WARRANTLESS PLACEMENT OF A GPS TRACKER ON A PAROLEE’S CAR WAS PERMISSIBLE IN LIGHT OF UNITED STATES V. JOHNSON

Courtesy of James R. Touchstone, Esq.

In the March 15, 2019, in the case of United States v. Korte,[1] the Ninth Circuit Court of Appeals affirmed a District Court’s denial of a defendant parolee’s motions to suppress. The Court of Appeals held that the warrantless placement of a GPS tracker on the parolee’s car did not violate the Fourth Amendment. While acknowledging the general rule expressed by the United States Supreme Court in United States v. Jones, that installing a GPS tracker on a car constitutes a search typically requiring a warrant,[2] the Ninth Circuit followed precedent distinguishing Fourth Amendment rights in the parolee context in reaching its decision.

Background

Defendant Kyle Korte was paroled in August 2016 after having served time in state prison for bank robbery.  As a parolee in California, Korte was “subject to search or seizure . . . at any time of the day or night, with or without a search warrant or with or without cause” under Penal Code section 3067(b)(3). In October 2016, Korte acknowledged his parole conditions, including that he was now subject to searches of “[y]ou, your residence, and any property under your control.”

Also in October 2016, the Los Angeles Sheriff’s Department (“LASD”) began investigating a series of bank robberies. From robbery surveillance video, LASD came to suspect Korte as the masked robber involved in some of the robberies.  In November 2016, without a warrant or Korte’s consent, LASD placed a Global Positioning System (“GPS“) tracker on Korte’s car and tracked the car’s movements over a six-day period.  At about that time, the Government also obtained a court order under the Stored Communications Act[3] (“SCA”) to acquire Korte’s cell site location information (“CSLI”).  An officer saw Korte, after seeming to surveil a bank, open his trunk and place something inside.  Soon after, officers arrested Korte and searched the car, including the trunk.  They found a toy gun used during the armed robberies.

A grand jury indicted Korte for attempted bank robbery and three counts of bank robbery.  Korte pleaded not guilty and moved to suppress (1) the evidence found in his car’s trunk, (2) the information derived from the GPS tracker on his car, and (3) his CSLI.  Denying all three suppression motions, District Court reasoned that Korte’s parole status permitted the warrantless search of the trunk and placement of the GPS tracker on his car.  The District Court also determined that even if the acquisition of CSLI information violated Korte’s Fourth Amendment rights, the good-faith exception clearly applied based on the case law at that time.  The jury returned a guilty verdict as to all four counts and Korte was sentenced to 210 months in prison.  Korte appealed, challenging the denial of his suppression motions before trial.

Discussion

In reaching its decision, the Ninth Circuit Court of Appeals explained that a search of a parolee that complies with the terms of a valid search condition will “usually be deemed reasonable under the Fourth Amendment.”  United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017).  Under California Penal Code section 3067(b)(3), every parolee “is subject to search or seizure . . . at any time of the day or night, with or without a search warrant or with or without cause.” In Samson v. California,[4] the United States Supreme Court upheld California’s Section 3067(b)(3) because parolees “have severely diminished expectations of privacy by virtue of their status alone” — even less than probationers — and because “[t]he State’s interests” in supervising parolees and reducing recidivism “are substantial.”[5]  The Court then considered the District Court’s denials of Korte’s motions to suppress the searches with respect to his car trunk, the GPS tracker on the car, and the acquisition of Korte’s CSLI.

Car Trunk Search

On appeal, Korte argued that a lawful parole search of his car did not extend to the trunk because the trunk was not “property under [his] control,” as per his parole conditions. Rejecting this “narrow interpretation,” the Ninth Circuit explained that the Korte’s uncontested control[6] over the car was sufficient to permit a warrantless search of its trunk.  The Court also found, regarding the trunk itself, that Korte’s conduct illustrated a sufficiently close “nexus between the parolee and the area or items searched”[7] when officers observed him putting things inside the trunk.

The Court of Appeals explained that Fourth Amendment precedent on the matter was in accord with this analysis.  The Court noted that the California Supreme Court, in People v. Lilienthal,[8] had already rejected Korte’s proposed distinction between a car and a trunk in the context of a probationer who was, as such, entitled to more Fourth Amendment protection than a parolee like Korte.  The Court observed that a warrantless search of his home, typically the “apex of constitutionally protected places,” was valid under the terms of Korte’s parole. Quoting the District Court in summation, the Ninth Circuit rhetorically asked, “If an individual’s residence falls within the scope of an appropriate search under the parolee provisions, how would a trunk not?” Accordingly, the Court affirmed with regards to lawfulness of the trunk search.

GPS

The Court of Appeals accepted that Jones held thattypically installing a GPS tracker on a car requires a warrant.  And the United States Supreme Court held in Riley v. California[9] that the warrantless search of an arrestee’s cell phone was unlawful, emphasizing the significant privacy intrusion that arose when searching a person’s cell phone.  However, the Ninth Circuit explained that its prior decision in United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017), “instructs us not to necessarily apply a newly established Fourth Amendment protection to parolees.” Johnson held that Riley did not apply to parolees[10] because “the balance of privacy interests and factual circumstances in this context are different.”

In light of Johnson and considering the fact that a GPS contains none of the “vast quantities of personal information” that a cell phone does, the Ninth Circuit found it could not find that the warrantless placement of a GPS tracker on a parolee’s car was impermissible; placing a GPS device on a parolee’s car could not logically demand more constitutional protection than the protection afforded to a parolee’s cell phone. The Court added that the State’s “substantial” interests in “reducing recidivism,” “promoting reintegration,” and deterring future criminal conduct of parolees was also especially strong.[11]  Here, Korte resumed criminal activity in the months after his release and the Los Angeles Sheriff’s Department was able to investigate Korte by monitoring his movements.

Finally, standing state court precedent in People v. Zichwic[12] held that even “assum[ing] that attaching an electronic tracking device to the undercarriage of defendant’s truck constituted a search, it was authorized by defendant’s parole search condition.”  For these several reasons, the Ninth Circuit consequently held the warrantless placement of the GPS tracker on Korte’s car was not a Fourth Amendment violation.

CSLI

Regarding CSLI, the Ninth Circuit observed that the United States Supreme Court had not yet issued its decision in Carpenter v. United States[13] when the District Court considered Korte’s motion to dismiss. Carpenter held that the Government must obtain a warrant to access a person’s CSLI from a wireless carrier; a court order was no longer acceptable to authorize CSLI acquisition.

In its pre-Carpenter analysis, the District Court had held that the good-faith exception to the exclusionary rule clearly applied then, and therefore denied Korte’s motion to exclude Korte’s CSLI.  The Ninth Circuit explained that Illinois v. Krull[14]established that evidence obtained by the Government, acting in “objectively reasonable reliance upon a statute” that is “ultimately found to violate the Fourth Amendment,” does not require suppression.  This is known as the good-faith exception.  The Ninth Circuit held that CSLI acquired before Carpenter was admissible under the good-faith exception to the exclusionary rule so long as the Government satisfied the SCA’s then-lawful requirements, which the Court determined had been done.

Finding all three searches valid, the Ninth Circuit Court of Appeals accordingly affirmed.

HOW THIS AFFECTS YOUR AGENCY

This case adds to the precedent drawing distinctions between the general public, probationers, and parolees with regards to Fourth Amendment rights as they pertain to electronic information.  Agencies should be aware of these distinctions in consideration of the reasonable expectation of privacy under evolving law.  Courts have granted some latitude to government officials with regards to the parolees’ GPS tracking information when warrantless search conditions apply. This decision further clarifies law enforcement’s obligations in this area of Fourth Amendment law.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.


[1] 2019 U.S. App. LEXIS 7672 (9th Cir. Mar. 15, 2019).

[2] 565 U.S. 400, 404, (2012).

[3] 18 U.S.C. section 2703(d).

[4] 547 U.S. 843, 846 (2006).

[5] Id. at 852-53.

[6] See United States v. Grandberry, 730 F.3d 968, 980 (9th Cir. 2013) (defining “property under [a parolee’s] control”).

[7] People v. Schmitz, 55 Cal. 4th 909, 923 (Cal. 2012).

[8] 22 Cal. 3d 891 (Cal. 1978).

[9] 573 U.S. 373 (2014).

[10] 875 F.3d at 1275.

[11] Samson v. California, 547 U.S. 843 (2006).

[12] 94 Cal. App. 4th 944 (6th Dist. 2001).

[13] 138 S. Ct. 2206 (2018).

[14] 480 U.S. 340 (1987).





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