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United States v. Korte

United States Court of Appeals, Ninth Circuit

March 15, 2019

United States Of America, Plaintiff-Appellee,
v.
Kyle Jason Korte, Defendant-Appellant.

          Argued and Submitted February 11, 2019 Pasadena, California

          Appeal from the United States District Court for the Central District of California No. 8:16-cr-00156-JLS-1, Josephine L. Staton, District Judge, Presiding

          H. Dean Steward (argued), Attorney at Law, San Clemente, California, for Defendant-Appellant.

          Julia L. Reese (argued), Assistant United States Attorney, Criminal Appeals Section; Nicola T. Hanna, United States Attorney; Lawrence S. Middleton, Assistant United States Attorney, Chief, Criminal Division; Gregory W. Staples, Assistant United States Attorney, Santa Ana Branch Office; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Before: Dorothy W. Nelson, Consuelo M. Callahan, and John B. Owens, Circuit Judges.

          OPINION

          OWENS, CIRCUIT JUDGE:

         SUMMARY [*]

         Criminal Law

         The panel affirmed the district court's denial of the defendant's suppression motions and his convictions for bank robbery in a case in which the defendant, who was on parole during his crime spree, had consented to suspicionless searches of his person, residence, and any property under his control.

         Rejecting the defendant's contention that a lawful parole search of his car does not extend to the trunk because the trunk is not "property under his control," the panel held that the parole search of the defendant's trunk was lawful.

         Following precedent distinguishing Fourth Amendment rights in the parolee context, the panel held that the warrantless placement of a GPS tracker on the defendant's car did not violate the Fourth Amendment.

         The panel held that cell site location information (CSLI) acquired before the Supreme Court issued its decision in Carpenter v. United States, 138 S.Ct. 2206 (2018) (holding that the Government must obtain a warrant to access a person's CSLI from a wireless carrier), is admissible under the good-faith exception to the exclusionary rule so long as the Government satisfied the Stored Communications Act's then-lawful requirements. The panel took no stance on the constitutionality of acquiring a parolee's CSLI without a warrant.

         Concurring in both the reasoning and the result, Judge Nelson wrote separately because she is concerned with the ever "diminishing" reasonable expectation of privacy afforded to probationers and parolees, especially as it relates to digital privacy.

         COUNSEL

         OPINION

         Defendant Kyle Korte appeals from his convictions for bank robbery. During his crime spree, Korte was on parole and had consented to warrantless, suspicionless searches of his person, residence, and any property under his control. Relying on this parole condition, officers placed a Global Positioning System ("GPS") device on his car and later searched its trunk. Officers also obtained Korte's historical cell site location information ("CSLI") by court order. On appeal, Korte primarily challenges the district court's denial of his suppression motions as to each of these searches. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In a world of cybercrime and identity theft, Korte stole money the old-fashioned way - he robbed banks. After serving time in state prison for bank robbery, Korte was paroled in August 2016. As a parolee in California, Korte was "subject to search or seizure . . . at any time of the day or night, with or without a search warrant or with or without cause." Cal. Penal Code § 3067(b)(3); see also id. § 3067(a). On October 25, 2016, Korte acknowledged his parole conditions, including that he was now subject to searches of "[y]ou, your residence, and any property under your control."

         In October 2016, the Los Angeles Sheriff's Department ("LASD") began investigating a series of bank robberies. The first robbery took place on October 7. A masked robber entered a bank and demanded "all your hundreds." The frightened teller, protected by bulletproof glass, activated the silent alarm and retreated to a back office. The robber left with no money. On October 12, the masked robber targeted another bank, this time brandishing a toy gun. He was more successful this go-around, escaping with $1, 600. He then hit two more banks on October 27. Again displaying the toy gun, the robber pocketed $2, 200 and $7, 000. In total, the masked robber stole less than $11, 000 - not a Neil McCauley heist by any means.

         Working with LASD, the Federal Bureau of Investigation ("FBI") began to suspect that Korte was the masked robber. Surveillance video from one of the robberies showed a car registered to the address that Korte provided to his parole officer. An LASD officer who saw video of the masked robber also reported that the individual resembled Korte, who the officer knew was on parole for bank robbery.

         On November 4, 2016, without a warrant or Korte's consent, LASD placed a GPS tracking device on Korte's car and periodically monitored the vehicle's movements over the next six days. That same day, the Government obtained a court order under the Stored Communications Act ("SCA"), 18 U.S.C. § 2703(d), to acquire Korte's CSLI. This information ...


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