9th Circuit senior judge calls for reconsideration of parolees’ privacy rights

A senior judge on the 9th U.S. Circuit Court of Appeals urged her colleagues Friday to reconsider the state of privacy law as it applies to probationers and parolees, saying relevant Fourth Amendment jurisprudence as it stands fails to adequately grapple with the reality of modern technology.

The concurrence comes nine months after the landmark U.S. Supreme Court decision in United States v. Carpenter, which attempted to define the scope of the Fourth Amendment in the digital age by holding the use of certain cellphone records without first obtaining a warrant is unconstitutional.

Much is yet to be defined in this area of the law, and that duty will fall to federal appeals courts. On Wednesday, senior Judge Dorothy W. Nelson dipped a toe into those waters, suggesting the 9th Circuit should take a fresh look at how the Fourth Amendment applies to probationers and parolees.

"Our physical and digital spaces continue to merge with the creation of new technologies," Nelson wrote. "The individual and societal benefits of these technologies come with increased risks -- our devices and third parties store ever more deeply revealing and private information that is easily accessed by law enforcement."

The case before her court panel involved Kyle Jason Korte, a California parolee convicted for several bank robberies after Los Angeles County deputy sheriffs placed a GPS monitor on his car and collected cell site location information without obtaining warrants.

In a unanimous opinion written by Circuit Judge John B. Owens, the three-judge panel shot down the defendant's Fourth Amendment suppression arguments.

Owens noted the string of 9th Circuit decisions limiting Fourth Amendment protections for parolees, including a 2017 decision by the court declining to extend high court case law requiring a warrant to search an arrestee's cellphone.

"If an officer can conduct a warrantless search of a parolee's cellphone -- an object that is '[t]he sum of an individual's private life,' -- placing a GPS device on a parolee's car cannot logically demand more constitutional protection," Owens wrote. United States v. Korte, 2019 DJDAR 2156 (9th Cir. Mar. 15, 2019).

The court reasoned the good faith exception applied to Korte's suppression argument regarding the cell records, noting the Carpenter decision had not yet been published when the sheriff's deputies exercised their search.

Much of the relevant circuit case law follows the Supreme Court's most recent decision addressing the Fourth Amendment's application to probationers and parolees, which upheld California's system allowing suspicionless searches of parolees so long as they were not "arbitrary, capricious or harassing." Samson v. California, 547 U.S. 843 (2006).

"It is not surprising ... that in the decade or so since Samson, our court has further diminished probationers' and parolees' expectations of privacy," Nelson lamented, later citing Justice John P. Stevens' dissent in the case, which described the majority opinion as an "unprecedented curtailment of liberty."

H. Dean Steward, a San Clemente sole practitioner who represented the defendant before the 9th Circuit, said Friday in a phone interview Nelson's concurrence gave him confidence the court might reconsider his client's case en banc.

"Rather than an open invitation, I took it as a pleasant suggestion," Steward said, conceding Nelson did not explicitly invite the court to take his case en banc. "We're certainly going to follow up."

Securing a change in the relevant case law may be a bit of an uphill battle. Neither Owens nor Circuit Judge Consuelo Callahan, the third member of the panel, affixed their name to Nelson's writing.

Orin Kerr, a professor at USC Gould School of Law who specializes in digital privacy issues, said the concurrence would likely do little to give the case further traction.

"[Nelson] really seems to have an objection to the Supreme Court's decision in Samson, which the court hasn't shown signs of overturning," Kerr said in a phone message. "So I don't think invoking the dissent in that case is going to persuade votes to change, or at least we haven't seen a strong signal of that yet."

Kerr added the digital angles of the case made it interesting, but that aspect wouldn't likely change the analysis.

"If the ultimate Fourth Amendment search is searching a home, and the government can search a home without a warrant, it's not clear why following his car with a GPS device or getting cell site records is somehow more sensitive," Kerr said, referencing 9th Circuit precedent allowing warrantless searches of a parolee's home.