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.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.