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United States v. Jackson

Court of Appeals of The District of Columbia

August 22, 2019

Zackary JACKSON, Appellee.

         Argued October 26, 2016

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         Appeal from the Superior Court of the District of Columbia (CF3-2512-15), (Hon. Maribeth Raffinan, Trial Judge)

         Nicholas P. Coleman, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, Alicia M. Long, and Anwar Graves, Assistant United States Attorneys, were on the brief, for appellant.

         Daniel Gonen, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellee.

         Before Blackburne-Rigsby,[*] Chief Judge, Glickman, Associate Judge, and Washington,[†] Senior Judge.


         Glickman, Associate Judge

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          The United States appeals a pretrial order suppressing appellee Zackary Jackson’s Global Positioning System (GPS) tracking data and derivative evidence in its prosecution of Mr. Jackson for armed robbery. The tracking data was collected and maintained by the District of Columbia Court Services and Offender Supervision Agency (CSOSA) after it required Mr. Jackson to wear a GPS tracking device on his ankle as a sanction for his having violated conditions of his probation in an earlier case. CSOSA gave the police access to the GPS data, and the data revealed to the police that Mr. Jackson was present at the scene of the armed robbery with which he is now charged. The police used the data to track Mr. Jackson from the location of the robbery to his home, where they arrested him and found tangible evidence linking him to the crime.

          In moving to suppress the GPS data and its fruits, Mr. Jackson argued that CSOSA violated his Fourth Amendment rights by placing him on GPS monitoring for purposes of law enforcement without judicial authorization and that the police violated his Fourth Amendment rights by accessing the GPS tracking data without a search warrant. Addressing only the latter issue, the motions judge concluded that the police search infringed Mr. Jackson’s reasonable expectation of privacy in his GPS data and, therefore, violated his Fourth Amendment rights.

          We reverse. First, as a threshold matter, we hold that CSOSA’s imposition of GPS monitoring on Mr. Jackson without judicial authorization was a constitutional "special needs" search; it was constitutional because his reasonable expectation of privacy as a convicted offender on probation was diminished and was outweighed by the strong governmental interests in effective probation supervision to deter and detect further criminal activity on his part and encourage his rehabilitation. We reject, as unsupported by the record, Mr. Jackson’s claim that CSOSA placed him on GPS monitoring as a subterfuge to enable the police to avoid having to comply with the warrant and probable cause requirements of the Fourth Amendment. Second, we conclude that Mr. Jackson had no objectively reasonable expectation that CSOSA would withhold the GPS tracking data from the police. The limited police examination of that data— which focused solely on determining whether any monitored CSOSA supervisee was present during the

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armed robbery (and if so, where that supervisee went immediately afterwards)— therefore did not violate Mr. Jackson’s Fourth Amendment rights.


          A. Mr. Jackson’s Placement on GPS Monitoring

          On December 13, 2013, Mr. Jackson pleaded guilty in Superior Court to one count of attempted robbery. Mr. Jackson had been charged with armed robbery. In tendering his guilty plea to the lesser offense, he admitted that he and two accomplices put on masks inside the Benning Road Metro station and robbed the victim of his cell phone by threatening him with a BB pistol.

          Three months later, the judge sentenced Mr. Jackson to twelve months’ incarceration, with all but four months suspended in favor of one year of probation under the supervision of CSOSA. The court-imposed conditions of his probation included requirements that Mr. Jackson (1) "[o]bey all laws, ordinances, and regulations"; (2) permit his Community Supervision Officer [CSO] to visit his place of residence; (3) report to all scheduled appointments with his CSO; (4) notify his CSO within one business day of any arrest or questioning by a law enforcement officer; (5) submit to drug testing at the discretion of CSOSA; (6) participate in and complete CSOSA programs as directed; and (7) "[i]n the event of illicit drug use or other violation of conditions of probation, participate as directed by [his] CSO in a program of graduated sanctions that may include periods of residential placement or services."

         Mr. Jackson’s period of probation began in July 2014. It did not go well. Mr. Jackson failed to report for scheduled appointments with his CSO on five occasions, in August, December, and January; he did not pursue gainful employment as required by CSOSA programming; and on December 23, 2014, Mr. Jackson was re-arrested in Virginia.[1]

         Thereafter, in January 2015, a detective with the Metropolitan Police Department (MPD) contacted CSOSA to request that Mr. Jackson be placed on GPS monitoring, one of the options in CSOSA’s program of graduated sanctions for non-compliant behavior. As stated in CSOSA’s internal emails, the detective made this request because the police believed Mr. Jackson and another named individual "may" have been committing robberies and burglaries together at a particular Metro station in the District and elsewhere. The police request triggered a review by CSOSA of Mr. Jackson’s compliance with his terms of probation to determine whether he met the agency’s criteria for GPS monitoring. Citing Mr. Jackson’s re-arrest, lack of employment, and failure to look for work and participate in CSOSA programming, the agency decided he should be placed on GPS monitoring "immediately."[2]

         Mr. Jackson’s CSO met with him on January 28, 2015. She questioned him

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about his missed appointments and his involvement in criminal activity (which he denied), and she informed him that he would be placed on GPS monitoring. According to her record of the meeting, Mr. Jackson was "visibly upset" by that decision and "stated he wouldn’t be able to do anything." The CSO emphasized that although Mr. Jackson would not have a curfew, "he must be aware that [CSOSA] will be tracking his whereabouts for at least 30 days."[3]

          The next day, Mr. Jackson reported to CSOSA for the GPS device - a small bracelet transmitter with a strap - to be fitted and attached to his ankle. He signed a "CSOSA Global Positioning System (GPS) Contract," in which he acknowledged his understanding that "all GPS activities will be monitored by CSOSA’s (24/7) Monitoring Center," and that "all movement will be tracked and stored as an official record." The contract required Mr. Jackson to wear the GPS device at all times and not to tamper with it for any reason. It also required him to charge the device twice a day, an hour in the morning and an hour in the evening, and not to sleep while the device was charging. The contract stated that the device was waterproof and did not prevent him from taking showers, but that he should not submerge the device in water (meaning he could not bathe or swim while wearing it).

          B. An Armed Robbery and Its Investigation

          Early on the morning of February 19, 2015 (less than three weeks after Mr. Jackson began wearing the GPS device), police received a report of an armed robbery in the 4400 block of C Street in Southeast Washington, D.C. As the victims, Mr. Parker and Ms. Pleasant, described the incident, they were walking home together and, after turning from Texas Avenue onto C Street, they passed by an alley on their left. In the alley, they noticed a newer model black SUV that pulled out and drove toward the intersection of Texas Avenue and C Street. Mr. Parker looked back and saw the SUV pause at the traffic light there. Ms. Pleasant asked him what time it was, and Mr. Parker checked his cell phone and told her it was 1:36 a.m.

          As he put the cell phone back in his pocket, Mr. Parker looked back again and saw the SUV speeding toward him and Ms. Pleasant in reverse. The SUV stopped right in front of them. Two men got out of the back seats. One displayed a small, black handgun and took Mr. Parker’s wallet. The other man took Ms. Pleasant’s purse. The two men then returned to the SUV, which drove off toward Texas Avenue. The two victims got home and called the police.

         Detective Thomas O’Donnell of the MPD interviewed the complainants shortly after they reported the robbery. Although they provided detailed physical descriptions of their assailants, the robbers’ identities were unknown and there were no suspects or other witnesses. Detective

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O’Donnell decided to run a check to determine whether any supervisees under GPS monitoring by CSOSA were at the crime scene at the time of the offense. He had access to the computerized GPS tracking data pursuant to a Memorandum of Understanding in which CSOSA agreed to share it with the MPD and allowed the police to query the database directly.[4] The monitoring system tracks and records the movements of the GPS devices in one-minute increments, twenty-four hours a day, seven days a week. Detective O’Donnell entered the coordinates of the crime scene into the database to determine whether any monitored supervisees were in the area between 1:20 a.m. to 1:45 a.m.

          His GPS check produced two hits. It revealed that Mr. Jackson and another CSOSA supervisee were in the alley where the victims saw the SUV just before the robbery occurred. From the alley, their movements conformed to the victims’ observations of their attackers: the GPS data showed that Mr. Jackson and the second person moved toward the intersection of Texas Avenue and C Street, then went back into the 4400 block of C Street, and then went back to Texas Avenue. The GPS data also allowed the police to track the two suspects’ subsequent movements as they briefly separated and then reunited in the rear parking lot of 4410 E Street, Southeast. The data showed that Mr. Jackson then went into an apartment at 4410 E Street and that the other suspect went to a location a block away.

         The police immediately went to the two destinations. They arrived at Mr. Jackson’s apartment building between 2:00 and 3:00 a.m. Mr. Jackson’s GPS device continued to show him as being there. In the rear parking lot, the officers saw a black, newer model SUV. Mr. Parker, who accompanied Detective O’Donnell, identified the SUV as the one the robbers used.[5] On the ground near the stairs leading to the building entrance, the police found a bank card in Mr. Parker’s name.

         The police proceeded to Mr. Jackson’s apartment to arrest him and secure the location while they applied for a warrant to search it. In the apartment, they found Mr. Jackson with three other people. After obtaining the search warrant, the police recovered the keys to the SUV and some items that may have been in Ms. Pleasant’s purse.[6]

          Mr. Jackson was arrested. He subsequently was charged by indictment with two counts of armed robbery, first-degree theft (of the SUV), and unauthorized use of a vehicle (the SUV) to facilitate a crime of violence.

          C. The Trial Court’s Suppression of the Evidence

          Following his arraignment, Mr. Jackson moved to suppress the electronic and tangible evidence linking him to the robberies. Among his claims, he argued that his Fourth Amendment rights were violated by CSOSA’s imposition of GPS monitoring at the behest of the police and by the subsequent warrantless police search of the GPS tracking data. After a hearing, and on largely undisputed facts, the motions judge granted the motion to suppress on the ...

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