Even with a Diminished Expectation of Privacy, Suspicionless Searches of a Probationer’s Phone Found Unreasonable
The Ninth Circuit recently held that a probationer’s Fourth Amendment right to be free of unreasonable searches and seizures was violated when probation officers conducted suspicionless searches of his cell phone.
On October 2, 2013, Probation Officers Jennifer Fix and Joseph Ortiz arrived at Paulo Lara’s home after Lara failed to report to Officer Fix for a probation meeting. Lara was placed on probation following a conviction for possession, sale and transportation of methamphetamine in violation of California Health & Safety Code §§ 11378 and 11379(a).
The probation agreement required him to submit his “person and property, including any residence, premises, container or vehicle” to search and seizure at any time by any law enforcement officer “with or without a warrant, probable cause, or reasonable suspicion.” Lara initialed a subsection entitled “Fourth Amendment waiver” providing that he understood he was waiving his right to be free from unreasonable search and seizure.
After announcing that they were at Lara’s house to conduct a probation search, Officer Fix ordered Lara to sit on the coach. At that time, Officer Ortiz spotted a cell phone on a table next to the couch and examined it. Officer Ortiz admitted that he did not ask Lara’s permission to search the cell phone, but that Lara did not object when Officer Ortiz handled it.
Officer Ortiz reviewed the most recent text messages on Lara’s cell phone and discovered messages containing three photographs of a semi-automatic handgun lying on a bed. The content of the messages themselves involved an exchange between an “Al” and Lara. Al asked Lara if the gun was “clean” and received a confirmation that it was. Al followed up by asking Lara, “What is the lowest you will take for it?”
The officers proceeded to search Lara’s house and car for the gun. While the officers did not find the gun, they discovered a folding knife. The officers arrested Lara as possession of the knife violated that terms of Lara’s probation.
Lab personnel found GPS data embedded in the photographs of the gun, determining the address where the photographs were taken –Lara’s mother’s home. Officers Fix and Ortiz went to Lara’s mother’s home and the officers found the gun in the closet of the bedroom matching the bedding in the photographs.
Lara was charged as a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Lara moved to suppress the gun and ammunition, contending that it was obtained as a result of illegal searches of his cell phone by Officer Ortiz and the lab. The district court held a hearing on the suppression motion and denied the motion. Lara appealed the decision to the U.S. Court of Appeals for the Ninth Circuit. The court of appeals reviewed the district court’s denial of a motion to suppress de novo, reviewing for clear error the district court’s underlying factual findings.
The court of appeals first considered the government’s contention that Lara waived his Fourth Amendment rights. The court stated the law has long been that a probationer’s acceptance of a search term in a probation agreement does not by itself render unlawful an otherwise unconstitutional search of a probationer’s person or property. However, the issue was not solely whether Lara accepted the cell phone searches as a condition of his probation, but whether the search he accepted was reasonable. Lara’s acceptance of the terms of his probation, including suspicionless searches of his person and property, was just one factor bearing on the reasonableness of the search and was not dispositive.
The court of appeals proceeded to address the reasonableness of the search in question. It rejected the government’s suggestion that United States v. King, 736 F.3d 805 (9th Cir. 2013), fully resolved the issue. There, the court only held that a suspicionless search, conducted pursuant to a suspicionless search condition of a violent felon’s probation agreement did not violate the Fourth Amendment. That decision did not address lower level offenders who have accepted a suspicionless search condition – a consideration the court would now address. The court of appeals noted that it needed to balance the degree to which the search intruded upon Lara’s privacy with the degree to which the search was needed for the promotion of legitimate governmental interests.
The court of appeals held that Lara had a privacy interest in his cell phone and the data it contained. While his privacy interest was somewhat diminished in light of his status as a probationer, it was still significant in light of the broad amount of data contained in, and accessible through, his cell phone. The court placed emphasis on the Supreme Court’s decision in United States v. Riley, 134 S. Ct. 2473 (2014), which described the importance of cell phone privacy. Quoting Riley, “A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.” Riley, 134 S. Ct. at 2491.
Considering the government’s interest, the court of appeals stated that the ubiquity of cell phones cut against the government’s purported heightened interest in conducting suspicionless searches of cell phones of probationers with controlled substances convictions. It was true that combating recidivism and helping probationers integrate back into the community were important government interests, but in this case Lara merely missed one meeting with Officer Fix and there was no reason to suspect any crime to prompt a search.
The court of appeals held that under the circumstances of this case, the searches of Lara’s cell phone were unreasonable and the exclusionary rule barred the admission of the evidence that was the fruit of that unlawful search. Thus, the court reversed the district court’s denial of Lara’s motion to suppress.
Read the full case: United States v. Lara
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