In February, I blogged about State v. Thomas, 295 N.C. App. 564 (2024), and whether law enforcement can review ankle-monitoring data without a warrant. The defendant in Thomas was on post-release supervision when officers pulled his location data, and the Court of Appeals upheld the warrantless retrieval of the data. However, questions remain about whether a warrant is necessary when a supervisee is on probation or pretrial release. Although North Carolina appellate courts have not directly addressed these questions, courts outside the state have in recent years. This post examines some of the cases.
Massachusetts
In Commonwealth v. Johnson, 481 Mass. 710 (2019), the defendant challenged law enforcement’s warrantless review of his ankle monitor location data while he was on probation. One wrinkle was that the defendant was no longer on probation when officers pulled the data. The Massachusetts appellate court concluded that the warrantless search was constitutional. Notably, in contrast to North Carolina, Massachusetts has a statute explicitly authorizing law enforcement to review probation records, including location data gathered by the probation department. However, one judge in Johnson issued a strongly worded dissent. The judge acknowledged that the defendant showed “chutzpah on stilts” when he chose to commit a new property crime while wearing the ankle monitor imposed after being convicted of another property crime. Id. at 731. However, the judge found that the retrieval and analysis of defendant’s location data, based only on a “hunch,” Id. at 721, ran afoul of the Fourth Amendment. The dissenting judge was especially troubled by the fact that the defendant had completed his probation and thus should no longer have held a diminished expectation of privacy.
In comparison, the defendant in Commonwealth v. Norman, 484 Mass. 330 (2020), was successful in suppressing ankle monitor data gleaned while he was on pre-trial supervision for another case. However, the appellate court did not squarely rule on the broad question of whether warrantless review of pretrial ankle monitor data by law enforcement is generally unconstitutional. The appellate court determined that GPS monitoring should never have been imposed on Mr. Norman in the first place as it was not justified under the Massachusetts statutes concerning pretrial release (the defendant was on pretrial supervision after being charged with possession of an illegal drug with intent to distribute and motor vehicle offenses, and the appellate court reasoned that the statute authorizing electronic monitoring was intended to ensure appearance in court rather than to deter crime generally, id. at 336-38).
The court left open the larger question of whether warrantless review of the data would have been unconstitutional if GPS monitoring had properly been imposed. Importantly, the Court rejected the argument that the defendant consented to the monitoring, concluding that consent was not freely and voluntarily given where the alternative was pretrial incarceration. Id. at 335; see also Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. REV. 717 (2020) (questioning the increased reliance by courts on a consent theory when upholding warrantless searches of electronic monitoring location data). The Court also reaffirmed that a pretrial supervisee has a greater expectation of privacy than a probationer, citing to a Ninth Circuit case relied on in the California litigation discussed below. See United States v. Scott, 450 F.3d 863, 873-874 (9th Cir. 2006) (privacy and liberty interests of individual on pretrial release are “far greater than a probationer’s”).
California
Courts in California are engaging with these same questions. In Simon v. San Francisco, 22-cv-05541-JST, 2024 WL 590360 (N.D. Cal. Feb. 13, 2024), the plaintiffs initially won a preliminary injunction at the Federal District Court against the City of San Francisco preventing law enforcement from accessing the location data of pretrial supervisees without a warrant. However, on review of the facial challenge, the Ninth Circuit largely disagreed. See Simon v. San Francisco et.al, 135 F.4th 784 (9th Cir. Apr. 23, 2025). The appellate court held it was reasonable under the Fourth Amendment for the sheriff’s office to share location data with law enforcement agencies, noting that the imposition of electronic monitoring was frequently made after an individualized assessment of need and defendants generally had the advice of counsel in agreeing to the condition. Id. at 809-13.
Thus, the Ninth Circuit appeared to be more receptive than the Massachusetts Supreme Court to the theory that a defendant’s consent to monitoring (and location sharing) was valid rather than coerced. The Ninth Circuit also placed weight on the fact that a clear admonishment was given to defendants warning them that location data would be shared freely with law enforcement (interestingly, it appears that the practice of giving the admonishment arose in response to the lawsuit, causing the class to split into a pre-admonishment class and a post-admonishment class, id. at 793-94; by the time the Ninth Circuit wrote its decision, only four members remained in the original class, id. at fn. 7). The Ninth Circuit also agreed with the State that there was a “strong government interest” in responding to “fast-moving events” and solving crimes more expediently by using real-time location data, even where a warrant could potentially be issued in a matter of minutes. Id. at 812.
The legal challenge in Simon was facial in nature, meaning that the plaintiffs had a high burden of establishing the practice was unconstitutional “in all its applications.” Id. at 797. Individuals may have stronger arguments that location sharing is unreasonable in the unique circumstances of their cases, such as where the justification for the initial imposition of electronic monitoring is poorly supported by the record, or where the defendant was not clearly advised that his location data would be freely circulated between law enforcement agencies.
New Mexico
Meanwhile, the New Mexico Supreme Court in 2022 issued an order allowing law enforcement to access the location data of pretrial supervisees, requiring only that officers fill out a one-page form. The order came on the heels of a law passed by state lawmakers allowing law enforcement to access pretrial location data without a warrant as long as they have reasonable suspicion that the data will be probative. See New Mexico House Bill 68 (2022). However, the request for immediate access is limited to the investigation of serious violent crimes, attempts to serve arrest warrants, and credible threats of harm to the public. The New Mexico approach appears to be an attempt to streamline the process of location sharing and promote uniformity in the criteria used to determine when data should be shared with law enforcement. Whether this approach forestalls future Fourth Amendment challenges remains to be seen.
Takeaways
Considering the above decisions, a theme emerges that warrantless location data sharing is generally upheld, even in the context of pretrial release; however, individual defendants may still have compelling arguments that location sharing is unreasonable in the particular circumstances of their case. Courts are not in agreement about the voluntariness of the consent given when a defendant is placed on ankle monitoring. Questions such as whether the initial imposition of electronic monitoring was appropriate, whether the imposition was supported by the record, and whether the defendant was clearly advised how the data would be shared influence the appellate courts’ analysis of reasonableness under the Fourth Amendment.
The above cases are some of the first in the nation to address this developing issue. Courts in North Carolina and beyond are likely to engage further in the near future. Stay tuned.