CO: Def had no REP in the GPS his bondsman made him wear

The defendant was on bail, and his bondsman monitored him by GPS. The police obtained the GPS information to connect him to another crime. He had no reasonable expectation of privacy in the bondsman’s GPS. People v. Campbell, 2018 COA 5, 2018 Colo. App. LEXIS 70 (Jan. 25, 2018):

[*28] To begin, we address the first prong of Katz, under which a defendant must have an actual expectation of privacy in the place searched. Campbell urges that he maintained a subjective expectation that the GPS data generated by his ankle monitor would not be exposed or otherwise subjected to “public scrutiny.”

[*29] As support for this assertion, he notes that the monitoring company stored the data “in a web-based secured interface.” Further, Campbell asserts that, because he wore the ankle monitor at the request of a private bail bondsman, he believed the sole purpose of the GPS monitoring was to ensure that he did not abscond from the state and thereby fail to appear in court. He did not anticipate that the data would be used “to facilitate criminal investigations.” We assume without deciding that Campbell had an actual, subjective expectation of privacy in the GPS data. See Gutierrez, 222 P.3d at 932 (deferring to trial court’s finding that the defendant had a subjective expectation of privacy in tax returns where tax preparer kept the records in a secure cabinet).

[*30] Nevertheless, we conclude under the second prong of Katz that any expectation of privacy in the GPS data was not “one that society is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan, J., concurring). Campbell asserts that “other jurisdictions have held that GPS location data implicates an individual’s privacy interest.” However, the cases he cites in support of that argument involved circumstances in which law enforcement agents surreptitiously installed GPS tracking devices on individuals’ vehicles without obtaining warrants. See, e.g., United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). Campbell correctly asserts that those cases generally acknowledge the “unique attributes of GPS surveillance.” Id. at 415 (Sotomayor, J., concurring). Certainly, several courts have recognized that long-term GPS monitoring “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id.

[*31] However, the cases cited by Campbell do not address the precise issue here — whether a defendant has a reasonable expectation of privacy in GPS location data transmitted to and collected by a third party. Under the Supreme Court precedent, Campbell had no reasonable expectation of privacy in the GPS data because he voluntarily disclosed such data to a third party — his bondsman. Campbell was aware that his bondsman had access to the GPS location data to ensure that he did not leave the state while out on bond. In short, Campbell “t[ook] the risk, in revealing his affairs to another, that the information w[ould] be conveyed by that person to the Government.” Miller, 425 U.S. at 443. Thus, even if we assume he subjectively believed his GPS data would remain private, that expectation was not one society would be prepared to call reasonable.

[*32] We reach the same result even under the broader protections afforded by the Colorado Constitution. In Charnes v. DiGiacomo, the supreme court distinguished Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71, by noting that a bank customer does not truly voluntarily disclose information about his or her financial transactions because bank accounts are necessary in modern life and because the customer’s primary purpose in having a bank account is facilitating the transfer of funds. 200 Colo. at 99, 612 P.2d at 1121 (discussing and following Burrows v. Superior Court, 13 Cal. 3d 238, 118 Cal. Rptr. 166, 529 P.2d 590 (Cal. 1974)). In contrast, here, Campbell chose to contract with the private bail bondsman and knew that the primary purpose of the ankle monitor was to track and record his location. Further, Campbell could not reasonably have anticipated that the GPS data would remain “free from governmental intrusion,” Sporleder, 666 P.2d at 140, when the bail bondsman could have reported his location to the court had he absconded in violation of his bond terms.

[*33] Accordingly, we conclude that Campbell cannot invoke the protections of either the Fourth Amendment of the United States Constitution or article 2, section 7 of the Colorado Constitution because he had no reasonable expectation of privacy in the GPS data. Thus, the trial court did not err in denying his motion to suppress.

Remember The Lincoln Lawyer? The bondsman made the client wear a GPS. Sometimes the court requires it, sometimes the bondsman if the risk is high enough. Since the book involved about a $1m bond, it’s reasonable for a bondsman to require that. You don’t like it? Shop for another bondsman.

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