More on Geofence Warrants

Geofence warrants are a hotly-disputed topic.  See Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision (Aug. 4, 2025).  The Petition for Certiorari states: “This case concerns the constitutionality of geofence warrants. For cell phone users to use certain services, their cell phones must continuously transmit their exact locations to their service providers. A geofence warrant allows law enforcement to obtain, from the service provider, the identities of users who were in the vicinity of a particular location at a particular time.”  2025 WL 2173706, at *I (Jul. 28, 2025).  Two amici briefs have been filed and a response to the Petition will be due on October 29, 2025.  Supreme Court of the United States.

Commonwealth of PA v. Choice, __ A.3d __, 2025 PA Super. 209, 2025 WL 2672703 (Super. Ct. Pa. Sep. 18, 2025), involved an unsuccessful challenge to a geofence warrant served on Google, arising out of shooting.  The standard three-step process was followed.  Id. at *6.  The court wrote: “As there are no Pennsylvania decisions resolving this issue, … Appellant cites cases from other jurisdictions finding the geofence process to be constitutionally infirm.”  Id. at *9.

The Pennsylvania court added “addressing Appellant’s claim that the December 2020 search warrant failed to set forth probable cause that Appellant possessed a cell phone at the time of the shooting, the suppression court opined that the ubiquity of cell phones is a ‘modern day reality[.]’” Id. at *12.  The appellate court wrote that “the Commonwealth was not required to set forth ‘concrete evidence’ that Appellant was using a cell phone with Android-based location services. Instead, the Commonwealth appropriately relied on the ‘fair probability’ standard, borne out by the ubiquity of cell phone usage, that a majority of cell phone users utilize Android-based services, and that Appellant likely possessed such a device. Because pervasive cell phone possession and cell phone service usage is a matter of common knowledge, and because law enforcement combined this common knowledge with specific factual circumstances regarding the time and place of the crime, we reject Appellant’s argument that the December 2020 search warrant relied upon ‘categorical assumptions.’”  Id. at *16.

Then, the Pennsylvania Superior Court further concluded that “Appellant’s claims of overbreadth and lack of particularity likewise fail. As noted above, Pennsylvania (and much of the country), has not had occasion to consider the lawfulness of the geofence procedure, whereby law enforcement seeks [location history] data to narrow the pool of suspects of a known crime. Nevertheless, we determine the geofence procedure employed in the instant case comports with the foundational principles (described above) setting forth the parameters of constitutionally sound search warrant applications.”  Id. at *16.

The Pennsylvania warrant addressed “two specific geographic locations along Route 309, within a seven-minute time frame.”  Id. at *17.  The court concluded:

Given the narrowly-tailored geographical and temporal range of the information sought in the warrant application, the warrant set forth “a fair probability that contraband or evidence of a crime” would be found within the anonymized list law enforcement sought.

Id.  The sentence was affirmed.

This technology and its “cousins” may present issues in both civil and criminal cases.  See Geofencing, Geotargeting, and Geo-blocking, in Civil Litigation, Information Governance, and Regulation (Sep. 10, 2025).

There are many variations of geofence warrants:

• What is a “Keyword Warrant”?;

• Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent – E-Discovery LLC

I have offered a guess at the “outcome” of the debate:

• Geofence warrants are too useful and too powerful to be prohibited per se. They have solved serious crimes that otherwise likely would not have been solved. They have proven their value.
• They are also too broad and too invasive to be permitted without clear limits and guardrails. They gather up vast amounts of personal information about people who had nothing to do with any crime. The danger they pose is obvious.
• A middle-of-the-road approach seems likely.

See Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision.

For additional background, please see:

• En Banc Fourth Circuit Geofence Decision is Splintered – E-Discovery LLC
• New Jersey Decision Permits Geofence Warrants Upon a Proper Predicate – E-Discovery LLC
• Texas Upholds Narrow Geofence Warrant After Melee Resulted in Murder – E-Discovery LLC
• Possible Clarity About Geofence Search Warrants – E-Discovery LLC
• Geofence Search Warrant Held Valid – E-Discovery LLC (Maryland)
• Keeping an Eye on Geofence Warrants – E-Discovery LLC
• Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent – E-Discovery LLC
• R. Abboud, “Digital Fences and Constitutional Defenses: Geofencing and the Fourth Amendment Amid United States v. Smith,” 52 Southern.U.L.Rev. 193 (Spring 2025).
• Alvarez v. State, 2025 WL 2346165 (Tex. App. Aug. 13, 2025).
• U.S. v. Brown, 2025 WL 1674283, at *14 (N.D. Ga. June 13, 2025)(“To be clear, the Court joins in the Fifth Circuit’s alarm at the Government’s widespread use of geofence warrants to drum up suspects out of thin air in the absence of other evidence. It runs counter to deeply rooted Fourth Amendment principles to permit the Government to ask Google to conduct a retrospective search of the location history data of hundreds of millions of users and to return to the Government a list of all persons within the vicinity of a crime. However, the facts of the case at issue here do not support this Court’s holding that the warrants were impermissible general warrants.”).

UPDATE:  “[A]n FBI Task Force Officer applied for a search warrant to obtain Timing Advance ‘True Call’ area search records pertaining to Timing Advance location information from AT&T, T-Mobile, and U.S. Cellular…. The magistrate judge granted the warrant, which authorized the cellular carriers to search and turnover data showing the phones that were found to be within a geographic area near each incident location and within a geofence set by law enforcement.”  U.S. v. Dickerson, 2025 WL 2779095 (E.D.Wisc. Sep. 30, 2025).

Even if the Court were to find that the Timing Advance warrant was insufficiently supported by probable cause or lacked particularity, the good faith exception would apply. Judge Joseph noted that “[t]he technology at issue here is rapidly changing and the case law is far from settled on the constitutionality of geofence warrants” including “how narrow a geofence perimeter should be before it does not pass constitutional muster….  The Timing Advance data, as described in the warrant affidavit, is distinct from the type of technology in Chatrie, as noted by its limitations: “the information being queried is still based on ‘estimated locations’ of the cellular devices by the network and is not a finite GPS location and should not be treated as such…. In this case, law enforcement acted pursuant to a warrant that was not so facially deficient that the executing officers could not reasonably presume it to be valid. “