A federal appeals court has unleashed a stunning ruling that could end up impacting the Jan. 6, 2021, convictions of protesters at the U.S. Capitol.

It is the 5th Circuit Court of Appeals that determined that geofence searches are not allowed under the U.S. Constitution. Those are identifications of individuals using GPS or other technology that provides authorities with names and locations of individuals at a particular time.

The case at hand involved robbery, and Judge James C. Ho, a possible candidate under a Trump presidency for the Supreme Court, explained with clarity how the geofence technology isn’t allowed in a ruling that now conflicts with a ruling from another circuit, making a Supreme Court decision more likely.

He said, “Geofence warrants are powerful tools for investigating and deterring crime. The defendants here engaged in a violent robbery – and likely would have gotten away with it, but for this technology. So I fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests.”

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But, he continued, “Hamstringing the government is the whole point of our Constitution. Our Founders recognized that the government will not always be comprised of publicly spirited officers – and that even good faith actors can be overcome by the zealous pursuit of legitimate public interests. ‘If men were angels, no government would be necessary.’ The Federalist No. 51 … ‘If angels were to govern men, neither external nor internal controls on government would be necessary.’ But ‘experience has taught mankind the necessity of auxiliary precautions.’ It’s because of ‘human nature’ that it’s ‘necessary to control the abuses of government.'”

ArsTechnica reported the fact that geofence warrants, in identifying all users or devices in a geographic area, now are banned by the circuit court’s ruling as a violation against unreasonable searches.

The report said the ruling found, “This court ‘cannot forgive the requirements of the Fourth Amendment in the name of law enforcement.’ Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.”

The case involved three Mississippi men convicted of a 2018 armed robbery. And the ruling said, even though geofence warrants are unconstitutional, the convicts were not allowed to suppress evidence because “law enforcement acted in good faith in relying on this type of warrant.”

The Electronic Frontier Foundation called it a “‘major” change.

“Closely following arguments EFF has made in a number of cases, the court found that geofence warrants constitute the sort of ‘general, exploratory rummaging’ that the drafters of the Fourth Amendment intended to outlaw. EFF applauds this decision because it is essential that every person feels like they can simply take their cell phone out into the world without the fear that they might end up a criminal suspect because their location data was swept up in an open-ended digital dragnet,” the group said.

Such searches almost always involve searching the Google database for details about people, time and locations.

In the process, Google determines which accounts were within the defined boundaries and gives law enforcement an “anonymized list” of suspects. Law enforcement then can seek additional information, including, eventually, the ID of account holders.

Previously, the Supreme Court has said the government invades a person’s reasonable expectation of privacy when it tracks people by cellphone data.

Interesting–Fifth Circuit just ruled that geofence warrants violate 4A. Recall the FBI sought and received a Google geofence warrant on Jan 6, 2021.

INTO MY VEINS JUDGE HO (Trump appointee, on short list for SCOTUS, Trump chose ACB instead) pic.twitter.com/EQnnGXBPma

— Julie Kelly (@julie_kelly2) August 13, 2024

It was investigative reporter Julie Kelly who reminded that the federal government used geofence warrant information to identify January 6 protesters.

So when Google conducts a geofence search, every cell phone user is included in initial batch. “Sensorvault” refers to Google’s entire location history database.

How is this possibly constitutional? pic.twitter.com/UT8JnBnEWX

— Julie Kelly (@julie_kelly2) August 13, 2024

The Fifth Circuit is right.

This is another dagger to the J6 conviction, since many defendants were identified via geofencing. https://t.co/TdRwiLFudd

— Jeff Clark (@JeffClarkUS) August 13, 2024

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Bob Unruh

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially. Read more of Bob Unruh's articles here.