A geofence warrant allows law enforcement to collect the location-history data of any device that communicates with a third-party entity, such as Google, while that device was present in a designated geographical area during a specific period of time. Once those devices are identified, then law enforcement can obtain information about the owners of those devices. That means many people’s devices, not just a suspect’s, may be identified in the third-party’s response provided to law enforcement. The Minnesota Court of Appeals decided that these types of warrants do not violate the United States and Minnesota constitutions per se, and further found that the warrant at issue in State of Minnesota v. Ivan Contreras-Sanchez was lawful.
Criminal lawyer David R. Lundgren offers his analysis of that opinion in the video below.
What do you think? Are you comfortable with data from your cell phone being collected in criminal investigations that are unrelated to you, if it means that more murders and other crimes will be solved?
Do you trust law enforcement and the courts to continue to narrowly tailor these warrants to protect the rights of innocent people?
Do you have concerns that even if they are narrowly tailored, they may still ensnare innocent people into serious criminal investigations due to mistake, coincidence, or bad luck?
Do you think the nature of geofence warrants may be ripe for overreaching or other abusive practice by law enforcement?
Do you have any other types of concern?
Let us know what you think, we’re eager to hear your thoughts.
Transcript of “Geofence Warrants Deemed Constitutional in Minnesota”
Hello, my name is David Lundgren, and I am a criminal defense lawyer in Minneapolis, Minnesota.
Say, the Minnesota Court of Appeals filed an interesting precedential opinion this week that will have a big impact statewide. The opinion was filed in a case titled State of Minnesota versus Ivan Contreras-Sanchez.
In its opinion, the court determined that geofence warrants are not categorically prohibited by the United States and Minnesota Constitutions. As you’ll hear, the opinion conjures up thoughts and fears of the watchful eye of Big Brother and the ever-sprawling digital footprint each one of us leaves behind simply by living our everyday lives.
To start, let’s talk about what a geofence warrant is. A geofence warrant allows law enforcement to collect the location-history data of any device that communicates with a third-party entity, such as Google, while that device was present in a designated geographical area during a specific period of time.
How these warrants work in practice is this: When a crime is committed and the police know the location and time of the crime, but need more information about unknown individuals in the area at the time, in other words they don’t have a suspect or cannot locate an existing suspect to obtain their phone, they can seek a geofence warrant to identify all of the electronic devices and the identifying information contained therein to try and obtain leads on suspects.
So, let’s dig in to the facts of the Minnesota Court of Appeals’ opinion in the Contreras-Sanchez matter. A dead body was found in a field in rural Castle Rock Township in Dakota County in April of 2021. A forensic examination identified the deceased as an individual who was reported missing on April 7, 2021. The medical examiner determined the manner of death was homicide, but could not determine the specific cause of death due to decomposition of the body.
Through an investigation, the police learned from an informant that the victim was assaulted in Minneapolis on March 28, 2021, and died as a result. The informant identified people, but not Contreras-Sanchez, as being involved in the assault and death.
When the police were not able to locate those individuals, they applied for a geofence warrant for a 65-foot wide by 290-foot-long area for the area of the field where the victim was located and portions of an adjacent roadway. The geofence warrant application sought the location history data collected by Google from any electronic devices within that area for the time frame of March 25, 2021, through April 26, 2021.
The geofence warrant application outlined a three-step process that law enforcement would use to help keep some data that was collected anonymous. The first step was for Google to produce anonymous data for every electronic device.
In the second step, law enforcement would review the anonymous data to identify devices that they believed belonged to suspects, and then they would request further anonymous information from Google with respect to those devices outside of the initially specified area to try and determine a path of travel for the devices.
For the third step, with regard to accounts connected to the devices the police deemed to be relevant, the police would then have Google provide them with the subscriber’s information, including the subscriber’s name, email addresses, services subscribed to, the last 6 months of IP history, SMS account number, and registration IP. The initial warrant application stated that before moving to step three, law enforcement would apply for a new search warrant authorizing the police to obtain the identifying information.
Upon reviewing the application for the warrant, a judge signed a geofence warrant. It was served on Google, and because the search would have been too cumbersome for Google’s system, the company only provided data for March 25th through the 31st. Upon reviewing that information, law enforcement identified one device of interest out of a total of 12 devices because it pinged within the geofence 46 times the day after the assault reported by the informant. Google’s records also showed that the device was located directly on top of the location where the victim was found.
After reviewing that anonymous information, the detective proceeded to step two and obtained the location data for the phone outside of the geofence. The location data showed that the phone was at a gas station before entering the geofence. The detective obtained surveillance footage from the gas station that showed multiple people in a silver SUV. The detective knew from other sources that a silver SUV and one of the people in the video were likely involved in the homicide.
Based upon all of that information, the detective concluded that the owner of the suspect device was likely involved in the murder or the disposal of the victim’s body. The detective proceeded to step three of the process and applied for a new warrant that would release the identifying information for the suspect device. That information identified Ivan Contreras-Sanchez as the person associated with the device. After Contreras-Sanchez was identified, detectives learned additional information connecting him to the murder.
Contreras-Sanchez was charged with second degree intentional murder and second degree unintentional murder while committing a felony. He was found guilty of both counts and was sentenced to 480 months in prison, which is 40 years.
On appeal, Contreras-Sanchez challenged the geofence warrant and the evidence that was discovered as a result. He argued that geofence warrants are per se unconstitutional because they are general warrants prohibited by the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution. He also argued that the warrants lacked probable cause, were insufficiently particular, and overbroad, in violation of the same constitutional provisions.
The issues with respect to geofence warrants were issues of first impression, meaning an appellate court in Minnesota has never rendered an opinion with respect to their legality. The court acknowledged that geofence issues are new, developing, and there is a lack of clarity in the law.
With regard to both arguments, the Minnesota Court of Appeals assumed without deciding that Contreras-Sanchez had a reasonable expectation of privacy in his devices’ information that was provided to Google, which Google in turn provided to law enforcement. A reasonable expectation of privacy is necessary for the protections of the Fourth Amendment and Article I, Section 10, to apply.
Turning to the first argument, general warrants are prohibited by the constitution. General warrants are those that only specify that a crime has been committed and leave the decision of whom to arrest and where to search to the discretion of the officers executing the warrant. The Founding Fathers forbade general warrants because they were routinely used against the colonists by the King to exert power, influence, and control.
However, the Court determined that geofence warrants are not general warrants and are not subject to such a bright line rule and challenge as being per se unconstitutional. Rather, they must be reviewed on a case-by-case basis. The Court of Appeals rejected Contreras-Sanchez’s argument that general warrants could ensnare many innocent individuals into criminal investigations, especially in more populated areas. The Court characterized the argument as overinclusive. The Court explained that there are many scenarios where those concerns would not be present, such as the case they were deciding, and that geofence warrants can be appropriate and sufficiently limited in scope depending on the circumstances. Accordingly, their lawfulness must be assessed on a case-by-case basis instead of being deemed per se unconstitutional.
On the second issue, the Court determined that the warrants were supported by probable cause, were sufficiently particular, and were not overbroad. Therefore, the warrants did not violate Contreras-Sanchez’s constitutional rights.
The Court explained that the warrant application established a nexus between the murder and the geofence because it was the area immediately surrounding where the victim’s body was found. The Court further explained that the application connected the location of the crime to the cell phone location history information because the detective stated the suspects owned cell phone and that Google maintains location information through a wide variety of its products. The Court of Appeals further explained that in this case, suspects had been identified, but even if they had not, the search at issue would likely still have been constitutional because search warrants are often utilized at the beginning of investigations before suspects have been identified.
About the warrants’ particularity, the Minnesota Court of Appeals determined the applications were sufficiently particular. Warrants are required to be sufficiently particular to the area and things to be searched to prevent police from an exploratory rummaging of a person’s things. The Court of Appeals found that the location of the geofence was remote enough to not encompass too many devices unrelated to the murder and the timeframe was sufficiently tailored to capture devices that may have been possessed by those involved in the murder and concealment of the victim’s body. The Court further determined that the initial geofence warrant’s grant of discretion to the detective in pursuing additional location information for suspect devices was narrow and did not provide the officers’ unbridled discretion in executing it. The Court explained that at that point in the geofence warrant process the device information was still anonymous, was tied only to an additional two hours of data, and only related to devices that were first located in a small, rural, geographic area.
Lastly, on the issue of overbreadth, the Minnesota Court of Appeals determined that the warrant was sufficiently narrow, largely based on the geographic characteristics of the geofence in this case. The overbreadth doctrine is designed to prevent broad, indiscriminate sweeps for evidence. The Minnesota Court of Appeals was left unpersuaded that the collection of innocent people’s information within the geofence rendered the warrant overbroad. The Court explained that many search warrants in other scenarios, such as the search of homes, impact innocent people as well as the suspect that live within the home.
With regard to the nature of the specific geofence warrant at issue in this case, the Court found persuasive that the area was desolate, away from houses and other buildings, and near a rural roadway. The Court explained that the time duration and location are important factors in that regard. Further, because the information involved at the initial stage was anonymous data subject to further qualification before identifying information was revealed, it tended to support a finding that the warrant was reasonable under the United States and Minnesota Constitutions.
Accordingly, the warrants did not violate the United States or Minnesota Constitution and the evidence was lawfully obtained. Contreras-Sanchez’s conviction was affirmed.
Stay tuned to this case, as I anticipate that a petition for review to the Minnesota Supreme Court is likely, and that the Supreme Court will likely accept review to rule on the matter.
What are your thoughts? Are you comfortable with data from your cell phone being collected in criminal investigations that are unrelated to you, if it means that more murders and other crimes will be solved?
Do you trust law enforcement and the courts to continue to narrowly tailor these warrants to protect the rights of innocent people?
Do you have concerns that even if they are narrowly tailored, they may still ensnare innocent people into serious criminal investigations due to mistake, coincidence, or bad luck?
Do you think the nature of geofence warrants may be ripe for overreaching or other abusive practice by law enforcement?
I find this issue fascinating, and just like many other constitutional principles, it requires a fine-tuned balancing of interests between the expectations of privacy everyone should enjoy and the tools necessary to solve crimes in the modern era. I’ll be tracking this case if it proceeds further, as well as other cases that are surely to arise that raise unique factual circumstances within this newly established legal framework for geofence warrants.
Thanks for taking the time to listen and watch. If you have any questions or would like to discuss this criminal legal issue or any other criminal issue further, feel free to reach out. I’m always happy to discuss criminal law related matters. Take care.