WELLS, AARON RAYSHAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0669-23

AARON RAYSHAN WELLS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY

NEWELL, J., filed a concurring and dissenting opinion in which
RICHARDSON and WALKER, J.J., joined.

The most important question before us is whether the geofence

warrant amounts to a constitutionally protected search. Instead of

answering that question, Judge Yeary’s opinion assumes it away and in

doing so crafts an opinion that ensures that we will never have to answer

the question. It turns this case from a geofence warrant case into a
Wells Concurring and Dissenting — 2

probable cause case that will essentially lower the standard for probable

cause for all warrants just to uphold a search pursuant to a novel type

of warrant.

I disagree that the geofence warrant in this case was adequately

supported by probable cause. I would hold instead that Appellant did

not have a legitimate expectation of privacy in the limited information

sought through the geofence warrant’s first and second steps. These

two steps sought temporally and spatially limited location history data

consistent with existing case law regarding cell phone location

information.

But I would hold that Appellant did have a reasonable expectation

of privacy in the information sought by the warrant’s third step, which

included six months of prior IP history. 1 0F Therefore, I concur with

upholding at least the first two steps authorized by the geofence warrant

but not on the basis of probable cause. But because the court of appeals

did not address the required threshold question of whether Appellant

had a reasonable expectation privacy in the information sought by the

geofence warrant I dissent to refusal to do so on that point.

1
The warrant ordered that, “[f]or those accounts identified as relevant to the ongoing
investigation through an analysis of provided records, and upon demand, the provider shall
provide the subscriber’s information for those relevant accounts to include, subscriber’s name,
emails addresses, services subscribed to, last 6 months of IP history, SMS account number,
and registration IP.”
Wells Concurring and Dissenting — 3

Was There a Constitutionally Protected Search?

The Fourth Amendment’s “basic purpose . . . is to safeguard the

privacy and security of individuals against arbitrary invasions by

government officials.” 2 1F “[W]hen an individual ‘seeks to preserve

something as private,’ and his expectation of privacy is ‘one that society

is prepared to recognize as reasonable,’ official intrusion into that sphere

generally qualifies as a search and requires a warrant supported by

probable cause.” 3 We have recognized that “[t]he threshold issue in
2F

every Fourth Amendment analysis is whether a particular government

action constitutes a ‘search’ or a ‘seizure.’” 4 The State argued at trial,
3F

on appeal, and argues before this Court that Appellant has failed to

establish a search occurred because he does not have a reasonable

expectation of privacy in his location history data. Before reaching the

question of probable cause, the court of appeals should have answered

this threshold question. 5 4F

2
Carpenter v. United States, 585 U.S. 296, 303 (2018).

3
Id. at 296 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).

4
Sims v. State, 569 S.W.3d 634, 643 (Tex. Crim. App. 2019) (citing United States v.
Jacobsen, 466 U.S. 109, 113 (1984)); King v. State, 670 S.W.3d 653, 656 (Tex. Crim. App.
2023) (“Absent a legitimate expectation of privacy, a defendant lacks standing to raise [a
challenge the constitutionality of a search] and we may not consider the substance of his
complaint.”).

5
Wells v. State, 675 S.W.3d 814, 827 (Tex. App. – Dallas 2023, pet. granted) (“Because we
conclude that the warrant at issue satisfies the requirements of the Fourth Amendment and,
Wells Concurring and Dissenting — 4

A common thread in the jurisprudence regarding the expectation

of privacy is that voluntarily sharing things with others generally defeats

an objective expectation of privacy. For example, in United States v.

Knotts, the Supreme Court considered law enforcement’s use of a

planted beeper’s signal to track a vehicle through traffic and recognized

that movement in an otherwise public area is not protected by an

expectation of privacy. 6 Similarly, when it comes to bank records, the
5F

turning over of financial information to a third party has been seen as a

voluntary relinquishment of an expectation of privacy in the bank

records themselves. 7 But the Court has also recognized that temporal
6F

limits should nevertheless be placed upon otherwise voluntarily

disclosed information. For example, tracking information for an

alternatively, Detective Leob’s reliance on the warrant was objectively reasonably, it is
unnecessary for us to address the State’s argument that appellant had no reasonable
expectation of privacy in his location history.”); but see King, 670 S.W.3d at 656.

6
United States v. Knotts, 460 U.S. 276, 281-82 (1983) (“A person traveling in an automobile
on public thoroughfares has no reasonable expectation of privacy in his movements from one
place to another”). But in United States v. Jones, the Court held that the government’s use
of a GPS tracking device it installed on the vehicle to monitor a vehicle’s movements
constituted a search under the Fourth Amendment deciding the case on the basis of the
government’s physical intrusion into the vehicle. United States v. Jones, 565 U.S. 400, 404-
05 (2012). The Court acknowledged that “[i]t may be that achieving the same result [as
traditional surveillance for a four-week period] through electronic means, without an
accompanying trespass, is an unconstitutional invasion of privacy, but the present question
does not require us to answer that question.” Id. at 412.

7
United States v. Miller, 425 U.S. 435, 437 (1976).
Wells Concurring and Dissenting — 5

extended period of time even in a public place might infringe upon an

expectation of privacy. 8 7F

From these cases it appears that seizing arguably voluntarily

disclosed location information does not infringe upon an expectation of

privacy if the information sought is both spatially and temporally limited.

In Carpenter, the Court held there was a reasonable expectation of

privacy in at least seven days of historical cell-site location information

(“CSLI”) associated with Carpenter’s phone and, as a result, the Fourth

Amendment was violated when the phone was searched without a

warrant supported by probable cause. 9 The Court reasoned that cell-
8F

site location records hold “the privacies of life” by revealing “not only

particular movements, but through them [a person’s] ‘familiar, political,

professional, religious, and sexual associations.’” 10 The Court held that
9F

8
Jones, 565 U.S. at 426 (Alito, J., concurring in judgment) (“the use of longer term GPS
monitoring in investigations of most offenses impinges on expectations of privacy”);
Carpenter, 585 U.S. at 310 n. 3 (holding that accessing seven days of CSLI constitutes a
Fourth Amendment search); see also Sims, 569 S.W.3d at 645-46 (whether government
action constitutes a ‘search’ turns on whether ‘enough’ information was seized that it violated
a legitimate expectation of privacy); Ford v. State, 477 S.W.3d 321, 335 (Tex. Crim. App.
2015) (holding no expectation of privacy in four days of location data and recognizing that
the aggregation of data might be covered by a reasonable expectation of privacy even if a
discrete bit of data would not be).

9
Carpenter, 585 U.S.at 316. The two orders at issue in Carpenter sought 152 days of cell-
site records, which produced records spanning 127 days and seven days of CSLI from a second
carrier, which produced two days of records. Id. at 302. But the Court noted that it was
sufficient for their purposes to hold that accessing seven days of CSLI was a search for Fourth
Amendment purposes. Id. at 310 n. 3.

10
Id. at 311 (internal citations omitted).
Wells Concurring and Dissenting — 6

“[g]iven the unique nature of cell phone location records, the fact that

the information is held by a third party does not by itself overcome the

user’s claim to Fourth Amendment protection.” 11 Post-Carpenter, we
10F

recognized that, “[w]hether a particular government action constitutes

a ’search’ or ‘seizure’ does not turn on the content of the CSLI records;

it turns on whether the government searched or seized “enough”

information that it violated a legitimate expectation of privacy.” 12 In 11F

Sims v. State, this Court was considering real-time location information

as opposed to historical CSLI but we found the reasoning in Carpenter

applicable to both kinds of records. 13 And we held that Sims did not
12F

have a legitimate expectation of privacy in less than three hours of real-

time CSLI records accessed by law enforcement pinging his phone less

than five times. 14 13F

11
Id. at 309.

12
Sims, 569 S.W.3d at 645-46 (“There is no bright-line rule for determining how long police
must track a person’s cell phone in real time before it violates a person’s legitimate
expectation of privacy in those records. Whether a person has a recognized expectation of
privacy in real-time CSLI records must be decided on a case-by-case basis.”).

13
Id. at 645.

14
Id. at 646; see also Holder v. State, 595 S.W.3d 691, 704 (Tex. Crim. App. 2020) (holding,
under the Texas Constitution, that there is a reasonable expectation of privacy in 23 days of
historical CSLI accessed by the State without probable cause); Ford, 477 S.W.3d at 334-35
(pre-Carpenter holding that obtaining four days of CSLI information did not violate the Fourth
Amendment because there was no legitimate expectation of privacy).
Wells Concurring and Dissenting — 7

Geofence warrants, like the one at issue, have been said to “work

in reverse” to the traditional search warrant. 15 14F Geofence warrants

generally specify “a location and period of time, and, after judicial

approval, companies conduct sweeping searches of their location

databases and provide a list of cell phones and affiliated users found at

or near a specific area during a given timeframe, both defined by law

enforcement.” 16 Here, “[i]n the first step, Google would be asked to
15F

create an anonymized list of all devices located within the ‘target

location’ during the time period of 2:45 a.m. to 3:10 a.m. on June 24,

2019.” 17 16F The target location was “limited to the house where the

offense occurred and a portion of the church property across the

street.” 18 The target location primarily sought location history data from
17F

public spaces. 19 With that information, law enforcement would “analyze
18F

15
United States v. Smith, 110 F.4th 817, 822 (5th Cir. 2024) (citing Haley Amster & Brett
Diehl, Note, Against Geofences, 74 Stan. L. Rev. 385, 388 (2022)). “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 the suspects [are]
not.” United States v. Rhine, 652 F.Supp.3d 38, 66 (D.D.C. 2023).

16
Smith, 110 F.4th at 822 (citing Geofence Warrants and the Fourth Amendment, 134 Harv.
L. Rev. 2508, 2509 (2021)).

17
Wells, 675 S.W.3d at 822.

18
Id.

19
The suspects had in fact already been captured in the church’s parking lot on surveillance
video. Id.at 823.
Wells Concurring and Dissenting — 8

this location data to identify users who may have witnesses or

participated” in the offense. Google “would then provide additional

anonymized location history outside of the target location for a period

not to exceed sixty minutes before and after the last timestamp

associated with the device within the target location.” 20 The first step
19F

was limited to a 25-minute duration, during the time of the offense, at

the location of the offense. The second step expanded the location but

was still limited temporally. The first two steps involved less than three

hours of location information. Given these temporal and spatial

limitations, Appellant did not have a reasonable expectation of privacy

in the location history data returned. The State did not seek “enough”

information through these steps that it can be said to have violated a

legitimate expectation of privacy. 21 20F This limited intrusion did not

implicate the type of “privacies of life” that were at the center of the

Court’s concern in Carpenter. 22 21F

20
Id. at 822.

21
Sims, 569 S.W.3d at 646 (no legitimate expectation of privacy in physical movements or
location as reflected in less than three hours of real-time CSLI); see also United States v.
Chatrie, 107 F.4th 319, 330 (4th Cir. 2024) (holding there was no reasonable expectation of
privacy in two hour’ worth of location history data obtained from Google).

22
Carpenter, 585 U.S. at 311 (noting that 127 days of time-stamped data provides an
intimate window into a person’s life, revealing not only his particular movements, but through
them his familiar, political, professional, religious, and sexual associations and that these
location records thus hold the privacies of life).
Wells Concurring and Dissenting — 9

There is another relevant distinction between the CSLI records at

issue in Carpenter and the location history information with which we

are presently concerned. The Court in Carpenter found the CSLI records

had not been voluntarily “shared” in the way that term is normally

understood. 23 The Court noted the pervasive nature of cell phones in
22F

modern society, that cell-site records are created without any

affirmative action on the part of the user given that virtually activity on

the phone generates CSLI, and concluded that, “in no meaningful sense

does the user voluntarily ‘assume[] the risk’ of turning over a

comprehensive dossier of his physical movements.” 24 Here, the Google
23F

location history data was recorded by Google only if users “opted-in.”

There was an affirmative action by the user rather than a recording of

location information caused by virtually any activity on the phone. 25 24F

Arguably this step suggests a greater assumption of the risk than merely

using a cell phone, but I question whether turning on location services

to be able to use a particular app or even ask your phone for directions

23
Id. at 315.

24
Id. (citing Smith, 442 U.S. at 745).

25
See id. (noting that “[a]part from disconnecting the phone from the network, there is no
way to avoid leaving behind a trail of location data”). Here, on the other hand, at the Fourth
Circuit has recognized, “[w]hether Google tracks a user’s location . . . is entirely up to the
user himself. If Google compiles a record of his whereabouts, it is only because he has
authorized Google to do so.” Chatrie, 107 F.4th at 331.
Wells Concurring and Dissenting — 10

to a particular location is the same thing as agreeing to be surveilled for

an extended period of time. Still, in this case, the information produced

in the first two steps of the geofence warrant was not so open ended

that it sought a dossier of physical movements. Rather, it captured a

device’s presence in a discrete location for a short amount of time.

The voluntariness of the disclosure and the limited scope of the

data sought support the application of the third-party doctrine, which

holds that “a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.” 26 The Court in
25F

Carpenter declined to apply the third-party doctrine to the CSLI sought

concluding that the rationales underlying the doctrine did not support

its application because (1) the information was not voluntarily shared

and (2) the nature of the information sought. 27 Here, both rationales
26F

support the application of the third-party doctrine as to the limited

location history data and subscriber information sought. For those

records sought in the first two steps, this is not the “rare case” where

there is a legitimate privacy interest in the records held by a third

party. 28 27F

26
Smith, 442 U.S. at 743-44.

27
Carpenter, 585 U.S. at 314-15.

28
Id. at 319.
Wells Concurring and Dissenting — 11

But the third step of the geofence warrant sought six months of

prior IP history in addition to identifying subscriber information. Judge

Yeary acknowledges that the information provided in step three “may

suggest access” to more than identifying information. We have

previously recognized that a person has a legitimate expectation of

privacy in the contents of his cell phone. 29 28F Unlike brief and limited

location history data or subscriber information, months of IP history data

has the ability to reveal the “privacies of life.” 30 29F The rationales

underlying the third-party doctrine do not hold up when considering

months of IP history data. First, the nature of that data is not limited

in time or scope and are potentially much more revealing than limited

location history data. Furthermore, there is no “opt-in” for the record

kept of websites visited or services accessed on a cellphone. Cellphones

log IP history whenever the user accesses the internet. This data, like

127 days of CSLI, “provides an intimate window into a person’s life,”

which can provide location as well as “familial, political, profession,

religious, and sexual associations.” 31 When the information sought is
30F

29
Granville v. State, 423 S.W.3d 399, 405-06 (Tex. Crim. App. 2014).

30
Carpenter, 585 U.S. at 311.

31
Id.
Wells Concurring and Dissenting — 12

not temporally or spatially limited, implicates privacy concerns, and is

not voluntarily shared, the third-party doctrine does not overcome an

expectation of privacy. The geofence warrant ultimately sought months

of historical data in which Appellant had a reasonable expectation of

privacy. Thus, I would hold, at a minimum that the third step of the

warrant constituted a constitutionally protected search. To clarify, I am

not suggesting that the existence of a legitimate expectation of privacy

in the IP address information invalidates the entire warrant. Rather, I

would hold that the warrant must be based upon probable cause in light

of the third step authorized by the warrant. And, as I discuss below, I

do not agree that there is probable cause supporting any of the steps

authorized by the warrant, especially the third.

Probable Cause

Today, however, the Court does not decide whether the

information sought by the geofence warrant constitutes a search.

Rather, it decides the case on the basis of probable cause. In doing so,

it virtually ensures that the threshold question will never be answered.

Judge Yeary’s opinion effectively lowers the burden for law enforcement

to obtain a warrant based upon probable cause given the meager

amount of information available to police when this geofence warrant
Wells Concurring and Dissenting — 13

was sought. Even a CSLI case starts with a suspect, but here, law

enforcement only had a location.

Given that, I disagree with the court of appeals’ conclusion that

the warrant at issue was supported by probable cause. To establish

probable cause, an affidavit in support of a search warrant must provide

a substantial basis for concluding that there is a fair probability that

contraband or evidence of a crime will be found in a particular location. 32 31F

Here, the affidavit asserted it was likely that one of the suspects carried

an Android phone and that home invasion suspects commonly

communicate with someone outside of the residence but provided no

other basis for concluding evidence of a crime could be found by

searching the Google database. In State v. Baldwin, this Court held that

in order to conduct a search of the contents of a suspect’s cell phone,

law enforcement must be able to demonstrate probable cause in the

form of a “nexus” between the cell phone and the commission of the

offense. 33 32F Conclusory allegations or conclusions are generally

32
State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012).

33
State v. Baldwin, 664 S.W.3d 122, 123 (Tex. Crim. App. 2022). Although the geofence
warrant at issue involved a search of Google’s location history database, ultimately the
detectives used the information gleaned to search Appellant’s phone without providing any
nexus between the phone and the offense beyond boilerplate assumptions about the use of
phones in home invasion offenses.
Wells Concurring and Dissenting — 14

insufficient to establish probable cause. 34 Applying that understanding
33F

to boilerplate language about the use of cellphones among criminals,

the Court held that “specific facts connecting the items to be search to

the alleged offense are required for the magistrate to reasonably

determine probable cause.” 35 34F Here, there were no specific facts

connecting the Google location history database to the alleged offense

beyond a conclusory statement about the likelihood a suspect carried

an Android phone. There was no basis for that conclusion.

In Baldwin, witnesses identified Baldwin’s vehicle leaving the

victim’s home the day of the murder. 36 Baldwin was later stopped in
35F

the sedan matching the witnesses’ description and a cellphone was

located inside of the vehicle. 37 36F Investigators obtained a warrant to

search the phone. The warrant’s affidavit noted that available geo-

location information may show the location of the suspect at or near the

time of an offense and that the investigator knows from “training and

experiences that someone who commits the offense of aggravated

34
Id. at 132 (citing Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)); Duarte,
389 S.W.3d at 354.

35
Baldwin, 664 S.W.3d at 134.

36
Id. at 125.

37
Id. at 126.
Wells Concurring and Dissenting — 15

assault or murder often makes phone calls and/or text messages

immediately prior and after the crime.” 38 The Court rightly held this
37F

was not sufficient to establish probable cause. While we recognized that

the witnesses’ descriptions and the vehicle’s license plate supported a

nexus between the vehicle and the offense, “they ha[d] no bearing on

whether [Baldwin’s] phone [wa]s connected with the offense” because

“[t]he affidavit contains nothing about the phone being used before or

during the offense.” 39 We reiterated that “[s]uspicion and conjecture
38F

do not constitute probable cause.” 40 Without more, we held, boilerplate
39F

language about cellphone use among criminals is insufficient to establish

probable cause. 41 40F

Here, the “nexus” provided in the affidavit to connect the

cellphone, and the criminal offense was that “[i]t is likely that at least

one of the four suspects who committed this offense had an Android

device on him during the commission of this offense. It is common

38
Id.

39
Id. at 135 (“The boilerplate language in itself is not sufficient to provide probable cause in
this case, nor does the remaining affidavit set forth details in sufficient facts to support
probable cause. Considering the whole of the affidavit, there is no information included that
suggest anything beyond mere speculation that [the defendant’s] cellphone was used before,
during, or after the crime.”).

40
Id. (citing Tolentino v. State, 638 S.W.2d 499, 502 (Tex. Crim. App. 1982)).

41
Id. at 134.
Wells Concurring and Dissenting — 16

practice that home invasion robbery suspects keep an open line with

someone outside of the residence while committing this type of offense

to keep an eye out for responding police officers.” This amounts to

nothing more than boilerplate language about the use of cellphones

among criminals. 42 41F Without more, this is the same type of bare

conclusion or speculation about the use of cellphones that does not

support probable cause. Nothing in the affidavit suggests, for example,

that the phones at issue were anything more than at the target location.

There is nothing suggesting they were used during the commission of

the offense or captured information regarding the crime. 43 42F

Judge Yeary concludes that from the affidavit’s assertions that “[i]t

is likely that at least one of the four suspects . . . had an android” and

that it is common in-home invasions for suspects to “keep an open line”

with a lookout outside of the residence, a magistrate could have

reasonably inferred a “fair probability” that the home invaders carried

42
Id. at 123 (While boilerplate language may be used in a search warrant affidavit, to support
probable cause, “the language must be coupled with other facts and reasonable inferences
that establish a nexus between the device and the offense.”).

43
Certainly, no probable cause was established to support a search of the cell phones or the
data held by the cell phones, which the warrant sought when it requested historical IP data.
There is a real danger in concluding otherwise that a lowered standard for probable cause will
be used to search cell phones and their data with the attendant privacies of life themselves.
In fact, in this case, secondary warrants to search the phone accounts identified through this
geofence warrant were obtained based upon little more information than that used to justify
the geofence warrant.
Wells Concurring and Dissenting — 17

cellphones. But “a magistrate’s action cannot be a mere ratification of

the bare conclusions of others.” 44 In other words, the affidavit for the
43F

search warrant itself cannot simply assert that there is a fair probability

or likelihood and that alone be considered sufficient to support a finding

of probable cause. Such conclusions must be supported by facts. Even

if the magistrate could accept the conclusion offered, the warrant does

not include any facts to establish a fair probability that the devices

identified were related to the offense. 45 There is nothing more than
44F

boilerplate language about the use of cellphones in home invasions.

Judge Yeary’s opinion allows for the idea that anyone identified via

a device located within the search warrant parameters would necessarily

be a suspect or a witness. But by definition a witness is not involved in

the crime. Like a general warrant, searching for the identity of a witness

presupposes there is no evidence of guilt, and it uses the search itself

to generate evidence to test that witness involvement. 46 This is the 45F

44
Duarte, 389 S.W.3d at 354 (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983).

45
Indeed, the surveillance video in this case does not provide any factual support for the
“keep an open line” conclusion contained in the warrant affidavit.

46
Smith, 110 F.4th at 836 (“[T]he Fourth Amendment was the founding generation’s response
to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed
British officers to rummage through homes in an unrestrained search for evidence of criminal
activity. ‘General warrants’ are warrants that ‘specif[y] only an offense,’ leaving ‘to the
discretion of the executing officials the decision as to which persons should be arrested and
which places should be searched.”) (internal citations omitted).
Wells Concurring and Dissenting — 18

precise danger created by the way in which a geofence warrant works

backwards to gather evidence. There is nothing but speculation to

suggest that a potential witness had any information on their phone

regarding the crime. Introducing the idea of probable cause to believe

that a “witness” has evidence of a crime significantly lowers the

specificity required to obtain a warrant. 47 It fails to distinguish between
46F

innocent bystanders and suspects. Indeed, one of the people at issue

was excluded after this evidence was obtained. 48 47F

Judge Yeary argues probable cause is supported by the fact that,

today, almost everyone possesses a cell phone on his person. Indeed,

the Supreme Court in Carpenter recognized that people “compulsively

carry cell phones with them all the time.” 49 And the Court previously
48F

characterized cell phones as pervasive. 50 49F But the Supreme Court’s

47
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005) (“Probable cause to search
exists when reasonably trustworthy facts and circumstances within the knowledge of the
offense on scene would lead a man of reasonable prudence to believe that the instrumentality
of a crime or evidence of a crime will be found.”). Surely, locating and identifying a person
near a particular crime scene does not provide sufficient probable cause to search their phone.
Here, locating and identifying potential witnesses in and of itself is not contraband nor
evidence of a crime.

48
Wells, 675 S.W.3d at 825 (“The first search revealed five devices within the geofence . . .
[t]he second stage of the search . . . indicated that two of the devices travelled past the gas
station where the suspect’s car was recorded on video surveillance. The third stage of the
search revealed the identity of the Google account subscribers for the two devices identified
as relevant.”).

49
Carpenter, 585 U.S. at 311.

50
Riley v. California, 573 U.S. 373, 395 (2014).
Wells Concurring and Dissenting — 19

acknowledgment of the ubiquitous nature of cell phones was made to

acknowledging greater privacy concerns for the data captured by cell

phones not as support for greater intrusions. 51 In any event, the fact
50F

that most people carry cellphones does not provide the required nexus

to the offense. That most people carry cellphones without more does

not establish a fair probability that evidence of a crime will be discovered

by searching phones located near the scene of a crime.

Conclusion

The warrant in this case did not establish probable cause. But

because the court of appeals erred in the first instance by failing to

consider whether Appellant had a reasonable expectation of privacy in

the things to be searched, I would remand for the court of appeals to

consider that question. In particular, I believe the court of appeals

should consider whether the third step in the geofence warrant

amounted to an intrusion into a legitimate expectation of privacy. I

would require the court of appeals to reconsider whether probable cause

could justify the search of six months of IP address information under

51
Carpenter, 585 U.S. at 311-15 (acknowledging the fact that people compulsively carry cell
phones in support of a greater privacy concern for historical cell-site records and that cell
phones are a pervasive and insistent part of daily life as a reason not to apply the third-party
doctrine to such records); Riley, 573 U.S. at 395 (recognizing the pervasive character of cell
phones, which “carry a cache of sensitive personal information,” as support for not dispensing
with the warrant requirement).
Wells Concurring and Dissenting — 20

that warrant, and, if necessary, whether the second warrant in this case

was obtained as a fruit of the poisonous tree.

Filed: April 2, 2025

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