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United States v. Mathews

United States District Court, D. Colorado

April 20, 2017




         Before the Court are nine motions filed by Defendant Vincent Mathews (“Mathews”):

1. Motion to Suppress In-Court and Out-of-Court Identification Regarding Confidential Informant Number One (ECF No. 32);
2. Motion to Suppress In-Court and Out-of-Court Identification Regarding CI-11317 (together with the previous motion, “Photo Lineup Motions”) (ECF No. 33);
3. Motion to Suppress Evidence Obtained Through Search Warrant of 1538 Uinta Street, Denver, Colorado (“Uinta Suppression Motion”) (ECF No. 34);
4. Motion Seeking Disclosure of Other Crimes, Wrongs, or Acts Pursuant to Rule 404(b) (“404(b) Motion”) (ECF No. 35);
5. Motion for Bill of Particulars (ECF No. 36);
6. Motion to Suppress Warrantless Seizure of GPS Tracker Evidence (“GPS Suppression Motion”) (ECF No. 37);
7. Motion to Suppress Statements Made During Custodial Interrogation (“Interrogation Suppression Motion”) (ECF No. 38);
8. Motion to Exclude Expert Testimony Regarding GPS Coordinates or in the Alternative for a Daubert Hearing (“GPS Daubert Motion”) (ECF No. 40); and
9. Motion for Hearing (ECF No. 42), seeking an evidentiary hearing on the various suppression motions and the GPS Daubert Motion.

         Having reviewed all of these motions, the Court finds no material factual disputes that require resolution, and thus the Court will deny the Motion for Hearing. The Court's disposition of the various other motions is as follows.

         I. BACKGROUND

         Believing that Mathews committed two pawn shop robberies (one on December 21, 2015, and the other on March 23, 2016), the Government charges Mathews with one count of conspiracy to interfere with interstate commerce in violation of 18 U.S.C. § 1951 (a.k.a. the Hobbs Act). (See ECF No. 1.) At the time of the alleged crimes, Mathews was in the custody of the Colorado Department of Corrections (“CDOC”) as a “community inmate”-a status similar to parole, as described in more detail below (Part II.C.3). At the direction of his parole officer, Mathews wore a GPS ankle monitor.

         Much of the evidence asserted against Mathews came from the GPS data gathered from that ankle monitor by Aaron Anderson, a Colorado parole officer who was also assigned to a federal task force that had been investigating the robberies. As described by Mathews, Anderson “wore two hats” and was acting in his role as a federal officer at the time he accessed the GPS data. (ECF No. 37 at 2.) Anderson, who was not Mathews's assigned parole officer, affirms that he accessed Mathews's GPS data as part of the federal investigation, upon suspicion that Mathews had committed the pawn shop robberies, and not for any purpose specific to his duties as a parole officer. (ECF No. 72-4 at 3.) The GPS data allegedly show Mathews on the premises of the two pawn shops when the robberies occurred. (See ECF No. 1-1 ¶¶ 6-7.)

         Mathews now brings several motions related to that GPS evidence, as well as related to photo lineup evidence that the Government intends to use against him. Mathews also seeks various other forms of relief, all addressed below.


         The motion with the most potential impact on this case is Mathews's GPS Suppression Motion. The Court will therefore address it first.

         Mathews asserts that the federal task force, acting alone, could never have obtained his GPS data without a warrant, and therefore Anderson could not share it with the federal task force without a warrant. (ECF No. 37 at 2-3.) For the reasons explained below, the Court finds that Anderson lawfully accessed Mathews's GPS data and lawfully shared it with the federal task force.

         A. GPS Searches & Lawfulness of Sharing Information

         A government “conducts a search” within the meaning of the Fourth Amendment “when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements.” Grady v. North Carolina, 135 S.Ct. 1368, 1370 (2015). In fact, it is a perpetual search for the entire time that the device is capable of transmitting the person's whereabouts. See id. at 1371 (rejecting argument that no search exists until the government actually accesses GPS-obtained data: “The State's program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search.”). Thus, Colorado parole authorities such as Anderson were perpetually “searching” Mathews within the meaning of the Fourth Amendment for as long as he wore the ankle monitor.[1]

         Nonetheless, Anderson's GPS-enabled search was not necessarily unlawful. See id. (remanding to lower court to determine whether search-via-ankle-monitor was reasonable under the totality of the circumstances). And, if Anderson lawfully obtained Mathews's GPS coordinates, nothing prevented him from sharing what he learned with federal investigators. “Evidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken.” United States v. Lester, 647 F.2d 869, 875 (8th Cir. 1981); see also 1 Wayne R. LaFave, Search & Seizure § 1.5(c) n.155 (5th ed., Oct. 2016 update) (citing additional similar cases).

         B. Relevant Case Law

         Given the foregoing, the question is not whether Anderson could permissibly share GPS data with the federal task force, but whether Anderson himself lawfully “searched” Mathews by accessing his GPS data specifically on suspicion of committing a crime, as opposed to accessing it for a purpose arising from Anderson's role as a parole officer. Particularly relevant to this inquiry-i.e., the relevance of the parole officer's specific motivation for the search-is a progression of Supreme Court and Tenth Circuit cases from 2001 to 2013.

         The first case is United States v. Knights, 534 U.S. 112 (2001). The defendant there had been sentenced by a California court to probation for an unrelated drug offense. Id. at 114. The probation order required the defendant to submit to searches by any probation officer or law enforcement officer essentially for any reason, with or without suspicion. Id. at 114-15. A police detective soon began to suspect that the defendant was involved in a string of arsons and pipe-bombings of power company equipment, and the detective chose to search the defendant's home without a warrant, given the probation conditions. Id. at 115. Based on the evidence gathered in that search, the defendant was eventually charged with various federal crimes. Id. at 115-16. The district court granted a motion to suppress, accepting the argument that the detective's “search was for ‘investigatory' rather than ‘probationary' purposes.” Id. at 116. The Supreme Court rejected this distinction and reversed. Applying a general reasonableness-under-all-the-circumstances test, the Supreme Court found that the probation search condition “significantly diminished [the defendant's] reasonable expectation of privacy.” Id. at 117-20. Thus, the detective's reasonable suspicion was enough to justify the search under the Fourth Amendment. Id. at 120-21. Given that reasonable suspicion existed, the Court chose not to reach the question of whether the detective could have invoked the probation search condition to search the defendant's home even without reasonable suspicion of a crime. Id. at 120 n.6.

         The next relevant case is United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002). The defendant there was on parole for a Utah crime and was subject to search “upon reasonable suspicion to ensure compliance with the conditions of [his] parole.” Id. at 1195-96 (internal quotation marks omitted). Eventually law enforcement officers began to suspect that the defendant possessed child pornography. Id. at 1196. The defendant's parole officers then led other law enforcement officers in a warrantless search of the defendant's home and recovered a computer containing child pornography. Id. at 1196-98. Federal charges followed and the defendant moved to suppress, but the district court denied that motion. Id. at 1198. The Tenth Circuit affirmed. Relying on Knights, the court noted that “[a] parole agreement containing a provision allowing the search of a parolee's residence diminishes the parolee's reasonable expectation of privacy in his residence.” Id. at 1199.[2] Moreover, the defendant's parole agreement

contained a search provision authorizing officers to search his home for a violation of any parole condition. One of those parole conditions was that he comply with all federal, state, and municipal laws. This case is thus materially indistinguishable from Knights in which the probationer's probation agreement authorized searches for any law enforcement purposes. Therefore, even assuming that the search was a subterfuge for a law enforcement investigation, it was permissible under general Fourth Amendment principles if the officers had reasonable suspicion that contraband was located at [the defendant's] residence or that a crime had taken place. As in Knights, the officers' motivation is irrelevant.

Id. at 1200 (citation omitted). The court eventually went on to find that reasonable suspicion existed, and therefore the search of the defendant's home was valid. Id. at 1200-01.

         Four years after Tucker and five years after Knights, the Supreme Court returned to the same basic issue in Samson v. California, 547 U.S. 843 (2006). There, the defendant was on parole and a police officer chose to search him entirely without suspicion of wrongdoing. Id. at 846-47. The police officer justified his search under California Penal Code § 3067, which directs that parolees receive notice that they may be subject to search at any time, with or without suspicion. Id. The police officer discovered methamphetamine on the defendant's person. Id. at 847. The California trial court denied his motion to suppress and the California Court of Appeal affirmed, holding that suspicionless searches of parolees are lawful in California so long as they are “not arbitrary, capricious or harassing.” Id. The U.S. Supreme Court then granted certiorari “to answer a variation of the question this Court left open in [Knights]- whether a condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.” Id. The Supreme Court answered in the affirmative, reasoning that California Penal Code § 3067 “clearly expressed” to the defendant that he could be subject to such searches, and the defendant “signed an order submitting to the condition and thus was unambiguously aware of it.” Id. at 852 (internal quotation marks omitted). Therefore, “[e]xamining the totality of the circumstances pertaining to petitioner's status as a parolee, an established variation on imprisonment, including the plain terms of the parole search condition, ” the Supreme Court “conclude[d] that [the defendant] did not have an expectation of privacy that society would recognize as legitimate.” Id. The court deflected concerns about “officers['] unbridled discretion to conduct searches” by pointing to “California's prohibition on ‘arbitrary, capricious or harassing' searches.” Id. at 856.

         A year after Samson, the Tenth Circuit decided United States v. Freeman, 479 F.3d 743 (10th Cir. 2007). The defendant was a Kansas parolee subject to “search by parole officer(s) of [his] person, residence, and any other person under [his] control.” Id. at 744-45 (internal quotation marks omitted). Law enforcement officers conducted a warrantless search of his home and discovered contraband, leading to federal charges. Id. at 745. The district court denied his motion to suppress, but the Tenth Circuit reversed. The Tenth Circuit synthesized Knights, Tucker, and Samson to stand for the idea that state law largely dictates a parolee's expectation of privacy. Id. at 746-48. It emphasized that Samson, in particular, did not announce “blanket approval for warrantless parolee or probationer searches by general law enforcement officers without reasonable suspicion; rather, the [Supreme] Court approved the constitutionality of such searches only when authorized under state law.” Id. at 748. Kansas had “not gone as far as California in authorizing such searches” because the search condition specifically stated that parole officers, not any law enforcement officer, could conduct a search. Id. Moreover, Kansas correctional regulations further emphasized that only a certain subset of parole officers (known as “special enforcement officers”) could conduct a search of a parolee's home, and even then only on reasonable suspicion of violation of the parole agreement. Id. at 744, 748. Because the defendant's home was searched by local police officers, and without reasonable suspicion of a parole violation, the Tenth Circuit found the search unlawful. Id. at 748-50.

         Freeman strongly suggests that state law establishes a floor below which a parolee's privacy expectations may not drop. See id. at 747-48 (“Parolee searches are therefore an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.”). Six years later, however, the Tenth Circuit reasoned in United States v. Mabry, 728 F.3d 1163 (10th Cir. 2013), that there may be a cellar beneath this floor.

         The defendant in Mabry, like the defendant in Freeman, was a Kansas parolee whose home was searched. Id. at 1165. Unlike in Freeman, the search at issue in Mabry was conducted by a special enforcement officer, as Kansas regulations require. Id. at 1165-66. But the special enforcement officer had apparently violated another Kansas correctional regulation requiring special enforcement officers “to get prior approval from a supervisor to search [a] residence.” Id. at 1169. The Tenth Circuit acknowledged the potentially analogous situation in Freeman but also drew on statements from Tucker that a search conducted in violation of state law could nonetheless be upheld under a “totality of the circumstances” inquiry. Id. Evaluating that totality, the Tenth Circuit concluded that “the alleged failure to get prior permission from a supervisor had a minimal impact on [the defendant's] expectation of privacy and the State's interest in supervising.” Id. Thus, “his limited expectation of privacy was outweighed by the State's strong interest in monitoring his behavior and preventing his recidivism.” Id. at 1169-70.

         C. Legitimate Expectations of Privacy in Colorado

         Applying Knights, Tucker, Samson, Freeman, and Mabry to this case, the Court must determine what legitimate expectations of privacy Mathews could have under Colorado law in light of his status as a community inmate. In so doing, the Court could compare Mathews's legitimate expectations, if any, to a circumstance in which Anderson possessed reasonable suspicion that Mathews had committed the pawnshop robberies. The Court instead assumes a state of affairs most favorable to Mathews, namely, that Anderson accessed Mathews's GPS data on an inchoate hunch, with no real reason to associate Mathews with any of the robberies under investigation by the federal task force.

         A community inmate is a CDOC inmate placed in the Intensive Supervision Program (“ISP”), which CDOC is authorized by statute to implement for inmates “not having more than one hundred eighty days remaining until [their] parole eligibility date[s].” Colo. Rev. Stat. § 17-27.5-101(1)(a). ISP is like parole, “[t]he main difference [being] that since [inmates] are still serving their court-ordered period of incarceration, the limitation on their rights is not pursuant to a voluntary [parole] agreement, but is imposed by the statutory authority granted to the CDOC to regulate the affairs of inmates.” (ECF No. 72-4 at 1.)

         As far as the Court's research reveals, the statutes governing the ISP do not specifically authorize searches. Rather, the statutes establish “minimum” restrictions on offenders (e.g., “monitored curfew . . . at least once a month”) and otherwise delegate to CDOC “the power to establish and enforce standards and criteria for administration of intensive supervision programs.” Colo. Rev. Stat. § 17-27.5-102(1), (2). The Court therefore finds it helpful to discuss Colorado's parole statutes, as a reference point for the expectations of privacy a community inmate may have.

         1. Parolees' Legitimate Expectations of Privacy

         Colorado's parole statutes require that,

[a]s a condition of every parole, the parolee shall sign a written agreement that contains such parole conditions as deemed appropriate by the board, which conditions shall include but need not be limited to the following: * * * That the parolee shall . . . allow the community parole officer to make searches of his or her person, residence, or vehicle . . . .

Colo. Rev. Stat. § 17-2-201(5)(f)(I)(D). The Colorado Supreme Court extensively discussed the scope of this parole condition in People v. McCullough, 6 P.3d 774 (Colo. 2000)

         The first question answered in McCullough was whether the Colorado Legislature intended the parole search condition to grant authority to parole officers to conduct suspicionless searches. In light of the Colorado Supreme Court's prior case law on parole searches, and in light of a particular statutory amendment, the court answered that question in the affirmative: “We conclude that the legislature intended to give parole officers authority to conduct routine searches of a parolee and his possessions as part of their supervisory authority and without requiring that they first possess reasonable grounds to believe that a parole violation has occurred.” Id. at 778 (internal quotation marks omitted).

         The court therefore proceeded to the next question, i.e., whether suspicionless searches of parolees violate the Fourth Amendment. The court's holding in this regard makes the resolution of Mathews's motion somewhat more complicated than it would otherwise appear in light of the U.S. Supreme Court and Tenth Circuit authorities discussed above:

We hold that a warrantless parole search is constitutional, even in the absence of “reasonable grounds, ” if the search meets the following requirements: (1) it is conducted pursuant to any applicable statute; (2) it is conducted in furtherance of the purposes of parole, i.e., related to the rehabilitation and supervision of the parolee; and (3) it is not arbitrary, capricious, or harassing.

Id. at 781.

         The second requirement is the most significant for present purposes. Regarding that requirement, the Colorado Supreme Court elaborated that parole searches “may not be conducted simply as a subterfuge for criminal investigations. ‘[They] may not be done for the prime purpose of circumventing the ordinary constitutional processes for the convenience of law enforcement officers in the course of their investigation.'” Id. at 782 (quoting People v. Way, 319 N.Y.S.2d 16, 21 (Nassau Cnty. Ct. 1971)). The court also took the time to summarize the quoted Way case, apparently as an example of what would violate the second requirement:

In Way, police contacted the parole officer and told him that his parolee was a suspect in a robbery. The parole officer took no steps to visit or interview his parolee until the police contacted the parole officer again two weeks later and requested that he accompany them on a search of the parolee's house for the purpose of investigating the robbery. The court found that the parole officer had become “nothing more than the alter ego of the detectives, ” stating, “This case does not present the usual situation where a parole officer may engage the services of the local policeman on the beat to protect him while he is engaged in searching a parolee or his home. Reference to the facts found herein demonstrate that ...

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