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
2 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.
10 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
14 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.
17 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—
19 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.
20 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).
21 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.
22 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.
23 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.