On March 15, 2019, the Ninth Circuit Court of Appeals decided the United States v. Korte[i], in which the court examined how various Fourth Amendment protections apply to a parolee. The relevant facts of Korte, taken directly from the case, are as follows:
In a world of cybercrime and identity theft, Korte stole money the old-fashioned way — he robbed banks. After serving time in state prison for bank robbery, Korte was paroled in August 2016. 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.” CAL. PENAL CODE § 3067(b)(3); see also id. § 3067(a). On October 25, 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.”
In October 2016, the Los Angeles Sheriff’s Department (“LASD”) began investigating a series of bank robberies. The first robbery took place on October 7. A masked robber entered a bank and demanded “all your hundreds.” The frightened teller, protected by bulletproof glass, activated the silent alarm and retreated to a back office. The robber left with no money. On October 12, the masked robber targeted another bank, this time brandishing a toy gun. He was more successful this go-around, escaping with $1,600. He then hit two more banks on October 27. Again displaying the toy gun, the robber pocketed $2,200 and $7,000. In total, the masked robber stole less than $11,000 — not a Neil McCauley heist by any means.
Working with LASD, the Federal Bureau of Investigation (“FBI”) began to suspect that Korte was the masked robber. Surveillance video from one of the robberies showed a car registered to the address that Korte provided to his parole officer. An LASD officer who saw video of the masked robber also reported that the individual resembled Korte, who the officer knew was on parole for bank robbery.
On November 4, 2016, without a warrant or Korte’s consent, LASD placed a GPS tracking device on Korte’s car and periodically monitored the vehicle’s movements over the next six days. That same day, the Government obtained a court order under the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), to acquire Korte’s CSLI. This information placed Korte’s cell phone near three of the four banks at the time of the respective robberies.
On November 10, 2016, LASD learned that the FBI had obtained an arrest warrant for Korte. Officers followed Korte as he drove from his home to a bank and parked nearby, seeming to surveil his next target. An officer saw Korte open the car’s trunk and place something inside. Shortly thereafter, they arrested Korte and searched the car. The officers’ search of the trunk revealed the toy gun used during the three armed robberies and the shirt Korte had been wearing while casing the bank just prior to his arrest.[ii]
Ultimately, Korte was charged under federal law with several counts of bank robbery. He moved to suppress the evidence and argued that the warrantless searches violated his rights under the Fourth Amendment. The district court denied his motion and Korte was convicted. He then appealed the denial of the motion to suppress to Ninth Circuit Court of Appeals.
On appeal, Korte argued that the search of the trunk of the rental car was not within the scope of his parole search waiver, the GPS tracker was not within the scope of his parole search waiver, and the cell site location information required a warrant. [Note: This article will not discuss the cell site location information.]
Issue One: Did Korte’s parole-search condition authorize a warrantless search of his car’s trunk?
The court of appeals first noted that, under the United States v. Cervantes[iii],
A search of a parolee that complies with the terms of a valid search condition will usually be deem reasonable under the Fourth Amendment.[iv] [emphasis added]
The court further stated
In Samson v. California, 547 U.S. 843, 846 (2006), the United States Supreme Court reviewed California’s parole-search condition to determine “whether a suspicionless search, conducted under the authority of [section 3067], violates the Constitution.” The Court first reasoned that “parole is more akin to imprisonment.” Id. at 850. 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,” the Court upheld California’s parole-search condition. Id. at 852-53.[v] [emphasis added]
On appeal, Korte argued that the trunk of his rental car was not “property under his control” as stated in his parole search terms. The court of appeals disagreed and stated that since Korte was in control of the rental car, he was in control of the trunk of that car. Additionally, the officers also saw him placing items in the trunk, so there was an additional nexus to the trunk, which showed his control.
As such, the court affirmed the denial of the motion to suppress for evidence located in the trunk.
Issue Two: Did Korte’s parole search condition permit the warrantless placement of the GPS tracking device on his car and the subsequent tracking of his vehicle’s location?
The court first stated that the general rule is that
Installing a GPS tracker on a car constitutes a search, typically requiring a warrant. See United States v. Jones, 565 U.S. 400, 404 (2012).[vi]
However, the court also noted that parolee’s have diminished rights under the Fourth Amendment. Additionally, the court also noted that the Ninth Circuit has previously held that they should “not necessarily apply a newly established Fourth Amendment protection to parolees.”[vii]
With these principles in mind, the court discussed that, in Riley v. California[viii], the Supreme Court held that a search incident to arrest does not extend to cellular phones because of the vast quantity of personal information that such phones now contain. The court also noted that the Ninth Circuit has previously held, in the United States v. Johnson[ix], that Riley did not apply to parolees. In other words, the Ninth Circuit did not grant parolees the additional constitutional protection of cell phones granted by the Supreme Court in Johnson, because of the diminished expectation of privacy afforded to parolees. Based on this, the Ninth Circuit stated
In light of our ruling in Johnson, we are hard-put to say that the warrantless placement of a GPS tracker on a parolee’s car is impermissible. If an officer can conduct a warrantless search of a parolee’s cell phone — an object that is “[t]he sum of an individual’s private life,” Riley, 573 U.S. at 394 — placing a GPS device on a parolee’s car cannot logically demand more constitutional protection. Although a GPS tracker may create a summary of a parolee’s public movements, it offers none of the “vast quantities of personal information” that a cell phone does. Id. at 386.[x] [emphasis added]
The court also noted that the tracking a parolee’s vehicle is strongly related to the purpose of parole, particularly integrating someone back into society while preventing recidivism.
The Ninth Circuit then held that
[T]he warrantless placement of a GPS tracker on Korte’s [a parolee’s] car does not violate the Fourth Amendment.[xi] [emphasis added]
As such the court affirmed the denial of the motion to suppress related to this issue.
The court then affirmed the decision of the district court denying the motion to suppress.
Note: While not discussed, the Ninth Circuit also affirmed the denial of the motion to suppress for the cell site location information based on the good faith exception, since officers were acting in compliance with existing law at the time of that search.
[i] No. 18-50051 (9th Cir. Decided March 15, 2019)
[ii] Id. at 2-3
[iii] 859 F.3d 1175 (9th Cir. 2017)
[iv] Korte at 6 (quoting Cervantes, 859 F.3d at 1183)
[v] Id. at 7
[vi] Id. at 10
[viii] 573 U.S. 373 (2014)
[ix] 875 F.3d 1265, 1275 (9th Cir. 2017)
[x] Korte at 11
[xi] Id. at 13