Defendant was on state parole and wore a GPS ankle monitor for two years. Parole turned over monitoring to the feds who monitored him to see what he was doing. The district court suppressed (United States v. Lambus, 251 F. Supp. 3d 470 (E.D.N.Y. May 4, 2017), prior opinion United States v. Lambus, 221 F. Supp. 3d 319 (E.D.N.Y. Dec. 22, 2016)) but the Second Circuit reversed. As a parolee, defendant had a reduced expectation of privacy. United States v. Lambus, 2018 U.S. App. LEXIS 20647 (2d Cir. July 25, 2018):
The above conclusions, that subjecting Lambus to GPS monitoring for the entire course of Scanlon’s investigation to determine whether he was violating his release conditions by engaging in drug trafficking activity did not violate Lambus’s rights under the Fourth Amendment, means that it is unnecessary to reach the question of whether suppression should have been denied under the good faith doctrine, see Davis, 564 U.S. at 232 (“searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule”). However, we are constrained to note that were we to conclude that the coordination between parole officers and law enforcement officers in this case was impermissible–adopting the view of the law as the district court stated it “should be” (Mar. 15, 2017 Tr. 91)–Davis would surely be applicable, and reversal of the district court’s order excluding GPS data would clearly be required.
c. The Findings as to Lambus’s Expectation of Privacy
The district court observed in Lambus I that Lambus, in anticipation of his release from prison in 2012, had signed a PRS Certificate (or “Certificate”) in which he acknowledged conditions of his release and, as set out in Part I.A.1. above, agreed, inter alia, “I will permit … the search and inspection of my person” (PRS Certificate ¶ 4). See Lambus I, 221 F.Supp.3d at 325, 339. The court found, however, that the subjection of Lambus to GPS monitoring “for over two years … was not specifically covered by Lambus’s Certificate.” Id. at 343. While the court found in Lambus II that in May 2013 Lambus had signed the Special Conditions/GPS Monitoring Form, it found that that form did not constitute consent to GPS monitoring on the ground that it was coerced. Lambus II, 251 F.Supp.3d at 498. The court credited Lambus’s assertion that he had been “coerced into giving his consent because Bureau Chief … Parker … told Lambus that ‘he would violate [Lambus] and send [him] back upstate to prison unless'” Lambus agreed to GPS monitoring. Lambus II, 251 F.Supp.3d at 476 (quoting Lambus Aff. ¶ 14 (other internal quotation marks omitted)).
We have little doubt that Parker told Lambus “in sum and substance” that if he did not agree to wear the GPS tracker he would be charged with parole violations that could lead to his reimprisonment (Lambus Aff. ¶ 14), and that Lambus “only signed the consent form to put the GPS ankle monitor on [him] because [he] feared being sent back to prison” (id. ¶ 25). Parker testified that he did not recall saying “specifically” that he would “ship [Lambus] Upstate,” but he testified,
I am sure I discussed with him the expectations of getting the electronic monitor placed on him and going over with him the consequences of not adhering to any special conditions subsequent to that and the consequences could lead to a violation and his incarceration. I’m sure that was discussed with him.
(Apr. 10, 2017 Tr. 94.) But the parole officers had sufficient grounds to charge Lambus with parole violations; he had, inter alia, failed to comply with curfews and had been seen in the company of known felons. And the district court itself opined that “NYSDOCCS . . . presumably[] possess[ed] evidence of [Lambus’s] criminal wrongdoing.” Lambus I, 221 F.Supp.3d at 344. Thus, the parole officers had multiple justifiable options, including charging Lambus with parole violation in order to seek his return to prison or using the less severe sanction of GPS monitoring. They offered Lambus the choice between those two. The “fact that a [parolee] has to choose between two lawful, albeit distasteful, options does not render that choice coerced.” United States v. Polly, 630 F.3d 991, 999 (10th Cir. 2011).
The issue here, however, is not so much whether Lambus gave consent as it is whether he had a reasonable and legitimate expectation of privacy. Given a parolee’s diminished expectation of privacy, Huntley noted that where his parole officer’s search is rationally and reasonably related to the performance of his duty as a parole officer, the parolee’s consent is not necessary; it is concomitant with the officer’s performance of his duty. See 43 N.Y.2d at 182-83, 401 N.Y.S.2d at 35; Newton, 369 F.3d at 666 (“neither Huntley nor [Second Circuit law] holds that consent, whether obtained pursuant to parole regulation § 8003.2 or otherwise, is required in addition to a reasonable relationship to the parole officer’s duty to justify a warrantless parole search”). Lambus’s signing of the PRS Certificate, acknowledging that parole officers had the right (unless unreasonable, see id. at 181, 401 N.Y.S.2d at 34) to “search” his “person,” and his signing of the Special Conditions/GPS Monitoring Form in which he “agree[d] to wear the transmitter on my person and to keep the monitor plugged into and attached to my telephone, and to do both for twenty-four hours a day, seven days a week, during the period of my participation in the program” is inconsistent with either a legitimate or a reasonable expectation of privacy protecting him from constant search via GPS. (See PRS Certificate ¶ 4; GPS/Electronic Monitoring Form at 4, ¶ 3.) “[P]ersons on supervised release who sign such documents manifest an awareness that supervision can include intrusions into their [persons] and, thus, have ‘a severely diminished expectation of privacy.'” Newton, 369 F.3d at 665 (quoting Reyes, 283 F.3d at 461).
Nor can we uphold the district court’s finding that “[t]o the extent that Lambus’s consent [to GPS monitoring] was voluntary, it was limited in scope to a search lasting only a few months,” Lambus II, 251 F.Supp.3d at 477, which was based principally on the court’s finding that there was a “verbal understanding between Lambus and his parole officers that the tracking device would only remain on his person for a few months,” id. Other than an assertion in Lambus’s affidavit, the evidence does not suggest the existence of such an agreement.
