VA Cir.: Proposed geofence warrant lacks PC and particularity

This proposed geofence warrant fails both probable cause for what it seeks to capture and particularity. In re Info. Stored at the Premises Controlled by Google, 2022 Va. Cir. LEXIS 12 (Fairfax Co. Feb. 24, 2022):


Applying the Fourth Amendment principles of probable cause and particularity, the Court will deny the present application for a geofence search warrant.

A. The Application Does Not Establish Probable Cause to Search the Motel Patrons.

One has a privacy interest in one’s physical location. Carpenter, 138 S. Ct. at 2217. Therefore, the innocent motel patrons uninvolved in the shooting have constitutional privacy interests in their location data. To search them, police must persuade the Court there is probable cause to do so.

The Court concludes the innocent motel patrons are more like the bar patrons in Ybarra than the publisher in Zurcher. This is clear when one focuses on the place and target of the search. In Ybarra, the place and target of the search was the bartender’s person, and the bar itself. The warrant did not extend to the patrons. In Zurcher, the place of the search was the publisher’s office for photos. The warrant did not contemplate searching people who happened to be in the office and did not target them.

For geofence search warrants, the place of the search is definitionally each person who happens to be in the geofence zone and the thing being searched is each person’s individual location data. Therefore, the present geofence search warrant application affirmatively targets the location information of the innocent motel guests along with the shooters. Unlike in Owens, there was no proffer that the guests were involved in the shooting. The fact that police do not want the location of the innocent guests is irrelevant. They are explicitly targeting their data and, thus, need probable cause to search them.

The Google II court likely found probable cause to support the geofence search warrant because, unlike the Google I court and this Court, it focused on the suspects, not the patrons. This makes sense for most search warrants, where the place and target of the search are for things other than a bystander’s person and that person’s location information. However, in the unique circumstances of a geofence search warrant where the search is for the bystander and the location data, probable cause is more difficult to establish. Stated differently, and borrowing the facts from Ybarra, the police are seeking to search the bar patrons—thus, the patrons are not incidentals, collateral to the probable cause-supported search of the bartender and the bar. They become the targets. Similarly, the motel patrons at issue in the present case become the targets once police seek to affirmatively search their private location information.

. . .

The Court finds there is no probable cause to search the motel patrons based on the present allegations. Without probable cause to conduct the search, the geofence search warrant must fail.

B. The Application is Overbroad and Not Particularized.

The Court also finds the search warrant application presented in the instant case is insufficiently particularized and overwhelmingly overbroad, giving police too much discretion.

At each step of the police’s proposed three-step process to obtain location history data from Google, the police seek too much discretion. Detailed more fully, above, the three steps are: (1) creating the virtual geofence zone to get an anonymized list of cell phones in the zone; (2) a review of the anonymized list to eliminate irrelevant cell phones, and work with Google to obtain refined data; and (3) an unmasking of the selected cell phones for the personal identification information of the owners.

1) Step One: An Overbroad Geofence Search Zone.

The proposed search zone is overbroad as to size, time, and location. It is geographically too large, the search time is too long, and the nature of the place to be searched is too sensitive.

. . .

2) Step Two: An Unchecked Review of the Anonymized List from Google.

The police review of Google’s anonymized list of cell phones located in the proposed zone during the proposed times gives police too much discretion.

. . .

3) Step Three: An Unchecked Unmasking of Cell Phones.

The Court’s objection to this step of the proposed warrant application is the same as that for step two. The police want to unilaterally tell Google which cell phones it wants to unmask to obtain the owner’s personal information. The Court may not give police this judicial discretion. Rather, the Court must be the entity to approve or deny the unmasking and disclosure of the personal identifying information of people to be searched. It can only do this after it makes a probable cause and particularity determination with full information. It cannot delegate this duty to the police. The proposed unmasking without Court approval is overbroad.

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