Roughly thirty years after the explosion of harsh punitive statutes like “three strikes” laws, legal and political momentum is building toward criminal justice reform. Any discussion of reform is incomplete without a discussion of supervised release and parole, regimes under which roughly 4.5 million Americans live. As more and more incarcerated people are released into society, a fuller discussion needs to be had about the permissible constraints on parolees’ liberties. Recently, in United States v. Korte, the Ninth Circuit failed to question the continued vitality of diminished constitutional protections for parolees, choosing instead to allow warrantless GPS tracking of parolees’ cars. In a world of ever-increasing numbers of parolees, the decision in Korte is a missed opportunity to bolster protections for this marginalized group.
Kyle Korte, a convicted bank robber, was on parole in October 2016 when he came under suspicion for a spate of new bank robberies. After spotting a car registered to Korte’s address on surveillance video from a robbery, the Los Angeles Sheriff’s Department (LASD) placed a GPS tracker on Korte’s car. LASD had neither a warrant nor Korte’s consent. LASD also got a court order under the Stored Communications Act (SCA) to obtain Korte’s cell site location information (CSLI), and the FBI obtained an arrest warrant.
The LASD arrested Korte, searching his car and its trunk. At trial, Korte attempted to suppress the incriminating evidence found from the (1) GPS tracker, (2) trunk, and (3) CSLI data, but the district court denied him at every turn. A jury convicted Korte on three counts of bank robbery and one count of attempted bank robbery. He appealed.
The Ninth Circuit affirmed on all counts. First, Korte argued that the trunk of his rental car was not within the area subject to police search under his parole conditions because it was not under his control. But the court held the search permissible under California law, which states parolees and their property are “subject to search or seizure . . . at any time of the day or night . . . with or without cause.” Because the rental car was, for all purposes, his car, and because the court could draw no logical distinction between the trunk and any other part, Korte was out of luck.
Second, Korte invoked United States v. Jones to argue that installing a GPS tracker on his car required a warrant. While Jones required a warrant to install a GPS tracker on a car, the Ninth Circuit invoked circuit precedent cautioning courts “not to necessarily apply a newly established Fourth Amendment protection to parolees.” The court then analogized to other instances where it declined to extend Fourth Amendment coverage to parolees (as in United States v. Johnson, where the court declined to apply Supreme Court precedent requiring a warrant for cell phone searches), finding that the search of Korte was less intrusive than other searches the court had allowed.
Last, the Ninth Circuit considered whether the government’s warrantless use of CSLI violated the requirements set by the Supreme Court in Carpenter v. United States. The court agreed that after Carpenter, the government would need a warrant before gathering CSLI data. Nonetheless, the court allowed the evidence to come in under the good-faith exception, which deems suppression inappropriate for evidence obtained in “objectively reasonable reliance upon a statute.” The government’s pre-Carpenter reliance on the SCA’s § 2703(d) court order provision thus satisfied the good-faith exception.
Judge Nelson concurred, raising concerns about the court’s treatment of parolees’ privacy rights. While she agreed that the court faithfully applied circuit precedent (and Supreme Court precedent), Judge Nelson urged her colleagues to consider whether changes in technology called for a change in parolees’ expectations of privacy.
Judge Nelson was right to sound the alarm—the Korte court’s cavalier treatment of parolees’ privacy interests is concerning as the number of parolees grows and the tools available to the government to monitor them expand. Fourth Amendment doctrine has recently reflected a sensitivity to changing facts on the ground, as evidenced by Jones, Riley v. California, and Carpenter—three cases whose applicability to probationers the Ninth Circuit dismissed out of hand. But the court’s analysis was more categorical than contextual, and it reasoned by analogy from a number of outdated precedents rather than examining first principles in light of both changed societal intuitions about incarceration and ballooning parole numbers. Because the court allowed warrantless searches of a parolee’s home, the court reasoned, why not searches of a car? Because the court declined to require a warrant for a parolee’s cell phone, the court reasoned, why require one for a GPS tracker?
These questions miss the point. While they might be a sensible application of precedent, the precedent is not a sensible response to the times. Nor is a thirteen-year-old observation by the Court that “parole is more akin to imprisonment” sufficient justification for continuing to infringe nearly limitlessly on the privacy of those released from prison. Today, electronic monitoring and other e-carceration tactics make it cheap and easy for the government to “release” individuals only to keep them functionally imprisoned. In recognition of invasive technologies and the vast numbers of Americans affected, courts should set meaningful limitations on the government. Korte, sadly, did no such thing.