CO: Parolee on ankle monitor had no REP in his GPS data that linked him to robberies and was turned over to feds

Defendant was on parole-like Colorado community supervision with a GPS ankle monitor. One of the POs, not his, was cross-assigned to a federal task force. When defendant was suspected of being involved in robberies, the federally assigned PO looked up his location, and the location put him near the scene of the robberies, and the PO turned it over to federal investigators. State law on the subject all predated Samson and Knights. The court concludes defendant had no reasonable expectation of privacy in his GPS data held by the state. It was turned over without his knowledge. United States v. Mathews, 2017 U.S. Dist. LEXIS 60348 (D.Colo. April 20, 2017):

C. Legitimate Expectations of Privacy in Colorado

Applying Knights, Tucker, Samson, Freeman, and Mabry to this case, the Court must determine what legitimate expectations of privacy Mathews could have under Colorado law in light of his status as a community inmate. In so doing, the Court could compare Mathews’s legitimate expectations, if any, to a circumstance in which Anderson possessed reasonable suspicion that Mathews had committed the pawnshop robberies. The Court instead assumes a state of affairs most favorable to Mathews, namely, that Anderson accessed Mathews’s GPS data on an inchoate hunch, with no real reason to associate Mathews with any of the robberies under investigation by the federal task force.

A community inmate is a CDOC inmate placed in the Intensive Supervision Program (“ISP”), which CDOC is authorized by statute to implement for inmates “not having more than one hundred eighty days remaining until [their] parole eligibility date[s].” Colo. Rev. Stat. § 17-27.5-101(1)(a). ISP is like parole, “[t]he main difference [being] that since [inmates] are still serving their court-ordered period of incarceration, the limitation on their rights is not pursuant to a voluntary [parole] agreement, but is imposed by the statutory authority granted to the CDOC to regulate the affairs of inmates.” (ECF No. 72-4 at 1.)

As far as the Court’s research reveals, the statutes governing the ISP do not specifically authorize searches. …

. . .

3. Community Inmates’ Legitimate Expectations of Privacy

The Court thus turns to the ultimate question in this case: whether Colorado law in any way creates a legitimate expectation in community inmates that suspicionless, warrantless searches will only be conducted for purposes directly related to supervision of the community inmate.

At the outset, the Court notes the Supreme Court’s observation that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Samson, 547 U.S. at 850. A fortiori, community inmates have even fewer expectations of privacy, given that they have not yet progressed to parole status. Cf. Townsend v. People, 252 P.3d 1108, 1116 (Colo. 2011) (Bender, C.J., concurring in part and dissenting in part) (analogizing the ISP to “a work release facility … an extension of our state’s traditional correctional facilities”).

As noted above, CDOC, through its regulatory authority, establishes most of the requirements of community inmate status. It has exercised that regulatory authority to promulgate a standard form of conditions that community inmates must acknowledge. (See ECF No. 72-3 at 6-8.) Mathews received this form and acknowledged each of its conditions with his initials. (See ECF No. 57-1.) Among those conditions was, “You shall allow your CPO [Community Parole Officer] to search your person, vehicle, residence or any property under your control.” (Id. ¶ 14.) Thus, similar to Knights and Samson, it was clearly expressed to Mathews that he could be subject to such searches. But, unlike Knights and Samson, the search condition does not specifically announce that the search can be for any reason, with or without suspicion. Even so, nothing in Colorado law would raise a community inmate’s expectations in this regard. McCullough definitively construed the Colorado parole search statute to authorize suspicionless searches of parolees, and a community inmate cannot reasonably expect to have even greater privacy rights than a true parolee.

There remains one additional hurdle to deeming Anderson’s GPS search of Mathews lawful. The community inmate search condition says that “your CPO” may conduct a search; it does not say “any CPO.” The Tenth Circuit’s Freeman decision strongly suggests that this is a material distinction, whereas the Mabry decision holds that the distinction is only “a factor to consider” under the totality of the circumstances. See 728 F.3d at 1169.

Considering: (a) cases such as Samson which would permit a state to authorize suspicionless parole searches by any law enforcement officer, and (b) the Court’s own experience that law enforcement officers uniformly prefer expansive over limited search powers, the Court presumes that CDOC would not have limited the community inmate search condition to “your CPO” without a specific reason. Although the Court has not been informed of the actual motivation, the Court could understand why it might exist. If someone may search “your person, vehicle, residence or any property under your control” with or without suspicion, CDOC could reasonably conclude that inmates can expect to at least have met the person performing the search ahead of time. In a similar vein, CDOC may also have safety concerns in mind. A search without warning is likely to be less provocative if the individual being searched is familiar with the officer conducting the search. All of this could factor into a community inmate’s legitimate expectation of privacy.

Examining this totality of the circumstances, Mathews would have a stronger case if the search in question had been a traditional, in-person search. However, Anderson’s searches of Mathews took place entirely without Mathews’s knowledge. Thus, the presumed policy justifications behind the “your CPO” limitation appear to have little or no applicability or force. Moreover, Anderson accessed Mathews’s historical GPS data; he did not track Mathews in realtime. The Court does not hold that any of these factors is the sine qua non of a permissible search by a non-assigned parole officer. Under the circumstances, however, the deviation from the expectation of privacy created by “your CPO” was so de minimis as to be imperceptible to Mathews. Therefore, “his limited expectation of privacy was outweighed by the State’s strong interest in monitoring his behavior and preventing his recidivism.” Mabry, 728 F.3d at 1169-70.

For these reasons, the Court denies Mathews’s GPS Suppression Motion.

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