Two men imprisoned for murdering a California gas station manager are trying to reverse their case by claiming that Los Angeles County detectives broke the law when they allowed Google to search the location data of millions of devices for possible suspects.
The call is part of a growing effort by lawyers and privacy advocates to clamp down on police use of geofence warrants, an investigative tool driven by the public’s reliance on phones that track their movements.
The backlash is driven by concerns that the warrants give police too much freedom to decide where to look and whose movements appear suspicious. Opponents say the warrants violate the U.S. Constitution’s protections against unreasonable searches by searching the location data of innocent Google users for possible suspects. They also point to cases where geofence orders led police to the wrong people: a cyclist participating in a burglary investigation, a warehouse worker wrongly accused of murder.
“It’s really limitless in how they can be used, and that’s what we’re concerned about,” said Jennifer Lynch, the director of oversight litigation at the Electronic Frontier Foundation, a digital rights nonprofit that filed a brief Tuesday to supporting the two men’s appeals in the murder of the Los Angeles County gas station manager.
Geofence warrants, which force Google to provide a list of devices whose location history indicates they were near a crime scene, are used thousands of times a year by US law enforcement agencies to help them solve homicides, arson attacks, burglaries, assaults, home burglaries and many other crimes – including the storming of the US Capitol on January 6, 2021. Arrest warrants are typically sealed by a judge until a suspect is arrested.
Police and prosecutors say geofence orders are legal because they are signed by judges or magistrates and are limited to circumstances where investigators have strong reason to believe they will find the perpetrators.
The California challenge, filed in the state’s 2nd District Court of Appeal in Los Angeles, is related to the death of Abdalla Thabet on March 1, 2019, 38, who, according to court documents, operated gas stations owned by his uncle. After collecting money from the companies, Thabet drove to a Bank of America branch in the city of Paramount. Two cars stopped behind him. The driver of one shot him, and the driver of the other took his backpack full of cash. Security videos showed the two suspect cars had been at locations where Thabet had collected money, court documents show.
Los Angeles County Sheriff’s investigators were unable to identify the drivers and asked a judge to compel Google to provide a list of devices located near the bank and five locations Thabet visited before he was killed. That required Google to search its database of all devices with apps or software that collected location data.
The list of devices was so large that researchers asked Google to narrow it down to devices that had been to two or more of the locations. Google provided eight such devices. Two had been to four of the locations. From there, investigators identified Daniel Meza and Walter Meneses, whom they blamed for the deadly attack.
The men’s defense attorneys asked a judge to declare the geofence order unconstitutional and throw out any evidence that came out of it. The judge refused. Meza pleaded guilty and was sentenced to 25 years to life in prison. Meneses pleaded no contest and was sentenced to 15 years to life.
Both men were allowed under state law to appeal the judge’s ruling on the geofence order. In September they did.
The appeal accuses investigators of violating not only the Fourth Amendment to the Constitution, but also California’s Electronic Communications Privacy Act. The men’s lawyers claim the geofence order invaded the privacy of everyone whose data was collected, including those of the defendants, with a search no one specifically had in mind.
“In all likelihood, most people have no idea that such a detailed history of their comings and goings could be retrieved and investigated by law enforcement without them ever knowing,” Meza’s attorney, Sharon Fleming, wrote in a briefing.
A lawyer from the Attorney General’s Office responded in response: “This is not where law enforcement stopped as a matter of course to grab random members of the public in search of a potentially unknown crime. Rather, a search warrant was issued on a probable basis to help identify two suspects who have already committed a known crime.
Fleming and other lawyers representing the men declined to speak about the case. The attorney general’s office also declined to comment. Google did not immediately respond to a request for comment. Neither does the Los Angeles County Sheriff’s Department.
Lynch, of the Electronic Frontier Foundation, said the call reflected broader concerns about police investigative powers.
Geofence justifies “bringing in anyone who could have been at a certain location at a certain time and leaving it to the police to decide who to target for further investigation,” she said.
Lynch noted that law enforcement can use geofence orders to track people involved in protests. The US Bureau of Alcohol, Tobacco, Firearms and Explosives reportedly used geofence orders to investigate riots and arson following the 2020 murder of Jacob Blake in Kenosha, Wisconsin. After the police killing of George Floyd in Minneapolis in May 2020, police investigating vandalism reportedly received a geofence warrant that collected data on people who gathered in the areaincluding some who went to protest.
“If police can use these kinds of warrants whenever they want, then they will be used to target people for First Amendment protected speech, to target people for their reproductive choices, to target people who go to gun shows,” Lynch said.
A backlash has slowly gained traction in US courts. Last March, a federal judge in Virginia ruled that a geofence warrant used to find a bank robbery suspect was unconstitutional. A state court hearing in San Francisco took place in September outspoken against using a geofence warrant in a burglary investigation.
Brian Owsley, a former federal magistrate who teaches the Fourth Amendment at the University of North Texas at Dallas College of Law, said geofence orders are flawed because they don’t specify who they target. But because police are already looking for them so often, it will be difficult to curb their use, he said.
The growing legal challenges could lead to a patchwork of decisions that could limit law enforcement in some states or jurisdictions but not others, Owsley said. Law enforcement agencies can then try workarounds, such as working with agencies in jurisdictions that have no restrictions.
“This is a tool that law enforcement likes to use, and I can see why,” Owsley said. “But at the end of the day there’s a tension and I’m not sure how you can overcome it.”