Davis v. U.S.

West Codenotes

Held Invalid

28 C.F.R. § 810.3(b)(6)

Appeal from the Superior Court of the District of Columbia (2017-CF3-006133), (Hon. Ronna L. Beck, Trial Judge)

Paul R. Maneri, Public Defender Service, with whom Sarnia Fam, Jaclyn Frankfurt, Public Defender Service, and Dennis Martin, Public Defender Service at the time, were on the brief, for appellant.

Ethan L. Carroll, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time, and Elizabeth Trosman, Suzanne Grealy Curt, and Brittany Keil, Assistant United States Attorneys, were on the brief, for appellee.

Before Easterly and Deahl, Associate Judges, and Thompson,^* Senior Judge.

Dissenting Opinion by Senior Judge Thompson at page 112.

Easterly, Associate Judge:

Travonn Davis challenges the denial of his motion to suppress inculpating data from the GPS monitor he was required to wear by the Court Services and Offender Supervision Agency ("CSOSA") while he was on supervised release for a prior offense. Mr. Davis’s motion to suppress was litigated in the trial court before this court issued its decision in United States v. Jackson, 214 A.3d 464 (D.C. 2019). In Jackson, this court recognized that (1) requiring an individual to be subject to GPS monitoring is a search under the Fourth Amendment, id. at 472, and (2) such a search of an individual on probation may be upheld as constitutional under the special needs doctrine, which allows reasonable regulations to substitute for the warrant and probable cause requirements of the Fourth Amendment where special needs exist, id. at 472-81 (citing Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). But neither Jackson nor this court’s subsequent decision in Atchison v. United States, 257 A.3d 524 (D.C. 2021) (extending the special needs rationale employed in Jackson to evaluate GPS monitoring of probationers to supervised releasees) considered if CSOSA’s regulation authorizing electronic monitoring is lawful under the D.C. Code and therefore could be considered a "reasonable" basis for these searches under a special needs analysis. In their briefs to this court, the parties address this issue: Mr. Davis asserts that CSOSA’s imposition of a GPS monitor on Mr. Davis could not be upheld as a special needs search under Jackson, inter alia, because the regulation underlying this practice falls outside the agency’s statutory authority; the government argues, inter alia, that CSOSA’s regulation is lawful and thus a reasonable foundation for a special needs search.

Critically, CSOSA is not the only federal agency with statutory authority over D.C. supervised releasees. The United States Parole Commission has primary authority, and CSOSA carries out its responsibilities vis-à-vis supervised releasees "on behalf of" the Parole Commission, not as an independent actor. D.C. Code § 24-133(c)(1). Mirroring the system governing federal releasees, the United States Parole Commission has the same adjudicatory powers federal trial courts have to set or modify the conditions of release or revoke release—powers that include the authorization of warrantless searches—while CSOSA has the same powers that federal probation officers have to track compliance with these conditions of release. See D.C. Code § 24-133(c)(2) & (d). Although a different statutory provision gives the Director of CSOSA authority to "[d]evelop

and operate intermediate sanctions … for sentenced offenders," D.C. Code § 24-133(b)(2)(F), based on the legislative history of the term "intermediate sanctions" and our understanding that the Parole Commission’s authority vis-à-vis supervised releasees tracks that of a federal district court, we do not understand that provision to give CSOSA the unilateral power to authorize searches—which the Supreme Court in recent years has held clearly encompasses GPS monitoring—of supervised releasees at its officers’ discretion.

Considering CSOSA’s bounded statutory authority, the procedural protections the Parole Commission otherwise affords against warrantless searches of people on supervised release, and our evolved understanding that electronic monitoring constitutes a search deserving of Fourth Amendment protection, we conclude that CSOSA’s regulation authorizing its officers to discretionarity and unilaterally impose such monitoring, 28 C.F.R. § 810.3(b)(6), is unlawful to the extent it is applied to supervised releasees. Because the government can have no legitimate interest in the enforcement of an unlawful regulation, reliance on the regulation is perforce unreasonable under a special needs analysis. We therefore hold that Mr. Davis’s motion to suppress the GPS data gathered by CSOSA should have been granted and his guilty plea conditioned on the denial of that motion must be vacated.

I. Facts and Procedural Background

In 2012, Mr. Davis was sentenced and incarcerated for armed robbery, and in 2013, he began a five-year period of supervised release in connection with that incarceration. The conditions of his release, set by the Parole Commission, did not include GPS monitoring or searches of his person at CSOSA’s discretion, nor was Mr. Davis required to comply with a curfew or house arrest. Apart from being a day late to report for an office visit in May 2016, it appears Mr. Davis was fully compliant with the conditions of his supervised release until he was arrested and charged with misdemeanor assault on a police officer ("APO") on June 29, 2016. Although no probable-cause finding in support of the arrest was made and no prosecution followed, his Community Supervision Officer ("CSO") from CSOSA placed Mr. Davis on GPS monitoring two weeks later as a "sanction" following this arrest. Under CSOSA regulations, an officer may unilaterally order such monitoring for "a specified" period of time. See 28 C.F.R. § 810.3(a) (2023)¹ (explaining a supervised releasee "will be in violation of the conditions of [their] supervision" and "administrative sanctions" may be imposed "if [their] CSO has reason to believe that [they] are failing to abide by the general or specific conditions of release or [they] are engaging in criminal activity"); 28 C.F.R. § 810.3(b)(6) (listing "electronic monitoring for a specified amount of time" as an administrative sanction "available to the CSO").

With the exception of a few weeks in August during which his GPS monitor was removed in relation to another arrest, Mr. Davis remained on GPS monitoring for the next three months until November 29, 2016, when his CSO discharged him from GPS monitoring twelve days after his misdemeanor APO charge was dismissed.

During the periods when Mr. Davis was required to be on GPS monitoring, he was forbidden from removing the GPS tracking device, required to charge the device for an hour twice every day (once in the morning and once in the evening), during which

he had to remain awake and next to an electrical outlet, and prohibited from engaging in activities that would submerge the device in water (e.g., swimming or taking baths). Per CSOSA’s documentation and the facts stipulated by the parties, all of Mr. Davis’s movements during these periods were "monitored by CSOSA’s (24/7) Monitoring Center" and "tracked and stored as an official record," which would be "indefinitely maintain[ed]" and accessible without a warrant by CSOSA and by the Metropolitan Police Department.

Meanwhile, on November 19, 2016, two days after the misdemeanor APO charge was dismissed but ten days before Mr. Davis’s CSO discharged him from GPS monitoring, MPD responded to a report of an armed carjacking in southeast D.C. MPD subsequently searched the location records of all people on CSOSA GPS monitoring to identify those who were near the site at the time of the incident and thereby linked Mr. Davis to the time and place of the carjacking and to the area where MPD later recovered the car. Based on this connection, Mr. Davis was indicted on a number of related charges in April 2017.

Mr. Davis moved to suppress the GPS data, asserting that its collection violated his Fourth Amendment rights.² The government, which had the burden to defend the challenged warrantless search, see infra Part II.B., argued in response that (1) Mr. Davis had consented to the search (an argument it has since abandoned) and (2) the warrantless search of Mr. Davis was reasonable under a general totality-of-the-circumstances analysis (the same argument it made in Superior Court to oppose suppression in United States v. Jackson, No. 2015-CF3-2512, in which a challenge was raised to warrantless CSOSA GPS monitoring in the context of probation and which led to this court’s decision in Jackson, 214 A.3d at 464). The government did not invoke the special needs doctrine. In fact, in its argument defending CSOSA’s sharing of the GPS monitoring data, see supra note 2, the government expressly disclaimed reliance on the special needs doctrine.

At the suppression hearing, the trial court sua sponte requested supplemental briefing from the parties on "the authority of CSOSA to require GPS monitoring." The court explained that supervised release was different from probation, it had looked at the statutory framework, and it was aware that "the Parole Commission has the authority under our Code to exercise the authority of the [c]ourt" over supervised releasees. But, the court observed, "CSOSA is the one here that … imposed the GPS monitoring." Referencing the operative statutes, the court asked whether CSOSA "can … just do that?" and if the government’s position was that it could, whether that authority came from a statute or elsewhere. The court’s "focus" was "what entitles CSOSA to impose the GPS monitoring condition?" In its supplemental opposition,...