A divided federal appeals panel will allow San Francisco's sheriff to resume electronically monitoring the whereabouts of criminal defendants awaiting trial, after the judges said they don't believe terms of the electronic monitoring program, including alleged warrantless searches, amount to violations of detainees' constitutional or legal privacy rights.
A dissenting judge, however, said the ruling will improperly allow the sheriff's office to essentially strongarm San Francisco County judges into putting accused criminals into their program, if they don't wish for the detainees to go to jail instead.
On April 23, a three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled 2-1 in favor of San Francisco Sheriff Paul Miyamoto, as his office defends against a class action lawsuit brought by three men who asserted their rights were violated by the terms of the sheriff's electronic monitoring program.
U.S. Ninth Circuit Court of Appeals Judge Jay Bybee
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The lawsuit, filed in 2022, challenged rules the sheriff's office established to comply with the California state court system's pretrial electronic monitoring policies.
Under the sheriff's program, criminal defendants enrolled in the program were required to submit to searches of their "person, residence, automobile or property by any peace officer at any time."
They also were required to consent to the sharing of their location tracking data with other police agencies.
Attorneys for the named plaintiffs in the action - Joshua Simon, David Barber and Josue Bonilla - argued the terms and conditions of the electronic monitoring program amounted to violations of their rights under the Constitution's Fourth Amendment and California's privacy law.
They also argued the sheriff's administration of the program were violations of the separations of power doctrine, as they said the sheriff's office - which operates as part of the executive branch of government - was trespassing on territory that should be under the control of the judicial branch.
In San Francisco federal court, U.S. District Judge Jon Tigar sided with the plaintiffs, saying the sheriff's office can't constitutionally order those who have been charged with crimes - but not yet convicted - to submit to essentially warrantless searches as a condition of avoiding jail.
The judge further said he believed the sheriff lacked authority to set his own pretrial release conditions, a power he said should be left entirely to judges.
Tigar set an injunction in place blocking Miyamoto's office from continuing the program.
The sheriff appealed, however, and found a more receptive audience before the Ninth Circuit panel.
The majority decision was authored by Ninth Circuit Judge Jay Bybee. Judge Carlos Bea concurred in the ruling. Both judges were appointees of former President George W. Bush.
Judge Salvador Mendoza Jr. - an appointee of former President Joe Biden - dissented.
In his dissent, Mendoza agreed with the plaintiffs that allowing the sheriff's office to resume its use of the electronic monitoring program violates the separation of powers, effectively handing judicial powers to determine how to detain criminal defendants into the hands of the sheriff.
He said he believed the program is too inflexible to individual judges' orders, essentially creating a take-it-or-leave-it offer for judges concerned about criminal defendants' freedom to remain out of jail while awaiting trial.
Mendoza asserted the "Sheriff is holding pretrial defendants' liberty hostage in order to coerce judges into ordering carte blanche subjugation to the Sheriff's conditions."
In the majority opinion, however, Bybee said the notion that the sheriff's electronic monitoring program violates detainees' rights is misguided.
The majority noted they did not believe the program amounts to a "blank check" for the sheriff's office to force detainees to submit to any and all conditions the sheriff may impose, or risk going to jail.
They noted criminal defendants were ordered into the program only after an "individualized determination" overseen by a judge, and after they consented to the terms of the program in the presence of their legal counsel.
The program, Bybee said, "is nothing more than an offer from SFSO (the San Francisco Sheriff's Office.)"
"Nothing in (the program) limits the judicial authority of the Superior Court to order a 'person ... released on his or her own recognizance in the court's discretion,' subject to 'reasonable conditions imposed by the court," Bybee wrote. "The court remains free to order whatever conditions it thinks appropriate."
But under the separation of powers, judges, as members of the judicial branch, do not have the authority to direct the sheriff, as a member of the executive branch, to individualize the electronic monitoring program for every defendant.
To hold otherwise, they said, would further "promise chaos in the form of under- and over-enforcement."
"... SFSO cannot get overzealous - it has no power to add to the terms imposed by the court. Any such over-enforcement of the conditions pronounced by the Superior Court would be usurpation by the executive branch; the executive can only enforce what the judiciary orders," Bybee wrote.
"But what happens if SFSO decides that it cannot enforce the terms as ordered and thus underenforces the terms? Nothing in California law suggests that the court can compel the actions of the Sheriff."
The majority said they believed the program, with its search conditions, was created as a means of balancing the liberty rights of accused criminals against the public's right to ensure police can prevent those who are awaiting trial - including those charged with violent or heinous crimes - from continuing to commit crimes while they wait.
They noted, for instance, one of the named plaintiffs - Joshua Simon - has been accused of strangling his ex-girlfriend.
They further noted the monitoring program's warrantless location tracking and sharing elements are designed to enhance the ability of the sheriff and other police agencies to "respond to 'fast-moving events' and "solve crimes quickly."
"We conclude that if the Superior Court orders PTEM following an individualized determination of its reasonableness, a condition that defendants consent to in the presence of counsel, then the order is consistent with the Fourth Amendment," Bybee wrote. "Such a condition furthers the government’s interest in solving crimes quickly. Tracking and sharing the location of PTEM enrollees without a warrant is thus reasonable under the totality of the circumstances and therefore permissible under both the Fourth Amendment and the California Constitution."
Plaintiffs have been represented by attorneys Shilpi Agarwal, Avram D. Frey, Emi Young and Neil Sawhney, of the ACLU Foundation of Northern California, of San Francisco; Olivia Rosen, Eunice Leong and Justina K. Sessions, of Freshfields US LLP, of Redwood City; and Hannah M. Kieschnick, of Public Justice PC, of Oakland.
The sheriff's office has been represented by attorney Alexander J. Holtzman and others with the office of San Francisco City Attorney David Chiu.