Amicus Curiae Brief — Aaron Rayshan Wells, Petitioner v. Texas

No. 25-484

I N THE

Supreme Court of the United States

————

AARON RAYSHON WELLS,

v.

Petitioner,

TEXAS,

Respondent.

————

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of Texas

————

BRIEF FOR THE RUTHERFORD

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

————

JOHN W. WHITEHEAD

ETHAN H. TOWNSEND

WILLIAM E. WINTERS

Counsel of Record

THE RUTHERFORD INSTITUTE MAURA R. CREMIN

109 Deerwood Road

MCDERMOTT WILL

Charlottesville, VA 22911

& EMERY LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

ehtownsend@mwe.com

Counsel for Amicus Curiae

November 19, 2025

W ILSON -EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON , D.C. 20002

TABLE OF CONTENTS

Interest of Amicus Curiae

................................ ........... 1

Summary of Argument

................................ ............... 1

Argument ................................ ................................ ..... 2

I. Geofence Warrants are General Warrants

of the Type the Fourth Amendment is

Meant to Protect Against

............................... 2

A. The Fourth Amendment Was

Designed to Prevent the Issuance of

General Warrants. ................................ ...3

1. General Warrants Were R eviled

U nder 18th

C entury English

C ommon L aw. ................................ .... 3

2. Opposition to General Warrants

Was a Cornerstone of the Fourth

Amendment. ................................ ...... 6

B. Geofence Warrants Are General

Warrants. ................................ ............... 11

II. This Case Provides a Vehicle to Both

Resolve a Circuit Split and Provide

Valuable Guidance to Lower Courts.

.......... 17

A. Texas’s Decision Creates a State

Federal Split that Compounds the

Existing Circuit Split and Risks

Absurd Results. ................................ ...... 17

B. This Case Offers an Opportunity to

Provide Lower Courts with Guidance

on a Range of Search Tools That

Continue to Present Challenges After

Carpenter. ................................ .............. 19

Conclusion ................................ ................................ . 23

i

TABLE OF AUTHORITIES

Page(s)

Cases

In re Application of U.S. for an Ord.

Pursuant to 18 USC

§ 2703( D ), 964

F. Supp. 2d 674 (S.D. Tex. 2013) ......................... 19

Carpenter v. United States ,

585 U.S. 296 (2018) ................................ ...... passim

In re Cell Tower Recs. Under 18 U.S.C.

§ 2703(D) , 90 F. Supp. 3d 673 (S.D.

Tex. 2015) ................................ ............................. 19

Entick v. Carrington ,

19 How. St. Tr. 1029 Eng. Rep. 807

(C.P. 1765) ................................ .............................. 5

Huckle v. Money ,

19 How. St. Tr. 1404, 95 Eng. Rep.

768 (C.P. 1763) ................................ ................... 4, 5

Stanford v. State of Tex. ,

379 U.S. 476 (1965) ................................ ...... 3, 5, 10

United States v. Chatrie ,

590 F. Supp. 3d 901 (E.D. Va. 2022),

aff'd , 107 F.4th 319 (4th Cir. 2024),

on reh'g en banc , 136 F.4th 100 (4th

Cir. 2025), and aff'd , 136 F.4th 100

(4th Cir. 2025) ................................ ................ 12 , 16

ii

United States v. Jones ,

565 U.S. 400 (2012) ................................ .. 15 , 17 , 18

United States v. Patrick ,

842 F.3d 540 (7th Cir. 2016)

................................ 19

United States v. Scott ,

No. 14 -20780, 2015 WL 4644963

(E.D. Mich. Aug. 5, 2015)

................................ .... 19

United States v. Smith ,

110 F.4th 817 (5th Cir. 2024),

cert.

denied , No. 24 -7237, 2025 WL

3131804 (U.S. Nov. 10, 2025)

...................... passim

Wilkes v. Wood , 98 Eng. Rep. 489 (C.P.

1763) ................................ ................................ ....... 5

Statutes

42 U.S.C. § 1983

................................ ........................ 16

Other Authorities

A. Reed McLeod, Geofence Warrants:

Geolocating the Fourth Amendment

,

30 Wm. & Mary Bill Rts. J. 531

(2021) ................................ ................................ .... 11

Eric Schnapper, Unreasonable Searches

and Seizures of Papers , 71 Va. L.

Rev. 869 (1985) ................................ .......... 3, 5, 6, 9

Geofence Warrants and the Fourth

Amendment , 134 Harv. L. Rev. 2508

(2021) ................................ ........................ 10 , 11 , 12

iii

James Otis, Speech Against the Writs

of Assistance (February 24, 1761)

......................... 7

Jeremy H. D’Amico,

Cellphones,

Stingrays and Searches! An Inquiry

Into the Legality of Cellular

Location Information , 70 U. Miami

L. Rev. 1252 (2016) ................................ .............. 18

John Dickinson, Letters From a

Pennsylvania Farmer, Letter IX

(The Outlook Company 1903)

................................ 8

Laura K. Donohue,

The Original Fourth

Amendment , 83 U. Chi. L. Rev. 1181

(2016) ................................ ............................ passim

Matthew Hale, 2 Historia Placitorum

Coronae 150 (Nutt and Gosling

1736) ................................ ................................ ....... 4

Matthew L. Brock, “If You Build It,

They Will Come”: Reverse Location

Searches, Data Collection, and the

Fourth Amendment , 57 U. Rich. L.

Rev. 649 (2023) ................................ .. 10 , 11 , 12 , 13

Susan Freiwald & Stephen Wm. Smith,

The Carpenter Chronicle: A Near

Perfect Surveillanc e, 132 Harv. L.

Rev. 205 (2018) ................................ .................... 19

Thomas Y. Davies,

Recovering the

Original Fourth Amendment

, 98

Mich. L. Rev. 547 (1999) ................................ ........ 8

iv

U.S. Const. amend. IV

................................ ................ 3

William Blackstone, 4

Commentaries

on the Laws of England

287

(Clarendon 1769) ................................ ............. 4, 14

v

1

INTEREST OF AMICUS CURIAE

The Rutherford Institute is a nonprofit civil liberties organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute provides legal assistance at

no charge to individuals whose constitutional r

ights

have been threatened or violated and educates the

public about constitutional and human rights issues

affecting their freedoms. The Rutherford Institute

works tirelessly to resist tyranny and threats to freedom by seeking to ensure that the governmen

t abides

by the rule of law and is held accountable when it infringes on the rights guaranteed by the Constitution

and laws of the United States.

SUMMARY OF ARGUMENT

The Framers wrote the Fourth Amendment to ensure the persons and property of the American people

would be secure from unreasonable search and seizure by the federal government. The Framers had

sights trained specifically on general warrants. Those

warrants did not name the person or thing to be

seized, but just gave blanket authority to search for

wrongdoing. Without such guardrails, those warrants

gave Crown officials in England and the American colonies virtually

un restricted ability to rummage

through th e property and papers of individuals

. Outrage at this abuse was central to the colonists’

1

No counsel for a party authored this brief in whole or in part,

and no entity or person, other than Amicus Curiae, its members,

and its counsel, made a monetary contribution intended to fund

the preparation or submission of this brief. Counsel of record fo

the parties received notice of Amicus Curiae’s intent to file this

brief at least 10 days prior to its due date.

1

r

decision to declare independence and enshrine their

rights in the Constitution.

But what is old is new again.

Law enforcement is

using surveillance systems that search the data of

millions of individuals based on nothing more incriminating than the fact that they own a cell phone

—the

same pervasive piece of property as a colonist’s quill

.

The geofence warrants at issue here are one such example. This tool requires Google to search the location

data of all of its users

to identify those who were in a

particular place at a particular time

, regardless of

whether there is a shred of evidence linking

any user

to a crime .

As this

Court has recognized,

“an individual

maintains a legitimate expectation of privacy in the

record of his physical movements.”

Carpenter v.

United States , 585 U.S. 296, 310 (2018).

But the

Court has left the precise contours of that right undefined. As a result,

lower courts confronting geofence

warrants adopt

divergent and often contradictory

analyses . This has led to a patchwork of incon

sistent

protections for individual rights to privacy not only

between circuits, but

between state and federal government s. And c onfusion is only likely to grow as

law

enforcement deploys more comprehensive and intrusive surveillance technologies . This case provides the

Court with a valuable opportunity to clarify the scope

of F ourth Amendment privacy protections and

head

off further encroachments into the

rights of American

citizens .

ARGUMENT

I. Geofence Warrants are General Warrants of

the Type the Fourth Amendment is Meant to

2

Protect Against

The Fourth Amendment provides that “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated,” and guarantees that

warrants will not be issued except “upon proba

ble

cause * * * and particularly describing the place to be

searched, and the persons or things to be seized.”

U.S.

Const . amend. IV.

T he purpose of this amendment

was to ensure that Americans would always be protected from “intrusion and seizure by office

rs acting

under the unbridled authority of a general warrant.”

Stanford v. State of Tex. , 379 U.S. 476, 481 (1965).

A. The Fourth Amendment Was Designed to

Prevent the Issuance of General Warrants.

“[T] he Fourth Amendment was most immediately

the product of contemporary revulsion against a regime of writs of assistance.” Stanford, 379 U.S. at 482.

Yet “its roots go far deeper.”

I bi d. General warrants

have a history stretching back to

at least the 16 th century . Laura K. Donohue,

The Original Fourth Amendment , 83 U. Chi. L. Rev. 1181, 1207 (2016).

These

warrants were considered particularly offensive to individual liberty because they

“failed to name the individual possessing the things to be searched or seized.”

Eric Schnapper, Unreasonable Searches and Seizures

of Papers , 71 Va. L. Rev. 869, 874 (1985)

.

1. General Warrants Were R eviled U nder

18 th C entury English C ommon L aw .

General warrants were issued in England during

the Tudor and Stuart periods

as part of the Crown’s

efforts to enforce religious orthodoxy and

stifle political dissent

. Donohue,

The Original Fourth

3

Amendment , 83 U. Chicago L. Rev. at

1208 -09. Queen

Mary I used them to try to re -establish the Catholic

Church in England. Id . at 120 8. Queen Elizabeth I established a High Commission to

target sedition and

slander against the Crown . Id . at 1208 -09. Among the

Commission’s tools were general

warrants. Id . at

1209. James I expanded the Commission’s powers,

and after discovering the Gunpowder Plot in 1605,

he

signed two general warrants

to find th ose responsible .

Id . at 1209.

English legal scholars increasingly began to condemn general warrants.

Perhaps the most prominent

critic was the jurist Sir Edward Coke . Despite having

assisted James I in executing general warrants during the Gunpowder Plot investigations,

Coke became

convinced that these warrants

were inimical to English freedoms and argued that they violated Magna

Carta . Id . at 1211 -12. No less a titan of English

jurisprudence than Sir Matthew Hale

stated in his 1736

Historia Placitorum Coronae

(“History of the Pleas of

the Crown ”) that a “general warrant to search in all

suspected places is not good, but only to search in

such particular places, where the party assigns

before

the justice his suspicion and the probable cause

thereof, for these warrants are judicial acts, and must

be granted upon examination of the fact.”

Matthew

Hale, 2 Historia Placitorum Coronae

150 (Nutt and

Gosling 1736) . William Blackstone

cited both Coke

and Hale in his analysis of warrant

s in the Commentaries . William Blackstone, 4

Commentaries on the

Laws of England

287 ( Clarendon 1769).

Blackstone

rejected the validity of general warrants, stating “[a]

general warrant to apprehend all persons suspected,

without naming or particularly describing any person

in special, is illegal and void for it's uncertainty; for it

4

is the duty of the magistrate, and ought not be left to

the officer, to judge of the ground of suspicion.

” Id . at

288.

Th is growing consensus among

17 th and 18 th century legal scholars about the illegality of general warrants shaped

English jurisprudence.

The first reported decision on

general warrants,

Huckle v.

Money , was issue d in 1763. 19 How. St. Tr. 1404, 95

Eng. Rep. 768 (C.P. 1763).

In that case , Huckle, a

journeyman printer , was arrested on suspicion of having printed

an allegedly libelous publication.

I bi d.

Though Huckle was only detained

for six hours and

was treated well while in custody

, the jury nonetheless awarded him

£300 in damages.

Ibid. The court

sustained the verdict

on the ground that Huckle was

arrested under a general warrant, since the warrant

did not specifically order Huckle’s arrest.

Ibid. The

Lord Chief Justice condemned the use of general arrest warrants in strong terms:

T o enter a man’s house by virtue

of a nameless

warrant, in order to procure evidence

, is worse

than the Spanish Inquis

ition; a law under which

no Englishman would wish to live an hour

; it was

a most daring public attack made upon the liberty

of the subject.

Id . at 769.

In the same year,

the court decided Wilkes v.

Wood , captioned ‘The Case of General Warrants.

’ 98

Eng. Rep. 489 (C.P. 1763); Schnapper,

Unreasonable

Searches and Seizures of Papers

, at 878 . In that case ,

government officials suspected that Wilkes , a member

of Parliament, had authored libelous materials, and

searched Wilkes ’ home, seizing his papers and manuscripts. Wilkes , 98 Eng. Rep.

489. The jury awarded

Wilkes damages of

£1,000 . Ibid. at 499. The

Court

5

again upheld the verdict on the grounds that

the warrant failed to identify the suspect

. Id . at 498.

In the landmark 1765 case Entick v. Carrington ,

the court made clear that even a warrant that named

the individual suspect could be a general warrant if it

failed to identify items to be searched and seized

. 19

How. St. Tr. 1029, 95 Eng. Rep. 807 (C.P. 1765).

Entick , who authored a weekly paper, was accused of seditious libel . Ibid. In an opinion which would serve as

a “wellspring of the rights now protected by the

Fourth Amendment,”

Stanford , 379 U.S. at 484, t he

court held that the warrant was unlawful because it

failed to identify the items that had been targeted for

search and seizure. Entick v. Carrington , 19 How. St.

Tr. at 1067. Instead, the officers could rifle through

all of Entick’s papers unchecked

, which amounted to

an illegal general warrant.

Ibid.

2. Opposition to General Warrants

Was a

Cornerstone of the Fourth Amendment.

American colonists

had, if anything, an even

greater hatred of search and seizure than their English counterparts. The declarations of rights in early

colonial charters and

constitutions generally incorporated English common law with respect to search and

seizure. Schnapper, Unreasonable Searches and Seizures of Papers

at *913. D uring the 17 th century,

when general warrants were permitted in

England,

the y were far more restricted in the colonies.

Donohue, The Original Fourth Amendment

at *1241 42. The general warrants cases

in England received

immense publicity in the American colonies and were

the subject of considerable commentary. Schnapper,

Unreasonable Searches and Seizur

es of Papers

at

*913; Donohue, The Original Fourth Amendment

at

*1257 -58.

6

One type of general warrant that was allowed in

the colonies was the so -called writ of assistance,

which provided customs agents with the ability to

search locations ranging from ships and storehouses

to homes to search for goods

that did not meet customs regulations.

Donohue, The Original Fourth

Amendment at *1242. The use of writs of assistance

led to escalating conflict between the colonies and the

Crown administration.

An instructive case is that of

Edward Randolph, the

chief agent of the commissioners of customs in New England

. When Randolph

reported that the Massachusetts Bay Company was

abusing its charter and tolerating illegal trade

, the

Crown revoked the Company’s charter.

Ibid. During

the 1689 colonial uprising, Randolph was imprisoned

and returned to England.

Id . at *1242 -43. Upon his

return to the colonies in 1692, Randolph began

investigating nearly all the major ports in the colonies,

rely ing heavily on

general warrants to

identify smuggling, corruption, and

poor record keeping.

Id . at

*1243. Because of Randolph’s efforts,

Parliament

passed new legislation to end illicit trade in the colonies , which colonial officials were instructed to enforce using writs of assistance.

Id . at *1242 -43. The

result was mounting tension , as colonists increasingly

found their homes and businesses s

ubject to searches ,

while they had no judicial recourse to object.

Id . at

*1243.

These tension s grew during the French and Indian War and culminated in t

he pivotal Paxton’s

Case . In 1755, Governor William Shirley

began directing his customs agents (one of whom was named

Charles Paxton), to use

writs of assistance to

crack

down on illicit trade

with French Canada.

I d. at

*1246 -47. By the 1760s, the practice

had become

7

widely accepted, with Lord Chatham, the se cretary of

state for the Southern Department , directing the new

Governor of the Province of Massachusetts Bay to use

writs of assistance to stop trade with the French Indies as well. Id . at *1248.

When the writs of assistance expired in 1761,

the

Society for Promoting Trade

and Commerce challenged their renewal.

Ibid. The Society was represented on a pro bono basis by prominent lawyer

James Otis. Id . at *1249. In one of the great orations

of American history,

Otis forcefully condemned

writs

of assistance as “the worst instrument of arbitrary

power, the most destructive of English liberty and the

fundamental principles of law, that ever was found in

an English law -book.” James Otis, Speech Against the

Writs of Assistance (February 24, 1761). The exercise

of the writ, which “places the liberty of every man in

the hands of every petty officer,”

was the kind of

power that had “in former periods of history cost one

king of England his head and another his throne

.”

Ibid.

Otis ’s speech received considerable attention and

was credited as helping bring the American public to

support independence. Dono hue, The Original Fourth

Amendment at *1250. One particularly enthusiastic

observer of Otis’s speech was a young John Adams,

who later recalled that “[e]very man of an crowded

Audience appeared to me to go away, as I did, ready

to take up Arms against Writs of Assistan

ts ” Id . at

*1249.

Outrage at writs of assistance would only grow

with the passage of the 1767 Townshend

Revenue Act,

which empowered officials “to enter houses or warehouses, to search for and seize goods prohibited to be

imported or exported * * * or for which any duties are

8

payable, or ought to have been paid.”

Donohue, The

Original Fourth Amendment

at *1260. The terms of

this statute were at odds with practice in the colonies,

where any writs granted tended to be specific

, and

American legal treatises treated the general warrants

authorized in the Townshend Act as illegitimate.

Id .

at *1260 -61. For example, in his Letters from a Pennsylvania Farmer , John Dickinson

des cribed the w rit

as “an engine of oppression,” noting that “the greatest

asserters of the rights of Englishmen

have alw ays

strenuously contended, that such a power was dangerous to freedom.” J ohn Dickinson, Letter s From a

Pennsylvania Farmer, Letter IX

, at 93 (The Outlook

Company 1903).

B y the time the colonists declared independence,

there was overwhelming consensus that general warrants were illegitimate.

See Thomas Y. Davies, Recovering the Original Fourth Amendment

, 98 Mich. L.

Rev. 547, *656 n. 299 (1999) . Indeed, opposition

to

general warrants was so central to the colonists’ sense

of civil liberties that it was incorporated into

the Virginia Declaration of Rights

, which significantly

influenced the development of, not only later state constitutions, but the United States Constitutio

n. Donohue,

The Original Fourth Amendment

at *1265. The Virginia Declaration of Rights

, which was passed in

1776 , stated that “general warrants * * * are grievous

and oppressive and ought not to be granted.” Virginia

Declaration of Rights §

10.

The Founding Fathers’ concern about general

warrants carried through to the drafting of the Bill of

Rights. The Antifederalists

condemned the Constitution for its failure to specify individual rights. Patrick

Henry specifically condemned the absence of

protection against general warrants

, stating

9

I feel myself distressed because the necessity of

securing our personal rights

seems not to have

pervaded the minds of men; for many other valuable things are omitted:

--for instance, general

warrants, by which an officer may search suspected places, without evidence of the commission

of a fact, or seize any person without evidence o

f

his crime, ought to be prohibited.

Donohue, The Original Fourth Amendment

, at *1286.

S tates, including New York , Rhode Island , and North

Carolina, likewise insisted on the inclusion

of protections against general warrants in the constitution.

Id .

at *1289 -92. The Antifederalists drew on the English

general warrants cases, and particularly the case of

John Wilkes, to argue for specific protections against

general warrants. Schnapper,

Unreasonable

Searches and Seizures of Papers

, at *914 -15. In the

Anti federalist Papers, Brutus

pointed to the threat of

general warrants as emblematic of the risks

inherent

in the absence of a Bill of Rights.

For the security of liberty it has been declared,

* * * that all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.

Brutus, New York Journal (November 1, 1787) (“Brutus II ”) (quotation omitted) .

T he Antifederalists’ concerns

about enshrining

protections for individual liberty, and particularly for

ensuring protection against

unlimited search and seizure, culminated in the inclusion of

the Bill of Rights

in the Constitution.

Donohue, The Original Fourth

Amendment , at *1297 -98. Not just decades of colonial

experience, but centuries of British

legal reckoning

10

with the abuses of general warrants, led to the protections which the Fourth Amendment

provides.

B. Geofence Warrants Are General Warrants.

The Framers’ deep aversion to general warrants

was central to the adoption of the Fourth Amendment. As discussed, the principal evil of these warrants was the fact that

they allowed government officials “blanket authority to search where they pleased

”

for incriminating information, without

being limited

to identified individuals , locations, or materials. Stanford , 379 U.S. at 481 . B y their very nature,

geofence

warrants allow the government to search

unidentified

individuals and trace their movements without

an y

probable cause tying the

subject of the search

to a

crime . So they are exactly the sort of general warrant

the Fourth Amendment is designed to protect against.

Geofence warrants , which are a form of reverse

location searching, have been in use since 2016. Matthew L. Brock, “If You Build It, They Will Come”

: Reverse Location Searches, Data Collection, and the

Fourth Amendment

, 57 U. Rich. L. Rev. 649, 652

(2023). These warrants allow law enforcement

to use

data stored by third -party companies to identify electronic devices located within a

particular geographic

location within a particular time.

Id . at 652. Goog le is

the most common recipient of geofence warrants,

largely due to th e treasure trove of data from Android

phone users (approximately 131.2 million Americans)

as well as non -Android users who visit any Google

based app or website on their phone

. Geofence Warrants and the Fourth Amendment

, 134 Harv. L. Rev.

2508, 2512 (2021) . Th is includes Calendar, Chrome,

Drive, Gmail, Maps, and YouTube.

Ibid. Google ’s Sensorvault database contains the location data of all

11

Google users that enable Google location services on

their Google Accounts

. A. Reed McLeod,

Geofence

Warrants: Geolocating the Fourth Amendment

, 30

Wm. & Mary Bill Rts. J. 531, 534 (2021)

. As of 2018,

that number was estimated at

592 million, or approximately one -third of all Google users.

United States v.

Smith , 110 F.4 th 817, 823 (5th Cir.

2024) , cert. denied , No. 24 -7237, 2025 WL 3131804 (U.S. Nov. 10,

2025) .

To protect user privacy, Google requires law enforcement seeking user location data

to obtain a warrant. The basis for seeking a geofence warrant typically relies on three premises:

first, a criminal perpetrator was either seen with a cell phone or was assumed to have had one based on the

near universality

of cell phone ownership. McLeod,

Geofence Warrants ,

at *533. Second, many cell phones either run on Android’s operating system or interface with a Google

Account. Ibid. Third, because of Google’s market d ominance, many phone users have a Google Account

that

enables Google location services.

Ibid.

By 2018 , Google developed a three -step process

for law enforcement to receive requested data, which

has generally been followed by

governme nt agencies.

Brock, If You Build It, They Will Come

, at *657. P olice

seeking judicial approval to search for user data must

identify some geographic search radius and time

within which the search should be conducted

.

Geofence Warrants and the Fourth Amendment

, at

251 4. Once that approval is obtained,

Google applies

its “three -step anonymization and narrowing protocol.” Id . at *2515. (alterations omitted).

In step one of this process,

Google searches the

entirety of Sensorvault

for all devices identified

within the parameters of the search

. Ibid. Google

12

provides law enforcement with an anonymized list of

the accounts, along with

coordinates, timestamps,

and source information.

Ibid.

In step two, law enforcement reviews the

anonymized data to identify the devices it is interested in.

Ibid. Law enforcement may request additional

location information for certain devices at this stage to determine whether those devices are relevant to the investigation. Ibid. Though Google is not required to respond to this request unless the warrant explicitly

includes it, Google often does so. Ibid. At this step, l aw

enforcement “can compel Google to provide additional

location coordinates beyond the time and geographic

scope of the original request.” Smith , 110 F.4th at 825

(quoting United States

v. Chatrie , 590 F. Supp. 3d

901, 916 (E.D. Va. 2022),

aff'd , 107 F.4th 319 (4th Cir.

2024), on reh'g en banc , 136 F.4th 100 (4th Cir. 2025),

and aff'd , 136 F.4th 100 (4th Cir. 2025)

) (emphasis in

original). And while Google “typically require [s] law

enforcement to narrow the number of users for which

it requests Step 2 data,”

“Google impos es no geographical limits” on the data provid

ed. Ibid. Assuming Google does not object to the government’s request, at this stage they provide the government with

“de-identified but geographically unrestricted data.”

Chatrie, 590 F. Supp. at 916 .

In step three , law enforcement can “compel

[]

Google to provide account

-identifying information

,”

including names and email addresses

for the individuals the government deems relevant to the investigation. Smith, 110 F.4th at 825. While Google seems to

prefer the government narrow down its list of

users

from Step 2, there is no policy enforcing this

preference . Brock, If You Build I t, They Will Come , at *658 59. With the information procured at step three,

law

13

enforcement can pursue leads against

identified individuals, including by securing warrants for more intrusive investigative methods.

Smith , 110 F.4th

at

825.

Despite Google’s attempts to limit government access to its users’ information, this

process does not

pass constitutional mus ter. Geofence warrants do not

identify the individuals whose device locations are to

be searched, which means that everyone within the

set geographical boundaries at the identified time is

subject to having their movements traced by the government, regardless of whether there is any evidence

tying them to a crime.

Brock, If You Build It, They

Will Come , at 652 . As the Fifth Circuit

ex plained, the

process by which geofence warrants are executed necessarily involves searching through the personal information of individuals who are not suspected of any

crime.

When law enforcement submits a geofence warrant to Google, * * * , law enforcement cannot obtain its requested location data unless Google

searches through the entirety of its Sensorvault

—

all 592 million individual accounts

—for all of

their locations at a given point in time

* * * Indeed, the quintessential problem with these warrants is that they never include a specific user to

be identified, only a temporal and geographic location where any given user may turn up post

search. That is constitutionally insu

fficient.

Smith , 110 F.4th at

837. Nor did it matter that the

government could tie the information sought to a particular time and place

—“[w]hile the results of a

geofence warrant may be narrowly tailored,

the search itself is not. ” Ibid. T his sort of unrestricted

rummaging is “emblematic of general warrants and

14

[is] highly suspect per se.”

Id . at 838. (quotations

omitted).

The Fifth Circuit’s

approach follows the understanding of

general warrants

that informed the

Founders . Eigh teenth century legal thinkers on both

sides of the Atlantic

rejected general warrants

because they allowed law enforcement officers

to rummage through the private lives of individuals without

linking them to a crime . See supra at 4-10 . In Blackstone ’s words , “it is the duty of the magistrate, and

ought not be left to the officer, to judge of the ground

of suspicion.” Blackstone, Commentaries at 287. Yet

geofence warrants place all assessment of the grounds

of suspicion in the hands of law enforcement

, since the

warrant itself identifies no individual suspect.

Indeed, that is the whole point of the warrant —to allow

the government to review the movements of

a universe of private citizens to identify those individuals

who might be come suspects. That process cannot be

sufficiently particularized to pass constitutional muster.

The overbreadth of geofence warrants is compounded by the fact that law enforcement’s rationale

for obtaining these warrants has no limiting principal . As discussed supra at 11 , law enforcement often

applies for geofence warrants based o

n the likelihood

that criminals carry cell phones, given their ubiquity

in modern life. And this Court has recognized that cell

phones have become “almost a feature of human anatomy.” Carpenter , 585 U.S. at 311 . (citation omitted).

That argument dis cards even the pretense of particularity. If a warrant can be obtained to search

the

movements of everyone in a given area

based on the

likely fact that someone who was in that area probably has a cell phone, the government effectively

has

15

carte blanche to demand site -tracking information on

anyone at any time. I t would be as if an

eighteenth century judge had determined that

since virtually

everyone had a quill pen

, the disseminators of

seditious pamphlets likely also had quill pens, and therefore searching individuals based on quill pen ownership was justified.

That logic would make a judge of

the Star Chamber blush , yet its analogue continues to

be employe d in the modern day . T he ubiquity of cell

phones means government searches

of unidentified

cell -phone users should be treated with greater, not

lesser, suspicion,

to guard against wanton government intrusion into the private lives of citizens.

The Fifth Circuit’s

approach is also consistent

with the principles this Court has established in other

cases about surveillance technology. In

Carpenter ,

this Court recognize d that an individual has a “

reasonable expectation of privacy in the whole of his

physical movements. ” 585 U.S. at 313 . Surveillance

devices, from GPS tracking to cell

-site location information threaten that right by allowing

the government to “generate[] a precise, comprehensive record

of a person's public movements that reflects a wealth

of detail about her familial, political, professional, religious, and sexual associations.”

United States

v.

Jones , 565 U.S. 400, 415 (2012) (Sotomayor, J.

concurring). In both Carpenter and Jones , law enforcement

surveillance targeted an identified individual who

was suspected of a crime. But here, the intrusive

power of government surveillance may be applied to

any unfortunate person who happens to be in the

wrong place at the wrong time carrying a

cell phone.

Such intrusion based on a general warrant is

not only

plainly unconstitutional

, but a threat to

the fundamental right to privacy.

16

II.

This Case Provides a Vehicle to Both Resolve a Circuit Split and Provide Valuable

Guidance to Lower Courts.

A. Texas ’s Decision Creates a State

-Federal

Split that Compounds the Existing Circuit Split and Risks Absurd Results.

In deciding that the use of a geofence warrant did

not violate the Fourth Amendment, the

Court of

Criminal Appeals of Texas

rejected the Fifth Circuit’s

finding that geofence warrants are “categorically prohibited by the Fourth Amendment.”

Smith , 110 F. 4th

at 838. The result is a state

-federal split, in which

geofence warrants are permi

ssible for use in Texas

state criminal proceedings , but not for federal

criminal proceedings

operating in the same state

; yet,

Texas state law enforcement officers would apparently still violate 42 U.S.C. § 1983 and not have qualified immunity for using a geofenc

e warrant .

The Texas Court’s decision compounds an already

existing circuit split.

In Chatrie , the Fourth Circuit

held that the third -party doctrine governed the case,

and because the defendant chose to reveal his movements to Google, “[t]he government [] did not conduct

a search when it obtained the data.”

107 F.4th 319,

332 (4th Cir. 2024).

The en banc court a

ffirmed the

judgment in a one sentence per curi

am opinion, but

could not produce a majority opinion. United States v.

Chatrie , 136 F.4th 100 (4th Cir. 2025)

; see also id . at

10 8-09 ( Diaz, C.J. , concurring) ( “we’ve gifted law enforcement (and the public) a labyrinth of

—by my

count, nine —advisory opinions, many pointing in different directions. ”). Of the fifteen judges who sat on

the en banc panel , seven would find that no Fourth

Amendment search

occurred . See id. at 109, 130 .

17

Seven would affirmatively find that a F

ourth Amendment search occurred . Id . at 115, n.1. Two would have

decided the case exclusively

because of the good-faith

exception . Id . at 101, 142.

In addition to causing confusion for law enforcement and the public, this split

causes inconsistent

protections of individual liberties based on where an

individual is located and who happens to be investigating them . A person wh o walks through an area

covered by a geofence warrant

in Dallas will be protected from law enforcement acting within federal jurisdiction but may well have his personal information

revealed to state authorities. E ven if this person manages to avoid the prying eyes of the Texas state police

while he is in Dallas , if he travel s to Richmond, he is

once again at risk of having his data exposed to the

federal government. And to make things more complicated, if the geofence warrant in Richmond dates to

his time in T exas, federal law enforcement in Virginia

could conceivably access records of his movement in

Texas —exactly the information that the Fifth Circuit

holds is protected. Th e result is a bizarre patchwork

of rules implicating the constitutional rights of citizens. And since an individual

cannot know if an area

that he has passed through will be subject to

a

geofence warrant, the Texas Court’s decision guarantees that at least within the state of Texas, individuals can never be sure whether their Fourth Amendment rights are protected or not.

The Fifth Circuit’s

reasoning is more persuasive

than the Fourth Circuit’s or

the Texas Court of Criminal Appeals’s and provides important guidance here

.

The Fifth Circuit

traced this Court’s precedent in Carpenter and Jones with respect to the

“privacy interests inherent in location data,”

the dangers of “the

18

government being able to comprehensively track a

person ’s movement with relative ease due to the ubiquity of cell phone possession

,” and the limitations of

the third -party doctrine . Smith , 110 F .4th at 832 , 834 35 . Based on this analysis, the Fifth Circuit concluded

that the geofence warrant constituted a search.

Id . at

836.

Having established that

the examination of location data constituted a search

, the Fifth Circuit

then

carefully analyzed geofence warrants as general warrants, recognizing that

because these warrants “ never

include a specific user to be identified, only a temporal

and geographic location where any given user

may

turn up post -search ,” they are “constitutionally insufficient.” Id . at 837 (emphas es in original) . Th e Fifth

Circuit’s analysis is consistent with the historical understanding of general warrants discussed

supra at 310 , and granting cert iorari will offer this Court an opportunity to clarify that

this analysis is correct.

B. This Case Offers an Opportunity to Provide Lower Courts with Guidance on a

Range of Search Tools That

Continue to

Present Challenges

After Carpenter .

This Court has addressed the privacy concerns

arising from law enforcement use of location data in

both Jones and Carpenter . In Jones , the Court held

that the physical attachment of a GPS monitoring device to a vehicle constituted a search under the Fourth

Amendment. Jones , 565 U.S. at

404 . In Carpenter ,

the Court held that

seven days’ worth of data monitoring an individual’s movements via cell

-site location

information was a search and was not subject to the

third -party doctrine. Carpenter , 585 U.S. at 315 -16.

19

Still, the Court’s decisions in those cases l eft open

many questions about their broader applications . See

Jones , 565 U.S. at

424 -25 (Alito, J. concurring) (

observing that “if long -term monitoring can be accomplished without committing a technical trespass * * * the Court's theory would provide no protection .”). In Carpenter , the Court stated that

its “decision today is a narrow one. We do not express a view

on matters not before us .” 585 U. S . at 316. With such

narrow rulings , lower courts are still facing increasingly difficult questions about how to define

technological intrusion into Fourth

Amendment protections .

One example of these technological challenges is

cell -site simulators . Cell -site simulators work by “superseding the signal emitted from a service provider

’s

cell site within an area, causing all mobile devices to

register with it instead of the cell site.”

Jeremy H.

D’Amico, Cellphones, Stingrays and Searches! An Inquiry Into the Legality of Cellular Location Information , 70 U. Miami L. Rev. 1252, 1296

(2016). Because law enforcement generates

the data , which can

be gathered indiscriminately, some

scholars argue

that the use of cell -site simulators “raises the specter

of an illegal general warrant.”

Susan Freiwald & Stephen Wm. Smith,

The Carpenter Chronicle: A Near

Perfect Surveillanc

e, 132 Harv. L. Rev. 205, 229

(2018) ; but see United States v. Patrick , 842 F.3d 540,

545 (7th Cir. 2016) (upholding the use of cell -site simulator data to execute a location warrant, reasoning

that “[a] person wanted on probable ca

use (and an arrest warrant) who is taken into custody in a public

place, where he had no legitimate expectation of privacy, cannot complain about how the police learned

his location.”) .

20

Similar issues are raised by cell tower dumps, in

which law enforcement

obtains an order “compelling

providers to release historical cell site data for a specific tower or towers providing service to a crime

scene. ” Freiwald & Smith,

The Carpenter Chronicle

,

at 229. Because the police gather d ata from all cell

phones within a given geographical area, thi

s technology also “raises general warrant concerns that were

not present in Carpenter .” Ibid. Lower courts are divided on the degree of constitutional

protection afforded historical cell site data

. Compare , e.g., In re

Cell Tower Recs. Under 18 U.S.C.

§ 2703(D), 90 F.

Supp. 3d 673, 675 (S.D. Tex. 2015) (“cell tower logs

requested here would likewise be categorized as ordinary business records entitled to no constitutional

protection.”) and United States v. Scott , No. 14 -20780,

2015 WL 4644963, at *7 (E.D. Mich. Aug. 5, 2015)(defendant “did not have a reasonable expectation of privacy in the data that revealed the general historical

location of his cell phone for, at most, a ninety

-minute

period on a single mornin g.”) with In re Application of

U.S. for an Ord. Pursuant to 18 USC

§ 2703( D ), 964

F. Supp. 2d 674, 677 (S.D. Tex. 2013) (

holding that

“cell site data are protected pursuant to the F

ourth

Amendment from warrantless searches.

”)

As surveillance technology continues to develop,

lower courts will

be forced to define the limits of

Fourth Amendment protection.

In the absence of

guidance, t his is likely to result in

inconsistent protections for individual rights to privacy

throughout

the nation. In addition to resolving splits among the

circuits and between the state and federal government, this case offers

th is Court an opportunity to

provide lower courts with

valuable guidance on how

to treat th e fast -developing field of surveillance

21

technology consistent with the protections of the

Fourth Amendment.

22

CONCLUSION

The Court should grant the petition

and reverse

the judgment of the Texas Court of Criminal Appeals

.

Respectfully submitted.

J OHN W. W HITEHEAD

W ILLIAM E. W INTERS

The Rutherford Institute

109 Deerwood Road

Charlottesville, VA

22911

E THAN H. T OWNSEND

Counsel of Record

M AURA R. C REMIN

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756 -8000

ehtownsend@mwe.com

Counsel for Amicus Curiae

23