SF to Bring Back Warrantless Searches and GPS Monitoring for Pretrial Release

The San Francisco Sheriff’s Office will resume warrantless searches and GPS monitoring of criminal defendants in its pretrial release program “as soon as possible,” officials announced Monday after an appellate court overturned a block on the controversial practice.

A panel of three U.S. 9th Circuit Court of Appeals judges ruled 2–1 last week to reverse a preliminary injunction ordering the sheriff to stop conducting the warrantless searches and sharing defendants’ GPS information with other law enforcement agencies. The program was suspended for new enrollees in October, a week after a federal judge found that the sheriff’s office had been routinely violating that order.

After the GPS monitoring program was suspended, advocates and authorities prepared for an increase in the jail population due to fewer people being released pretrial.

“We can now reopen this program and move forward,” Sheriff Paul Miyamoto said during a press conference on Monday. “We’re currently in the planning process, conferring with Superior Court first and making sure our next steps are consistent with the opinion. Our priority is to roll out new enrollments in a thoughtful and deliberate way.”

The appellate ruling stems from a class action lawsuit filed by the American Civil Liberties Union of Northern California in 2022 on behalf of three criminal defendants. The suit alleged that the defendants had their Fourth Amendment right to privacy violated when they enrolled in the sheriff’s pretrial electronic monitoring program, which requires consenting to searches of their person and property without probable cause.

The ACLU argued that the monitoring program’s warrantless search requirement oversteps the sheriff department’s authority in cases where the trial court judge does not specifically order such a condition for pretrial release.

After the 9th Circuit panel declared the search requirement legal, Mayor Daniel Lurie said the ruling will bolster public safety efforts in San Francisco.

“This federal ruling reinstates an important tool for our law enforcement partners,” he said. “If you are charged with a serious crime and are released before trial, the public has a right to expect that there are safeguards in place. The pretrial electronic monitoring program will help keep neighborhoods safer while offering people a pathway to succeed outside of jail.”

9th Circuit Judge Jay S. Bybee wrote in last week’s majority opinion that the monitoring program’s requirements do not exceed the sheriff’s authority because the Superior Court maintains the right to order the release conditions it deems appropriate. Enrollment in the pretrial electronic monitoring program, which he called a “standardized program,” is one option.

“The sheriff’s office has designed a program, complete with a set of clear, mandatory rules that it believes it can reasonably administer,” the decision reads. “The sheriff, therefore, has some control over the set-up and administration of the … program, but no control over whether the courts will actually order any defendants to participate as a condition of release.”

Judge Salvador Mendoza dissented, saying the program’s requirements “defeat” and “impair” the court’s power to order that released defendants enroll in GPS monitoring.

“When the Sheriff requires and enforces his conditions-on-conditions, he unequivocally ‘undermine[s] the authority and independence’ of the Superior Court to decide how far a pretrial defendant’s liberty ought to be curtailed to accomplish the goals of own recognizance release,” he wrote.

The ACLU of Northern California said in a statement last week that it plans to appeal the 9th Circuit’s decision.

“It is notable that the court did not reach consensus,” said Shilpi Agarwal, the organization’s legal director. “We disagree with the majority’s opinion and maintain that the San Francisco Sheriff’s Office exceeded its authority by intruding on the privacy of people released pretrial on electronic monitoring.”