The R&R recommended suppression of the geofence warrant. It is adopted. The warrant caused a wholesale search and was based on what appears to be a slipshod effort. Even the good faith exception didn’t apply. United States v. Fuentes, 2025 U.S. Dist. LEXIS 25900 (E.D. Okla. Feb. 13, 2025), adopting 2024 U.S. Dist. LEXIS 239693 (E.D. Okla. Sep. 3, 2024). From the R&R:
Since the protections of the Fourth Amendment are in play, law enforcement was required to obtain a valid search warrant supported by probable cause and particularity. Id. at 836 citing Carpenter, 585 U.S. at 316. An affidavit in support of a search warrant application establishes probable cause if “it evinces a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Cotto, 995 F.3d 786, 796 (10th Cir. 2021). In this case, law enforcement had a reasonable suspicion that a crime had been committed at a particular location but absolutely no showing in the Affidavit for Search warrant that Google held evidence of a crime in its Location History data since it had no idea who committed the crime. See Matter of Search of Info. that is Stored at Premises Controlled by Google, LLC, 542 F. Supp. 3d 1153, 1156 (D. Kan. 2021).
Further, law enforcement’s inclusion in the Affidavit of studies that ostensibly demonstrate that cell phones are ubiquitous and present in a certain number of vehicles falls far short in establishing probable cause since there was a complete absence of evidence that the alleged perpetrator of the hit-and-run accident possessed a cell phone or that the cell phone that might have been possessed by the perpetrator opted into the location and retention of Google’s Location History.
In a similar vein, the Search Warrant was also wanting for particularity. The primary purpose behind a requirement for particularity in a search warrant stems from a premise that “searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038-39, 29 L. Ed. 2d 564 (1971), holding modified by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). The geofence search warrant at issue in this case required that Google search through 590 million users in step one of the search and their Location Histories without any direction toward a particular person — only a time and a location. This is the hallmark of a general warrant – aimless searching with only the hope that the result will justify the means. It does not. The support is eroded even more in this case because the Affidavit allegedly bolstering its issuance does not even adhere the three-step process established by the Department of Justice and Google, eliminating the anonymizing step before leaving the matter entirely up to law enforcement before procuring the specific sensitive personal information of the uncovered users at step one. Consequently, this Court must conclude that the geofence Search Warrant employed in this case represents a constitutionally deficient general warrant without sufficient probable cause to support it. This Court is dubious whether a geofence search warrant of this nature may ever pass constitutional muster under the Fourth Amendment’s rubric. Today, the constitutional protections provided herein are applied to this Defendant in this circumstance.
As to the good faith exception:
Although Thornton attested to numerous facts in the Affidavit for Search Warrant, he had actual knowledge of very little of the information provided to the neutral Magistrate Judge. His attestation that the information provided was “based upon his training and experience” was simply false. AUSA Montoya ghost wrote the vast majority of the Affidavit without being the party attesting to the veracity of the information provided. Moreover, the Affidavit failed to include information surrounding the search, including the protections of the full three-step process established by the Department of Justice and Google to protect the anonymity of the information produced in the search. Additionally, the Affidavit lacked probable cause on its face for the issuance of the Search Warrant. No facts were presented on the face of the Affidavit to remove the Search Warrant from the ominous shadow of a general warrant. Indeed, the Affidavit was completely lacking any facts to indicate that the perpetrator of the offense possessed a cell phone, such as a view from one of the video surveillance cameras showing a person holding a cell phone or similar independent evidence implicating a cell phone’s use — only studies which demonstrate that people in cars have cell phones. This falls short of good faith and mandates the suppression of the evidence derived from the Google search.
IT IS THEREFORE THE RECOMMENDATION OF THIS COURT that Defendant’s Opposed Motion to Suppress Evidence Obtained by Google “Geofence” Search Warrant (Docket Entry #39) be GRANTED and that the evidence derived from the Location History search by Google be SUPPRESSED.
