542 F.Supp.3d 1153
D. Kan.2021Background
- Government sought a geofence warrant directed to Google for location-history data covering an area that includes a business where a federal crime allegedly occurred.
- The requested geofence covered public streets, adjacent properties (including another business), and would include location-point data within Google’s stated margin of error.
- The warrant sought data for a one-hour window based on three discrete surveillance sightings of a lone suspect; the affidavit did not indicate the suspect had or used a smartphone.
- The affidavit gave general statements about smartphone prevalence and Google apps but lacked detailed showing that relevant devices would feed usable location data to Google.
- The magistrate compared this application to prior geofence decisions (Pharma I/II and Arson) and concluded the current application failed to establish probable cause that Google’s records would identify perpetrators/witnesses and lacked sufficient particularity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause that Google location data will identify perpetrators/witnesses | Govt: probable cause crime occurred at place/time and cell phones likely to identify suspects/witnesses via Google data | Court: affidavit lacks facts showing (a) suspects used phones, or (b) would be using devices that report location to Google | Denied: no fair probability Google data would contain evidence identifying suspects/witnesses |
| Particularity of geographic scope (geofence + margin of error) | Govt: targeted area around crime scene will yield relevant devices | Court: boundary includes streets, neighboring business/residences; margin of error likely to sweep uninvolved persons | Denied: warrant not sufficiently narrowly tailored |
| Temporal scope (one-hour window) | Govt: one-hour period selected to capture suspect movements between surveillance sightings | Court: affidavit does not explain exclusion of first sighting or need for entire inter-sighting hour | Denied: temporal scope insufficiently justified |
| Risk of overbreadth / intrusion on privacy of uninvolved persons | Govt: general prevalence of smartphones and Google apps makes geofence likely to find suspects/witnesses | Court: generalized statistics and vague app references are inadequate; likely to return many uninvolved users | Denied: privacy/particularity concerns weigh against issuance; reapplication possible if narrowed and better justified |
Key Cases Cited
- Carpenter v. United States, 138 S. Ct. 2206 (Supreme Court decision recognizing heightened privacy interest in historical cell‑site location information)
- Groh v. Ramirez, 540 U.S. 551 (Supreme Court on particularity requirement for warrants)
- Illinois v. Gates, 462 U.S. 213 (Supreme Court on flexible, common‑sense probable cause standard)
- Matter of Search of Information Stored at Premises Controlled by Google, 481 F. Supp. 3d 730 (N.D. Ill. 2020) (denying geofence warrant as overbroad in busy commercial/residential area)
- Matter of Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation, 497 F. Supp. 3d 345 (N.D. Ill. 2020) (upholding a geofence warrant where the government showed probable cause and narrowly tailored time/location)
- United States v. Cotto, 995 F.3d 786 (10th Cir. 2021) (probable cause standard applied to warrant affidavits)
- Maryland v. Garrison, 480 U.S. 79 (Supreme Court on tailoring searches to their justifications)
- Berger v. New York, 388 U.S. 41 (Supreme Court: greater particularity required where privacy interests are significant)