Page 37 - TPA Journal November December 2024

before requesting such information. Accordingly, these warrants “fishing expedition[s],” and
we turn to the issue of whether geofence warrants explained that Google employees originally
satisfy this mandate, addressing Appellants’ argu- assumed law enforcement would only seek
ment that these novel warrants resemble unconsti- Location History data on specific people—a reali-
tutional general warrants prohibited by the Fourth ty that did not come true. “Awareness that the
Amendment. government may be watching chills associational
“[T]he Fourth Amendment was the founding gen- and expressive freedoms.” And, when these core
eration’s response to the reviled ‘general warrants’ rights are at issue, the warrant requirement must
and ‘writs of assistance’ of the colonial era, which “be accorded the most scrupulous exactitude.”
allowed British officers to rummage through Here, the Government contends that geofence
homes in an unrestrained search for evidence of warrants are not general warrants because they are
criminal activity.” “General warrants” are war- “limited to specified information directly tied to a
rants that “specif[y] only an offense,” leaving “to particular [crime] at a particular place and time.”
the discretion of the executing officials the deci- This argument misses the mark. While the results
sion as to which persons should be arrested and of a geofence warrant may be narrowly tailored,
which places should be searched.” the search itself is not. A general warrant cannot
It is undeniable that general warrants are plainly be saved simply by arguing that, after the search
unconstitutional. Indeed, “it would be a needless has been performed, the information received was
exercise in pedantry to review again the detailed narrowly tailored to the crime being investigated.
history of the use of general warrants as instru- These geofence warrants fail at Step 1—they
ments of oppression from the time of the Tudors, allow law enforcement to rummage through troves
through the Star Chamber, the Long Parliament, of location data from hundreds of millions of
the Restoration, and beyond.” Thus, courts have Google users without any description of the par-
recognized that no warrant “can authorize the ticular suspect or suspects to be found.
search of everything or everyone in sight.” In sum, geofence warrants are “[e]mblematic of
When law enforcement submits a geofence war- general warrants” and are “highly suspect per se.”
rant to Google, Step 1 forces the company to This court “cannot forgive the requirements of the
search through its entire database to provide a new Fourth Amendment in the name of law enforce-
dataset that is derived from its entire Sensorvault. ment.” Accordingly, we hold that geofence war-
In other words, law enforcement cannot obtain its rants are general warrants categorically prohibited
requested location data unless Google searches by the Fourth Amendment. We now move on to
through the entirety of its Sensorvault—all 592 suppression and the good-faith exception to the
million individual accounts—for all of their loca- warrant requirement.
tions at a given point in time. Moreover, this In United States v. Leon, the Supreme Court eval-
search is occurring while law enforcement offi- uated the Fourth Amendment exclusionary rule,
cials have no idea who they are looking for, or and opined that evidence seized by officers rea-
whether the search will even turn up a result. sonably relying upon a warrant issued by a
Indeed, the quintessential problem with these war- detached and neutral magistrate judge should be
rants is that they never include a specific user to be admissible.
identified, only a temporal and geographic loca- The Inspectors were utilizing a cutting-edge
tion where any given user may turn up post- investigative technique with which neither
search. That is constitutionally insufficient. Inspector had personal experience. To that end, the
Geofence warrants present the exact sort of “gen- Inspectors diligently attempted to make sure that
eral, exploratory rummaging” that the Fourth their warrant comported with the Fourth
Amendment was designed to prevent. In fact, Amendment by communicating with other law
Google Maps creator Brian McClendon has called enforcement agencies and the U.S. Attorney’s

36 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal