By Richard Guerra
Assistant Criminal District Attorney in Bexar County
Are geofence warrants constitutional under the Fourth Amendment of the United States Constitution? The unsatisfying lawyer answer is always, “It depends.”
As state and federal courts grapple with the legal issues surrounding the technological advancements that facilitate these warrants, cautious prosecutors and law enforcement deal with numerous and sometimes conflicting opinions regarding their sufficiency and constitutionality. In Wells v. State, our Court of Criminal Appeals recently weighed in on the issue with thoroughly researched opinions that lacked a court majority.[1] Still, the opinions offer valuable insight for police and prosecutors to assemble an understanding of good practices regarding geofence warrants, at least for the time being.
Background
Here we have a brazen murder. It’s around 3 o’clock in the morning. Four men loiter in a church parking lot, their presence captured by security cameras. Aaron Wells—our defendant—is among them. Their target is the house across the street. The house has a door camera, which captures footage of a woman named Nikita Dickerson as she exits the gate outside the front door. She carries a gun because the neighborhood is unsafe. She’s meeting her boyfriend, Jimmy Giddings. He’s a drug dealer.
As Jimmy gets out of his car, the four men rush toward him from the church. Masks cover the men’s lower faces. They brandish pistols and a rifle.[2] Five gunshots strike Nikita. She drops her pistol. A masked man takes it. Meanwhile, Jimmy flees into the house. Two of the men chase after him. Another of the four marches Nikita—wounded but alive—into the house at gunpoint.
The fourth man, who would eventually be identified as Aaron Wells, quickly follows them. One of the men shoots Jimmy—we don’t know who. The men flee from the house—across the street—back to the church parking lot. They enter a vehicle and escape the scene.[3] Nikita survives. Jimmy dies. A bullet had entered his neck and severed his spine.[4]
The men were gone when the cops arrived. Police released stills of three of the men from the camera footage. They opened a public hotline for tips, but it generated no productive leads.[5] With no leads, the police obtained a geofence warrant.
The warrant sought Google LLC’s records for information on devices that were located within four points of latitude and longitude, which encompassed a portion of the church, the victims’ house, and the street between them. The timeframe for the search within this geofence was 25 minutes—between 2:45 and 3:10 a.m. on the morning in question.[6] See the image below.
Wells’s cellular phone was identified as being at the scene. Police used his phone records and social media to identify the other three men involved in the offense.[7]
Wells filed a pretrial motion to suppress the evidence obtained through the geofence warrant. He argued that the warrant violated the Fourth Amendment of the United States Constitution because 1) it was an unconstitutional general warrant that failed to identify a particular suspect and would consequently invade the privacy of individuals who were uninvolved with the case, and 2) the warrant affidavit lacked probable cause to believe any of the four men had carried a cell phone with a Google account.
The trial court denied his motion to suppress the location history obtained from Google through the warrant.[8] Ultimately Wells was convicted of the capital murder (during the course of a robbery) of Jimmy Giddings. The State did not seek the death penalty.[9] Wells pressed his constitutional challenge to the Court of Criminal Appeals.
The geofence warrant
Google calculates the location of devices whose owners have enabled Google location services by utilizing cell towers, GPS, and signals from nearby WiFi networks and Bluetooth beacons.[10] Google retains information that can include the subscriber’s name, address, telephone number, and other identifiers.[11]
The warrant in this case directed Google to turn over to the police “GPS, WiFi, or Bluetooth-sourced location history data” from within the above-described geofenced area, which was marked by four points of latitude and longitude. The warrant described a three-step procedure.[12]
Step One commanded Google to produce an anonymized list of the devices that were within the geofenced area during the 25-minute timeframe from 2:45 a.m. to 3:10 a.m. Google identified three such devices.[13] Police then analyzed this data to determine which devices were relevant to the capital murder investigation.
Step Two required Google to provide not more than 60 minutes of additional location history for the relevant devices. This step was to help police rule out any devices on the anonymized list to ensure that the identity of uninvolved individuals would not be revealed. Police used this data to determine that only one of the three anonymous devices belonged to somebody involved in the offense.[14]
Step Three ordered Google to reveal the identities of the owners of the devices that were deemed relevant to the investigation, meaning that they would be either a participant in or a witness to the murder. The warrant required disclosure of the device owner’s name, email address, SMS account number, registration IP, subscribed-to services, and six months of IP history. Essentially, at this step, Google revealed Wells’s identity.[15]
The geofence warrant’s three-step process was conducted with a single district judge’s signature. The police did not obtain incremental authorization throughout the process.[16]
As the judges saw it
The Court of Criminal Appeals released a plurality opinion written by Judge Yeary, a concurring opinion written by Judge Finley, and a concurring and dissenting opinion written by Judge Newell. Judge McClure dissented without writing an opinion. Presiding Judge Schenck did not participate.[17]
Judge Yeary’s opinion
Like the Dallas Court of Appeals, Judge Yeary (joined by Judges Keel, Finley, and Parker) assumed—without deciding—that a search occurred under the Fourth Amendment when police obtained Google location history data from the geofenced area.[18] Because a search occurred, a warrant was required for this search to be “reasonable” under the Constitution. Here, the police obtained a geofence warrant. The search was therefore reasonable if 1) the warrant affidavit justified the search with probable cause and 2) the warrant itself set out the place to be searched and the things to be seized with sufficient particularity. The particularity requirement seeks to limit the officer’s discretion, narrow the search’s scope, and minimize the danger of searching the person or property of an uninvolved bystander. An overview of prior geofence caselaw indicated that “overbroadness”—casting too wide a net and thereby catching too many uninvolved bystanders within the search—was often the central issue with geofence warrants.[19]
In accordance with United States Supreme Court and Court of Criminal Appeals precedent as well as Art. 18.01(c) of the Texas Code of Criminal Procedure, a warrant affidavit must provide probable cause to support at least a “fair probability” or “substantial chance” that evidence of an offense will be found at the place to be searched. Here, the warrant affidavit established that an offense—the capital murder of Jason Giddings—occurred. This was not contested.
The primary issue was whether the warrant affidavit provided probable cause that Google’s location history database would contain evidence of the murder.[20] The warrant affidavit claimed, “It is likely that at least one of the four suspects … had an Android device on him during the commission of the offense,” because home-invasion-type offenses commonly involve “someone outside of the residence … to keep an eye out for responding police officers.”[21]
The contested issue was whether this assertion was specific enough to show that one of the four men had carried a device with Google location services enabled. Relying on text from Carpenter v. State and Riley v. California, Judge Yeary recognized that people “compulsively carry cell phones with them at all times” and that cell phones “are such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of human anatomy.”[22] Based on the well-established fact of the ubiquity of cell phones, the magistrate who issued the geofence warrant had a substantial basis to conclude that there was a fair probability or substantial chance that at least one of the four men possessed a device that Google could locate within the geofenced area.[23]
The next issue was whether the geofence warrant provided sufficient particularity for the place to be searched and the things to be seized. The place to be searched was wherever Google stores its GPS, WiFi, or Bluetooth-sourced location history data. The thing to be seized was data generated from devices that were located within the geofenced area, on the specified date, and within the 25-minute time frame. As can be seen in the geofence diagram on page 6, the searched area included part of a church and church grounds, a small section of street, and the front yard and house where the murder occurred. Here, the area was small, the temporal window was short, and the time was the middle of the night. Judge Yeary observed that this was a small, low-traffic area, especially during the middle of the night. It was unlikely that—within this spatial and temporal window—there were bystanders who were not victims, witnesses, or perpetrators. An individual in the geofenced area who wasn’t an eyewitness would have at least heard gunshots. Judge Yeary determined that the facts of this specific case satisfied the Fourth Amendment’s particularity requirements for all three of the warrant’s steps.[24]
Concurring opinion
Judge Finley joined Judge Yeary’s opinion, but he would not have reached the issues discussed therein because he found no reasonable expectation of privacy in Google’s historical location data. First, Google’s location history data is not as all-encompassing as the 127 days of cell site location information (abbreviated as CSLI) described in Carpenter v. United States because Google’s data was much more limited in scope, making it akin to the less than three hours of real-time CSLI that the Court of Criminal Appeals analyzed in Sims v. State.[25]
Moreover, Carpenter’s CSLI was not voluntarily “shared” as one normally understands the term because the user did not engage in an affirmative act to share the data beyond powering up his phone. Consequently, in Carpenter, there was no voluntary assumption of the risk of sharing CSLI. But in this case, Wells took affirmative steps on his device to enable sharing: He logged into his Google account and opted into location history services, which required him to click through several warning screens. These warnings notified Wells that Google would track his cell phone’s location history and share it with third parties, i.e., advertisers.[26]
Concurring and dissenting opinion
Judge Newell (joined by Judges Richardson and Walker) concurred with upholding the first two steps of the geofence warrant. However, he would have held that Wells did not have a legitimate expectation of privacy in the limited information sought by the geofence warrant’s first two steps, but he did have a reasonable expectation of privacy in the information sought by the warrant’s third step, particularly the prior six months of IP history. Furthermore, Judge Newell would have held that the warrant in this case lacked probable cause to obtain six months of Wells’s IP history.[27]
Conclusory allegations are generally insufficient to establish probable cause. Police must demonstrate that there is a “nexus” between a cell phone and the commission of an offense to get into the contents of that cell phone. Here, there were no specific facts that connected six months of Wells’s IP history to the murder of Jimmy Giddings other than the statement that one of the four perpetrators was likely to carry an Android phone. The geofence warrant affidavit suggested only that a phone was present during the offense, but not that it was used during or contained information regarding the crime’s commission. Without this nexus, there was no probable cause to obtain Wells’s IP history.
The takeaway
At first glance, it might appear that the Court of Criminal Appeals’s three separate opinions in Wells v. State are incongruent. But upon a close reading, they can be harmonized enough to allow prosecutors to extract some good practices regarding geofence warrants.
Prosecutors should presume that there is a reasonable expectation of privacy in Google’s shared location history data—for now. However, should a geofence warrant be challenged in a motion to suppress, we should be prepared to argue that there is no reasonable expectation of privacy in Google’s location data by distinguishing it from the CSLI discussed in Carpenter. We can do so by fashioning a record that demonstrates the hurdles and warnings that a person must bypass to opt into Google’s location services.
Judge Newell expressed concern for the Wells geofence warrant’s lack of a “nexus” between the offense and six months of Wells’s IP history. But Judge Yeary observed that the Wells record did not suggest that the police obtained Wells’s IP history pursuant to the geofence warrant. As such, Judge Yeary’s opinion did not address that argument. Whether IP history is included on what courts consider “identifying information” is a vital issue. With this in mind, it might be prudent to exclude requests for IP history in geofence warrants unless the warrant affidavit can point to specific facts regarding the cell phone’s usage in the commission of an offense. Besides, the information was not necessary in Wells for the police to identify the four killers.
With respect to probable cause, it’s important to remember, as Judge Yeary noted in his opinion, that “probable cause for a search warrant does not require that, more likely than not, the item or items in question will be found at the specified location.”[28] Instead, probable cause exists if, under the totality of the circumstances presented to the magistrate, there is at least a “fair probability” or “substantial chance” that contraband or evidence of a crime will be found at the specified location.[29] Lean on this language from Flores and Illinois v. Gates when arguing that there was probable cause to believe that a suspect has a phone with Google location services.
Another layer—in addition to the ubiquity of cell phones—is the ubiquity of Google. In a footnote, Judge Yeary drew attention to statistics from 2022 that indicated Google has location information on 55 percent of Americans. Consider how a magistrate’s ability to rely on Google’s ubiquity could change if, for example, Google is broken up into smaller companies, or competitors dilute Google’s market share. These changes could affect whether courts are willing to uphold a geofence warrant in reliance on the prevalence of Android phones or Google location services.
Even with all the issues that they raise, geofence warrants likely won’t be going anywhere for a while. Make sure that your requests in a geofence warrant are as limited in time and space as possible. As courts catch up with technology, technology will continue to advance and drag lawyers along with it.
This is indeed the wild west.
[1] Wells v. State, 714 S.W.3d 614 (Tex. Crim. App. 2025), reh’g denied, No. PD-0669-23, 2025 WL 1699563 (Tex. Crim. App. June 18, 2025).
[2] Wells, 714 S.W.3d at 616.
[3] Id.
[4] Id.
[5] Wells v. State, 675 S.W.3d 814, 819 (Tex. App.—Dallas 2023), aff’d, 714 S.W.3d 614 (Tex. Crim. App. 2025), reh’g denied, No. PD-0669-23, 2025 WL 1699563 (Tex. Crim. App. June 18, 2025).
[6] Wells, 714 S.W.3d at 616.
[7] Id. at 617.
[8] Id. at 619.
[9] Id. at 617.
[10] Wells, 675 S.W.3d at 821 (citing United States v. Rhine, 652 F.Supp.3d 38, 66-67 (D.D.C. Jan. 24, 2023)).
[11] Id. (citing Matter of Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation, 497 F.Supp.3d 345, 351 (N.D. Ill. 2020)).
[12] Wells, 714 S.W.3d at 617.
[13] Id. at 617, 619.
[14] Id.
[15] Id.
[16] Id. at 618.
[17] Id. at 614.
[18] Id. at 620.
[19] Id. at 623.
[20] Id. (Judge Yeary also noted that the warrant satisfied Texas Code of Criminal Procedure Art. 18.01(c), which requires that an warrant issued under Article 18.02(10) must contain probable cause that 1) a specific offense was committed, 2) the specifically described items to be searched for or seized constitutes evidence of that offense or that a particular person committed the offense, and 3) the items constitution to evidence to be searched or seized is located on or at the particular person, place, or thing to be searched.)
[21] Id. at 624.
[22] Id. (citing Carpenter v. United States, 585 U.S. 296, 311 (2018); Riley v. California, 573 U.S. 373, 385 (2014)).
[23] Id. at 624.
[24] Id. at 624–25.
[25] Id. at 629 (Finley, J., concurring) (citing Sims v. State, 569 S.W.3d 634, 646 (Tex. Crim. App. 2019)).
[26] Id. at 629–30.
[27] Id. at 635–37 (Newell, J., concurring and dissenting) (citing State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022)).
[28] Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).
[29] Illinois v. Gates, 462 U.S. 213, 238 (1983).