SEARCH WARRANT MUST PARTICULARLY DESCRIBE – UPDATE

Case Law

• Good Faith Exception to the Fourth Amendment

• Geofence Search Warrants and California’s Electronic Communications Privacy Act

• Geofence Search Warrants and Probable Cause, Particularity, and Breath

• Geofence Search Warrants and an Investigator’s Unfettered Discretion

• Probable Cause and a Suspect’s Use of a Cellphone

Rules

To be in compliance with the Fourth Amendment, a search warrant must reflect sufficient probable cause, particularly describing the thing or place to be searched and the property to be seized. The breath of a search warrant application must be limited in scope to those items for which there is probable cause to be seized. Geofence warrants are lawful so long as in compliance with these rules, and while limiting an investigator’s unfettered discretion in deciding whose electronic device to search.

Facts

Adbadalla Thabet was tasked with the twice-a-week collection of cash receipts from several of his uncle’s gas stations and depositing those proceeds in a bank in Paramount; a suburb of Los Angeles. Surveillance footage collected at various sites (later viewed by investigators of the Los Angeles Sheriff’s Department) showed that Thabet left his apartment building in Downey at around 7 a.m. on the morning of March 1, 2019, and drove to one of his uncle’s gas stations in Downey to pick up cash proceeds for deposit. After remaining there for about 15 minutes, he left that gas station at 7:30 a.m. and drove to a second gas station in Bellflower where, at about 9:00 a.m., he met with his brother-in-law. Thabet left this gas station at 9:40 and made a brief stop at a strip mall where he and his brother-in-law inspected some possible income property before Thabet drove to a gas station in Lynwood to pick up the cash receipts from that station. Thabet drove to the bank in Paramount where surveillance video showed him driving into the parking lot at about 10:30 a.m. That same video showed that he was followed into the parking lot by two other vehicles; a gray and a red sedan. The occupants of the gray and red sedans were observed contacting each other; the driver of the red car having gotten out of his vehicle. The gray car then drove slowly towards Thabet’s parked car while the driver of the red car followed on foot. As Thabet got out of his vehicle, the gray car pulled up next to him. An occupant of that car shot Thabet in the torso, leaving him on the ground as the driver sped away. The driver of the red car (still on foot) then walked up to Thabet’s body, picked up his backpack containing the gas station receipts, walked back to the red car, and drove away. Thabet died of his injuries. Video surveillance later obtained from the gas stations Thabet had visited that morning showed the same two vehicles at two of those locations leading investigators to the conclusion that they had been following Thabet. The license plate numbers of those two cars, however, were not legible in any of the footage. In the subsequent investigation, Sheriff’s investigators resorted to what is commonly called a “geofence warrant.” As the preliminary step in obtaining such a warrant, Los Angeles County Sheriff’s Detective Jonathan Bailey (assisted by Romy Haas; a crime analyst for the Sheriff’s Department) applied for a search warrant directing Google to identify individuals whose location history data indicated that they were in the vicinity of the same six locations visited by Thabet on the morning of March 1st, including Thabet’s apartment. In the affidavit supporting the warrant application, Detective Bailey described Thabet’s murder as seen on the surveillance footage of the bank parking lot. He further stated that he had viewed surveillance camera footage from several of the other locations Thabet had visited that morning and had seen the gray and red sedans in some of that footage. In the affidavit, Detective Bailey provided a brief overview of the procedures used by Google to track and store location history data, explaining how Google collects data through “Global Position System (GPS) data, cell site/cell tower information, Bluetooth connections, and Wi-Fi access points.” Of significance here, Detective Bailey also included the following in his affidavit: “I know most people in today’s society possess cellular phones and other items (e.g. tablets, watches, laptops) used to communicate electronically. . . . Most people carry cellular phones on their person and will carry them whenever they leave their place of residence.” In addition, Detective Bailey explained that “(s)uspects involved in criminal activity will typically use cellular phones to communicate when multiple suspects are involved.”

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