Back on December 29th was this post: E.D.N.Y.: 791 days of GPS tracking of a parolee to catch others in a DTO was [somehow] not unreasonable. On review, Judge Weinstein finds that intense tracking violated the Fourth Amendment and there is no good faith exception. United States v. Lambus, 2017 U.S. Dist. LEXIS 68420 (E.D. N.Y. May 4, 2017):
E. Privacy Right of Defendant Violated
The government argues that under the totality of the circumstances test (see Samson, 547 U.S. at 848-50), the search was reasonable. It argues that Lambus’s acknowledgement of the special conditions of his parole, and his general status as a parolee, diminished his expectation of privacy so that his interest in his privacy was outweighed by the government’s interest in the search. It is notenough, in deciding whether someone’s expectation of privacy is ‘legitimate,’ to rely on the existence of the offending condition or the individual’s notice thereof. … [T]he loss of a subjective expectation of privacy would play ‘no meaningful role’ in analyzing the legitimacy of expectations, for example, ‘if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry.’
Samson, 547 U.S. at 863 (Stevens, J., dissenting) (quoting Smith v. Maryland, 442 U.S. 735, 740-41 n. 5, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)); see Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (“The Court’s refusal to adopt a test of ‘subjective expectation’ is understandable; constitutional rights are generally not defined by the subjective intent of those asserting the rights. The problems inherent in such a standard are self-evident.”) (citing Smith, 442 U.S. at 740-41 n. 5); Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev. 113, 133 (2015) (“[T]he evolution of Supreme Court doctrine has rendered the subjective test pointless. …”).
As discussed supra, five justices of the Supreme Court in Jones recognized that long-term use of a tracking device infringes on an expectation of privacy society recognizes as reasonable. And though parolees have diminished expectations of privacy and Fourth Amendment rights, the totality of the circumstances still weighs in favor of Lambus’s privacy interest. See Lambus, 2016 U.S. Dist. LEXIS 177585, 2016 WL 7422299, at *12-15 (balancing Lambus’s privacy interest against the government’s interest in conducting the warrantless search and finding that “[w]hile Lambus’s status as a parolee certainly diminished his reasonable expectation of privacy, it did not eviscerate such expectations entirely; the search at issue was extraordinarily invasive of the reasonable privacy expectation he possessed.”).
Because the government has not met its burden of showing that the search of Lambus occasioned by the use of location data by federal agents was reasonable, the search was unconstitutional and violated Lambus’s limited Fourth Amendment rights. Balancing the deterrence value of excluding the location data against the “heavy costs” of ignoring evidence of guilt (see Davis, 564 U.S. at 236-37), the court finds exclusion to be appropriate. Conducting an invasive search for years for the sole purpose of furthering a general criminal investigation without any form of judicial approval is a Fourth Amendment violation worth deterring. The costs of exclusion are unlikely to be particularly heavy. The government has amassed a tremendous amount of evidence against this defendant not directly connected to the ankle device. Exclusion of the location data is [*69] unlikely to “set the criminal loose in the community without punishment.” Id. at 237.
V. “Good-Faith” Exception to the Exclusionary Rule
Relying on this court’s earlier opinion in this case, the government contends that the good-faith exception applies because of “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.” Lambus, 2016 U.S. Dist. LEXIS 177585, 2016 WL 7422299, at *17. The “binding appellate precedent” application of the good-faith exception to the exclusionary rule was articulated by the Supreme Court in Davis v. United States. In Davis, the Court reviewed its exclusionary-rule precedents, and held that the exclusionary rule should not apply when “the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. … [W]hen binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities.” 564 U.S. at 239-41 (emphasis in original).
The “binding appellate precedent” application of the good-faith exception to the exclusionary rule is not limited to scenarios where the facts are identical to the facts in the opinions cited as “binding appellate precedent.” In United States v. Aguiar, the Court of Appeals for the Second Circuit’s primary application of the Davis “binding appellate precedent” rule, the court applied the rule and held that evidence from a vehicular GPS search need not be suppressed even though “[p]rior to Jones, our Circuit lacked occasion to opine on the constitutionality of using electronic tracking devices attached to vehicles, either of the beeper or GPS variety.” 737 F.3d 251, 261 (2d Cir. 2013). The court held that the Supreme Court cases of Knotts and Karo, which respectively stood for the propositions “that the warrantless use of a tracking device to monitor the movements of a vehicle on public roads did not violate the Fourth Amendment” and that trespass was not relevant to the question of whether the Fourth Amendment had been violated, could have been reasonably relied on by law enforcement to “reasonably conclude placing a GPS device on the exterior of Aguiar’s vehicles did not violate the Fourth Amendment.” Id. The reliance of the Court of Appeals for the Second Circuit on precedent that arguably was not directly on point has led to the conclusion that “at least some extrapolation from current precedent” is appropriate when applying the Davis rule. United States v. Parrilla, 2014 U.S. Dist. LEXIS 69225, 2014 WL 2111680, at *10 (S.D.N.Y. May 13, 2014).
This court extrapolated too far in its previous opinion when it held that the location data evidence should not be suppressed because of good-faith reliance on binding appellate precedent by the federal officers.
The hearings conducted after remand by the Court of Appeals for the Second Circuit to reconsider this court’s earlier decision demonstrate that federal investigators knew they should have obtained a warrant. Though there is appellate precedent stating that the “stalking horse” theory is not viable, this conclusion does not mandate that a search, once initiated validly pursuant to the special needs doctrine, is immune from all scrutiny regardless of how it evolves. Exempting the entire search from the warrant requirement under the special needs exception because it may have initially fallen under that exception, while ignoring clear evidence that the vast bulk of the search had no special supervisory objective, would be inappropriate. As noted in this court’s previous opinion, the search in the instant case is distinguishable from the precedent previously relied upon in important ways that should have given this court pause when it originally held the good-faith exception applied. See Lambus, 2016 U.S. Dist. LEXIS 177585, 2016 WL 7422299, at *17-18.
The issue had not then been fully briefed or argued. Unlike the cases cited as the foundation for the court’s original rule, the instant case involved a much longer and more invasive search, requiring a much greater degree of coordination between the parole and general law enforcement authorities, to serve the broad purpose of investigating a heroin conspiracy involving mostly participants who were not under parole supervision. See 2016 U.S. Dist. LEXIS 177585, [WL] at *17-18. Such distinctions make it inappropriate to extrapolate broadly from appellate precedent to hold that the federal agents were acting in accordance with precedent when conducting this search without a warrant.
Upon reconsideration of the law and development of the factual record, this court now finds that the federal agents acted unlawfully—not in accordance with binding appellate precedent—and that such conduct should be deterred. While the court’s original conclusion that the search was validly initiated without a warrant pursuant to the special needs doctrine may remain intact, the record now shows that the location data was ignored by New York’s DOCCS supervisory bureau. Instead, the location information was used exclusively by the federal law enforcement authorities in determining if federal criminal laws were being violated, not for searching out state parole violations the investigation was uncovering. This conduct occurred entirely in a post-Jones environment where law enforcement agencies were on notice that judicial authorization was likely to be necessary before installing and using tracking devices.
In analyzing the applicability of the exclusionary rule and the good-faith exception, “the actions of all the police officers involved” must be considered. Herring, 555 U.S. at 140. Federal agents began using the device simultaneously with its installation, and controlling federal agents knew the device was attached without a warrant. Crucially, the decision to seek a warrant to track Lambus’s location through his cell phone indicates that federal agents were aware that a tracking device warrant was necessary to conduct this kind of search—a constant and continuing monitoring of someone’s location—notwithstanding that person’s status as a parolee. This is not a new rule of law. It has been the practice in the Eastern District for many years and was integrated into the Federal Rules of Criminal Procedure in the 2006 amendments to Rule 41. The good-faith exception to the exclusionary rule does not apply.
.. . .
VII. Need for Statutory and Supreme Court Clarification
It will be difficult for the law enforcement community—state or federal—to obtain clarity on when a warrant must be obtained to install or use a tracking device if it is forced to rely on iterative case law. Federal legislation that specifies when a tracking device warrant is necessary, the showing law enforcement must make before a judge may grant a tracking device warrant, and penalties for failure to follow proper procedures is a better solution. See Jones, 565 U.S. at 429-30 (Alito, J., concurring) (“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”) (citation omitted).
One model for such legislation is the Title III wiretap statute, which applies to both state and federal authorities. See 18 U.S.C. § 2518, et al. A bill with bipartisan sponsorship which is modeled on Title III—the “Geolocational Privacy and Surveillance Act” or “GPS Act”—has been introduced in both chambers of Congress, but it has not advanced far through the legislative process. See Geolocational Privacy and Surveillance Act. S. 395, H.R. 1062, 115th Cong. (2017).
New technology puts under stress traditional notions of Fourth Amendment protections. See, e.g., Ethan Thomas, The Privacy Case for Body Cameras: The Need for a Privacy-Centric Approach to Body Camera Policymaking, 50 Colum. J.L. & Soc. Probs. 191, 197 (2017) (“[C]oncerns for the general public include the use of [police body camera] footage to conduct dragnet surveillance, whereby evidence is collected and reviewed without judicial supervision or any basis of suspicion.”); Mark Gorenflo, Defense Innovation Unit-Experimental (DIUx), The Submarine Review, March 2017, at 156 (the military has “contracted with a company to get an autonomous indoor tactical drone which could be used by special forces to go and map the insides of buildings before they go and try and get inside them.”); Monte Reel, Secret Cameras Record Baltimore’s Every Move from Above, Bloomberg Businessweek, Aug. 23, 2016, available at https://www.bloomberg.com/features/2016-baltimore-secret-surveillance/ (detailing how a spy plane with the capability of tracking the movements of individuals and vehicles across a 30 square mile area in real-time flew over Baltimore for months in secret without legislative or judicial oversight and was used to apprehend suspected criminals).
By focusing on the type of information that persons are entitled to keep private—as well as the method for obtaining that information—legislation can protect against warrantless searches even if technology is deployed that enables information to be gathered imperceptibly. And, if federal legislation is not forthcoming, states can act to protect the privacy of their citizens. See United States v. Maynard, 615 F.3d 544, 564, 392 U.S. App. D.C. 291 (D.C. Cir. 2010) (listing states that have “enacted legislation imposing civil and criminal penalties for the use of electronic tracking devices and expressly requiring exclusion of evidence produced by such a device unless obtained by the police acting pursuant to a warrant.”); see, e.g., Conor Dougherty, States Seek To Step In On Privacy For Web, N.Y. TIMES, Mar. 27, 2017, at B2 (“In the case of online privacy, consumers groups and civil liberties advocates … [n]ow … face a White House and a Congress that are looking to roll back regulations, not create them. But federal blockage can create local opportunities.”).
The line between supervisory parole searches and general law enforcement searches needs clarification. Though it is possible to distinguish between the two, see Lambus, 2016 U.S. Dist. LEXIS 177585, 2016 WL 7422299, at *10-13, decisions by the Court of Appeals for the Second Circuit have raised the danger that a difference will be interpreted as a distinction without a difference. See, e.g., Reyes, 283 F.3d at 463 (observing that probation officers and law enforcement personnel have “objectives and duties” that are “unavoidably parallel and…frequently intertwined” because both are concerned with crime prevention and detection). In the instant case, the line was apparent; it was drawn almost simultaneously with installation of a tracking device, which was used not to supervise a state parolee but to gather sufficient evidence to prosecute him federally for narcotics trafficking.
The scope of parolee Fourth Amendment rights also needs to be made clear. The Court of Appeals for the Second Circuit has avoided the issue of how the decision by the Supreme Court in Samson impacts searches of parolees. See, e.g., United States v. Quinones, 457 F. App’x 68, 69 n. 1 (2d Cir. 2012) (the appellate court has been “sav[ing] any further analysis” of Samson’s impact “for a case where a distinction between Huntley and Samson would make a difference.”) (citing cases). The government in the instant case made the same argument it made in Quinones:
[F]ollowing the Supreme Court’s decision in Samson, parolees in fact have no legitimate expectation of privacy and thus the search of [the parolee] could not have violated the Fourth Amendment, irrespective of the legitimacy of the State’s interests in conducting it.
Id. (emphasis in original). This court rejects this argument, finding that Lambus—though a parolee—possessed some Fourth Amendment rights, and those rights, even if limited, were violated. See supra Part IV.E. But, in any event, whether the State of New York did or did not violate his rights, the federal authorities certainly did.
VIII. Conclusion
The location data generated by the tracking device attached to Lambus’s ankle is suppressed. Any fruit derived indirectly from this poisonous tree is not suppressed, but the issue may be raised anew with respect to particular items of evidence at the in limine hearing and trial.
