Can Law Enforcement Review Ankle Monitor Location Data Without a Warrant? – North Carolina Criminal Law

Last September, the Court of Appeals decided State v. Thomas, No. COA23-210, __ N.C. App. __ (2024), a case involving law enforcement’s retrieval of ankle monitor location data gathered while the defendant was on post-release supervision.

This is the first North Carolina appellate case to address whether it is constitutional for law enforcement to retrieve ankle monitor data without a warrant. This post will discuss the reasoning in Thomas and its implications for related questions.

The facts in Thomas. In Thomas, the defendant was charged with murder and felony assault arising from a drive-by shooting in Raleigh. Witnesses to the shooting said they saw a red Charger near the scene before and after. Slip op. 2. Law enforcement later spoke with a confidential informant, who stated that the defendant was involved with the shooting along with a co-defendant, who drove a red Charger. Armed with this information, law enforcement investigated further and learned that the defendant was wearing a GPS ankle monitor on the night in question. Slip op. 2-3.

A private company held a contract with the state to provide electronic monitoring services for the Department of Adult Probation and Parole. An employee of this company explained that Raleigh PD had two ways of accessing this data. One involved a “data dump” of every client monitored at the end of each day. The second way was more targeted: ten officers had individual log-ins allowing them to retrieve particular records and review them. One of these officers, without applying for a warrant, accessed the system to look up the defendant’s location data points during the incident. The data showed that the defendant was traveling toward the scene before it happened, was near the shooting when it occurred, and was traveling away from the scene afterwards. Slip op. 3.

Prior to trial, the defendant moved to suppress the ankle monitor data, asserting that the retrieval of the data violated his Fourth Amendment rights. Slip op. 4-5. This motion was denied, and after the defendant was convicted at trial, the issue came before the Court of Appeals. Slip op. 6-7.

The analysis in Thomas. Preliminary, there was some confusion before the trial and appellate courts as to whether the defendant was on ankle monitoring as a condition of probation or post-release supervision (“PRS”). However, the COA looked closely at the record and determined there was no “material conflict”- the defendant was on post-release supervision. Slip op. 11.

In arguing that only his post-release officer should be able to review his ankle monitor data, the defendant invoked a statute addressing a condition of post-release supervision dealing with warrantless searches. The statute, G.S. 15A-1368.4(e)(10), provides that the supervisee must “submit at reasonable times to warrantless searches by a post-release officer” of the supervisee’s “person,” “vehicle,” and “premises” while the supervisee is present for purposes reasonably related to the post-release supervision. Slip op. 16. The defendant argued that the review of ankle monitor data by law enforcement, without the involvement of his supervising officer, and for purposes arguably unrelated to supervision, ran afoul of the statute. One may ask whether the search was related to the condition that the defendant “not commit another crime” per G.S. 15A-1368.4(b) (see my colleague Jamie’s discussion here, albeit in the context of the parallel probation statute, G.S. 15A-1343(b)(13), which refers to searches “directly related” to the probationer’s supervision). Even so, the defendant might reasonably argue that the statute contemplated that warrantless searches only occur with the involvement of a post-release officer and with the supervisee’s presence or at least knowledge, neither of which occurred in the present case.

However, the Court of Appeals did not engage deeply with the language in this statute addressing warrantless searches, reasoning that it was inapplicable because it dealt only with searches of an exclusive list of real-world places: persons, vehicles, and premises. Slip op. 16. Instead, the Court of Appeals scrutinized the portion of the statute directly addressing electronic monitoring, G.S. 15A-1368.4(e)(13). Slip op. 16-18. The court emphasized that the electronic monitoring condition in the post-release statute was different from that in the probation statute. Whereas the probation statute refers to a device which “permits the supervising agency to monitor” the supervisee’s compliance with a given order regarding when the supervisee may be in certain places, the post-release statute states only that the defendant may “be monitored electronically.” Slip op. 17-18. There may still be an argument that electronic monitoring, even in the post-release context, is designed to ensure “compliance with the condition” that the supervisee “[r]emain in one or more specified places for a specified period or periods each day,” see G.S. 15A-1368.4(e)(13), rather than to monitor the defendant for another purpose, such as investigation of a new crime. However, the court ultimately concluded that the more general language in the post-release statute (“be monitored electronically” as opposed to “permits the supervising agency to monitor”) meant that there was no violation of the statute when Raleigh PD reviewed the defendant’s ankle monitor data through their agreement with the private company providing the electronic monitoring services. Slip op. 18-20, 23.

The court went on to reason that the ultimate constitutional question was whether the defendant had a reasonable expectation of privacy in his location data given that the statute did not prohibit the law enforcement officer from accessing the data directly. Slip op. 20-22. Invoking landmark Fourth Amendment cases such as Katz v. United States, 389 U.S. 347 (1967), and Kyllo v. United States, 533 U.S. 27 (2001), the court concluded that the defendant did not have a reasonable expectation of privacy in his location data under the circumstances. Slip op. 21-22. The court stressed that individuals on PRS have a diminished expectation of privacy as compared to those who have completed their sentence or are subject to lifetime satellite-based monitoring, citing to State v. Carter, 283 N.C. App. 61, 69 (2022) and State v. Grady, 259 N.C. App. 664, 670 (2018). Slip op. 22. Given this lower expectation of privacy, and the court’s determination that the Raleigh police officer’s review of the data was authorized by statute, the court concluded that no “search” occurred under the law. It was not reasonable for those on post-release supervision to expect their location data to be protected from warrantless searches by law enforcement. The court left the question open, though, for those on probation.

Person-based vs. location-based inquiry

Thinking more broadly about the ways in which law enforcement engage with ankle monitor data, it is important to observe that the investigating officer in Thomas had a lead that the defendant was involved in the drive-by shooting and chose to pull the defendant’s personal location data. This “lead-based,” or “person-based,” inquiry can be distinguished from a “location-based” inquiry, in which law enforcement investigates an incident by running a search in a database for all individuals subject to ankle monitoring in a given place at a given time. This “location-based” approach is sometimes referred to as “reverse location searching” because law enforcement starts with the place and works back to a person. My anecdotal sense is that the latter, location-based approach is more common, in that it is a standard preliminary step many officers take when first assigned to a case.

The Fourth Amendment implications are double-edged. On the one hand, the person-based inquiry may be more invasive of privacy in that law enforcement is delving into the whereabouts of a particular individual and potentially looking back over a period of time at the movements and habits of that individual. From another perspective, the location-based inquiry may be more problematic in that it is more of a dragnet, where law enforcement trawls for a suspect by retrieving location data associated with a large number of individuals.

Of course, the flipside of these Fourth Amendment concerns is that society generally has an interest in law enforcement utilizing available tools to investigate and fight crime. The key question is whether law enforcement should be required to seek a court order or warrant prior to pulling the data. When an officer seeks a warrant, a neutral judicial official can verify that the purpose of the “data dump” is proper and potentially set appropriate parameters. Though the Court of Appeals’ analysis in Thomas appears to permit law enforcement to pull the location data of those on post-release supervision without limiting conditions (assuming appropriate agreements are in place between law enforcement and Community Supervision), open questions remain as to probation and pre-trial monitoring, as discussed below and in a future post. Inquisitive readers may also be interested in Jeff’s recent post on “geofence” warrants, which involve location-based searches of the GPS data of cell-phone users who are not subject to any type of state supervision (the post discusses a recent split between the 4^th and 5^th circuits).

State v. Gallion. It’s worth noting that before Thomas, the Court of Appeals addressed the question of warrantless retrieval of GPS data gathered while the defendant was on probation in State v. Gallion, 282 N.C. App. 305 (2022). The defendant in Gallion raised two arguments on appeal: 1) the GPS data should be suppressed because law enforcement failed to obtain a warrant or court order before the N.C. Department of Adult Corrections (“DAC”) provided information regarding the GPS data, and 2) the GPS data was privileged under G.S. 15-207 and should not be admitted into evidence without waiver of the privilege.

However, the suppression issue was not preserved in Gallion, so the court reviewed only for plain error. The court held that suppression was not a proper remedy because G.S. 15A-974(a)(2) provides for suppression only where there is a substantial violation of Chapter 15A, not Chapter 15. The court also concluded that the qualified privilege belonged to DAC rather than the probationer, and that DAC had the option of waiving the privilege. The court further noted that law enforcement did in fact obtain a search warrant shortly after receiving initial information regarding the GPS data over the phone.

Given that the Fourth Amendment question was not squarely raised or ruled upon in Gallion, and the Thomas court was careful to limit its ruling to post-release supervision, the legality of law enforcement’s warrantless retrieval of GPS data gathered during probation is unclear. It may well be that the court would rule similarly that a probationer has a diminished expectation of privacy and thus no warrant is necessary, but it appears to be an open question.

Conclusion. Although the court upheld the warrantless retrieval of the post-release supervisee’s location data in Thomas, getting a warrant may be the more prudent course. Furthermore, our appellate courts have not yet directly addressed the question of whether a warrant is needed when law enforcement seeks probation or pretrial location data, so obtaining a warrant in those contexts would be well-advised. Notably, an individual on pretrial release has not yet been convicted of any crime and is not under DAC supervision. Thus, the analysis regarding diminished expectation of privacy would differ.

In a follow-up post, I will explore how these questions surrounding retrieval of location data gathered during pretrial release, probation, and post-release supervision are playing out in courts outside of North Carolina.

I’d be interested to hear how these issues are handled in your local jurisdiction. You can email me at [email protected] or drop your comments below. Going forward, I will be enabling comments on my blog posts to encourage discussion; please see the “about this blog” page for further details.