This geofence warrant is issued with probable cause and it is particular because it is so limited in time and scope. In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation, 2020 U.S. Dist. LEXIS 201248 (N.D. Ill. Oct. 29, 2020):
The government has presented an application for a warrant for location data, also known as geofence data, that is stored at the premises of Google. Once novel, applications for warrants for geofence data are now more frequent in criminal investigations, but have also come under scrutiny, resulting in two recent opinions in this district about the scope of these warrants and their permissibility under the Fourth Amendment to the United States Constitution. In this particular case, the Court finds that the government’s application for location data within six geofence areas relating to an arson investigation satisfies the probable cause and particularity requirements of the Fourth Amendment. The Court issues this opinion to explain the reasons why it has authorized the warrant and contribute to the continuing discussion about the constitutionality of geofence warrants.
The issue presented here concerns the scope of law enforcement’s ability to seize geofence location data from Google in its search for criminal suspects under the Fourth Amendment’s search and seizure clause. Courts have expressed concern about requests for geofence data that sweep too broadly and capture vast amounts of location data on uninvolved individuals. For example, geofence zones can be drawn, at the government’s discretion, to include large swaths of land and buildings, including office and apartment buildings, shopping malls, churches, and residential neighborhoods, which could result in revealing location data of hundreds, if not thousands, of individuals that are uninvolved in the underlying crime. This is because the nature of a geofence warrant does not target an individual, but rather an area that captures location data for cell phones within that area. As a result, it is easy for a geofence warrant, if cast too broadly, to cross the threshold into unconstitutionality because of a lack of probable cause and particularity, and overbreadth concerns under Fourth Amendment jurisprudence.
However, when considering this issue, it is also important to recognize that the Fourth Amendment does not deal in precision, but rather in probability. That is, the government must demonstrate a fair probability that evidence of a crime will be located at a particular place, and a search warrant need not be rooted in pinpoint accuracy. In this particular case, the government has structured the geofence zones to minimize the potential for capturing location data for uninvolved individuals and maximize the potential for capturing location data for suspects and witnesses. Indeed, in this case, there is a fair probability that almost all location data retrieved will be for individuals who are either the perpetrators, co-conspirators, or witnesses to the crime. Thus, the warrant application for the six geofence locations in this case is supported by probable cause and is particular in time, location, and scope. The Court evaluates each of these issues below.