By Diane Beckham
TDCAA Publications Director in Austin
Excerpted from Chapter 6 of Warrants (TDCAA © 2025)
Editor’s note: This article is the first in a series of excerpts from TDCAA publications. Our hope is to provide information prosecutors and staff need to do their jobs well and to alert readers to the availability of these books and manuals, which are for sale at www.tdcaa.com/books.
The amount of digital multimedia evidence is growing exponentially, not just quantitatively but qualitatively. This article discusses information available from a variety of sources, including social media websites, GPS, geofencing, cloud data, email, websites visited, text messages, photos, and metadata.
James Madison and his 1789 contemporaries could have had no inkling of the current evidentiary value of intangibles, such as information invisibly lodged in silicon chips. Nevertheless, protection of “papers and effects” in the Fourth Amendment can reasonably bring within constitutional purview “electronic customer data,” as well as a seemingly unlimited cache of information generated, transmitted, and retained electronically.
New and different types of information are continually being added to the world’s digital library, so law enforcement personnel should not be limited by their prior practice, the narrowly drawn categories that the Legislature has established, or this article. They should use their imagination to look for additional sources of information and be prepared to use a combination of new and old methods to obtain it. Nowhere is this truer than in the search for evidence on the internet, in the still-evolving marketplace for information and digital consumers.
Generally, federal and state statutes dealing with the transmission of data or the storage of transmitted data are more protective than the Fourth Amendment. Therefore, as a practical matter, the search and seizure of transmitted data raises many statutory issues, but few constitutional ones.
As a matter of practice, most providers of electronic communications or remote computing services will comply with requests for information if those requests are sufficient under the federal Stored Communications Act (SCA).[1] This makes business sense for those providers—they do not want to hire legal experts for all 50 states. Therefore, they often assume that state law enforcement is complying with state law and will produce the data as long as the request complies with federal law. But this is a trap for Texas law enforcement because Art. 38.23 of the Code of Criminal Procedure requires the suppression of all evidence obtained in violation of the laws of Texas.[2] And the laws of Texas regarding access to stored communications are not the same as the federal SCA. Therefore, Texas officers must comply with the laws of Texas even if providers are disclosing information in response to a legal procedure that falls short of that standard.
The Texas statutory framework for accessing remotely stored data takes a stair-step approach, with more due process required as more detailed data is sought by an authorized peace officer, as follows in this chart:
Warrants under CCP Chapter 18B
The Texas Legislature has singled out certain types of stored digital evidence for special statutory treatment. Specifically, Article 18B.351 provides that an authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose electronic customer data that is in electronic storage by obtaining a special warrant.[3] If a judge approves, the warrant will issue under Art. 18B.354.
A remote computing service is generally a third-party provider that supplies computer storage or processing services to the public by electronic means, which includes wire, radio, and electromagnetic systems.[4] Therefore, Art. 18B.354 covers the data stored by most third-party providers of remote computing services such as Microsoft, Apple, Google, and Amazon. Those warrants also cover the data stored by many corporations, such as Coca-Cola and InBev, which maintain their own remote data storage facilities, not because they are remote computing service providers but because they are providing an electronic communications service.
Article 18B.001(7)(B) provides that electronic customer data is data or records that are in the possession or control of those providers and contain:
• information revealing the identity of customers;
• information about a customer’s use of the service;
• information that identifies the recipient or destination of a communication sent to or by a customer;
• the content of a communication sent to or by a customer;
• any data stored with the applicable service provider by or on behalf of a customer; and
• location information.[5]
Therefore, warrants under Art. 18B.354 could theoretically encompass almost every type of data that is not being stored on a discrete device in the possession of law enforcement. It can include documents, photos, video, emails, text messages, GPS coordinates either of the device or in the metadata of other files and cell tower usage—and the list keeps growing.
Subsection (ii)—a customer’s use of the service—refers to everything short of individual call or communication details. Some providers store only basic usage data, such as name and minutes used. Other providers store basic and expanded usage data, which can include email addresses, billing information, IP authorization logs, other numbers on the account, and sub-subscribers on the account. Officers should ask for all the expanded usage data that is available. If it is not requested, the data may not be produced. Large providers often maintain an online law enforcement guide that will explain the types of customer data kept in storage so that officers can incorporate those specific categories into the warrant or court order.
Subsection (iii)—identification of the recipient or destination—is often called transactional data. It is akin to the name and address on the outside of an envelope. Subsection (iv)—content—is the letter or pictures or other documents that are inside the envelope. While the envelope metaphor is conceptually useful in understanding the different types of data, it is not useful when attempting to analogize caselaw. That is because, as stated previously, the law of searching envelopes is a product of the constitution, but the law of searching stored data is primarily governed by statutes.
Subsection (vi)—location information—refers to “data, records, or other information that is created by or accessible to a provider of an electronic communications service or a provider of a remote computing service and may be used to identify the geographic physical location of a communication device,” including current, real-time, or prospective physical location.[6]
With the rapid advance of encryption software, making it more difficult to overcome the security of digital devices,[7] it is often easier to obtain the data stored on a device from the backup file stored on a remote server of some third-party provider rather than from the device itself. Of course, not every device backs up to a cloud. And even devices that do have a backup on a remote server do not necessarily send every file to the backup. Also, the data on the remote server is only going to be as current as the most recent backup. So there are limitations to relying on warrants under Article 18B.354 as a substitute for a copied image of the device itself.
On the other hand, data obtained from cloud providers often far exceeds what would be available on the personal digital device. For example, many cell phone companies are now advertising a cloud as a form of virtually unlimited memory extension of the phone so that photos, music, and many other files would not be stored on the device. Moreover, for most social networking applications, all the important content remains on the servers of the third-party providers, not on the consumer’s personal device.
Geofencing
While cell-site location information was initially the most common location tracking search used, with information obtained from a cell service provider, geofence warrants have become more common. “There is a relative dearth of case law addressing geofence warrants,”[8] with Google receiving its first geofence warrant request in 2016.[9] Few Texas cases have addressed geofencing warrants, but notably, there is a split between the Fourth and Fifth federal circuits on the constitutionality of their use.[10]
A geofence warrant allows law enforcement to search location history data for compatible mobile devices located within a specified area during a specific period of time.[11] A geofence warrant “is essentially the reverse of a global positioning systems (GPS) warrant which allows a search of location data generated by a specific device belonging to a person known or suspected to have been involved in criminal activity. … With a geofence warrant, police investigators identify the geographic area in which criminal activity occurred and seek to identify device users at that location when the crime was committed.”[12] Google calculates the location of a device that has enabled Google location history using input from cell towers, GPS, and signals from nearby wireless internet networks (wifi) and Bluetooth beacons.[13] Because Google location history includes multiple inputs, it is more precise than other types of location data. For each device, Google retains subscriber information that may include the subscriber’s name, address, telephone number, and other identifiers.[14] Law enforcement uses a geofence search warrant to seize this data using a multi-step process to identify criminal suspects and potential witnesses to the crime.[15]
In Wells, a detective submitted a warrant application outlining a three-step search process:
1) asking Google to create an anonymized list of all devices located within the target location during a specified 25-minute time period on a specific date. The detective defined the target location by using four latitude and longitude coordinates and included a visual reference image of the search area. The search area was limited to the house where the offense occurred and a portion of church property across the street.
2) after reviewing the list, analyzing the data by law enforcement to identify users who may have witnessed or participated in the crime (in this case, a capital murder). For users identified as relevant to the investigation, Google would then provide additional location history outside the target location for a period of no more than 60 minutes before and after the last timestamp associated with the device within the target location. This enabled law enforcement to eliminate users who did not appear to fall within the scope of the warrant. For all remaining relevant accounts, Google would then provide the subscriber information, including the user’s name and email address.
3) including background information on Google’s location services, the prevalence of Google accounts on cell phones, and a probable cause statement laying out the basic facts of the offense.
But can a geofencing search be constitutional? The Fourth Circuit—the first federal circuit to address whether geofencing is a “search” subject to the Fourth Amendment[16]—held that that location history data did not implicate a privacy interest because the user had voluntarily turned over location information to Google, and the information retrieved was “far less revealing” than a search of CSLI[17] or information obtained through a GPS tracking device.[18]
In Smith, postal inspectors used a three-step process similar to that used in Wells to obtain geolocation information from Google, but the Fifth Circuit concluded while “the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.”[19] The Fifth Circuit also disagreed with the idea that Google users had truly voluntarily abandoned their right to privacy: “As anyone with a smartphone can attest, electronic opt-in processes are hardly informed and, in many instances, may not be voluntary.”[20]
Until the U.S. Supreme Court settles the split, proceed with caution—if at all—on these searches and establish particularlized probable cause. While Fifth Circuit opinions are not binding on Texas courts, it may be persuasive to Texas judges. And look for the Court of Criminal Appeals’ eventual decision in Wells v. State (discussed above).
State vs. federal warrants
A district court judge can issue an Art. 18B.354 warrant regardless of whether the customer data is held at a location in Texas or another state.[21] Just as with a search warrant under Art. 18.02, the application for a warrant under Art. 18B.354 must demonstrate probable cause and be supported by the oath of an authorized peace officer. The sworn affidavit must show “sufficient and substantial facts” that a specific offense has been committed, that the electronic customer data sought constitutes evidence of that offense or evidence that a particular person committed that offense, and that the data is held in electronic storage by the service provider on which the warrant is served.[22] Article 18.01 requires only “sufficient” facts to issue a search warrant.[23] So an Art. 18B.354 warrant for stored electronic customer data arguably requires more evidence than any other type of search warrant.
In the alternative, officers could proceed under §2703 of the federal Stored Communications Act, which also sets forth the mechanism necessary for a governmental entity to obtain data stored by a provider of electronic communication services.[24] One of the methods that may be used to obtain the data in question is by obtaining a warrant “issued using State warrant procedures … by a court of competent jurisdiction.” If the judicial officer signing the search warrant has authority to issue the warrant under state law, then the provisions of the Stored Communications Act are met.[25] Further, these warrants are generally not limited to the territorial jurisdiction of the issuing authority.[26] Therefore, whether the officer proceeds under Code of Criminal Procedure Art. 18B.354 or §2703 of the federal Stored Communications Act, the officer must still obtain a search warrant from a Texas district court judge.
Author’s note: Many thanks to Eric Kugler, former ADA in Harris County, for his work on the original version of Chapter 6 of TDCAA’s Warrants in 2018.
[1] 18 U.S.C. §2703.
[2] Tex. Code Crim. Proc. Art. 38.23(a); but see Tex. Code Crim. Proc. Art. 18B.553 (statutory violations of Chapter 18B are not subject to suppression under Art. 38.23); Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019) (not all warrantless tracking of a cell phone constitutes a “search” under the Fourth Amendment, and the inquiry turns on whether the State searched “enough” information to violate a legitimate expectation of privacy); Wells v. State, 675 S.W.3d 814, 827 n.5 (Tex. App.—Dallas 2023, pet. granted) (“We note that no case has been willing to go as far as the State suggests and hold that law enforcement officers do not need to obtain a warrant before searching Google’s location history data stores”).
[3] Tex. Code Crim. Proc. Art. 18B.351(a).
[4] Tex. Code Crim. Proc. Art. 18B.001(12); Tex. Code Crim. Proc. Art. 18B.001(6).
[5] Tex. Code Crim. Proc. Art. 18B.001(7)(B).
[6] Tex. Code Crim. Proc. Art. 18B.001(9-b); Wells v. State, 675 S.W.3d 814 (Tex. App. — Dallas 2023, pet. granted) (geofence warrant satisfied Fourth Amendment because it established probable cause to search every person found within the geofence area and the defendant did not argue that it was objectively unreasonable for the detective to rely on the geofence warrant to obtain his location history); see also Melson v. State, 2024 Tex. App. LEXIS 4086 (Tex. App.—Beaumont June 12, 2024, no pet. h.) (not for publication) (location data supported trial court’s finding of reliability); but see United States v. Smith, No. 23-60321, 2024 U.S. App. LEXIS 20149 (5th Cir. Aug. 9, 2024) (use of geofence warrant violated the Fourth Amendment, although law enforcement relied in good faith on the warrant).
[7] Caleb Downs, “FBI agents can’t crack Texas church shooter’s cell phone, officials say,” San Antonio Express News, November 7, 2017, www.mysanantonio.com/ news/local/crime/article/FBI-agents-can-t-crack-Texas-shooter-s-cell-phone-12338438.php.
[8] United States v. Chatrie, 590 F.Supp.3d 901, 906 (E.D. Va. 2022), aff’d, 107 F.4th 319 (4th Cir. 2024).
[9] United States v. Smith, No. 23-60321 at *5 & n.2, 2024 U.S. App. LEXIS 20149 (5th Cir. Aug. 9, 2024) (citing Geofence Warrants and the Fourth Amendment, 134 Harv.L.Rev. 2508, 2512-13 (2021) (companies such as Apple, Lyft, Snapchat, and Uber have all received geofence warrant requests, but Google is the most common recipient and “the only one known to respond”)). Note that Google has more recently announced changes to its maintenance of location data, such as “auto-delete” and “Incognito mode,” to give users “even more control over this important, personal information.” See blog.google/products/maps/updates-to-location-history-and-new-controls-coming-soon-to-maps/ (“Your location information is personal. We’re committed to keeping it safe, private and in your control”).
[10] United States v. Smith, No. 23-60321, 2024 U.S. App. LEXIS 20149 at *44 (5th Cir. Aug. 9, 2024) (“geofence warrants are general warrants categorically prohibited by the Fourth Amendment”); United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024) (no Fourth Amendment violation in obtaining two hours’ worth of defendant’s location information because he voluntarily exposed that information to a website).
[11] Wells, 675 S.W.3d at 821, citing In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (“Arson”), 497 F.Supp.3d 345, 351 (N.D. Ill. 2020).
[12] Id.
[13] Id.; United States v. Rhine, No. 21-0687, 2023 U.S. Dist. LEXIS 12308 at *17 (D.D.C. Jan. 24, 2023).
[14] Arson, 497 F.Supp.3d at 351.
[15] Wells, 675 S.W.3d at 321-22 (citing In re Search of Info. that is Stored at Premises Controlled by Google LLC, 579 F.Supp.3d 62, 69 (D.D.C. 2021)); see also McDonald v. State, 676 S.W.3d 204, 212 (Tex. App. — Houston [14th Dist.] 2023, pet. filed) (an affidavit is not required to explain what geolocation data is).
[16] United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024).
[17] See Carpenter v. United States, 585 U.S. 296 (2018); Johnson v. State, 682 S.W.3d 638 (Tex. App. — Tyler 2024, pet. filed) (search warrant affidavit to seize CSLI does not require the State to establish a nexus between the defendant’s phone and the offense).
[18] See United States v. Jones, 565 U.S. 400 (2012).
[19] Smith, No. 23-60321, 2024 U.S. App. LEXIS 20149 at *42–43.
[20] Smith, 2024 U.S. App. LEXIS 20149 at *36–37, *38–39 (“Not to mention, the fact that approximately 592 million people have ‘opted in’ to comprehensive tracking of their location itself calls into question the ‘voluntary’ nature of this process. In short, ‘a user cannot simply forfeit the protections of the Fourth Amendment for years of precise location information by selecting “YES, I’M IN” at midnight while setting up Google Assistant, even if some text offered warning along the way’” (quoting Chatrie, 590 F.Supp.3d at 936)).
[21] Tex. Code Crim. Proc. Art. 18B.354(a). But note that issuing a warrant for a foreign location and enforcing it are two different things.
[22] Tex. Code Crim. Proc. Art. 18B.354(b).
[23] Tex. Code Crim. Proc. Art. 18.01(b).
[24] See 18 U.S.C. §2703(a).
[25] See Lozoya v. State, No. 07-12-00142-CR, 2013 WL 708489, at *2 (Tex. App. — Amarillo Feb. 27, 2013, no pet.); United States v. Orisakwe, 2013 U.S. Dist. LEXIS 128323 (E.D. Tex. 2013) (under Nevada law, Facebook fit the definition of a provider of network service); Hubbard v. MySpace, Inc., 788 F.Supp.2d 319, 323–24 (S.D.N.Y.2011).
[26] Clarifying Lawful Overseas Use of Data Act (CLOUD Act) §103(a)(1), amending 18 U.S.C. §2701 et seq. (“A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.”) (emphasis added).