The Ninth Circuit recently held that a gun-dealing drug dealer's Fourth Amendment protection against unreasonable searches and seizures was violated when probation officers conducted suspicionless searches of his cell phone.
Lara was on probation for Possession of Methamphetamine and Possession of Methamphetamine With the Intent to Sell. He was granted probation and agreed to waive his Fourth Amendment rights, which 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 the section that he understood he was waiving his right to be free from unreasonable search and seizure.
After Lara failed to report for a probation meeting, his probation officer (PO) and another PO went to Lara's house to conduct a probation search. Lara's PO ordered Lara to sit on the couch. At that time, the other officer saw a cell phone on a table next to the couch and examined it. The PO admitted he did not ask Lara’s permission to search the cell phone, but that Lara did not object when the officer handled it.
The officer 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 searched Lara’s house and car for the gun. They did not find the gun, but did discover a folding knife, a violation of his probation and arrested Lara.
Forensic computer experts found GPS data embedded in the photographs of the gun, determining the address where the photographs were taken: Lara’s mother’s home. The officers went to Lara’s mother’s home and found the gun in the closet of the bedroom matching the bedding in the photographs.
Lara was charged federally as a felon in possession of a firearm and ammunition. Lara moved to suppress the gun and ammunition, contending that it was obtained as a result of illegal searches of his cell phone by the PO and the lab. After the district court denied the motion, Lara appealed the decision to the Ninth Circuit Court of Appeals.
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.
The Ninth Circuit proceeded to address the reasonableness of the search in question. It rejected the government’s suggestion that its 2013 decision in United States v. King fully resolved the issue. There, the court only held that a suspicionless search, conducted pursuant to a Fourth Amendment waiver of a violent felon’s probation agreement did not violate his constitutional rights. That decision did not address lower level offenders who have waived their Fourth Amendment rights, which the court would now consider. The Ninth Circuit said 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, 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.”
Considering the government’s interest, the court of appeals stated that the commonness of cell phones cut against the government’s purported heightened interest in conducting warrantless 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 his PO and there was no reason to suspect any crime to prompt a search.
The 9th Circuit held that under the circumstances of this case, the searches of Lara’s cell phone were unreasonable and the evidence was the fruit of that unlawful search. Thus, the court reversed the district court’s denial of Lara’s motion to suppress.
It should be noted the 9th Circuit has long disliked California's use of Fourth Amendment waivers as a tool of enforcing probation conditions and has previously been reversed by the US Supreme Court for that prejudice. Had this case been filed in state court, a different result may have occurred.
If you have visited my website (and hopefully you have saved it to your "Favorites"), you have seen that I do not charge anything for our first meeting.
Abraham Lincoln, great country lawyer that he was, is reported to have said, "A lawyer's stock in trade is his time." Lawyers don't have shelves full of merchandise for you to examine and buy, but we have time, which includes the years we spent going to law school, taking and passing the bar exam, and working as a practicing attorney. Our time includes our knowledge and wisdom.
The point is, our first meeting may be "free" to you but it is not free to me. Nevertheless, it is an investment I'm willing to make because it serves several purposes.
First, it allows you to meet me, get a sense of my knowledge and skills, and decide if you think I'm the best defense attorney to represent you in criminal case.
On the flip side, it allows me to get a feel for you. I don’t sign every potential client who walks in the door. Of course, I want to know about the facts of your case, and that will have a bearing on my decision, but maybe we just don’t like each other. Maybe one or both of us believes there's a personality conflict.
Maybe you want a lawyer with silver-gray hair because that's what you saw on TV. Maybe I sense a lack of seriousness about you because you showed up 30 minutes late for our appointment without having the courtesy to call and tell me you'd be late. (If you can't get to a simple appointment on time, how can I trust you to be punctual for court appearances? You may get a tongue-lashing from the judge but it's my professional credibility that takes the hit. )
Maybe one of us is just picking up a bad vibe from the other person and realizes this is not an arrangement that is going to work. Let's be honest with one another and admit it up front.
The second purpose of the initial meeting is for you to tell me why you were arrested and let me hear your side of the story.
If you decide to hire me, I will get a copy of the police reports and find out how they documented the incident. Once you been have arraigned and allowed to enter a "not guilty" plea, I will also obtain a copy of the prosecution's charging documents to see what crimes they think they can prove beyond a reasonable doubt.
Which brings us to a third reason for our first meeting. Your case may be so complicated that I may suggest you hire a lawyer who specializes in that kind of criminal defense. No hard feelings, but if I don't think I can give you the quality of defense you deserve, I'm going to tell you. Very likely I will also be able to recommend a specialist in that area of the law.
The final reason for the initial consultation is for me to tell you what my representation is going to cost you. If you have already shopped around, either in person or by phone, you will discover my rates are quite reasonable and also competitive.
If I am the first lawyer you have visited and you want chance to check out some other attorneys, go for it. When you finally hire me, I want you to feel comfortable about it. However, when you visit those other lawyers, here some things to find out.
While you're doing your comparison shopping, remember the advice your mother gave you years ago: You get what you pay for. Then ask yourself, what is my freedom worth?
You may decide that any retained attorney is more than you want to spend. There's always the Public Defenders Office. I'm friends with a number of Deputy Public Defenders and many of them are outstanding trial attorneys. Maybe you'll luck out and get one of them and not the kid just out of law school.
In summary, just because our initial appointment is not going to cost you a penny, it is still a serious professional consultation.
When you come, bring any paperwork you may have already received from the court.
When we talk, be totally candid with me. If there's dirt, tell me. Don't make me waste time pulling it out of you or finding it out later. Don't be embarrassed. Believe me, I have likely heard a lot worse.
Even though you are not "officially" my client yet, everything you say is protected by the attorney-client privilege. I cannot ethically divulge (nor will I!) anything you say to me, not even to another lawyer should you choose to hire someone else.
Save yourself time and bring your checkbook or credit card with you. Guaranteed, there will no charge for this first meeting, but if you decide to retain me, Criminal Defense Attorney Rebecca Ocain, the quicker you put some money down for your defense, the quicker I can start working on trying to keep you out of jail or prison.
You can schedule your first and FREE consultation by calling 619-431-1076 on any day and at any hour.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.