Based on Ninth Circuit precedent that cell phone searches are permitted by the parole search doctrine, the court finds that warrantless placing of a GPS on a parolees car is permitted under the Fourth Amendment. United States v. Korte, 2019 U.S. App. LEXIS 7672 (9th Cir. Mar. 15, 2019):
B. Placement and Use of the GPS Tracker
We next decide whether Korte’s parole-search condition permitted the warrantless placement of a GPS device on his car and the subsequent surveillance of his car’s movements.
Installing a GPS tracker on a car constitutes a search, typically requiring a warrant. See United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). The application of this principle to a parolee’s car, however, is less clear. While the parties agree that placing the device on Korte’s car was a search under the Fourth Amendment, they disagree on whether doing so without a warrant offends the Constitution. In light of Samson’s strong pronouncement that parolees in California have very limited Fourth Amendment rights, 547 U.S. at 851-52, we agree with the district court that this was a lawful parole search.
Our decision in United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017), instructs us not to necessarily apply a newly established Fourth Amendment protection to parolees. In Riley v. California, 573 U.S. 373, 386, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), the United States Supreme Court held that the warrantless search of an arrestee’s cell phone was unlawful. The Court emphasized the significant privacy intrusion that arose when searching a person’s cell phone. Id. at 393; see also Johnson, 875 F.3d at 1274 (noting that Riley was premised on “privacy interests implicated in cell phone searches [being] particularly acute”). Cell phones, the Supreme Court said, are now “a pervasive and insistent part of daily life” that “place vast quantities of personal information literally in the hands of individuals.” Riley, 573 U.S. at 385-86. Because cell phones “collect[] in one place many distinct types of information … that reveal much more in combination than any isolated record,” searching a cell phone would give law enforcement the unparalleled ability to reconstruct “[t]he sum of an individual’s private life.” Id. at 394.
Despite the Court’s cautionary words, we held that Riley did not apply to parolees. Johnson, 875 F.3d at 1275; but see United States v. Lara, 815 F.3d 605, 612 (9th Cir. 2016) (applying Riley to the warrantless search of a probationer’s cell phone). Rather, noting that “the balance of privacy interests and factual circumstances in this context are different,” we permitted the warrantless search of a parolee’s cell phone. Johnson, 875 F.3d at 1273.
In light of our ruling in Johnson, we are hard-put to say that the warrantless placement of a GPS tracker on a parolee’s car is impermissible. If an officer can conduct a warrantless search of a parolee’s cell phone — an object that is “[t]he sum of an individual’s private life,” Riley, 573 U.S. at 394 — placing a GPS device on a parolee’s car cannot logically demand more constitutional protection. Although a GPS tracker may create a summary of a parolee’s public movements, it offers none of the “vast quantities of personal information” that a cell phone does. Id. at 386.
The State’s interest in supervising parolees is also particularly strong here. See Samson, 547 U.S. at 853 (referencing the State’s “substantial” interests in “reducing recidivism,” “promoting reintegration,” and deterring future criminal conduct). Tracking a parolee’s movements by car can be a critical tool for monitoring this group. Its value is well illustrated here: Korte returned to a life of crime just months after his release from prison, but LASD was able to investigate Korte and prevented other armed robberies by tracking his movements. In Johnson, we explained that requiring officers to obtain a warrant before searching a parolee’s cell phone “would often undermine the state’s ability to supervise effectively.” 875 F.3d at 1274. We have similar concerns with requiring officers to obtain a warrant before tracking a parolee’s vehicular movements.
Lastly, we note that our decision aligns with another court’s interpretation of California’s parole-search condition. In People v. Zichwic, 94 Cal. App. 4th 944, 114 Cal. Rptr. 2d 733, 738-39 (Ct. App. 2001), the California Court of Appeal considered the warrantless placement of an electronic monitoring device on a parolee’s car. It held that even “assum[ing] that attaching an electronic tracking device to the undercarriage of defendant’s truck constituted a search, it was authorized by defendant’s parole search condition.” Id. at 740. Granted, Zichwic differs in that it considered the use of a beeper, id. at 738, rather than a GPS device — investigatory methods treated differently under the Fourth Amendment. Compare United States v. Karo, 468 U.S. 705, 713, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (“[N]o Fourth Amendment interest . . . was infringed by the installation of the beeper.”), with Jones, 565 U.S. at 409 n.6 (noting that GPS tracking is a more intrusive law enforcement practice than a beeper).
Nonetheless, we believe that Zichwic is, at minimum, informative. Although it was decided almost two decades before Jones, its holding was unaffected because it had assumed that placing a tracking device on a car constituted a search. Zichwic, 114 Cal. Rptr. 2d at 740. The Supreme Court of California has not since interpreted the parole search condition differently. And, while a beeper and GPS device might differ in their tracking capabilities, the court in Zichwic at least concluded, as we do, that the State’s need for electronically monitoring a parolee’s movements outweighs the privacy interests at issue. Id. at 739-40.
We do not disregard the importance of Jones. We acknowledge that “GPS monitoring generates a precise, comprehensive record of a person’s public movements.” Jones, 565 U.S. at 415 (Sotomayor, J., concurring). However, in following precedent distinguishing Fourth Amendment rights in the parolee context, we hold that the warrantless placement of a GPS tracker on Korte’s car does not violate the Fourth Amendment.
