People v. Meza

312 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,

v.Daniel MEZA et al., Defendants and Appellants.

B318310

Court of Appeal, Second District, Division 7, California.

Filed April 13, 2023

Sharon Fleming, Ben Lomond, under appointment by the court of appeal, for Defendant and Appellant Daniel Meza.

Bess Stiffelman, under appointment by the court of appeal, for Defendant and Appellant Walter Meneses.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

Jennifer Lynch and Andrew Crocker for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendants and Appellants.

PERLUSS, P. J.

INTRODUCTION

"A geofence is a virtual fence or perimeter around a physical location. Like a real fence, a geofence creates a separation between that location and the area around it.... [¶] It can be any size or shape, even a straight line between two points. [¶] Geofences are created using mapping software, which allow the user to draw the geofence over the desired geographic area. It is made up of a collection of coordinates (i.e., latitude and longitude) or in the case of a circular geofence one point that forms the center."¹

"Geofence warrants (sometimes called ‘reverse location searches’) are official requests by law enforcement authorities to access the device location data gathered by large tech companies like Google. The warrants specify a time and geographic area, and require the companies to turn over information on any devices that were in that area at that time. While this data is typically anonymized, it can be used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation."²

"The government filed its first geofence search warrant in 2016, and by the end of 2019, Google was receiving about 180 search warrant requests per week from law enforcement officials across the country.... Between 2018 and 2020, Google received about 20,000 geofence warrant requests for data, including over 11,500 in 2020 alone."³

* * *

Daniel Meza and Walter Meneses were identified as suspects in the murder of Adbadalla Thabet after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as Thabet on the day of his murder. After their motions to quash and suppress evidence were denied, Meza pleaded guilty to first degree murder; and Meneses pleaded no contest to second degree murder.

On appeal Meza and Meneses contend the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act of 2016 ( Pen. Code, § 1546 et seq. )⁴ (CalECPA). Although the geofence warrant satisfied the requirements of CalECPA, we agree it lacked the particularity required by the Fourth Amendment and was impermissibly overbroad. Nonetheless, we affirm Meza's and Meneses's convictions under the good faith exception to the exclusionary rule established by United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 ( Leon ).

FACTUAL AND PROCEDURAL BACKGROUND

1. The Murder of Adbadalla Thabet and the Initial Investigation

According to surveillance footage viewed by police officers, at approximately 10:30 a.m. on March 1, 2019 Thabet drove into the parking lot of a bank in Paramount, followed by a gray sedan and a red sedan.⁵ The driver of the red car parked, got out of his vehicle and walked to the gray car, where he stopped to speak to the driver of the gray car. The driver of the gray car then drove slowly toward Thabet's parked car. The driver of the red car followed on foot. As Thabet got out of his vehicle, the gray car pulled up next to Thabet's car; and an occupant of the gray car shot Thabet in the torso. Thabet fell to the ground as the gray car sped away. The driver of the red car approached Thabet, took his backpack, retreated to the red car and drove away. Thabet died from his injuries.

The investigating officers were able to retrace Thabet's steps from the morning of the shooting. They learned Thabet worked for his uncle's business, which included managing several gas stations. Twice per week Thabet picked up cash receipts from the gas stations and deposited the cash at the bank in Paramount. The day of the shooting Thabet left his apartment building in Downey around 7:00 a.m. and drove to a gas station in Downey to pick up cash for deposit. Thabet was at the Downey gas station from approximately 7:15 a.m. to 7:30 a.m. Thabet then met his brother-in-law at approximately 9:00 a.m. at a gas station in Bellflower. Thabet and his brother-in-law departed the gas station in separate cars at approximately 9:40 a.m. and drove to a strip mall in Compton where the brother-in-law was contemplating renting retail space. Thabet left the strip mall alone, driving to a gas station in Lynwood to pick up cash receipts. From Lynwood Thabet drove to the bank in Paramount where he was killed.

In addition to the video surveillance from the bank parking lot, investigators obtained video surveillance from other locations Thabet visited that morning. The gray and red vehicles from the bank surveillance footage were also identified in surveillance footage from at least two of those additional locations. Investigators concluded the suspects had been following Thabet, anticipating his arrival at the bank with the cash deposits. The license plate numbers of the gray and red vehicles were not legible in any of the footage.

2. The Search Warrant Affidavit

a. Probable cause

Los Angeles County Sheriff's Detective Jonathan Bailey applied for a search warrant directing Google to identify individuals whose location history data indicated they were in the vicinity of the six locations visited by Thabet on March 1, 2019. In an affidavit supporting the application, Bailey described Thabet's murder as seen on the surveillance footage of the bank parking lot. Bailey stated he had viewed surveillance camera footage from several of the other locations Thabet had visited that morning and had seen the gray and red sedans in the footage. Bailey did not state how many of the six locations had available surveillance footage, nor did he identify the locations at which the red and gray cars were visible.

The affidavit included a brief overview of how Google tracks and stores location history data, stating Google collected data through "Global Position System (GPS) data, cell site/cell tower information, Bluetooth connections, and Wi-Fi access points." Bailey stated, "I know most people in today's society possess cellular phones and other items (e.g. tablets, watches, laptops) used to communicate electronically.... Most people carry cellular phones on their person and will carry them whenever they leave their place of residence." In addition, Bailey explained, "Suspects involved in criminal activity will typically use cellular phones to communicate when multiple suspects are involved." Therefore, Bailey concluded, identification of individuals in Thabet's vicinity on the day of the murder would assist investigators in locating the drivers of the vehicles involved in the murder, who investigators believed had been following Thabet throughout the morning.

b. Search parameters

The warrant application sought location history data for individuals within six target locations. The first location was Thabet's apartment, which was located in the middle of a large city block, surrounded by both residential and retail buildings. The area designated for the search was a circle with a radius of 100 meters from the center of the apartment complex (approximately seven and a half acres). It included the entire apartment building as well as portions of several surrounding buildings and approximately three-quarters of the street in front of the building. The timeframe for this search was 6:00 a.m. to 7:15 a.m. on March 1, 2019.

The second location was the gas station in Downey where Thabet picked up cash for deposit. The gas station is on the corner of a large intersection and is surrounded by other retail establishments. The search area consisted of a circle with a radius of 75 meters from the approximate center of the gas station (more than four acres). Included in the circle were the gas station, a restaurant and portions of other businesses, as well as the intersection in front of the gas station and the two main streets bordering the gas station. The timeframe for this search was 7:00 a.m. to 7:30 a.m. on March 1, 2019.

The third location was the gas station in Bellflower. The search area consisted of a circle with a radius of 50 meters from the approximate center of the gas station (almost two acres). Included in the circle were part of the intersection and approximately 50 meters of the streets bordering the gas station, as well as portions of the surrounding businesses. The timeframe for this search was 7:30 a.m. to 9:40 a.m.

The fourth location was the strip mall in Compton. The search area was a rectangle that included the strip mall, three streets bordering it and some neighboring buildings and parking lots (approximately one and one-half acres). The timeframe for this search was 9:40 a.m. to 10:15 a.m.

The fifth location was the gas station in Lynwood. The search area was a rectangle that included the gas station, neighboring buildings, including buildings across the street that appeared to be residences and the intersection bordering the gas station (approximately three acres). The timeframe for this search was 10:15 a.m. to 10:30 a.m.

The sixth and final location was the bank in Paramount where the murder took place. The search area was a circle with a radius...