MD: Geofence warrant for rural property was with PC and particular

After farm equipment went missing from rural property over a week long span, police got a geofence warrant for the land that put defendant there. It proved unimportant under the standard of review for warrants (“substantial basis”) the fact they had no idea whether their suspect had a cell phone on him at the time of the thefts. Tomanek v. State, 2024 Md. App. LEXIS 329 (May 1, 2024):

To be sure, there was nothing in the warrant application to indicate that the suspect was in possession of a cell phone at the time of the crime. We do not find, however, that the omission of such an averment is of any consequence to our probable cause or particularity analysis. It is undisputed that cell phones have become an integral part of everyday life. See Riley v. California, 573 U.S. 373, 385, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) (noting that “modern cell phones … are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy”). It is equally undisputed that many, if not most, people carry a cell phone virtually all of the time. See Carpenter v. U.S., 585 U.S. 296, 311, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018) (holding that historical cell-site records presented significant privacy concerns because, in part, individuals “compulsively carry cell phones with them all the time”). Thus, while there was no direct evidence that the perpetrator in this case had a cell phone or that one was used in relation to the crime, it was reasonable for the issuing judge to infer that the perpetrator was in possession of a cell phone during the commission of the crime and that, consequently, Google had location data and identifying information about that person. See State v. Cabral, 159 Md. App. 354, 380, 859 A.2d 285 (2004) (“[F]or purposes of the probable cause analysis, we are concerned with probability, not certainty.”).

We are likewise unmoved by the fact that none of the averments in the warrant related to a particular suspect. Neither the probable cause requirement nor the particularity requirement demand that a search be linked to any one person. As the State correctly notes, a search warrant is an investigative tool, and a valid search warrant may be issued before the police have identified a suspect. So long as the warrant application provides a fair probability that evidence will be found in the place being searched, and so long as the warrant itself is definite enough to ensure that the police can identify the place being searched and conduct the search without any unauthorized or unnecessary invasion of privacy rights, then the probable cause and particularity requirements have been met.

As Tomanek recognizes, and as we have discovered, there are very few cases, in which courts in other jurisdictions have analyzed the Fourth Amendment’s probable cause and particularity requirements in the context of a geofence warrant. A comprehensive summary of federal caselaw is found in United States v. Rhine, 652 F. Supp. 3d 38, 73-89. (D.D.C. 2023). While each of the cases contains a variety of distinguishing facts, the analyses are virtually identical, and, not surprisingly, consistent with the well-settled rule of law that search warrants be supported by probable cause and particularity.