ND: Probation search of cell phone permitted even though not specified in probation search statute

North Dakota statute on probation searches says: “Defendant shall submit to search of his person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant.” Even though it doesn’t explicitly say so, the court concludes that includes a cell phone on the person or in a vehicle or residence of a probationer. State v. Gonzalez, 2015 ND 106, 2015 N.D. LEXIS 91 (April 28, 2015):

[¶17] If we agreed with Gonzalez’s reasoning, a probation officer could search his house or vehicle and seize any evidence found in plain sight but would not be authorized to search anything located in the house or vehicle where evidence of a probation violation may be contained, including a box, computer, cell phone, or other personal effects. This Court and other courts have held searches of items located inside the residence are not unreasonable and are within the scope of a valid probationary search. See, e.g., United States v. Yuknavich, 419 F.3d 1302, 1309-11 (11th Cir. 2005) (search of probationer’s computer was reasonable, no probation condition expressly requiring warrantless searches); Adams, 2010 ND 184, ¶ 17, 788 N.W.2d 619 (search of a locked safe reasonably accessible by law enforcement was within the scope of the probation search and was reasonable). The district court is not required to explicitly list every item that may be searched in the conditions of probation. The search of Gonzalez’s cell phones was within the scope of the warrantless search condition of his probation order, and the search condition was authorized by N.D.C.C. § 12.1-32-07.

[¶18] Gonzalez also claims his probation conditions did not give him notice that his cell phones would be subject to warrantless search and seizure. Gonzalez was on probation for gross sexual imposition convictions, which were based on allegations that he engaged in sexual acts with a juvenile female under the age of fifteen. The conditions of his probation included that he submit to searches of his person, residence, and vehicle, with or without a warrant, and that he not have contact with minor females, telephone the victim, or utilize 900 telephone numbers. The conditions of Gonzalez’s probation gave him notice that his cell phones would be subject to search. Cf. Yuknavich, 419 F.3d at 1310 (probationer was convicted of child pornography and his internet usage was restricted as a condition of probation, which gave him notice that he should be prepared to answer questions about his usage and that he may be required to submit to a warrantless search of his computer). The search condition was reasonably related to the underlying offense.

[¶19] We conclude the search of Gonzalez’s cell phones was within the scope of the conditions of his probation, and the conditions were authorized by N.D.C.C. § 12.1-32-07.