Nguyen, De H

After a murder case went cold, law enforcement obtained a geo-fence warrant for the area and time period relevant to the crime.  The information obtained ultimately led to Nguyen.  Nguyen’s suppression motion challenging the geo-fence warrant was denied, and he was convicted of felony murder. 

On appeal, he challenged the suppression ruling, arguing that it was a per se impermissible general search.  The court of appeals recognized the decision in Wells v. State, which upheld the same type of multi-step geo-fence warrant, 714 S.W.3d 614 (Tex. Crim. App. 2025), and stated,  “Although a plurality opinion, the Court gave guidance on analyzing the legality of a multi-step geofence warrant and did not determine that they are per se illegal under either the Federal or State Constitutions.” Because Nguyen didn’t provide binding authority to the contrary, the court rejected his claim that such warrants are per se illegal. It also rejected his case-specific arguments. “Using the Court’s reasoning in Wells as a guide,” the court of appeals found probable cause sufficiently particularized to the place to be searched and devices likely to be found. The murder victim was a drug dealer who had just been robbed at her nearby apartment, people in the trade frequently use cell phones to rendezvous, and the search was limited to devices appearing in a 25-minute window in either the area of the highway feeder road where her body was found (and when nearby businesses were closed) or her apartment. The warrant, like that in Wells, justifiably authorized the step-two expansion of the geofence for devices located within the initial fence to rule out those who clearly weren’t involved. The areas where the victim had been robbed and killed would reasonably contain witnesses and suspects.   

Appellant argues that the court of appeals should not have treated Judge Yeary’s opinion in Wells as binding authority, and that the CCA should revisit Wells since it produced no majority opinion. He also distinguishes Wells’ small search area compared to the apartment complex and highway feeder road involved here, which impacted the private data of perhaps “hundreds of people.” He contends a magistrate should not have delegated its probable cause determination at step two to Google and law enforcement. He argues the geo-fence warrant violate the Fourth Amendment, Texas Constitution, State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022), and Tex. Code Crim. Proc. art. 18.21, §§5A, B.

The State contends that before reaching Appellant’s issue, the Court should consider that the third-party doctrine supports the trial court’s ruling.  Here, Nguyen opted in to Google’s location sharing function when he agreed to the terms of service.  And while the doctrine may have been abrogated for long-term CSLI stored on a phone, it should apply to the circumstances here. See Carpenter v. United States, 585 U.S. 296 (2018). The State notes that Nguyen didn’t present any evidence that his opt-in was involuntary, what terms could have made it so, or that he had a reasonable expectation of privacy.