Abstract
Federal and state law enforcement agencies are using a new tactic for gathering evidence: geofence warrants. These warrants allow law enforcement to gather historical location data collected by third party companies including Google, Facebook, Amazon, and Apple. Armed with a geofence warrant today, law enforcement agencies can track the previous location of an individual at any point from the moment they acquired a cell phone—so long as the location history is turned on. The tactic has grown in popularity since 2019 and has been used to uncover suspects in cases where police had few leads. Troublingly though, the tactic has been used to prosecute protesters and abortion seekers. In addition, these geofence warrants also ensnare the private historical locations of thousands of innocent citizens.
Courts have yet to delineate clear, Fourth Amendment boundaries for this sweeping law enforcement tactic. While these cases stagger upwards for appellate review, the searches of criminals and the public alike continue. This Note addresses the constitutionality of geofence warrants on the merits—something few courts have attempted thus far. It argues that the use of a geofence warrant is indeed a search within the meaning of the Fourth Amendment, yet it lacks two Fourth Amendment requirements: probable cause and sufficient particularity. Thus, geofence warrants are unconstitutional and necessitate a remedy.
Further, this Article reveals that judicial remedies in this arena are inconsequential. Corrections by appellate courts on the back end are impossible for two reasons. First, there is no remedy for citizens whose private information has been gathered by the police. And second, suppression of the unconstitutionally obtained information at a criminal trial is prevented by a swelling legal doctrine—“the good-faith exception to the exclusionary rule.” This leaves the privacy concerns and Fourth Amendment rights of citizens entirely in corporate hands. Accordingly, legislation is the only true remedy to the issue of geofence warrants and calls for a legislative ban.
Recommended Citation
Shelby Stender, Circumventing the Fourth Amendment: The Unconstitutional Nature of Geofence Warrants, 2024 ULR 733 (2024)