A confusing and disturbing conclusion has been reached by a New York federal court. The court has decided that 791 days of location tracking with a GPS ankle bracelet is unreasonable, but somehow not worthy of evidence suppression. (via FourthAmendment.com)
Kemal Lambus -- the defendant challenging the evidence -- was granted parole, but with certain conditions. One of those was imposed a few months after his release: wearing an ankle bracelet to ensure he abided by his curfew. This was in addition to the normal amount of diminished privacy afforded parolees, which includes any number of warrantless searches by parole officers.
According to Lambus, there was nothing "voluntary" about the ankle bracelet agreement he signed. He was told that if he didn't, his parole would be revoked. The opinion [PDF] agrees, noting that the state itself refers to conditions "imposed' on Lambus -- a word that implies this was anything but consensual.
Lambus objected to the tracking device, but was told he would only have to wear it for 3-6 months. After that period had expired, Lambus repeatedly -- seven times in the following six months -- asked to have it removed. The six-month figure originally given to Lambus is backed up by the government's contract with the provider.
A record from Veritracks, the vendor that provides GPS monitoring services to NYSDOCCS, indicates that the initial GPS monitoring period was set to last only until November 8, 2013, exactly 6 months after the bracelet was attached.
The court finds the extended search -- 791 days of location tracking -- to be a violation of the Fourth Amendment. While it acknowledges that parolees have a lower expectation of privacy, their Fourth Amendment rights are not null and void until they complete their parole term.
The government argued the tracking was voluntary because Lambus agreed to wear the bracelet. As noted above, the evidence doesn't agree with this assertion. This is only one of the arguments the government made to salvage its warrantless tracking, but the court doesn't find this persuasive.
In the instant case, Lambus’s location was monitored 24 hours a day, every day from May 8, 2013 to July 8, 2015—791 days. In People v. Weaver, the New York Court of Appeals recognized that even if a person has a diminished expectation of privacy in a car traveling on a public road, continuously tracking the car through use of a GPS monitoring device was a “massive invasion of privacy” that was “inconsistent with even the slightest reasonable expectation of privacy.” Here, too, the “massive invasion of privacy” by continuous GPS surveillance vitiated Lambus’s reasonable expectation of privacy, even if such an expectation was “slight.”
The government's other arguments didn't fare any better. The purpose of the tracking device shifted from curfew violations to drug trafficking before law enforcement actually came across any evidence suggesting Lambus might be involved. The Appeals Court may have done away with strictly separating law enforcement and parole officer searches by eliminating the "stalking horse" concept from circuit case law, but the record still indicates the bracelet was left on Lambus for law enforcement purposes, rather than simply to verify his adherence with his parole conditions.
Lambus knowingly had a GPS tracking device placed on his ankle on May 8, 2013, not because he was expected of any criminal wrongdoing, but to monitor whether he was abiding by the curfew condition of his parole.This purpose shifted as federal law enforcement began using the location data to build a narcotics trafficking case against a dozen individuals. His ostensible supervisors, NYSDOCCS, took no actions against him despite, presumably, possessing evidence of criminal wrongdoing.
The last sentence shows NYSDOCCS had conceded control and surveillance of Lambus to federal and local law enforcement by that point.The court acknowledges that law enforcement and the supervision of released prisoners often contain intertwined "special needs," but those don't outweigh the massive, lengthy privacy violation that occurred here.
The more intrusive the search, the deeper the coordination between the agencies, and the more wide-ranging the web of criminal activity the search seeks to detect, the less substantial the relation of the search is to the supervision of the parolee being searched. The longer the search, the more likely it is to be “seeking contraband or evidence in aid of prosecution for criminal activity” (id. at 798) for the purpose of “uncover[ing] evidence of ordinary criminal wrongdoing.” Such a search could not be justified under the tent of the “special needs” doctrine.
The court is clearly disturbed by the government's actions.
Pinpointing exactly when Lambus’s electronic monitoring crossed the line from a supervisory search to a general law enforcement search is difficult. That the line was crossed during the two years seems clear. Parole officers must serve the community at large and the parolee, a dual responsibility requiring facilitating a parolee’s rehabilitation, if possible. Allowing a parolee to knowingly violate both the conditions of his parole and the law—for months and months on end—betrays both of the constituencies the parole officer is supposed to serve by sacrificing rehabilitation for recidivism in aid of public protection.
A state cannot use a parolee as a sort of fly paper, trailing him around the community for years, trolling for criminals. If the state wishes to search someone for the primary purpose of furthering a deliberate effort to gather evidence as part of a wide-ranging criminal prosecution, the “warrant and probable-cause requirement is not…‘impracticable’”; the search cannot be justified as a “special need,” even if the searchee is a parolee.
And yet, the court is unwilling to suppress the evidence. Because it can't find exactly where the state crossed the line from "supervisory" to "law enforcement search," it falls back on the Appeals Court's nullification of the "stalking horse" legal concept.
The unequivocal language in these two decisions—Reyes and Newton—created a binding appellate precedent that police involvement with a warrantless search of a parolee does not stamp the search as unconstitutional if it was initiated by a parole officer pursuant to a legitimate supervisory objective.
If the court can't see where to draw the line, it sucks for the defendant.
In the instant case, the search was initiated by NYSDOCCS to monitor Lambus’s adherence to his parole conditions; specifically, his curfew. This is a legitimate supervisory objective. The decision by NYSDOCCS and the federal agents to coordinate subsequently was reasonable given the Court of Appeals’s Reyes and Newton decisions. Neither the NYSDOCCS officers nor the federal law enforcement officers behaved inappropriately. There would therefore be little deterrent value in excluding the evidence. The court declines to suppress the location data evidence.
So, while the court may say the government can't use parolees as criminal activity "fly paper," its decision basically says the state can… at least up until the point the Appeals Court decides to revisit this issue.
The instant case is, however, distinct from Reyes and Newton in striking ways that may prompt the courts to revisit their jurisprudence in this area in a more generous future case.
The court also points out that not having a lawyer to represent you means not having as many rights -- yet another way the criminal justice system is broken.
If Lambus had been represented by counsel during his parole, he might have challenged NYSDOCCS’s decision to subject him to this continuing search for such a long duration. Individuals who lack counsel are left in the lurch when attempting to remedy violations of rights to their privacy. It is an unfortunate and common occurrence in our country that rights without counsel are no rights. In a case like the present one, where the invasion of privacy is so substantial and the government’s purpose is so questionable, a search is likely unreasonable and therefore unconstitutional at some point.
But for the lack of counsel…
The court does not reach that issue in the instant case.
This decision can be blamed on bad precedent, and the lower court is in no position to override it. The opinion here appears to be the "inevitable" one, rather than the one the court really wanted to hand down. As it stands now, state and federal law enforcement can piggyback on parole conditions with little to no fear of repercussion.
(Also of note: the opinion does suppress evidence obtained with an illicitly-obtained wiretap warrant -- something that was only admitted after the court questioned the discrepancy between the officer's testimony and his sworn statements in the affidavit.
In the instant case, the omission was not “inadvertent;” it was knowing. The Special Agent testified that despite having been an affiant in previous wiretap applications, he did not know that he needed to check for prior wiretap applications related to all the target interceptees. This mistake alone, despite precedent to the contrary, may have constituted mere inadvertence. But this was not the Special Agent’s only error. The HSI agent swore that “a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate that there have been no prior application seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE.” Jan. 9, 2015 Aff. at ¶ 24 (emphasis added). When he swore to this statement, he knew it was false. This was not a “misunderstanding." It was perjury.
The case was filled with sketchy law enforcement behavior, but the multiple agencies involved are still able to salvage most of their evidence thanks to some questionable case law.)