Tomanek v. State

Karl Joseph Tomanek v. State of Maryland, No. 972, Sept. Term 2022. Opinion filed on
May 1, 2024, by Ausby, J.

SEARCH, SEIZURE, AND ARREST – SEARCH WARRANTS – GROUNDS FOR
ISSUANCE – IN GENERAL – NECESSITY OF PROBABLE CAUSE

Geofence warrant for seizure of cell phone location data was based on probable cause and
was sufficiently particular, where police officers averred facts giving rise to fair probability
that a crime had taken place within the geographic and time constraints of the warrant,
likelihood that an innocent person’s privacy rights would be violated by the search was
remote, and magistrate issuing warrant could reasonably infer that the perpetrator had a
cell phone.
Circuit Court for Howard County
Case No. C-13-CR-21-000043

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 972

September Term, 2022

KARL JOSEPH TOMANEK

v.

STATE OF MARYLAND

Wells, C.J.
Tang,
Ausby, Kendra Y.
(Specially Assigned),

JJ.

Opinion by Ausby, J.

Filed: May 1, 2024

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.05.01
10:48:44
'00'04-

Gregory Hilton, Clerk
On January 14, 2021, Howard County Police officers executed a search warrant at

the residence of Karl Tomanek, appellant, after Tomanek was developed as a suspect in

the theft of farm equipment. While the officers were driving up Tomanek’s driveway to

execute the warrant, Tomanek fired a shotgun at the officers’ vehicle. Tomanek was

eventually arrested, and a search of the residence revealed several shotguns, a rifle, and

various ammunition. Tomanek was later charged, in the Circuit Court for Howard County,

with multiple counts of attempted murder, assault, and reckless endangerment, along with

related weapons offenses. Prior to trial, Tomanek filed a motion to suppress, arguing that

the search warrant was facially invalid and that the police had used excessive force in

executing the warrant. Following a hearing, the suppression court denied Tomanek’s

motion. A jury ultimately convicted Tomanek of one count of attempted manslaughter,

one count of second-degree assault, one count of use of a firearm in a crime of violence,

and five counts of possession of a shotgun, rifle, or ammunition by a prohibited person.

The circuit court sentenced Tomanek to a total term of twenty years of imprisonment, with

all but ten years suspended.

In this appeal, Tomanek presents a single question for our review:

Did the suppression court err in denying the motion to suppress?

For reasons to follow, we hold that the suppression court did not err in denying

Tomanek’s motion. Accordingly, we affirm the judgments of the circuit court.

BACKGROUND

On April 11, 2020, the Howard County Police Department received a report of a

theft that had occurred at a vacant, twelve-acre farm located on Old Frederick Road (the
“Frederick Road” property). Upon responding to the scene, officers spoke with the

property owner, who reported that farm equipment and various other items had been taken.

The owner stated that a family member had last visited the property on April 4, 2020, when

the stolen items were still on the property. The owner stated that when he arrived at the

property a week later, the items were gone.

On April 24, 2020, the police applied for a “geofence warrant” to be served on

Google. “A geofence warrant authorizes the seizure of location data collected from

smartphones of individuals within a particular area over a specified range of time.” United

States v. Rhine, 652 F. Supp. 3d 38, 66 (D.D.C. 2023). It “seeks cell phone location data

stored by third-party companies like Google, which offers the Android operating system

on which millions of smart phones run and offers other applications commonly used on

phones running on other operating systems.” Id. at 66-67. Because “[t]he scope of location

data captured by a geofence is limited by geographic and temporal parameters,” “geofence

warrants identify the physical area and the time range in which there is probable cause to

believe that criminal activity occurred.” Id. at 67. “Unlike a warrant authorizing

surveillance of a known suspect, geofencing is a technique law enforcement has

increasingly utilized when the crime location is known but the identities of suspects is not.”

Id. at 66.

As the police explained in the warrant application, Google was known to collect and

retain historical location information for certain mobile devices. The purpose of the

warrant was to ascertain if any such device was in the area of the Frederick Road property

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between April 3 and April 11, 2020, when the theft was believed to have occurred. The

court granted the warrant application, and a search warrant was served on Google.

On December 8, 2020, Google responded to the warrant, informing the police that

nine different devices had shown activity within 100 meters of the Frederick Road property

during the time period in question. Upon reviewing the information provided by Google,

the police discovered that only one of those devices showed activity on and around the

property on multiple dates for extended periods of time consistent with the timeframe of

the theft. The police then contacted Google and discovered that the suspect device was

associated with Tomanek, who lived on Shaffersville Road. Shortly thereafter, the police

conducted a visual inspection of the property surrounding Tomanek’s home and observed

a tractor that matched the description of one of the items stolen from the subject property.

On January 11, 2021, the police applied for, and were granted, a warrant to search

Tomanek’s property for evidence related to the theft that had occurred at the Frederick

Road property. On January 14, 2021, multiple police officers went to Tomanek’s residence

to execute the warrant. Several of the officers were traveling in a police-issued tactical

vehicle. As the officers’ vehicle was traveling up Tomanek’s driveway toward his

residence, Tomanek brandished a shotgun and fired two shots, both of which struck the

police vehicle’s windshield. Tomanek was soon taken into custody, and a search of his

property revealed farm equipment that matched the description of the equipment stolen

from the Frederick Road property.

That same day, the police obtained and executed a second search warrant at

Tomanek’s property based on the events that occurred during the execution of the first

3
warrant. In executing the second warrant, the police recovered various firearms and

ammunition. Tomanek was thereafter charged with attempted murder, assault, reckless

endangerment, and weapons offenses.

SUPPRESSION HEARING

Prior to trial, Tomanek filed a motion to suppress, raising two primary arguments.

One argument was that the initial geofence warrant was an illegal “general warrant”

because it lacked sufficient particularity and probable cause. Tomanek claimed that,

because the geofence warrant directly led to the issuance of the two warrants at his

property, any evidence obtained as a result of those searches should be suppressed. The

other argument was that the police had used excessive force in executing the first warrant

at Tomanek’s property. Tomanek claimed that, because the shooting was a direct result of

that excessive force, the evidence derived therefrom, namely, the observations that shots

were fired and the various firearms and ammunition found on his property, should be

suppressed.

Geofence Warrant

At the hearing on Tomanek’s suppression motion, the court received into evidence

the geofence warrant application and accompanying affidavit. The application was

prepared by Howard County Police Detective Brian Bochinski, who had been a member of

the police force since 2012 and was, at the time, working as a residential burglary detective.

Per that application, on April 11, 2020, Howard County Police officers responded

to the Frederick Road property after receiving a report of a theft. Upon the officers’ arrival,

the property owner reported that five farm tractors, an antique dump truck, and two large

4
steel fuel containers were missing from the property. The owner described the property as

a vacant, twelve-acre farm that included a residence, two large barns, and several

outbuildings. The owner stated that a family member had last checked on the property on

April 4, 2020, and observed that the stolen items were still there. The owner came to the

property on April 11 and saw that the items were missing and that some of the buildings

had been broken Into. The owner reported that “no trespassing” signs were posted on the

property. On April 14, 2020, Detective Bochinski, while investigating the theft, contacted

a witness, who reported that, at some point between April 3 and April 5, 2020, he observed

an older model tractor being hauled on a trailer that was driving away from the Frederick

Road property. The witness’s description of the tractor matched the description of one of

the tractors stolen from the Frederick Road property.

Based on that information, the affiant requested permission to search Google’s

business records for “anonymized DeviceID data” of cell phone users that reported a

location within a 100-meter radius of the main residence of the Frederick Road property

between April 3 and April 11, 2020. 1 The purpose of the request was to identify any

devices that were in close proximity to the property during the time frame immediately

preceding and following the thefts. The application noted that “anonymized DeviceID data

does not contain personal identifying information about the end user,” and that a second

warrant “would be needed to access any personal identifying information related to an

1
The warrant application provided latitude and longitude coordinates of:
39.318792⁰, -76.935558⁰. Those coordinates correspond to the location of the main
residence on the Frederick Road property.

5
account.” Regarding Google’s role in the request, the application provided the following

pertinent facts:

Google is an Internet company which, among other things, provides
electronic communication services to subscribers. Google allows subscribers
to obtain email accounts at the domain name gmail.com. Subscribers obtain
an account by registering with Google. During the registration process,
Google asks subscribers to provide basic personal information. Therefore,
the computers of Google are likely to contain stored electronic
communications . . . and information concerning subscribers and their use of
Google services[.] . . . In my training and experience, such information may
constitute evidence of the crimes under investigation because the information
can be used to identify the account’s user or users.

In my training and experience, email providers generally ask their
subscribers to provide certain personal identifying information when
registering for an email account. . . . [S]uch information may constitute
evidence of the crimes under investigation because the information can be
used to identify the account’s user or users. Based on my training and my
experience, I know that even if subscribers insert false information to conceal
their identity, I know that this information often provide [sic] clues to their
identity, location or illicit activities.

In my training and experience, email providers typically retain certain
transactional information about the creation and use of each account on their
systems. . . . In addition, email providers often have records of the Internet
Protocol address (“IP address”) used to register the account and the IP
addresses associated with particular logins to the account. Because every
device that connects to the Internet must use an IP address, IP address
information can help to identify which computers or other devices were used
to access the email account. . . . Based on my training and experience, I have
learned that Google also maintains records that may reveal other Google
accounts accessed from the same electronic device[.]

Google has developed an operating system for mobile devices, including
cellular phones, known as Android. Nearly every cellular phone using the
Android operating system has an associated Google account and users are
prompted to add a Google account when they first turn on a new Android
device.

Based on my training and experience, I have learned that Google collects and
retains location data from Android-enabled mobile devices when a Google

6
account user has enabled Google location services. The company uses this
information for location-based advertising and location-based search results.
This information is derived from sources including GPS data, cell site/tower
information, Bluetooth, and Wi-Fi access points.

Location data can assist investigators in understanding the chronological and
geographic context of the email account access and use relating to the crime
under investigation. This geographic and timeline information may tend to
either inculpate or exculpate the account owner. Additionally, information
stored at the user’s account may further indicate the geographic location of
the account user at a particular time (e.g., location information integrated into
an image or video sent via email).

The warrant application was approved and signed by a circuit court judge on April

24, 2020.

Shaffersville Road Warrants

The suppression court also received into evidence the two search warrants that were

executed at Tomanek’s residence on January 14, 2021. The first warrant, which was

approved and signed by the circuit court on January 11, 2021, included a restatement of

the events surrounding the theft, as well as additional details regarding the property stolen.

According to the warrant’s affiant, due to the amount of equipment taken from the

Frederick Road property, it was “very likely” that the perpetrator had taken multiple trips

to the property during the time frame between April 3 and April 11, 2020. The affiant

noted that Google had responded to the geofence warrant in December 2020, and, in so

doing, had provided nine different Device IDs that showed potential activity within the

area and time frame set forth in the geofence warrant. Upon reviewing that information,

the affiant noted that only one of those nine devices was “located on and around the

7
victim’s property on multiple dates for extended periods of time consistent with the

timeframe of the burglary.”

Google subsequently disclosed the subscriber information for that device, including

an email address and a phone number. The affiant “completed computer checks on the

phone number” and found that it was associated with Tomanek. On January 7, 2021, the

affiant went to Tomanek’s home on Shaffersville Road and observed, from a public

roadway, a tractor on Tomanek’s property that matched the description of one of the

tractors stolen from the Frederick Road property.

The second warrant, which was approved and signed by the circuit court on January

14, 2021, included much of the same information, as well as additional details regarding

the shooting. Those additional details included: that police officers went to Tomanek’s

property on January 14, 2021, to execute the first warrant; that, as the officers approached

Tomanek’s residence in their tactical vehicle, two shots were fired, striking the vehicle’s

windshield; that Tomanek was identified as the shooter and eventually taken into custody;

and that a shotgun and two spent shell casings were observed near the front step of

Tomanek’s residence.

Ultimately, both search warrants were executed on January 14, 2021. Upon

executing the first warrant, the police recovered various evidence related to the theft at the

Frederick Road property. Upon executing the second warrant, the police recovered various

evidence related to the shooting and subsequent weapons charges.

8
Excessive Force

During the suppression hearing, Howard County Police Officer Christopher Funk

testified regarding the execution of the search warrants at Tomanek’s property on January

14, 2021. According to Officer Funk, there were nineteen officers present that day,

including himself, and all of the officers were dressed in tactical equipment and carrying

weapons. The officers were split into two vehicles, with the lead vehicle being a “Bearcat,”

which Officer Funk described as a large, armored truck. At approximately 6:00 a.m., just

before sunrise, the Bearcat entered Tomanek’s property and began driving up the driveway

toward Tomanek’s residence. When the vehicle, which was unlit, got about fifty yards

from Tomanek’s residence, Tomanek fired two shots at the vehicle’s windshield. Officer

Funk testified that there were no weapons on the outside of the vehicle and that Tomanek

could not have seen inside.

Court’s Ruling

The suppression court ultimately denied Tomanek’s motion to suppress. As to the

propriety of the geofence warrant, the court found that the warrant was supported by

probable cause and was sufficiently limited in time and space. The court also found that,

even if the warrant was invalid, the police were justified in relying on the warrant when

executing the search. As to Tomanek’s excessive force claim, the court found that any

“force” used by the police prior to the shooting was reasonable.

Trial

Tomanek was later tried by a jury on various charges related to the shooting. The

jury convicted Tomanek of one count of attempted manslaughter, one count of second-

9
degree assault, one count of use of a firearm in a crime of violence, and five counts of

possession of a shotgun, rifle, or ammunition by a prohibited person. This timely appeal

followed. Additional facts will be supplied as needed below.

STANDARD OF REVIEW

“Our review of a circuit court’s denial of a motion to suppress evidence is ‘limited

to the record developed at the suppression hearing.’” Pacheco v. State, 465 Md. 311, 319

(2019) (quoting Moats v. State, 455 Md. 682, 694 (2017)). “[W]e view the evidence

presented at the [suppression] hearing, along with any reasonable inferences drawable

therefrom, in a light most favorable to the prevailing party.” Davis v. State, 426 Md. 211,

219 (2012). “We accept the suppression court’s first-level findings unless they are shown

to be clearly erroneous.” Brown v. State, 452 Md. 196, 208 (2017). “We give no deference,

however, to the question of whether, based on the facts, the trial court’s decision was in

accordance with the law.” Seal v. State, 447 Md. 64, 70 (2016). Where a party raises a

constitutional challenge, “we must make an independent constitutional evaluation by

reviewing the relevant law and applying it to the unique facts and circumstances of the

case.” State v. Johnson, 458 Md. 519, 532-33 (2018).

DISCUSSION

Tomanek contends that the suppression court erred in denying his motion to

suppress. Tomanek presents two primary arguments: that the geofence warrant was invalid

and that the police used excessive force. As discussed in greater detail below, we find no

merit in either argument.

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I.

Tomanek’s first argument is that the geofence warrant was an invalid “general

warrant” that lacked sufficient particularity and probable cause. Tomanek contends that

there was nothing in the warrant application to identify a particular suspect or to connect

the crime to the use of any particular technology. Tomanek also contends that the warrant

application was too broad in terms of the time period—approximately one week—over

which the police were permitted to search. Tomanek argues that the warrant application

constituted the sort of “general exploratory rummaging” that courts have consistently found

to be a violation of the Fourth Amendment.

The State contends that the geofence warrant complied with the Fourth Amendment

because it set forth a substantial basis for probable cause and contained the requisite

particularity. 2 The State contends further that, even if the warrant was facially deficient,

Tomanek is not entitled to suppression because the executing officers relied on the warrant

in good faith. Finally, the State argues that, regardless of any impropriety in the warrant

or its execution, Tomanek is not entitled to suppression because the evidence related to the

shooting was sufficiently attenuated from the allegedly unlawful geofence warrant.

A.

The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures, and searches conducted without a warrant are

2
The State argues, preliminarily, that Tomanek has failed to allege a protected
Fourth Amendment interest in his location information. That argument was not raised in
the suppression court; therefore, it will not be considered here. McClain v. State, 194 Md.
App. 252, 278-79 (2010).

11
generally presumed to be unreasonable. Eusebio v. State, 245 Md. App. 1, 21-22 (2020).

Where, however, a search is conducted pursuant to a warrant, the warrant is presumed

valid, and the burden of proving the unlawfulness of the search shifts to the defendant. Id.

at 23. A search warrant may be deemed invalid if the warrant, on its face, fails to comply

with the basic requirements of the Fourth Amendment. Id. Those requirements include:

1) that the warrant be based on probable cause, 2) that the warrant describe with

particularity the place to be searched, and 3) that the warrant be issued by a neutral and

detached magistrate. Id. at 23-24. Here, Tomanek challenges only the first two

requirements: probable cause and particularity.

“[T]he probable cause standard is ‘a practical, nontechnical conception that deals

with the factual and practical considerations of everyday life on which reasonable and

prudent [people], not legal technicians, act.’” Maryland v. Pringle, 540 U.S. 366, 370

(2003) (citing Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United

States, 338 U.S. 160, 175-176 (1949)). “Probable cause, moreover, is a fluid concept,

incapable of precise definition or quantification into percentages because it deals with

probabilities and depends on the totality of the circumstances.” Pacheco, 465 Md. at 324

(quoting McCracken v. State, 429 Md. 507, 519-20 (2012)). “For that reason, probable

cause does not depend on a preponderance of the evidence, but instead depends on a fair

probability on which a reasonably prudent person would act.” Id. (quoting Robinson v.

State, 451 Md. 94, 109 (2017)). Consequently, for a search warrant to be based on probable

cause, “the affidavit in support of [the] search warrant, viewed in its totality, need only

provide ‘a fair probability that contraband or evidence of a crime will be found in a

12
particular place.’” Stevenson v. State, 455 Md. 709, 723 (2017) (quoting Illinois v. Gates,

462 U.S. 213, 238 (1983)).

Moreover, because reasonable minds may differ on the question of probable cause,

a magistrate’s determination that a particular affidavit established probable cause to justify

a search is afforded great deference. Id. “So long as the magistrate had a substantial basis

for concluding that a search would uncover evidence of wrongdoing, the Fourth

Amendment requires no more.” Id. at 723-24 (quoting Gates, 462 U.S. at 236) (cleaned

up). “The substantial basis test does not require ‘direct evidence that the evidence sought

would be found in the place to be searched.’” Whittington v. State, 474 Md. 1, 32 (2021)

(quoting Stevenson, 455 Md. at 724). Rather, a substantial basis “may be predicated on an

affiant’s professional experience and inferences drawn therefrom in deciding whether

probable cause exists.” Id.

The Fourth Amendment’s particularity requirement, on the other hand, “protects

against general and overbroad warrants that leave the scope of the search to the discretion

of law enforcement.” Richardson v. State, 481 Md. 423, 450 (2022). “[T]he particularity

requirement prevents ‘general searches’ by limiting the authorization to search ‘to the

specific areas and things for which there is probable cause to search.’” Eusebio, 245 Md.

App. at 25-26 (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)). “The particularity

requirement ‘ensures that the search will be carefully tailored to its justifications, and will

not take on the character of the wide-ranging exploratory searches the Framers intended to

prohibit.’” Peters v. State, 224 Md. App. 306, 342-43 (2015) (quoting Garrison, 480 U.S.

at 84). To meet those ends, a warrant’s description of the places to be searched must be

13
“‘definite enough to prevent any unauthorized and unnecessary invasion’ of privacy

rights.” Eusebio, 245 Md. App. at 26 (quoting Moats v. State, 455 Md. 682, 708 (2017)).

In addition, “[t]he description must be ‘such that the officer with a search warrant can, with

reasonable effort, ascertain and identify the place intended.’” Id. (quoting Steele v. United

States, 267 U.S. 498, 503 (1925)).

Against that backdrop, we hold that the geofence warrant in the instant case was

based on probable cause and was sufficiently particular. Regarding probable cause, the

warrant application established the following relevant facts: that the Frederick Road

property was a vacant, twelve-acre farm in a rural area; that, on April 11, 2020, farm

equipment and other items had been reported missing from the Frederick Road property;

that a family member had gone to the property on April 4, 2020, and observed that the

missing items were still there; that the property owner had gone to the property on April

11, 2020, and observed that the missing items had been taken; that the property was private

and had “no trespassing” signs posted; and that a witness had observed an unidentified

individual hauling a piece of farm equipment away from the property at some point

between April 3 and April 5, 2020. The warrant application also established that Google

stored identifying information, including names and addresses, of Google account holders;

that Google also collected historical location data on Google account holders via the

account holder’s mobile device; that such data was likely to reveal the geographic location

of the account user at a particular time; and that, if such data showed that a mobile device

was in the area of the Frederick Road property during the relevant time frame, Google

would likely have a name and address associated with that device. From those facts, a fair

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probability existed that a crime—the theft of the farm equipment—had taken place at the

Frederick Road property at some point between April 3 and April 11, 2020. In addition, a

fair probability existed that Google would have location data and identifying information

for the perpetrator or perpetrators. As such, the issuing judge had a substantial basis for

concluding that a search of Google’s records would uncover evidence of a crime.

As to the warrant’s particularity, the scope of the search—location data for mobile

devices that showed activity within a 100-meter radius of the main residence of the

Frederick Road property between April 3 and April 11, 2020—was precise and was in no

sense “overbroad” or “wide-ranging” when considered in conjunction with the

circumstances of the crime. As noted, the police had probable cause to believe that farm

equipment was stolen from the Frederick Road property at some point during that time

period, and the police had probable cause to believe that the perpetrator’s identity was

stored in Google’s records via his location data. The search parameters were therefore

carefully tailored to the search’s justifications.

Moreover, the property was a vacant, twelve-acre farm in a rural area, and the

property’s main residence could be accessed by a driveway that ran from the main

residence to a nearby public road. The driveway was approximately 100 meters long, and

the entranceway appears to be the closest point at which the presumptive property line

ends. Therefore, by limiting the search area to within a 100-meter radius of the main

residence, the police virtually ensured that any cell phone activity that met the search’s

parameters would have had to come from within the property’s boundaries. Given that the

property was privately owned and included “no trespassing” signs, and given that the

15
property owner had claimed that no family member had been to the property between April

4 and April 11, 2020, the chance that the search would result in any unauthorized or

unnecessary invasion of privacy rights was almost non-existent. That is, even if the search

revealed the cell phone activity of someone who was not involved in the theft, that person

would likely have been trespassing on private land.

To be sure, there was nothing in the warrant application to indicate that the suspect

was in possession of a cell phone at the time of the crime. We do not find, however, that

the omission of such an averment is of any consequence to our probable cause or

particularity analysis. It is undisputed that cell phones have become an integral part of

everyday life. See Riley v. California, 573 U.S. 373, 385 (2014) (noting that “modern cell

phones . . . are now such a pervasive and insistent part of daily life that the proverbial

visitor from Mars might conclude they were an important feature of the human anatomy”).

It is equally undisputed that many, if not most, people carry a cell phone virtually all of the

time. See Carpenter v. U.S., 585 U.S. 296, 311 (2018) (holding that historical cell-site

records presented significant privacy concerns because, in part, individuals “compulsively

carry cell phones with them all the time”). Thus, while there was no direct evidence that

the perpetrator in this case had a cell phone or that one was used in relation to the crime, it

was reasonable for the issuing judge to infer that the perpetrator was in possession of a cell

phone during the commission of the crime and that, consequently, Google had location

data and identifying information about that person. 3 See State v. Cabral, 159 Md. App.

3
Regarding the relationship between the use of an Android-enabled (or similar)
device and the instant crime, although we do not find the lack of such an averment fatal to

16
354, 380 (2004) (“[F]or purposes of the probable cause analysis, we are concerned with

probability, not certainty.”).

We are likewise unmoved by the fact that none of the averments in the warrant

related to a particular suspect. Neither the probable cause requirement nor the particularity

requirement demand that a search be linked to any one person. As the State correctly notes,

a search warrant is an investigative tool, and a valid search warrant may be issued before

the police have identified a suspect. So long as the warrant application provides a fair

probability that evidence will be found in the place being searched, and so long as the

warrant itself is definite enough to ensure that the police can identify the place being

searched and conduct the search without any unauthorized or unnecessary invasion of

privacy rights, then the probable cause and particularity requirements have been met.

As Tomanek recognizes, and as we have discovered, there are very few cases, in

which courts in other jurisdictions have analyzed the Fourth Amendment’s probable cause

and particularity requirements in the context of a geofence warrant. A comprehensive

summary of federal caselaw is found in United States v. Rhine, 652 F. Supp. 3d 38, 73-89.

(D.D.C. 2023). While each of the cases contains a variety of distinguishing facts, the

analyses are virtually identical, and, not surprisingly, consistent with the well-settled rule

of law that search warrants be supported by probable cause and particularity.

In Rhine, the court held that a geofence warrant, which authorized the seizure of

location data collected from smartphones of individuals in, and immediately around, the

the warrant in the instant case, affiants would be wise to include such information in future
warrant applications.

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Capitol building, between 2:00 p.m. and 6:30 p.m. on January 6, 2021, was not

constitutionally overbroad, and satisfied the Fourth Amendment’s particularity

requirement, because there was more than a fair probability that suspects within the

geofence area were carrying smartphones, the warrant sought subscriber information only

from those devices for which at least a record was located within the geofence, and the

geofence area closely contoured the Capitol building itself. Rhine, 652 F. Supp. 3d at 81-

89. Recently, in United States v. Easterday, No. CR 22-404 (JEB), 2024 WL 195828

(D.D.C. 2024), the court examined virtually the same facts and reached the same

conclusion as it had in Rhine. In United States v. Chatrie, 590 F. Supp. 3d 901 (E.D. Va.

2022), the court held that a geofence warrant that covered a 70,686 square meter radius,

over a span of one hour, in a busy metro area, lacked particularized probable cause to search

every mobile device user within the geofence because there was no suggestion of likelihood

that those searched were involved in the crime (bank robbery) and that the large radius

unnecessarily risked searching individuals who “may not have been remotely close

enough” to participate in or witness the crime. Chatrie, 590 F. Supp. 3d at 929-31. In these

cases, as in the instant case, the warrant applications each contained a multi-step process

that required an additional warrant to obtain deanonymized or identifying information.

Rhine, 652 F. Supp. 3d at 66; Easterday, 2024 WL 195828 at *2; Chatrie, 590 F. Supp. 3d

at 918-19. In Chatrie, however, the steps were substantially different from those in the

warrant at issue here, in Rhine, and in Easterday. Most notably, the Chatrie application

contained provisions that would expand the geographical area and the time frame of the

search. Chatrie, 590 F. Supp. 3d at 919. Finally, the Rhine, Easterday, and Chatrie courts

18
each held that, even if the geofence warrant violated the Fourth Amendment, the good faith

exception to the exclusionary rule would apply. Rhine, 652 F. Supp. 3d at 89-90; Easterday,

---F. Supp. 3d---, 2024 WL 195828 at 6-7; Chatrie, 590 F. Supp. 3d at 937-41.

Tomanek relies on In the Matter of the Search of Information that is Stored at the

Premises Controlled by Google, LLC, 542 F. Supp. 3d 1153 (D. Kan. 2021) (“Kansas”),

as being “akin” to the instant case. In Kansas, the United States District Court for the

District of Kansas found that a geofence warrant that sought location data from a public

area, over a one-hour period, lacked sufficient particularity and probable cause. Id. at 1155-

1156. In reaching that conclusion, the District Court found that the warrant application

lacked probable cause because the application did not suggest that the perpetrator or a

witness had a cell phone. Id. at 1157. The District Court found that the warrant application

also lacked particularity because the geofence boundary included two public streets,

thereby raising privacy concerns, and because the nexus between the crime and the one-

hour period was “weak.” Id. at 1158.

Kansas is distinguishable from the circumstances here. Here, we do not consider the

warrant application to be lacking in probable cause due to its failure to set forth any

averment suggesting that the perpetrator had a cell phone. As discussed, we are of the

opinion that the issuing magistrate could reasonably infer that the perpetrator had a cell

phone even without such an averment. In addition, we are not faced with the same concerns

regarding particularity that the court faced in Kansas. The area being searched here was a

private, vacant farm, and the likelihood that an “innocent” person’s privacy rights would

be violated by the search was remote. Also, while the time period at issue here—

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approximately one week—is considerably longer than the one-hour period at issue in

Kansas, the nexus between the crime and the time period in the instant case was strong.

In sum, we hold that the geofence warrant in the instant case met the basic

requirements of the Fourth Amendment. Accordingly, the circuit court did not err in

denying Tomanek’s motion to suppress on those grounds. 4

We caution that this holding is limited to the unique facts before us. Because

geofence warrants have an inherent potential for seizure of a profusion of personal device

data, issuing courts must remain vigilant in enforcing the underlying probable-cause and

particularity requirements of geofence warrants. Haley Amster & Brett Diehl, Against

Geofences, 74 STNLR 385 (2022). Although a multi-step process may aid in narrowing

the scope of a geofence warrant, it does not automatically create a search that is acceptable

under the Fourth Amendment. Id. For example, courts should be skeptical of discretionary

selective expansion, where law enforcement returns to and negotiates with Google instead

of a magistrate to seek an expanded search. Id. Additionally, courts should exercise great

prudence in evaluating geofence warrants for heavily populated or congested areas, which

have the potential to capture an enormous amount of data from individuals unassociated

with the crime. Rhine, 652 F. Supp. 3d at 75-77, (citing In re Search of Info. Stored at

Premises Controlled by Google, No. 20 M 297, 2020 WL 5491763 (N.D. Ill. July 8,

2020) (Weisman, Mag. J.) and In re Search of: Info. Stored at Premises Controlled by

Google, 481 F. Supp. 3d 730, 733 (N.D. Ill. 2020) (Fuentes, Mag. J.)).

4
This case was briefed, argued, and decided under the Fourth Amendment; we did
not consider Article 26 of the Maryland Declaration of Rights.

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B.

Assuming, arguendo, that the warrant was invalid, Tomanek would nevertheless not

be entitled to the remedy he seeks, i.e., suppression, because the police were acting in “good

faith” in executing the geofence warrant. Although evidence obtained in violation of the

Fourth Amendment should generally be excluded, there are exceptions to that rule, and one

of those exceptions is the “good faith doctrine.” Richardson v. State, 481 Md. 423, 446

(2022). Under that doctrine, “evidence will not be suppressed under the exclusionary rule

if the officers who obtained it acted in objectively reasonable reliance on a search warrant.”

Id. As the United States Supreme Court has explained, “searches pursuant to a warrant

will rarely require any deep inquiry into reasonableness, for a warrant issued by a

magistrate normally suffices to establish that a law enforcement officer has acted in good

faith in conducting the search.” United States v. Leon, 468 U.S. 897, 922 (1984). In fact,

there are only four circumstances in which a police officer’s reliance on a search warrant

would not be considered reasonable under the good faith exception:

(1) the magistrate was misled by information in an affidavit that the officer
knew was false or would have known was false except for the officer’s
reckless regard for the truth;

(2) the magistrate wholly abandoned his detached and neutral judicial role;

(3) the warrant was based on an affidavit so lacking in probable cause as to
render official belief in its existence entirely unreasonable; and

(4) the warrant was so facially deficient, by failing to particularize the place
to be searched or the things to be seized, that the executing officers cannot
reasonably presume it to be valid.

Patterson v. State, 401 Md. 76, 104 (2007) (quoting Leon, 468 U.S. at 923).

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None of the above circumstances were present here. There is nothing in the record

to suggest that the issuing magistrate was misled or that the magistrate abandoned his

detached and neutral judicial role. And, as discussed in greater detail in Part A, we are

convinced that the warrant and accompanying affidavit contained sufficient probable cause

and particularity. Given the points raised in that discussion, we cannot say that the warrant

was so lacking in probable cause as to render belief in its existence unreasonable. See

Marshall v. State, 415 Md. 399, 409-10 (2010) (“[T]he standard of factual support required

to be presented by the affidavit in order for evidence to be admitted under the good faith

exception is considerably lower than the standard for establishing a substantial basis for a

finding of probable cause by a judge issuing a search warrant.”). Nor can we say that the

warrant was so facially deficient in its particularity that the executing officers could not

have reasonably presumed the warrant to be valid. See Patterson, 401 Md. at 110 (noting

that a warrant is facially deficient when it “fails to ‘particularize the place to be searched

or the things to be seized’”) (quoting Leon, 468 U.S. at 923). Consequently, the police

were acting in “good faith” in executing the warrant, such that suppression of the evidence

derived therefrom would not be appropriate.

As noted, the State argues that the exclusionary rule should not apply for the

additional reason that the discovery of the evidence Tomanek sought to suppress was too

attenuated from the allegedly unlawful geofence warrant. Because we hold that the good

faith exception precludes suppression, we need not address the State’s alternative

argument.

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II.

Tomanek’s other claim is that he was entitled to a suppression of the evidence

obtained as a result of the Shaffersville Road warrants because the police used “excessive

force” in serving the first Shaffersville Road warrant. He argues that the tactics used by

the officers in executing the warrant were unreasonable under the circumstances and that

his act of shooting at the officers’ vehicle was a direct response to that illegality.

The State contends that Tomanek has not alleged a cognizable Fourth Amendment

claim because he was not subjected to any search or seizure when he fired the shots. The

State contends further that the police acted reasonably prior to the shooting.

We hold that the suppression court did not err in rejecting Tomanek’s excessive

force claim and denying his motion to suppress on that ground. Assuming without deciding

that the disputed actions in the instant case could trigger the Fourth Amendment’s

exclusionary rule, there is absolutely no support in the record for Tomanek’s claim that the

police used excessive force or otherwise acted unreasonably prior to the shooting. The

facts adduced at the suppression hearing established that, on the day of the search, officers

went to Tomanek’s residence to execute a search warrant, that the officers were in a tactical

vehicle at the time, and that, when the officers’ tactical vehicle got within fifty yards of

Tomanek’s residence, he fired at the vehicle. There was no evidence that the officers

displayed any force or attempted to seize Tomanek. 5 In fact, there was no evidence that

Tomanek was cognizant of the officers’ presence or that he started shooting in response to

5
For this and other reasons, Tomanek’s reliance on People v. Cantor, 36 N.Y.2d
106 (1975), is misplaced.

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any display of force. According to Officer Funk’s testimony, which was undisputed, it was

dark when the shooting occurred, the tactical vehicle was unlit and had no visible weapons,

and Tomanek would have been unable to see inside of the vehicle. The only reasonable

inference that could be drawn from that evidence was that Tomanek saw a vehicle

approaching his residence, and he shot at it. Nothing about those circumstances, aside from

Tomanek’s own actions, could be considered “excessive” or “unreasonable.”

JUDGMENTS OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.

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