New Jersey Decision Permits Geofence Warrants Upon a Proper Predicate

In NJ Court Rules Police Geofence Warrants Are Constitutional (Bloomberg Law May 20, 2025), Alex Ebert reported that a New Jersey intermediate appellate court upheld a geofence warrant, within specified limits.

Discussing those limits, Mr. Ebert wrote:

That framework allows for a big funnel at the beginning of the process, and only requires police to have specificity when seeking to strip anonymity in the data from providers further in the process. In the final step, the government compels the data company to provide the name and email address associated with the accounts police deem to be potential defendants or witnesses to a crime.

The New Jersey court wrote:

In today’s digital world, advances in technology have transformed cell phones from simple communication devices into personal computers. Cell phones are now used for navigation, banking, shopping, traveling, exercising, photography, and storing personal information—the full gamut of daily activity. Mobile devices may be enabled to track locations, trace movements, identify consumer preferences, and monitor internet activities. As their functions have broadened, cellular service providers hold a cache of data that grows with every user interaction and has become a powerful tool not only in commerce but increasingly in criminal investigations.

Law enforcement considers this trove of information essential in identifying suspects and solving crimes. Anne Toomey McKenna & Clifford S. Fishman, Wiretapping and Eavesdropping § 29:38 (rev. Dec. 2024). Thus, the court is increasingly called upon to ensure law enforcement’s use of technological advances does not unlawfully encroach upon an individual’s constitutionally-mandated privacy protections.

State, v. Van Salter, 2025 WL 1442687, at *1 (N.J. Super. Ct. App. Div. May 20, 2025)(per curiam)(unreported).

Geofence and tower dump warrants are effective in solving crimes.  However, they also present substantial Fourth Amendment issues. This has generated a lot litigation over them.  For example:

• Jones v. State, 913 S.E.2d 700 (2025);
• En Banc Fourth Circuit Geofence Decision is Splintered (May 7, 2025);
• Texas Upholds Narrow Geofence Warrant After Melee Resulted in Murder(Apr. 9, 2025);
• Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent (Mar. 7, 2025);
• Keeping an Eye on Geofence Warrants (Jan. 22, 2025);
• Possible Clarity About Geofence Search Warrants (Nov. 7, 2024);
• Are Geofence Warrants Permissible? – A Circuit Split (Aug. 12, 2024);
• Maryland Geofence Search Warrant Held Valid (Jun 28, 2024).

There is also scholarly literature.  For a small slice of voluminous writings, see for example:

• Barbara Bathke, Google and the Role of Surveillance Intermediaries in Geofence Warrants, 26 Tul. J. Tech. & Intell. Prop. 111 (2024);
• Emily Brodner, Navigating the Terrain of Geofence Warrants, 7 Ariz. L.J. Emerging Technologies 2 (2024);
• Aaron A. Bengart, Always A Suspect: Law Enforcement’s Violative Use of Geofence Warrants and Geolocation Data in Criminal Investigations and Proceedings, 7 Cardozo Int’l & Comp. L. Rev. 639 (2024);
• Donna L. Elm, Are Geofence Warrants Headed for Extinction?, 39-SUM Crim. Just. 48 (2024);
• The Hon. Beth W. Jantz, Simulating More Particularity: Ideas for Approaching Search Warrants for Geofences, Tower Dumps, and Cell-Site Simulators, 16 Fed. Cts. L. Rev. 9, 10 (2024);
• Note, Geofence Warrants and the Fourth Amendment, 134 Harv. L. Rev. 2508 (2021).

While in Van Salter, the court wrote thatthis was a “matter of first impression” in New Jersey, its decision is unreported. It wrote:

We conclude geofence warrants are not unconstitutional per se and instead require a fact-specific inquiry into the probable cause supporting each warrant. We also find the first of three warrants issued in a sequential process was correctly issued based on probable cause and vacate the trial court’s order granting defendant’s motion to suppress. We remand for a fact-driven, probable cause analysis of the second and third warrants at issue in this case.

The case arose out of a gas station robbery.  Witnesses reported hearing that the perpetrator was speaking on a cell phone.

The police were unable to locate a suspect or surveillance cameras in the surrounding area.…  No DNA, fingerprint, or other forensic evidence was recovered from which to identify a suspect.

Because the perpetrator was not identified but was heard using a cell phone, the police sought a geofence warrant.  In the probable cause affidavit: “The detective supplied to the court the geographic coordinates of the gas service station and the fourteen-minute time window corresponding to the crime as recorded by the store surveillance camera.”

The court issued a warrant. Google followed the three-step process established with the US DOJ and described in a number of prior decisions.  The New Jersey court explained the contents of a geofence warrant and the three-step process.  Id. at *4.

The court described the Google data:

Google location history is derived from “a service that Google account holders may choose to use to keep track of locations they have visited while in possession of their compatible mobile devices.” United States v. Rhine, 652 F. Supp. 3d 38, 67 (D.D.C. 2023), vacated and remanded to dismiss as moot, No. 23-3168 (D.C. Cir. Feb. 3, 2025). Location history is determined based on “ ‘multiple inputs,’ including GPS signals, signals from nearby Wi-Fi networks, Bluetooth beacons, and cell towers.” Ibid. “Location history even allows Google to estimat[e] … where a device is in terms of elevation.” Chatrie, 590 F. Supp. 3d at 908 (alteration and omission in original) (internal quotation marks omitted). Google stores this data in the “‘Sensorvault’ and associates each data point with a unique user account.” Ibid. The Sensorvault “assigns each device a unique device ID – as opposed to a personal identifiable Google ID – and receives and stores all location history data in the Sensorvault to be used in ads marketing.” Ibid. By default, location history is disabled as part of a device’s factory setting. Ibid.; see also Rhine, 652 F. Supp. 3d at 67. “A user can initiate, or opt into, [l]ocation [h]istory either at the ‘Settings’ level, or when installing applications such as Google Assistant, Google Maps, or Google Photos.” Chatrie, 590 F. Supp. 3d at 908. “Specifically, after logging into a Google account, a user must enable ‘Location Reporting,’ at which point [location history] data is sent to Google ‘for processing and storage’ in Google’s ‘Sensorvault.’ ” Rhine, 652 F. Supp. 3d at 67. Location history “logs a device’s location, on average, every two minutes.” Chatrie, 590 F. Supp. 3d at 908.

The Bloomberg article states:

Google is implementing changes to encrypt and routinely delete location-tracking data, so the companies hundreds of millions of US users may be less subject to Google Maps geofence searching in the future. But other police searches of Google user data, as well as data from other businesses like Apple and Uber, could all be impacted by courts’ acceptance or rejection of these procedures.

In Van Salter, “[a]fter it was served with Warrant I in this case, Google notified the police that a single cellular device had been logged into Google’s location history during the specified time and within the given geographic boundaries.”  Id. at *4.

The detective then applied for another warrant [Warrant II] requiring production of identifying information for that phone.  In response to that warrant, Google identified the user.  The detective then applied for a third warrant [Warrant III] “to obtain from Google, Inc./Gmail Account the contents of stored electronic communications including all emails, … location information and full account information associated with” the now-identified suspect.  Id.

This led to the arrest of Mr. Van Salter.

The defendant moved to suppress all three warrants.  The trial court granted the motion.  It found a lack of probable cause because the witnesses did not actually see the defendant using a cell phone; they only heard the conversation.

The New Jersey court wrote: “We find no clear guidance in the federal law, where currently there exists a split amongst the federal circuits regarding the constitutionality of geofence warrants.”  Id. at *9.  In addition to the recent Fourth and Fifth Circuit decisions, the court analyzed a number of other cases.  Id., passim.

The Van Sant court wrote: “This review of federal law underscores the lack of any consensus we may use as guidance. At the same time, it contains approaches on which we base our holding.”  Id. at *13.

The court held: “We conclude geofence warrants are not unconstitutional per se and instead, … require a case-by-case examination of the facts supporting the probable cause for the issuance of each warrant involved in the three-step process.”  Id. at *21.

The appellate court held that there was no need to see the defendant using a phone:

Given the recognized widespread use of cell phones and the unavailability of public phones, the State is correct that it need not prove defendant was using a cell phone in order to establish probable cause to obtain a geofence warrant. Indeed, in search warrants where the identity of the suspect is known, law enforcement need not prove the suspect owns or was using a cell phone at the time of the commission of the crime in order to obtain potentially relevant evidence from that suspect’s cell phone. Law enforcement regularly relies upon the presumption that most people have cell phones and support their warrant applications with other evidence establishing probable cause….  The trial court’s conclusion that the search warrant lacked probable cause because no one had actually seen the cell phone ignored the pervasive use of ear buds and cellular watches in today’s society.

Id. at *16-17.

WARRANT I WAS VALID

• “Warrant I was narrowly tailored as to time and place and likely to lead to the discovery of evidence. It sought information for the limited duration of fourteen minutes, a time corroborated by the store’s surveillance footage. It did not seek location tracking but rather location presence of any cellular devices within the convenience store during that brief window of time.” Id. at *17.
• “Utilizing Google’s vetted three-step process, Google is first asked if it has any information regarding a cell phone’s presence at that time and location, and, if the answer affirmative, it is then asked to narrow down the number of users at the time and location, and, after further investigation, to disclose the identity of the user(s). The privacy interests of the citizenry are not implicated until this third stage, well after initial probable cause is established, and only after two more stages of probable cause are judicially sanctioned.” Id. at *18.
• “As to probable cause, it must be remembered that the showing need not equal a prima facie case required to sustain a conviction. No more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is party to it.” at *19.
• “So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant,presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated.”  Id. (emphasis in original).

Thus, the first warrant was proper.

WARRANTS II & III WERE INSUFFICIENTLY SUPPORTED

The New Jersey court wrote:

Although we believe the general means employed with respect to this particular case served to minimize—even eliminate—perceptible intrusion on the privacy interests of the public in an effort to solve a violent and otherwise unsolvable crime, the trial court reviewing the motion to suppress did not perform any analysis of the probable cause involved in the issuance of Warrants II and III….  [T]he trial court did not analyze whether defendant’s reasonable expectation of privacy in his presence at the gas station, a place where his image was captured on video, was overcome by law enforcement’s competing interest or whether the geofence radius was sufficiently narrowly-tailored to exclude location history for anyone who might have been identified but was not in the store at the time of the robbery and assault.

Id. at *21.  “A fact-based analysis of each warrant in Google’s three-step procedure is critical to search warrants issued pursuant to geofence technology.”  Id.

Holding that the factual predicate was insufficient, the court wrote that it was “constrained to remand for a new suppression hearing.”

It then added: “Finally, we question whether geofence warrants should be treated as search warrants of a place to be searched. Like a search warrant of the location of a crime for blood, hair fibers, or other DNA evidence, a geofence warrant searches the location of a crime for the presence of any cellular device at the crime scene at a particular point in time.”  Id. at *22.  The Van Salter court added: “It is inaccurate to maintain that information in a database that was not returned by way of search result was ‘searched’ at all.”  Id., citing Jones v. State, 913 S.E. 2d 700 (Ga. 2025).

“In sum, the order granting defendant’s motion to suppress evidence is vacated and the matter is remanded for a new suppression hearing to perform a probable cause analysis with respect to Warrants II and III.”

The dissenting opinion disagreed with the holding on Warrant I.

Google location data is not the only type of information that may present similar issues.  Flock cameras were used to solve a crime in Virginia.  “IN UNITED STATES V. MARTIN, A VIRGINIA FEDERAL DISTRICT COURT HELD that authorities did not infringe the Fourth Amendment when they searched a Flock Safety (Flock) database without a warrant to identify a suspect. Flock systems are supercharged automated license plate readers. Flock Safety, a private company, sets up cameras at strategic traffic locations for clients such as police departments, schools, and homeowners’ associations. The cameras record and store in databases vehicle pictures and identifiers such as license plate numbers, make, model, color, roof racks, body damage, and other visible objects, along with date, time, and geolocation stamps. Clients can network their databases, such as when a private entity grants access to its local police department. Flock systems operate around the clock but retain data for only a finite amount of time (here, 30 days).”  Pierre Grosdidier, The Whole of Their Movements Authorities Can Search Flock Databases Without A Warrant, 88 Tex. B.J. 266 (2025).

e-Scooters may store information. Dakota Rakestraw, Caution: Potholes in E-Scooter Data Collection, 48 Seattle U. L. Rev. 1159, 1160 (2025)

While more focused on domestic violence and stalking, one article stated:  “The introduction of Apple AirTags, while offering innovative and affordable tracking solutions for personal belongings, has raised substantial concerns surrounding privacy and consent….”  Camryn Bonetti, 15 Seattle J. Tech., Envtl. & Innovation L. 1, 2 (Dec. 2024).  “Each individual AirTag is encrypted with a unique serial number and paired accordingly to an Apple device. With this stored information, Apple may provide the details of this paired account with law enforcement in order to track the perpetrator, who would then be apprehended and charged.”  Id. at *23.