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United States v. Jackson

Court of Appeals of The District of Columbia

August 22, 2019

United States, Appellant,
v.
Zackary Jackson, Appellee.

          Argued October 26, 2016

          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

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

         I.

         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 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 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 latter ground, that the police search of the GPS data was unconstitutional. The judge did not address the constitutionality of CSOSA's GPS monitoring of Mr. Jackson.

          The judge based her ruling on her conclusion that Mr. Jackson reasonably expected that the police would not have access to his GPS tracking data. In reaching that conclusion, the judge acknowledged that Mr. Jackson was on probation and that, "[g]iven the language of the GPS Contract, it would be unreasonable for Jackson to expect privacy in his GPS location information as to CSOSA." (Emphasis added.) However, the judge noted, the conditions of Mr. Jackson's probation and his GPS Contract did not inform him, "clear[ly] and unambiguous[ly]," that the location data would be shared with or accessible to the police. Absent such notification, the judge stated, Mr. Jackson "could not have reasonably foreseen that the MPD would have unfettered, unilateral access to his location information for developing suspects and finding witnesses in criminal cases." Because the police lacked "any level of individualized suspicion" linking Mr. Jackson to the robberies before they queried the GPS database, the judge concluded that Mr. Jackson's undiminished expectation of privacy vis-à-vis the police outweighed "the MPD's general interest in criminal investigation." Accordingly, the judge held, the police search of Mr. Jackson's GPS location data was "unreasonable under the Fourth Amendment."

         II.

         Two distinct Fourth Amendment issues are presented in this appeal. Given the undisputed factual record before us, each turns on legal questions that we decide de novo. The first is whether CSOSA violated Mr. Jackson's Fourth Amendment rights by placing him on GPS monitoring without judicial approval. This issue turns, as we shall explain, on whether the monitoring was justified as a reasonable intrusion on Mr. Jackson's privacy to meet the "special needs" of probation supervision. We address this legal issue, even though the motions judge granted suppression for other reasons, because it was litigated in the proceedings below, Mr. Jackson continues to urge it on appeal as an alternative ground for affirmance, and the United States has had a full and fair opportunity to rebut the claim.[7] Moreover, our resolution of the second Fourth Amendment issue before us depends on our answer to the first issue.

         The second issue is whether the police conducted an unconstitutional search when, without having a search warrant or individualized suspicion, they queried CSOSA's GPS database and acquired the information it contained about Mr. Jackson's location and movements at the time and in the immediate vicinity of the robbery. Assuming the lawfulness of CSOSA's acquisition of that information in the first place, this issue turns in our view on whether CSOSA violated Mr. Jackson's reasonable expectation of privacy by allowing the police to access its GPS database for the limited use the police made of it.

         We address these two issues in turn.[8]

         A. CSOSA Did Not Violate Mr. Jackson's Fourth Amendment Rights by Placing Him on GPS Monitoring and Tracking His Movements.

         1. The Special Needs of Probation Supervision Recognized in Griffin v. Wisconsin

         It is common ground that when the government "attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements," it conducts a search subject to the Constitution's requirements.[9] The government's use of the device to monitor the person's movements also constitutes a search for Fourth Amendment purposes.[10]

         The Fourth Amendment to the Constitution protects the right of the people to be secure against searches and seizures that are "unreasonable."[11] Thus, as "[t]he touchstone of the Fourth Amendment is reasonableness, "[12] the central question before us is the reasonableness vel non of CSOSA's GPS monitoring of Mr. Jackson. Resolution of this question "depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations."[13] We determine whether a search is reasonable "by assessing, on the one hand, the degree to which it intrudes upon an individual's [reasonable expectation of] privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests."[14] The Supreme Court has characterized this as a balancing test.[15]

         "Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant" upon the showing of probable cause required by the Fourth Amendment's Warrant Clause.[16] But the Court has explained that:

[A] warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional . . . "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."[17]

         Nor do searches motivated by "special needs, beyond the normal need for law enforcement" necessarily require a degree of "individualized suspicion of wrongdoing" in the absence of probable cause; "the Fourth Amendment imposes no irreducible requirement of such suspicion."[18]

         In Griffin v. Wisconsin, the Supreme Court considered whether the operation of a probation system presents "special needs" beyond the normal need for law enforcement that may justify exempting supervisory searches of probationers from the requirements the Fourth Amendment imposes on "normal" law enforcement searches. The question arises, even though both types of searches aim to discover evidence of criminal activity, because supervisory searches of probationers are unlike "normal" law enforcement searches in that they are conducted as part of the distinctive probation mission to reform convicted offenders and deter them from committing new crimes. The Court was persuaded in Griffin of the significance of this contextual difference, and it applied the "special needs" rationale to uphold a warrantless search of a probationer's home under circumstances parallel, in important respects, to those in this case.

         The facts of Griffin were as follows. Under Wisconsin law, probationers were subject to the conditions of probation set by the court at sentencing and to the regulations of the probation department. One such regulation allowed any probation officer to search any probationer's home, without a warrant or other prior judicial approval, so long as there were "reasonable grounds" to believe contraband was present in the home.[19] This home-search authorization was not one of the court-imposed conditions of Griffin's probation.[20]

         While Griffin was on probation, the probation office received information from a police detective that "there were or might be guns" in Griffin's apartment.[21]Two probation officers, accompanied by three police officers, went there to find out. Relying on the home-search regulation, they did not apply for a search warrant. When Griffin opened the door, one of the probation officers "informed him that they were going to search his home."[22] They found and seized a handgun. Griffin was prosecuted for felony possession of a firearm. He moved to suppress the handgun, arguing that the probation officers' search of his home without a warrant violated the Fourth Amendment. The court denied the motion and Griffin was convicted.

         The Supreme Court held that "[t]he search of Griffin's home satisfied the demands of the Fourth Amendment because it was carried out pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement" under the "well-established" exception to the warrant requirement for "special needs" searches.[23] The Court explained its holding as follows. First, it perceived it to be "always true of probationers . . . that they do not enjoy 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions'" - restrictions "meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large."[24] "These same goals," the Court stated, "require and justify the exercise of supervision to assure that the restrictions are in fact observed."[25] Moreover, the Court noted, "[r]ecent research suggests that more intensive supervision can reduce recidivism, . . . and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes."[26] In light of these considerations, the Court concluded that probation supervision "is a 'special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large."[27]

         Second, the Court found multiple reasons to conclude that the special needs of probation supervision make the usual warrant and probable-cause requirements of the Fourth Amendment impracticable. It stated:

A warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires. Moreover, the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct, and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create. . . . And on the other side of the equation-the effect of dispensing with a warrant upon the probationer: Although a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen. He is an employee of the [state probation department] who, while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer . . . . In such a setting, we think it reasonable to dispense with the warrant requirement.[28]

         The Court also concluded that probation supervision would be "unduly disrupted" by a requirement that there be probable cause to search the probationer's home, among other reasons because (1) such a requirement "would reduce the deterrent effect of the supervisory arrangement;" (2) "the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society;" and (3) "it is the very assumption of the institution of probation that the probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law."[29]

         In sum, under the "special needs" analysis of Griffin, the Fourth Amendment permits probation supervision to intrude significantly on probationers' privacy without judicial approval or probable cause in order to determine whether they are abiding by the law and the conditions of their probation, because probationers' reasonable privacy expectations are diminished and are outweighed by the heightened governmental interests in deterring them from re-offending and promoting their rehabilitation.[30]

         2. CSOSA's Special Need to Use GPS Monitoring as an Administrative Sanction for High-Risk Supervisees

         Griffin's "special needs" analysis applies to CSOSA's installation of a GPS device on Mr. Jackson's ankle to monitor his movements. CSOSA is the counterpart in the District to the state probation department in Griffin. It is a federal agency charged by law with providing "supervision, through qualified supervision officers, for offenders on probation, ...


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