{"id":60673,"date":"2025-04-03T11:42:21","date_gmt":"2025-04-03T16:42:21","guid":{"rendered":"https:\/\/fourthamendment.com\/?p=60673"},"modified":"2025-04-03T13:25:29","modified_gmt":"2025-04-03T18:25:29","slug":"tx-upholds-geofence-warrant","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=60673","title":{"rendered":"TX upholds geofence warrant"},"content":{"rendered":"\n

Wells v. State<\/a>, 2025 Tex. Crim. App. LEXIS 210 (Apr. 2, 2025) (6-3) [somehow what we’ve come to expect from Texas]:<\/p>\n\n\n\n\n\n\n\n

IV. Analysis<\/strong>
In this case, the geofence warrant affidavit supplied ample probable cause to believe both that an offense had occurred and that evidence of the identity of one or more of the perpetrators could be discovered by searching the Google database. Moreover, the warrant itself was framed narrowly enough that almost any device found to have been present within its parameters would have belonged to one of the perpetrators, or potentially to a witness who might identify the perpetrators or testify about the offense, but not merely an innocent bystander.<\/p>\n\n\n\n

1. An Offense Occurred . . .<\/strong>
Probable cause to support a search warrant is present when, under the totality of circumstances, there is at least a “fair probability” or “substantial chance” (it need not be “more likely than not”) that evidence of an offense will be found at the location that law enforcement seeks to search. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238, 243 n.13 (1983)). There can be little doubt\u2014and Appellant does not contest\u2014that the warrant affidavit established that an offense had occurred, namely, the murder of Giddings. The question is whether there is probable cause\u2014at least a “fair probability” or “substantial chance”\u2014that the thing to be searched\u2014the Google location history database\u2014will contain evidence of that offense. For the following reasons, we agree with the court of appeals that the magistrate who signed off on the warrant affidavit had a “substantial basis” to conclude that probable cause existed to believe that Google’s location history database would reveal evidence of who murdered Giddings (if it revealed any information at all). Id. (citing Gates, 462 U.S. at 238).<\/p>\n\n\n\n

2. . . . For Which Evidence of the Perpetrator’s Identity Could be Found in Google’s Location History Database<\/strong>
Detective Loeb’s warrant affidavit established that Google’s location history database could contain location information for a substantial number of both Android devices as well as non-Android devices that were registered to Google accounts with enabled location services. Appellant argues, however, that probable cause requires a specific showing that one of the assailants was indeed carrying a device with enabled Google location services. Like the court of appeals, we disagree that probable cause necessarily requires so much. Wells, 675 S.W.3d at 826.<\/p>\n\n\n\n

Loeb’s affidavit claimed that “[i]t is likely that at least one of the four suspects . . . had an Android device on him during the commission of the offense,” since home-invasion-type offenses commonly involve “someone outside of the residence \u2026 to keep an eye out for responding police officers.” From this the magistrate could reasonably have inferred a “fair probability” or “substantial chance” that the home invaders carried cell phones to keep contact with an outside lookout.<\/p>\n\n\n\n

Moreover, a magistrate is entitled to take it as well-established fact that, in this day and age, almost everyone possesses a cell phone on or about his person at practically any time of day or night\u2014they are, indeed, ubiquitous. See Carpenter, 585 U.S. at 311 (noting that people “compulsively carry cell phones with them at all times”); Riley v. California, 573 U.S. 373, 385 (2014) (noting that 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 human anatomy”). “The core inquiry here is probability, not certainty, and it is eminently reasonable to assume that criminals, like the rest of society, possess and use cell phones to go about their daily business.” In re Search of Information that is Stored at Premises Controlled by Google LLC, 579 F.Supp.3d 62, 78 (D.D.C. 2021).<\/p>\n\n\n\n

In this case, the warrant-issuing magistrate had a “substantial basis” to conclude that there was a “fair probability” (or “substantial chance”) that at least one of the four assailants possessed a device that Google could locate within the geofenced area. This constitutes probable cause to believe that Google’s location history database would contain evidence relevant to the identity of the person who killed Giddings.<\/p>\n\n\n\n

B. Particularity<\/strong>
We also agree that the geofence warrant in this case provided sufficient particularity with respect to both the “place to be searched” and the “things to be seized.” U.S. Const. amend. IV. The “place” designated by the warrant to be searched, which was directed to “Google LLC,” was wherever Google stores its “[r]ecords pertaining to GPS, WiFi or Bluetooth sourced location history data[.]” The “thing to be seized” was the “location history data generated from devices that reported a location within the geographical region bounded by the following latitudinal and longitudinal coordinates, dates and times (“Initial Search Parameters”) and Identifying information for Google Accounts associated with the responsive location history data[.]”<\/p>\n\n\n\n

The warrant then identified the specific latitudinal and longitudinal coordinates, narrowly drawn to include no more than a part of the church, the appurtenant church grounds where the assailants waited, the street they rushed across, the front yard of the house where Dickerson was shot, and the house itself, in which Giddings was killed. It also gave a specific date\u2014the date of the murder\u2014as well as the 25-minute window of time during which the offense took place. This degree of specificity appropriately circumscribed police discretion, limiting the information they could obtain from the location history database to that which was relevant to identifying whoever was present at the specific time and place of the offense itself.<\/p>\n\n\n\n

Moreover, the “Initial Search Parameters” were sufficiently tailored in terms of time and place as to minimize the potential for infringing on the privacy rights of persons who could not reasonably be regarded as either suspects or witnesses to the offense. The area to be searched was small and restricted to the places where police knew that the unidentified suspects were located: a part of the church grounds, where the suspects hid in waiting for Giddings to arrive home; the street between the church and the home, which the suspects rushed across; and the front yard and interior of the house itself, where the assaults on Dickerson and Giddings took place. These were not high traffic areas\u2014especially not during the brief period of time in the middle of the night when the offense occurred. It was not at all likely that the geofence in this case would have identified many innocent bystanders or passersby who would not have been relevant to the investigation.<\/p>\n\n\n\n

Indeed, the “Initial Search Parameters” were so narrow in this case as to allay any concern about Steps Two and Three of the warrant process, as described in both the warrant and the warrant affidavit. Appellant argues that, even if there was probable cause to support Step One of the processes authorized by the geofence warrant in this case, police should have been required to involve the magistrate in deciding which devices identified by Step One merited additional disclosure from the location history database, via Steps Two and Three. Otherwise, Appellant asserts, the warrant allowed police improper unilateral discretion to determine whether there is probable cause to justify that additional disclosure, contrary to Fourth Amendment principles.<\/p>\n\n\n\n

But while some geofence warrants may be so broad in scope at Step One as to call for additional involvement by a magistrate at the later stages, we do not believe that to be the case here. The Initial Search Parameters in this case were sufficiently narrow as to provide probable cause, under the circumstances, to believe that whichever devices were revealed to have been present at the narrowly circumscribed place and time captured by the geofence polygon would almost certainly have belonged to legitimate suspects, or potential witnesses, so that any additional disclosure of information via Steps Two and Three would be justified by the same probable cause that supported Step One. See Price v. Superior Court of Riverside County, 93 Cal.App.5th 13, 44-45, 310 Cal.Rptr.3d 520, 546-47 (2023) (concluding that, when the warrant affidavit supplied probable cause “to seize all location data and identifying information for all devices traversing the geofence[,]” additional disclosure in Step Two did not improperly vest police with unguided discretion). On the specific facts of this case, we do not deem the geofence search warrant to have been so lacking in particularity as to require an additional magisterial imprimatur in the later stages of its execution.<\/p>\n\n\n\n

V. Conclusion<\/strong>
Assuming that the Fourth Amendment generally requires police to obtain a search warrant for corporate-held location history data, we conclude that the geofence warrant in this case was supported by probable cause and that it satisfied the particularity requirement of the Fourth Amendment. The judgment of the court of appeals is affirmed.<\/p>\n","protected":false},"excerpt":{"rendered":"

Wells v. State, 2025 Tex. Crim. App. LEXIS 210 (Apr. 2, 2025) (6-3) [somehow what we’ve come to expect from Texas]:<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[130],"tags":[],"class_list":["post-60673","post","type-post","status-publish","format-standard","hentry","category-geofence"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/60673","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=60673"}],"version-history":[{"count":4,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/60673\/revisions"}],"predecessor-version":[{"id":60681,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/60673\/revisions\/60681"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=60673"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=60673"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=60673"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}