this case arises out of a th amendment challenge to the reasonableness of a search by a colorado probation not a parole officer of g p s data that was in the possession of colorado the touchstone  the th amendment is reasonable miss and it balances an individual's reason mallette expectation of privacy against law enforcement's reasonable legitimate government government intrudes interest excuse me  moralist searches are per se unreasonable unless they fall under an exception and a search occurs in this is gets confusing sometimes when we read these cases what is a search a search occurs in the case law and under the constitution when there is a government invasion into a sphere in which an individual has an expectation of privacy and here we're not focused on the placement of the g unit on your client we're just focused on the sherry the data from that was collected by that g p s unit with law enforcement that's correct i mean they're really kind of two places it depends on where you focus but we are not arguing at all and don't believe the law supports an argument that fixing a g p s unit on a parolee and that label in and of itself is in flux in this particular case as well but i'm going to continue to use the word parolee somebody under intensive supervision the placement of it does not we're not arguing that that's an unlawful search of any sort what we are arguing is that on these specific fact s there are two places that might be considered a search under the law the st one would be when c p o anderson accessed the data that was in the sea dock database  with out for investigative purposes that would be a possibility others then when he shared it to the federal government through the a t f because he was working at the same time with  f and i'll be very frank with you i have tried to figure out for years how these joint task forces work and i believe they work a little bit differently in each state in different agencies but it does not appear to me on these facts or general practice that working with the federal government when you're a state employee relieves you of any obligations to comply with the state law in your state law functions it's part of having the g p s placed on in call your client understood that data was being collected and being given to the c p o agent right i'm not sure were honest and if we look at the agreement which was attached to the back of the reply brief it uses the word monitor and this was discussed in the district court opinion as well and i think the question is whether somebody who is reading that document and again there's a dispute about whether we as assert that it's an agreement the government does not but when reading that document it uses the word monitoring and the question the becomes what does the word monitoring mean does that mean real time monitoring does that mean real time monitoring and data collection does it mean real time monitoring and data collection and data storage does that mean real logically i mean really are you going to have somebody logically are you going to have someone looking out a screen two hundred and forty seven to see where this fellow who's i mean really well yahoo turning we do it when we minimize when we do wire taps i don't think it's outside the realm of possibility that's not what happened here and i'm not submitting that that is what should have happened what i'm talking about is when we're talking about words that people are relying on in written documents to determine what they're ever daddy and what are attaching a g p s to you and you will be monitored and you don't think that he understood that they will look to see where he is what i can tell you expectation of privacy he's a parolee there is a diminished expectation in the conditions of his release i'm not suggesting that at all i mean i hate to go here but he can't be a parolee because what i should have said is that he in our opinion is not an inmate there are different labels and when you look at that ankle arm it that same form is used for a lot of different positions and i'm not suggesting it's a good form i'm not trying to defend it but what i am suggesting is that he is not an incarcerated person he has a great deal of liberty compared to even somebody who is living in residential because you have less liberty than a parolee if he was living at home he was not in a facility there it depends on what the conditions of release are of the term community inmate he was a community and he occupied a status and that status was more restrictive than the status of a rolly so by definition and it seems to me we shouldn't get caught up in what he thinks the bottom line is what's a reasonable expectation of privacy and he's occupying a status in which he has less freedom than a parolee so why does and necessarily follow that is less of a reasonable expectation because i think if you start at the beginning and you say this is a parolee and a somebody in the community corrections that would probably be true but there are things that can happen as the relationship goes on so there could be restrictions on somebody even who is a order but he uses the words agreement throughout it and the case law uses that as well but that but that underlies the distinction for a community and made they they are subject to an order there's not an agreement a rule we as an agreement  community and me as an order ron i k i got along excuse me i'm sorry no i think the question becomes and this is counterintuitive can the state of colorado say someone to go into a lesser level of commitment and a lesser restriction on their freedom and if there is a choice and i believe there is a choice then i believe that he is agreeing to go into this but he's condition he is condition based on what the state tells him those conditions are but he also has a right to rely on that the state is not going to trample on the requirements of the probation office in order to enforce those conditions of release irrespective of what we call him is it reasonable for him to have an expectation of privacy when he knows he has a g p s unit on his and call that is giving information to the jailers i believe it is reasonable for this reason and that's the mccullough case because mccullough says that a probation officer cannot use that for investigative purposes only there and that's the colorado law but that now mccullough had two parts one was an interpretation of colorado law which was whether you can search without reasonable suspicion and the court said you can and the nd part of it is what would be required under federal law and they came they came up with a three part asked that was promptly rejected frankly with the way this case law has developed sampson night and then when you get down into the circuit levels and even at the district courts the cases keep reciting that it is a hard and fast rule but i do not believe that to be the case because when you look at those cases sampson and nights are good examples you can't divorce the holding from the state law application of the state law and i am not convinced i'm not persuaded that those cases still are driven by the peculiarities of the state law for example a stamp law is that you can search without you with no reason the state law is under mcmullen your  the state portion of the ruling was that you know you can search anytime you want you don't have to have reasonable cause to search there's a difference and the nd part of it was the state attempt federal constitutional law and it got it wrong so we don't go back and give deference to the states prediction of what the supreme court would do after the supreme court has told us they got it wrong the supreme court has never ruled on the colorado statute in the colorado court has said definitively it can be suspicious but it can't be for investigative purposes well do  look at what is being searched do we look at those places that are sacrosanct in the th amendment analysis like home mccollough with the search of a home we are not dealing with that that's true and certainly those are sacrosanct but other is a that a distinction yes should greater greater expectations of privacy in your home i think that's true even under the th amendment we've had knowledge that since the we drafted the constitution when we look at this case probably the primary reason i'm standing here is because not only did the district judge not suppress the g p s but the district judge did not give a hearing suppression hearing to the defendant on the defendant's motion also what was the factual issue that was in dispute and an adventurous hearing was needed on and was that honor the law does not require a suppression hearing however in this particular case and to be quite honest this is a little bit of a case within the case because we don't know for sure what would have happened  and certainly the defendant does not have to proffer every challenge they're going to have to the collection of evidence at a suppression hearing and until you get witnesses on the stand you can only predict what you say ok he's saying to the core your honor are i would want an evidentiary hearing on my motion to suppress and the court would say to the defendant what what needs to be addressed at the hearing and he says we don't know yet we need to have a hearing to find why and i had you anywhere i don't think so i don't disagree that the motion was not artfully put before the court but i believe what would have given an examination of the record to the extent that we have it i think the the issues would have been some of the things we're talking about here st of all is the state of colorado and the c p o are they bound by this document that's in dispute is searches and seizures and we believe was there i think it might have been raised had there been a hearing but we don't know we have no idea because and then we get into the issue of the transfer of the data from colorado the c p o anderson to the task force which is the federal agency that then ultimately the a t f was who got involved and indicted in this  case the transfer of that information and whether that was outside of the scope of what the colorado law would allow and if it was done certainly that would have been discussed is there any parallel between what for his just in that a sharing excuse me i should i mean you're on it right i think it's true sharing it if it's a c p o it appears to me that the law says that a c p o can not share information for soli investigat purposes and because the evidence in this case when you look at the record the only evidence that really placed mr matthews at the place of that policy have part of their supervisory duty to determine whether or not this individual's committing a crime the evidence in this case that we know of in the record prior to the arrest never indicates what any allegation of committing a crime was there were lots of hunches they would go in they would look they would say discount it say it didn't count and they did that multiple times for multiple things in the state much call a says she can't do that you cannot use that and that's the real key we've got your argument thank you thank you then moving on is that your time is up it goes up oh i'm sorry i didn't see the red light was on i apologize you're having a busy morning this this good morning once again i'm carl shock representing the united states the defense argument here fails for the threshold reason that  anderson's access to g p s information that he concedes was lawfully collected was not a search and therefore doesn't implicate the th amendment at all law enforcement doesn't conduct a search every time that it access share information with another and then more generally as a community and many who was aware that the government was collecting his location information on an ongoing basis the defendant had no legitimate expectation of privacy in that information and then alternatively although i don't think the court would get needs to get to this point even if there was a search that search was reasonable under the totality of circumstances exception the warrant relied on on item three you're right  his expectation was low even lower than a parolee i would submit whether it's all the way to incarcerated inmate i don't think we need to need to get to that point but not only was he an inmate but he was subject to an unrestricted search condition the order also said that he was subject to electronic surveillance he knew that he was being monitored so at most you had a very very minimal expectation and then on the other hand all the unrestricted search conditions did that pertain to this g p s data is that the usual the usual general condition search of person possessions and so so there's there's both there's that there's a there's a search provision that says he's subject to any search there's a separate provision that says that he's subject to electronic surveillance and then the regulations studios the regulations say that the  electronic surveillance can include g p s monitoring and so so all of that makes his expectation about as low as they get i would submit no expectation such that there is not a search but at a minimum very suspect in a string of robberies and so the government interest was heightened and outweighed any any minimal expectation of privacy that he might have had let me ask you this he regionally had an ankle bracelet that just said whether he was home or not you know that's the information that it recorded and then he was switched after i guess the drive by shooting to one that had a more constant stream of more specific information what did he have to go back down to be i think in change out ankle bracelets or did did somebody just change the software without him being aware that there was a change in the type of information collected sorry that's a long no that's ok no he had to go back and and get it get a new monitor reinstalled and that that's reflected in i  think beeches affidavit one of those two affidavits but i believe it's beaches affidavit so she had to go in and she she told him and that's also in the affidavit she said now we're doing g p s monitoring so there's no question that he knew that he was subject correct that it was it was not applying state law at least with respect to the point that applies here it was applied in federal law and more specifically it was applying the special needs exception from griffith which perhaps does have a pr that exception the purpose of the search is irrelevant and then this court came along in tucker one year later and actually went further and said even if set expressly what i think was implicit nights but said expect expressly that even if it's done i actually did say it had to be for a parole purposes requirement so even if mccullough did for the defendant what he wants it to do that would just make it exactly like what you talk a lot was a night where there was that parole purpose its condition under state law and the court said while that might matter for the special needs exception it doesn't matter for the totality of the circumstance the exception in the court held that even in light of that purposes requirement a search for law enforcement what is proper so i think that the totality of the circumstances exception is the one that we would look to if it is a search i do just want to go back and i know this wasn't the basis for the district court's analysis but i do think that it really is a fundamental point here that law enforcement doesn't need a warrant every time that it looks that evidence that it's already collected and that's because as the johnson versus quander case is that the most extensive analysis on this that's the d n a case that i cited from the d c circuit that's because there is no additional intrusion on privacy when the government looks that information that it already has and so law enforcement may access that d n a database it may also access fingerprint database and that's because as long as the initial search was proper  nothing additional least relevant to the th amendment is happening when the government looks at that information and then even if we were to look at the point that the information was then shared outside of that agency to the extent that that that obtain that information and that makes sense that doesn't make sense for th amendment purposes that law enforcement would need to get a warrant to go get information from a parole officer it's always been the case that parole officers can share that information i don't i don't think it's relevant and i think it's easily distinguishable on three bases here st of all the fact that this defendant is an inmate st is an ordinary ordinary citizen i think his expectation is less because of that nd because this is a government database we're talking about not a private not the government going to get information from a private database like happened in carpenter and then rd because he was  aware under the terms of his order that the law that the information was being collected and the government would have access to that information and so distinct from carpenter where where there was no kind of express acknowledgement by the defendant or by the defendant that that was happening  think you hit on the st point which is that the defendant didn't raise any contested issues but let's set aside that procedural point just for purposes of argument here and there still have not been any facts that would matter to this situation the only critical facts here are that the defendant was aware that his information was being collected and that information was in possession of the government so it was there simply was no search and so anything about his expectations are irrelevant but even if his expectations did matter this court case law is very clear that the question of what expectation of privacy the defendant has is a question of law in addition i also just want to make the point that the government here isn't relying on any consent basis for its argument and so while i think that perhaps we could have we're not making that argument here so this so all the more reason that it doesn't matter whether it was an agreement or an order or anything in the nature of the order really doesn't play in at all so i don't think you abuse its discretion because of simply arnolds that that would make any difference to the issues before the court the court has no further questions the government would request that the judgment of the district court be affirmed thank you thank you both for your argument