In 2014, the U.S. Supreme Court in Riley v. California held that the police, acting without a warrant, generally may not examine digital information stored on a cell phone seized during an arrest.


When a defendant is released on probation by a court or an inmate is granted parole by a parole board, he or she is required to sign “terms and conditions” of release—one of which can be an agreement to submit to a warrantless search of their person or property, including their residences, vehicles, or other premises under their control, at any time of the day or night by a law enforcement officer, probation/parole officer, or any mandatory supervision officer.


Waiver to Allow Search of Person and Property


In effect, a probationer or parolee waives his or her right to have the police secure a search warrant based on probable cause before their person or property can be either searched or seized.


Search of Cell Phone


Paulo Lara was placed on probation in 2013 following a conviction for possession for sale and transportation of methamphetamine in violation of California law. He signed the standard probation agreement waiving his Fourth Amendment rights. He was assigned to a probation officer named Jennifer Fix.


In the language of the condition, Lara agreed to “submit his person and property, including any residence, premises, container or vehicle under his control to search and seizure.”  There was no language agreeing to search of a cell phone etc.


Home Visit and Search of Residence


On October 2, 2013, Officer Fix and another probation officer named Joseph Ortiz arrived unannounced at Lara’s home after he failed to report to Fix. The two probation officers went to the residence to conduct a warrantless “probation search.”


Standard Protocol to Search Cell Phones


In a subsequent “sworn declaration,” Officer Fix stated that “it is standard protocol for probation officers to search cell phones of probationers subject to search terms [as a condition to probation ], especially if the probationer had been convicted of a drug trafficking offense. She added that before the search she was aware Lara had been convicted of a drug offense, and that both she and Officer Ortiz knew from experience that “drug traffickers commonly use cell phones to arrange narcotics sales.”


Once in the Lara residence and after Officer Fix ordered the probationer to sit on the couch, Officer Ortiz spotted a cell phone on a table next to the couch. Lara stated the phone belonged to him. A subsequent cell phone company records check revealed the phone was in the name of “Peter” Lara, not “Paulo” Lara but the address listed on the subscriber’s account was the same as Lara’s home address.


Searched Cell Phone and Reviewed Texts


Without asking for Lara’s permission, Officer Ortiz reviewed the latest text messages on the cell phone. That search revealed three photographs of an automatic handgun lying on a bed. The photos had been sent to someone named “Al” who responded with messages asking if the weapon was “clean” and for sale. Lara responded in the affirmative.


Armed with this information, Officer Ortiz handcuffed Lara and then he and Officer Fix completed their search of the residence for the weapon depicted in the photos. They did not find the weapon but did discover a folding knife that violated the conditions of Lara’s probation.


Lara was taken to the Orange County Jail before his cell phone was brought by Officers Fix and Ortiz to the Orange County Regional Computer Forensics Lab. There lab personnel found GPS data that led them to the address where the photos were taken—Lara’s mother’s residence.


Accompanied by police officers, the two probation officers went to Lara’s mother’s home where they showed her the photos of the weapon. She directed them to a bedroom in which they found bedding that matched the images depicted in the photos. Officer Fix found the loaded gun depicted in the photos in a bedroom closet.


Indicted in federal Court Felon in Possession of Firearm


Lara was indicted by a federal grand jury for being a felon in possession of a firearm and ammunition. His attorneys filed a pretrial motion to suppress, arguing that the gun and ammunition were found as a result of the illegal search of Lara’s cell phone.


The district court denied the motion but allowed Lara to preserve the search issue for an appeal after which the defendant pled guilty.


Conviction Vacated by Court of Appeals


Lara timely appealed; and on March 3, 2016, the Ninth Circuit Court of Appeals vacated his conviction finding that the “acceptance of a search term in a probation agreement does not by itself render lawful an otherwise unconstitutional search of a probationer’s person or property.” The three-judge panel said the issue before the court was not whether Lara had “accepted a cell phone search as a condition of his probation, but whether the search that he accepted was reasonable.”


Government Argues Interests to Prevent Recidivism


The court pointed to the interests at stake in the case: the government’s interest in combatting recidivism and helping probationers integrate back into the community versus Lara’s substantial privacy interests in his cell phone.


The government presented three independent reasons why its interests should prevail before the appeals court as they had in the district court:


  1. The government contended Lara had consented to the initial cell phone data search by accepting the terms of his probation agreement, thereby waiving his Fourth Amendment protection against unreasonable searches and seizures.
  2. The government contended that, even if Lara did not waive his Fourth Amendment rights, the warrantless search was lawful because it was reasonable.
  3. The government contends that even if the cell phone search was unlawful, the evidence it yielded should not be suppressed because a good faith exception to the exclusionary rule applies.


Privacy Interests Somewhat Diminished, But Sufficiently Substantial


The Ninth Circuit rejected each of these arguments. While the court recognized that Lara’s privacy interest was somewhat diminished as a probationer, the interest was “sufficiently substantial” to protect him from the two cell phone searches prompted by his probation officers. The court said:


“In sum, we conclude that Lara had a privacy interest in his cell phone and the data it contained. That privacy interest was substantial in light of the broad amount of data contained in, or accessible through, his cell phone. We recognize that his privacy interest was somewhat diminished in light of Lara’s status as a probationer. But it was not diminished or waived because he accepted as a condition of his probation a clear and unequivocal provision authorizing cell phone searches (he did not) or because he subscribed to cell phone serving using a different first name (he did).”


The court reached this conclusion with relative ease, pointing to the fact that a cell phone contains far more sensitive and private information than the most exhaustive search of a house or a person’s body would ever produce. The Supreme Court reached this same conclusion in Riley. Both courts held that while a cell phone is an object of physical property, the data it contains is not.


We believe that today’s cell phones are viewed by most people and private and confidential as a church confessional. They are password protected and contain sensitive, private data.  The police must have a warrant specifying the precise information about criminal activity it is seeking before it can “search” the phone. And we believe that not even a warrant should be a license for the police to pore through personal, non-criminal data contained in a cell phone just because they have an assumed authority to do so. The intimacy of our personal lives is none of the government’s business. It died with J. Edgar Hoover, or so we thought.