Two men imprisoned for killing a California gas station manager are trying to get their cases overturned by arguing that Los Angeles County investigators broke the law when they had Google scour location data about millions of devices in search of potential suspects.
The appeal is part of a growing attempt by defense lawyers and privacy advocates to curtail police use of geofence warrants, an investigative tool powered by the public's reliance on phones that track their movements.
Driving the resistance is concern that the warrants give police too much discretion in deciding where to search and whose movements seem suspicious. Opponents say the warrants violate the U.S. Constitution's protections against unreasonable searches by combing through the location data of innocent Google users in search of possible suspects. They also point to cases in which geofence warrants led police to the wrong people: a bicyclist swept into a burglary investigation, a warehouse worker mistakenly charged with murder.
"It's really unlimited in how they can be used, and that's what we are concerned about," said Jennifer Lynch, the surveillance litigation director at the Electronic Frontier Foundation, a nonprofit digital rights group that filed a brief Tuesday supporting the appeal of the two men in the killing of the Los Angeles County gas station manager.
Geofence warrants, which compel Google to provide a list of devices whose location histories indicate they were near a crime scene, are used thousands of times a year by American law enforcement agencies, helping them solve murders, arsons, burglaries, sexual assaults, home invasions and many other crimes - including the storming of the U.S. Capitol on Jan. 6, 2021. The warrants are typically sealed by a judge until after a suspect has been arrested.
Police and prosecutors say geofence warrants are legal because they are signed by judges or magistrates and are limited to circumstances when investigators have strong reason to believe they will find the culprits.
The California challenge, filed with the state's 2nd District Court of Appeal in Los Angeles, involves the March 1, 2019, shooting death of Abdalla Thabet, 38, who managed gas stations owned by his uncle, according to court documents. After he collected money from the businesses, Thabet drove to a Bank of America branch in the city of Paramount. Two cars pulled up behind him. The driver of one shot him, and the driver of the other took his backpack full of cash. Security video showed that the two suspect cars had been at locations where Thabet had collected money, according to court documents.
Unable to identify the drivers, Los Angeles County sheriff's investigators asked a judge to force Google to provide a list of devices that had been in the area of the bank and five locations Thabet visited before he was killed. That required Google to search its database of all devices running apps or software that collected location data.
The list of devices was so large that investigators asked Google to winnow it down to devices that had been at two or more of the locations. Google provided eight such devices. Two had been at four of the locations. From there, investigators identified Daniel Meza and Walter Meneses, whom they charged with the fatal attack.
The men's defense lawyers asked a judge to rule the geofence warrant unconstitutional and throw out any evidence that came from it. The judge declined. 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 warrant. In September, they did.
The appeal accuses investigators of violating not only the Constitution's Fourth Amendment, but also California's Electronic Communications Privacy Act. The men's lawyers argue that the geofence warrant invaded the privacy of everyone whose data was collected, including the defendants', with a search that did not have anyone specific in mind.
"In all likelihood, most people have no idea such a detailed history of their comings-and-goings can be retrieved and examined by law enforcement without their ever knowing," Meza's lawyer, Sharon Fleming, wrote in a brief.
A lawyer for the state attorney general's office countered in a response: "Here, law enforcement did not stop and seize random members of the public as a matter of course looking for some potential unknown crime. Rather, a search warrant was issued based upon probable cause to help identify two suspects who 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 did the Los Angeles County Sheriff's Department.
Lynch, of the Electronic Frontier Foundation, said the appeal reflects wider concerns about police investigative powers.
Geofence warrants "sweep in everybody who might have been at a given location at a given time period and leave up to police to decide who to target for further investigation," she said.
Lynch noted that law enforcement agencies could use geofence warrants to monitor people involved in protests. The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives reportedly used geofence warrants to investigate riots and arsons after the 2020 killing of Jacob Blake in Kenosha, Wisconsin. After the May 2020 police murder of George Floyd in Minneapolis, police investigating vandalism reportedly obtained a geofence warrant that scooped up data about people who gathered in the area, including 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 U.S. courts. Last March, a federal judge in Virginia ruled that a geofence warrant used to find a suspect in a bank robbery was unconstitutional. In September, a state court in San Francisco ruled against the use of 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 warrants are flawed because they do not specify whom they are targeting. But because police are already seeking them so frequently, it will be difficult to curb their use, he said.
The growing legal challenges could lead to a patchwork of decisions that might restrict law enforcement in some states or jurisdictions but not in others, Owsley said. Law enforcement agencies may then try workarounds, like teaming up with agencies in jurisdictions that lack restrictions.
"This is a tool that law enforcement is hellbent on using, and I understand why," Owsley said. "But at the end of the day there is a tension there, and I'm not sure how you overcome that."
This article was originally published on NBCNews.com