A NY Parolee’s 4th Amendment Anklet Mess
January 12, 2017 (Fault Lines) — It’s a safe bet Kamal Lambus will never forget May 8, 2013. That’s the day he signed a form consenting to wear an ankle monitor as a condition of his parole. He had no idea the anklet would stay on him for two years while law enforcement used its data to troll for criminal activity. He certainly never expected the data to be used against him on new drug charges. Yet a Senior U.S. District Judge just ruled 794 days of movement tracking can be used as evidence of Lambus’s alleged involvement in a New York drug trafficking operation.
Lambus signed a “Certificate of Release to Parole Supervision” prior to exiting prison in March of 2012. The document placed him under the watchful eyes of the New York State Department of Corrections and Community Supervision (NYSDOCCS)* for slightly under three and half years. Two conditions of Lambus’s parole were abiding by a curfew and a “catch-all” provision allowing parole officers to piggyback new terms as they saw fit.
It didn’t take long for Lambus to violate his curfew. A search of his residence in April turned up roaches “marijuana cigarette butts.”** This smelled fishy to NYSDOCCS Investigator Thomas Scanlon. Pot plus multiple curfew violations meant Lambus “engaged in behavior contrary to his release agreement.” Time for more punishment a new “release condition”: ankle GPS monitoring.
Lambus signed a form on May 8, 2013 consenting to GPS anklet monitoring. He claims a senior parole officer forced him to sign the form or return to prison, though he was told it would only be for 3-6 months. Senior U.S. District Judge Jack Weinstein briefly mused in his 44 page opinion whether Lambus might be in his current predicament had a lawyer been present. A federal judge essentially repeated the Fault Lines mantra in dicta to his opinion: shut up and ask for a lawyer when dealing with law enforcement.
Lambus ignored Fault Lines contributors’ repeated admonitions to shut up and ask for counsel. He signed the form absent advice of counsel. Repeated requests to remove the device over a two-year period were denied. The rationale for denial might have something to do with law enforcement using his anklet’s location data to obtain warrants for wiretaps and searches.
On January 9, 2015, an unnamed Special Agent*** submitted an affidavit for a wiretap to investigate the activities of a group of New York Bloods. Part of the evidence submitted was location data from Lambus’s anklet. The wiretap was granted despite false statements under oath by the Special Agent.****
This agent would have a miraculous change of heart when questioned, and later admit on the stand his affidavit was “absolutely wrong.” Apparently, an assistant U.S. attorney would tell the agent he “did it wrong the first time.” A total of five affidavits for wiretaps and searches would go through, each referencing Lambus’s anklet data as evidence.
Once indicted on drug charges, Kamal Lambus sought to have all data from the anklet suppressed. His argument was use of the ankle monitor data as justification for evidence against him in a new criminal proceeding violated his Fourth Amendment right against unreasonable search and seizure. It was unlawful, Lambus argued, to use data from a device place on him as a parole condition as a method of trolling for criminal activity.
Judge Weinstein apparently bought Lambus’s argument to some extent. His opinion states at some point the anklet stopped being a device used to ensure Lambus’s compliance with parole conditions and into a “sort of fly paper…trolling for criminals.” Judge Weinstein even takes the NYSDOCCS to task for allegedly letting Lambus repeatedly violate the law to catch new baddies.
Pinpointing exactly when Lambus’s electronic monitoring crossed the line from a supervisory search to a general law enforcement search is difficult. That the line was crossed during the two years seems clear. Parole officers must serve the community at large and the parolee, a dual responsibility requiring facilitating a parolee’s rehabilitation, if possible. Allowing a parolee to knowingly violate both the conditions of his parole and the law—for months and months on end—betrays both of the constituencies the parole officer is supposed to serve by sacrificing rehabilitation for recidivism in aid of public protection.
Despite mountains of ostensibly shady work by law enforcement agencies, Judge Weinstein refused to suppress the anklet data. The rationale was the initial justification for fitting Lambus with an ankle monitor was ensuring Lambus complied with his curfew. Monitoring a parolee’s compliance with release conditions was a legitimate interest, and drawing a line where monitoring Lambus’s activities turned into a crime fighting tool was almost impossible.
Judge Weinstein would reject Lambus’s consent argument. It was Lambus’s word against the state, and all Judge Weinstein had to go on was Lambus’s signature on the consent form. Since Lambus repeatedly violated curfew, and the ankle monitor was a means of ensuring Lambus’ compliance with parole conditions, the signature was enough evidence for Judge Weinstein to shrug off Lambus’s repeated insistence he was pressured into signing the form.
The introduction to Judge Weinstein’s Memorandum and Opinion calls this case an example of “the need to integrate the theory and practice of ostensibly independent branches of law enforcement…with respect to Fourth Amendment Rights.” A better wording would call this a case based on bad precedent and a jurist gritting his teeth while issuing, as Tim Cushing called it, the “inevitable opinion.”
This is a messy ruling, but it’s one worth highlighting because judges often have to rule in ways they don’t like. Law is messy and morally ambiguous. Unfortunately, Judge Weinstein’s believed hands were tied in this case, and Kamal Lambus will suffer the consequences.
*This is the longest acronym I’ve ever seen.
**Judge Weinstein actually used the term “marijuana cigarette butts” in his opinion.
***The name is redacted in the opinion.
****In the only bright spot in this opinion, Judge Weinstein would suppress the evidence from the first wiretap. He called the agent’s statements “perjury.”