FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50051
Plaintiff-Appellee,
D.C. No.
v. 8:16-cr-00156-
JLS-1
KYLE JASON KORTE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted February 11, 2019
Pasadena, California
Filed March 15, 2019
Before: Dorothy W. Nelson, Consuelo M. Callahan, and
John B. Owens, Circuit Judges.
Opinion by Judge Owens;
Concurrence by Judge D.W. Nelson
2 UNITED STATES V. KORTE
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.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KORTE 3
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
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.
OPINION
OWENS, Circuit Judge:
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
4 UNITED STATES V. KORTE
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
UNITED STATES V. KORTE 5
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 placed Korte’s cell phone near three of the
four banks at the time of the respective robberies.
On November 10, 2016, LASD learned that the FBI had
obtained an arrest warrant for Korte. Officers followed
Korte as he drove from his home to a bank and parked
nearby, seeming to surveil his next target. An officer saw
Korte open the car’s trunk and place something inside.
Shortly thereafter, they arrested Korte and searched the car.
The officers’ search of the trunk revealed the toy gun used
during the three armed robberies and the shirt Korte had been
wearing while casing the bank just prior to his arrest.
A grand jury indicted Korte for one count of attempted
bank robbery in violation of 18 U.S.C. § 2113(a) and three
counts of bank robbery in violation of 18 U.S.C. § 2113(a),
(d). Korte pled not guilty and moved to suppress (1) the
evidence found in his car’s trunk, (2) the information derived
from the GPS tracker on his car, and (3) his CSLI. The
district court denied all three suppression motions. The court
reasoned that Korte’s parole status permitted the warrantless
search of the trunk and placement of the GPS tracker on his
car. As for the CSLI, it held that even if the acquisition of
this information violated Korte’s Fourth Amendment rights,
see Carpenter v. United States, 138 S. Ct. 2206 (2018), the
good-faith exception clearly applied based on the case law
at that time.
6 UNITED STATES V. KORTE
Korte went to trial. As to Count 1 — the unsuccessful
robbery — the bank teller testified that even though
bulletproof glass separated her from the robber and she saw
no weapon, she was nevertheless “[k]ind of panicked,”
“[s]hocked,” and “[s]cared.” Korte filed a motion for a
judgment of acquittal, under Federal Rule of Criminal
Procedure 29, focusing on Count 1. The district court
rejected his argument that the Government failed to prove
the element of “force and violence, or by intimidation,” as
18 U.S.C. § 2113(a) requires. Citing the teller’s “testimony
with regard to a mask and the demand,” the court found
sufficient evidence of “intimidation” to send the matter to
the jury.
The jury returned a guilty verdict as to all four counts.
Korte was sentenced to 210 months in prison.
II. DISCUSSION
We review de novo the denial of Korte’s suppression
motions. See United States v. Zapien, 861 F.3d 971, 974 (9th
Cir. 2017) (per curiam). We address each search — of his
car’s trunk, the GPS tracker on his car, and the acquisition
of his CSLI — in turn.
A. Search of the Trunk
We first examine whether Korte’s parole-search
condition authorized the warrantless search of his car’s
trunk. See United States v. Cervantes, 859 F.3d 1175, 1183
(9th Cir. 2017) (“A search of a parolee that complies with
the terms of a valid search condition will usually be deemed
reasonable under the Fourth Amendment.”).
California Penal Code section 3067(b)(3) provides that
every parolee “is subject to search or seizure . . . at any time
UNITED STATES V. KORTE 7
of the day or night, with or without a search warrant or with
or without cause.” In Samson v. California, 547 U.S. 843,
846 (2006), the United States Supreme Court reviewed
California’s parole-search condition to determine “whether
a suspicionless search, conducted under the authority of
[section 3067], violates the Constitution.” The Court first
reasoned that “parole is more akin to imprisonment.” Id. at
850. Because parolees “have severely diminished
expectations of privacy by virtue of their status alone” —
even less than probationers — and because “[t]he State’s
interests” in supervising parolees and reducing recidivism
“are substantial,” the Court upheld California’s parole-
search condition. 1 Id. at 852–53.
Korte does not — and cannot — argue that officers
unlawfully searched his car. He admits that he rented the car
and referred to it as “my car.” As “property under [his]
control,” California’s parole-search condition authorized the
1
There are two limitations on this condition. First, the officer
conducting the search must know at the time that the individual is
currently on parole. See Moreno v. Baca, 431 F.3d 633, 641 (9th Cir.
2005). Second, the search cannot be “arbitrary, capricious, or
harassing.” See CAL. PENAL CODE § 3067(d) (“It is not the intent of the
Legislature to authorize law enforcement officers to conduct searches for
the sole purpose of harassment.”); see also Samson, 547 U.S. at 856
(“The concern that California’s suspicionless search system gives
officers unbridled discretion to conduct searches . . . is belied by
California’s prohibition on ‘arbitrary, capricious or harassing’ searches.”
(citations omitted)).
Here, it is undisputed that the officers knew that Korte was on
parole, and there is no evidence the officers engaged in an arbitrary,
capricious, or harassing search. Nor does Korte contend he was unaware
of the parole-search condition. See People v. Lilienthal, 587 P.2d 706,
711 (Cal. 1978) (“The condition itself provides general notice to a
defendant that he or his belongings may be subjected to warrantless
searches.”).
8 UNITED STATES V. KORTE
warrantless search of it. See, e.g., United States v. Caseres,
533 F.3d 1064, 1075–76 (9th Cir. 2008) (explaining that a
search of the parolee’s car would have been lawful if the
officer had known that the defendant was on parole).
Yet, Korte contends that a lawful parole search of his car
does not extend to the trunk because the trunk is not similarly
“property under [his] control.” We reject his narrow
interpretation of this condition. Property is subject to search
when a parolee “exhibit[s] a sufficiently strong connection
to [the property in question] to demonstrate ‘control’ over
it.” United States v. Grandberry, 730 F.3d 968, 980 (9th Cir.
2013) (defining “property under [a parolee’s] control”); see
also Cervantes, 859 F.3d at 1183 (explaining that having a
key to and belongings inside a hotel room sufficiently
demonstrate control, even if the room is co-occupied).
Consistent with our understanding of the condition, the
Supreme Court of California explained that a parolee
controls property based on “the nexus between the parolee
and the area or items searched,” including the “nature of that
area or item” and “how close and accessible the area or item
is to the parolee.” People v. Schmitz, 288 P.3d 1259, 1270
(Cal. 2012) (holding that a parolee, who is only a passenger
in a third-party’s vehicle, is in control of areas within his
reach in the passenger compartment).
Korte’s uncontested control over the car was sufficient
to permit a warrantless search of its trunk. In any event, his
conduct also illustrated a sufficiently close nexus to the trunk
itself. Officers observed him putting things inside the trunk.
Permitting a warrantless search of the trunk of a
parolee’s car is also consistent with broader Fourth
Amendment precedent. Generally, a lawful search of a fixed
space or premise extends to its entire area, whether or not
that requires opening a confined space: “[N]ice distinctions
UNITED STATES V. KORTE 9
between closets, drawers, and containers, in the case of a
home, or between glove compartments, upholstered seats,
trunks, and wrapped packages, in the case of a vehicle, must
give way to the interest in the prompt and efficient
completion of the task at hand.” United States v. Ross, 456
U.S. 798, 821 (1982). This reasoning applies to a car’s
trunk. See, e.g., id. at 825 (“If probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of
every part of the vehicle and its contents that may conceal
the object of the search.”); United States v. Ewing, 638 F.3d
1226, 1231 (9th Cir. 2011) (“[I]f a law enforcement officer
has probable cause to search a vehicle, that probable cause
extends to all contents in the vehicle that could be connected
to the suspected activity.”); United States v. McWeeney, 454
F.3d 1030, 1035 (9th Cir. 2006) (holding that consent to
search a defendant’s car extends to the trunk). We also note
that Korte’s proposed distinction between a car and trunk
was already rejected by the Supreme Court of California in
the context of a probationer – who has more Fourth
Amendment protection than Korte as a parolee. See
Lilienthal, 587 P.2d at 711 (“We conclude that the officers
were justified in searching defendant’s car trunk pursuant to
defendant’s consent to warrantless searches as a condition of
his probation.”).
As property under his control, Korte fails to explain how
searching his car’s trunk would offend the Fourth
Amendment when a warrantless search of his home — the
apex of constitutionally protected places — would not. See
United States v. Lopez, 474 F.3d 1208, 1213–14 (9th Cir.
2007) (upholding the warrantless search of a parolee’s
home), overruled on other grounds by United States v. King,
687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam); see
also Florida v. Jardines, 569 U.S. 1, 6 (2013) (“But when it
comes to the Fourth Amendment, the home is first among
10 UNITED STATES V. KORTE
equals.”). The district court summed it up well: “If an
individual’s residence falls within the scope of an
appropriate search under the parolee provisions, how would
a trunk not?”
Accordingly, the district court correctly held that the
search of Korte’s trunk was a lawful parole search.
B. Placement and Use of the GPS Tracker
We next decide whether Korte’s parole-search condition
permitted the warrantless placement of a GPS device on his
car and the subsequent surveillance of his car’s movements.
Installing a GPS tracker on a car constitutes a search,
typically requiring a warrant. See United States v. Jones,
565 U.S. 400, 404 (2012). The application of this principle
to a parolee’s car, however, is less clear. While the parties
agree that placing the device on Korte’s car was a search
under the Fourth Amendment, they disagree on whether
doing so without a warrant offends the Constitution. In light
of Samson’s strong pronouncement that parolees in
California have very limited Fourth Amendment rights, 547
U.S. at 851–52, we agree with the district court that this was
a lawful parole search.
Our decision in United States v. Johnson, 875 F.3d 1265
(9th Cir. 2017), instructs us not to necessarily apply a newly
established Fourth Amendment protection to parolees. In
Riley v. California, 573 U.S. 373, 386 (2014), the United
States Supreme Court held that the warrantless search of an
arrestee’s cell phone was unlawful. The Court emphasized
the significant privacy intrusion that arose when searching a
person’s cell phone. Id. at 393; see also Johnson, 875 F.3d
at 1274 (noting that Riley was premised on “privacy interests
implicated in cell phone searches [being] particularly
UNITED STATES V. KORTE 11
acute”). Cell phones, the Supreme Court said, are now “a
pervasive and insistent part of daily life” that “place vast
quantities of personal information literally in the hands of
individuals.” Riley, 573 U.S. at 385–86. Because cell
phones “collect[] in one place many distinct types of
information . . . that reveal much more in combination than
any isolated record,” searching a cell phone would give law
enforcement the unparalleled ability to reconstruct “[t]he
sum of an individual’s private life.” Id. at 394.
Despite the Court’s cautionary words, we held that Riley
did not apply to parolees. Johnson, 875 F.3d at 1275; but
see United States v. Lara, 815 F.3d 605, 612 (9th Cir. 2016)
(applying Riley to the warrantless search of a probationer’s
cell phone). Rather, noting that “the balance of privacy
interests and factual circumstances in this context are
different,” we permitted the warrantless search of a parolee’s
cell phone. Johnson, 875 F.3d at 1273.
In light of our ruling in Johnson, we are hard-put to say
that the warrantless placement of a GPS tracker on a
parolee’s car is impermissible. If an officer can conduct a
warrantless search of a parolee’s cell phone — an object that
is “[t]he sum of an individual’s private life,” Riley, 573 U.S.
at 394 — placing a GPS device on a parolee’s car cannot
logically demand more constitutional protection. Although
a GPS tracker may create a summary of a parolee’s public
movements, it offers none of the “vast quantities of personal
information” that a cell phone does. Id. at 386.
The State’s interest in supervising parolees is also
particularly strong here. See Samson, 547 U.S. at 853
(referencing the State’s “substantial” interests in “reducing
recidivism,” “promoting reintegration,” and deterring future
criminal conduct). Tracking a parolee’s movements by car
can be a critical tool for monitoring this group. Its value is
12 UNITED STATES V. KORTE
well illustrated here: Korte returned to a life of crime just
months after his release from prison, but LASD was able to
investigate Korte and prevented other armed robberies by
tracking his movements. In Johnson, we explained that
requiring officers to obtain a warrant before searching a
parolee’s cell phone “would often undermine the state’s
ability to supervise effectively.” 875 F.3d at 1274. We have
similar concerns with requiring officers to obtain a warrant
before tracking a parolee’s vehicular movements.
Lastly, we note that our decision aligns with another
court’s interpretation of California’s parole-search
condition. In People v. Zichwic, 114 Cal. Rptr. 2d 733, 738–
39 (Ct. App. 2001), the California Court of Appeal
considered the warrantless placement of an electronic
monitoring device on a parolee’s car. It held that even
“assum[ing] that attaching an electronic tracking device to
the undercarriage of defendant’s truck constituted a search,
it was authorized by defendant’s parole search condition.”
Id. at 740. Granted, Zichwic differs in that it considered the
use of a beeper, id. at 738, rather than a GPS device —
investigatory methods treated differently under the Fourth
Amendment. Compare United States v. Karo, 468 U.S. 705,
713 (1984) (“[N]o Fourth Amendment interest . . . was
infringed by the installation of the beeper.”), with Jones, 565
U.S. at 409 n.6 (noting that GPS tracking is a more intrusive
law enforcement practice than a beeper).
Nonetheless, we believe that Zichwic is, at minimum,
informative. Although it was decided almost two decades
before Jones, its holding was unaffected because it had
assumed that placing a tracking device on a car constituted a
search. Zichwic, 114 Cal. Rptr. 2d at 740. The Supreme
Court of California has not since interpreted the parole-
search condition differently. And, while a beeper and GPS
UNITED STATES V. KORTE 13
device might differ in their tracking capabilities, the court in
Zichwic at least concluded, as we do, that the State’s need
for electronically monitoring a parolee’s movements
outweighs the privacy interests at issue. Id. at 739–40.
We do not disregard the importance of Jones. We
acknowledge that “GPS monitoring generates a precise,
comprehensive record of a person’s public movements.”
Jones, 565 U.S. at 415 (Sotomayor, J., concurring).
However, in following precedent distinguishing Fourth
Amendment rights in the parolee context, we hold that the
warrantless placement of a GPS tracker on Korte’s car does
not violate the Fourth Amendment.
C. Warrantless CSLI Acquisition
Finally, we consider whether the district court should
have excluded the CSLI evidence, acquired without a
warrant, as a Fourth Amendment violation. The Supreme
Court granted certiorari to resolve the constitutionality of
warrantless CSLI acquisition before the district court could
rule on Korte’s suppression motion. Carpenter v. United
States, 137 S. Ct. 2211 (2017) (mem.). As such, the district
court did not address the constitutional issue before it, but
denied Korte’s motion under the Fourth Amendment’s good-
faith exception. We, therefore, consider only a narrow issue:
whether the good-faith exception applies to the warrantless
acquisition of a defendant’s CSLI before Carpenter v.
United States, 138 S. Ct. 2206 (2018). 2
2
We take no stance on the constitutionality of acquiring a parolee’s
CSLI without a warrant.
14 UNITED STATES V. KORTE
In Carpenter, the Supreme Court summarized CSLI and
how this technology permits almost real-time compilation of
a person’s location during any given period:
Cell phones continuously scan their
environment looking for the best signal,
which generally comes from the closest cell
site. Most modern devices . . . tap into the
wireless network several times a minute
whenever their signal is on, even if the owner
is not using one of the phone’s features. Each
time the phone connects to a cell site, it
generates a time-stamped record known as
cell-site location information (CSLI).
Id. at 2211. The Court wrestled with how to apply this “new
phenomenon” under the Fourth Amendment, id. at 2216,
noting that it “does not fit neatly under existing precedents,”
id. at 2214. It ultimately concluded, however, that the
Government must obtain a warrant to access a person’s CSLI
from a wireless carrier, and could no longer rely on a court
order under § 2703(d) of the SCA. Id. at 2221.
Although the Government obtained Korte’s CSLI
without a warrant, he is not automatically entitled to relief.
See United States v. Leon, 468 U.S. 897, 906–07 (1984)
(explaining that whether there was a Fourth Amendment
violation and “[w]hether the exclusionary sanction is
appropriately imposed” are separate questions). Illinois v.
Krull, 480 U.S. 340, 342, 350 (1987), established an
important exception to the exclusionary rule: Evidence
obtained by the Government, acting in “objectively
reasonable reliance upon a statute” that is “ultimately found
to violate the Fourth Amendment,” does not require
suppression.
UNITED STATES V. KORTE 15
Because we find the Government reasonably relied on
the SCA when it obtained Korte’s CSLI, we affirm the
district court’s application of the Fourth Amendment’s
good-faith exception. See also United States v. Camou, 773
F.3d 932, 944 (9th Cir. 2014) (placing the burden on the
government to prove it acted in good faith). Before
Carpenter, the SCA authorized a government entity to
request “a provider of electronic communication service . . .
to disclose a record or other information pertaining to a
subscriber to or a customer of such service.” 18 U.S.C.
§ 2703(c)(1). The statute explicitly authorized retrieval of
these records by court order if the Government “offer[ed]
specific and articulable facts showing that there are
reasonable grounds to believe that . . . the records or other
information sought, are relevant and material to an ongoing
criminal investigation” — a more lenient standard than
probable cause. Id. § 2703(d).
When the Government obtained Korte’s CSLI — before
Carpenter was decided — acting by court order was still
authorized. Moreover, we cannot say that the Government
had any reason to doubt the SCA’s constitutionality, such
that it may have been acting in bad faith. See Krull, 480 U.S.
at 355 (“[T]he standard of reasonableness . . . is an objective
one.”). CSLI remained a relatively novel form of evidence.
And, although we had not yet commented on the
constitutionality of warrantless CSLI acquisition, a number
of our sister circuits had. All had affirmed the SCA’s
constitutionality under the Fourth Amendment. See United
States v. Gilton, No. 16-10109, slip op. at 20 (9th Cir. Mar.
4, 2019) (explaining that, at least as of 2012, “the prevailing
belief” was “that CSLI data was not protected by the Fourth
Amendment”); see also United States v. Graham, 824 F.3d
421, 424 (4th Cir. 2016) (en banc); United States v.
Carpenter, 819 F.3d 880, 884 (6th Cir. 2016); United States
16 UNITED STATES V. KORTE
v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc); In re
Application of the U.S. for Historical Cell Site Data, 724
F.3d 600, 615 (5th Cir. 2013); In re Application of the U.S.
for an Order Directing a Provider of Elec. Commc’n Serv.
to Disclose Records to the Gov’t, 620 F.3d 304, 313 (3d Cir.
2010).
As explained in Krull, it is hardly objectively
unreasonable to rely on a then-lawful statute when courts
were upholding it or similar legislative schemes. 480 U.S.
at 358–59. Officials should not be “expected to question the
judgment of the legislature that passed the law,” particularly
when confronted with the pattern of judicial holdings as
existed here. Id. at 350. Any “defect in the [SCA],”
therefore, “was not sufficiently obvious so as to render [the
Government’s] reliance upon the statute objectively
unreasonable.” Id. at 359. The Supreme Court’s own
sharply divided opinion in Carpenter brings this point to
bear. See 138 S. Ct. at 2217 (explaining that the CSLI issue
presents “novel circumstances”); see also id. at 2223
(referring to the majority’s decision as a “stark departure
from relevant Fourth Amendment precedents”) (Kennedy,
J., dissenting).
Moreover, our application of Krull is anything but novel.
Several other circuits have already invoked this good-faith
exception when presented with similar facts. See United
States v. Goldstein, 914 F.3d 200, 203–05 (3d Cir. 2019);
United States v. Curtis, 901 F.3d 846, 848–49 (7th Cir.
2018); see also United States v. Chambers, No. 16-163-cr,
2018 WL 4523607, at *2 (2d Cir. Sept. 21, 2018) (explaining
that “the authorities sought information from third parties by
complying with the SCA” and “[r]eliance on a federal statute
gives rise to a presumption of good faith” (citing Krull, 480
U.S. at 349)). Others have analyzed the issue similarly,
UNITED STATES V. KORTE 17
although without directly invoking Krull. See United States
v. Joyner, 899 F.3d 1199, 1205 (11th Cir. 2018) (per curiam)
(noting that “the Government complied with the
requirements of the SCA in obtaining the orders to compel
cell site records” while it was still lawful); United States v.
Chavez, 894 F.3d 593, 608 (4th Cir. 2018) (refusing to apply
the exclusionary rule because “investigators in this case
reasonably relied on court orders and the [SCA] in obtaining
the cell site records”). Similarly, we recently refused to
exclude CSLI data obtained in good-faith reliance on a
warrant, later deemed to be defective. Gilton, slip op. at 21.
Finally, we note that our decision accords with the
exclusionary rule’s limited purpose to deter future Fourth
Amendment violations, rather than remedy the rights of a
single aggrieved party. See United States v. Calandra, 414
U.S. 338, 347–48 (1974); see also Krull, 480 U.S. at 347.
For us to exclude CSLI, obtained in good faith based on a
then-lawful legislative scheme, would do nothing to prevent
future Fourth Amendment violations. See Davis v. United
States, 564 U.S. 229, 236–37 (2011) (“The [exclusionary]
rule’s sole purpose, we have repeatedly held, is to deter
future Fourth Amendment violations.”). With the
exclusionary rule as “our last resort, not our first impulse,”
Hudson v. Michigan, 547 U.S. 586, 591 (2006), we hold that
CSLI acquired pre-Carpenter is admissible — so long as the
Government satisfied the SCA’s then-lawful requirements
— under Krull’s good-faith exception.
18 UNITED STATES V. KORTE
III. CONCLUSION
For the reasons provided above, we affirm the district
court’s denial of Korte’s suppression motions and his
convictions for bank robbery. 3
AFFIRMED.
D.W. NELSON, Circuit Judge, concurring:
I concur in both the reasoning and result—the good-faith
exception saves the government’s conduct here. I write
separately, however, because I am concerned with the ever
“diminishing” reasonable expectation of privacy afforded to
probationers and parolees, especially as it relates to their
digital privacy.
In Samson v. California, the United States Supreme
Court seemingly established a ceiling on a parolee’s
expectation of privacy. 547 U.S. 843, 846 (2006). The
Supreme Court, however, did not set a floor. Nor did it offer
a limiting principle. It is not surprising, therefore, that in the
decade or so since Samson, our Court has further diminished
3
Korte also argues that his Count 1 conviction for attempted bank
robbery under 18 U.S.C. § 2113(a) cannot stand because there was
insufficient evidence of “intimidation.” Longstanding precedent
forecloses this argument. Korte’s demand for money and use of a mask
satisfies “intimidation” under § 2113(a). See, e.g., United States v.
Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983) (“[T]he threats implicit in
[defendant’s] written and verbal demands for money provide sufficient
evidence of intimidation to support the jury’s verdict.”); United States v.
Bingham, 628 F.2d 548, 549 (9th Cir. 1980) (“[E]xpress threats of bodily
harm, threatening body motions, or the physical possibility of concealed
weapon[s] . . . have never been held to be requirements for a § 2113(a)
conviction.”).
UNITED STATES V. KORTE 19
probationers’ and parolees’ expectations of privacy. See,
e.g., United States v. Johnson, 875 F.3d 1265, 1275 (9th Cir.
2017) (holding that Riley’s prohibition on warrantless phone
searches does not apply to parolees); United States v.
Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017) (holding that
a search of a parolee that complies with the terms of a valid
search condition is usually reasonable); United States v.
Grandberry, 730 F.3d 968, 980 (9th Cir. 2013) (defining the
types of property under a parolee’s control that are
searchable without a warrant); United States v. Lopez, 474
F.3d 1208, 1213–14 (9th Cir. 2007) (upholding the
warrantless search of a parolee’s home).
Justice Stevens, in his Samson dissent, stated that the
Supreme Court’s precedents did not support “a regime of
suspicionless searches. . . untethered by any procedural
safeguards, by law enforcement personnel who have no
special interest in the welfare of the parolee or probationer.”
Samson, 547 U.S. at 857 (Stevens, J., dissenting). He
suggested an individualized suspicion requirement to
prevent what he warned would be an “unprecedented
curtailment of liberty.” Id. at 866. His words proved to be a
prescient warning.
Our physical and digital spaces continue to merge with
the creation of new technologies. 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 Supreme Court recently reaffirmed
that the “progress of science” should not come at the expense
of Fourth Amendment protections. See Carpenter v. United
States, 138 S. Ct. 2206, 2223 (2018) (quoting Olmstead v.
United States, 277 U.S. 438, 474 (1928)). I believe,
20 UNITED STATES V. KORTE
therefore, it is time to revisit the degree of protection the
Fourth Amendment affords probationers and parolees.