied on his past experience seeking geofence warrants,” which he had done three times before Chatrie, and all were approved. Id. The Court found that “in light of the complexities of this case,” the three previous approved geofence warrants, and the detective’s “consultation with Government attorneys before obtaining those warrants,” the detective’s “reliance on the instant warrant” was not “objectively unreasonable.” Id. The good faith exception therefore applied.

The Court finds the result in Chatrie to be persuasive despite criticisms regarding its reasoning and approach. See Kerr, supra note 1. As explained above, geofence warrants are a novel aspect of the present legal landscape, and decisional authority from other jurisdictions has not coalesced to provide a unified approach in considering such warrants. Compare In the Matter of the Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation, 497 F. Supp. 3d 345 (N.D. Ill. 2020) (granting warrant application), with In the Matter of the Search of Information that is Stored at the Premises Controlled by Google, LLC, 542 F. Supp. 3d 1153 (D. Kan. 2021) (denying warrant application). Given this uncertainty and coupled with Officer McNulty’s decision to seek counsel’s advice, see Doc. 134 at 13, the Court cannot say her reliance on Judge Yarbrough’s approval was “wholly unwarranted.” United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) (“It is only when [law enforcement’s] reliance was wholly unwarranted that good faith is absent.”). Accordingly, the Court finds that the good faith exception applies in this case to bar suppression. Kirkendoll’s motion is therefore denied. Doc. 123.