CA9: Probation search of cell phone for missing one probation meeting unreasonable; rule unclear “property” includes data

A probation search of defendant’s cell phone based on missing a single probation meeting was unreasonable for various reasons: The heightened privacy in a cell phone v. the ubiquity of cell phones in everyday life and the unclear provision that “property” includes data. On the whole, this probation search was unreasonable. United States v. Lara, 2016 U.S. App. LEXIS 3995 (9th Cir. March 3, 2016):

1. Lara’s Privacy Interest

The extent to which the search intruded on Lara’s privacy depends on several factors, the most important of which are his status as a probationer, the clarity of the conditions of probation, and the nature of the contents of a cell phone.

First, because Lara is on probation, his reasonable expectation of privacy is lower than someone who has completed probation or who has never been convicted of a crime. Knights, 534 U.S. at 120. But while the privacy interest of a probationer has been “significantly diminished,” id., it is still substantial. The Supreme Court has recognized that a probationer’s privacy interest is greater than a parolee’s. Samson v. California, 547 U.S. 843, 850 (2006). Furthermore, Lara’s reasonable expectation of privacy is greater than that of probationers such as King because he was not convicted of a particularly “serious and intimate” offense. King, 736 F.3d at 809.

Second, the cell-phone search condition of Lara’s probation was not clear. …
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 search provision authorizing cell phone searches (he did not) or because he subscribed to cell phone service using a different first name (he did).

2. The Government’s Interest

Probationary searches advance at least two related government interests — combating recidivism and helping probationers integrate back into the community. … In contrast [with what happened in Knights], in this case Lara had merely missed a meeting with his probation officer. We do not minimize the importance of complying with the terms of probation, including meeting at appointed times with the probation officer. But Lara’s noncompliance was worlds away from the suspected crimes that prompted the searches in King and Knights.

We recognize that Officer Ortiz searched Lara’s cell phone knowing that he had been convicted of a drug crime and knowing that drug traffickers often use cell phones to arrange sales. Given the ubiquity of cell phones, almost any crime involving more than a single person (and indeed many crimes involving just one person) would entail the use of cell phones, which can be used not only for placing calls and sending text messages, but also for sending emails, looking up directions, and conducting internet searches on various topics. This ubiquity cuts against the government’s purported heightened interest in conducting suspicionless searches of the cell phones of probationers with controlled substances convictions.

3. Balancing

On balance, we hold that in the circumstances of this case the searches of Lara’s cell phone were unreasonable. “[W]hen ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.'” Riley, 134 S. Ct. at 2488 (quoting Maryland v. King, 133 S. Ct. 1958, 1979 (2013)). The same is true of probationers, especially nonviolent probationers who have not clearly and unambiguously consented to the cell phone search at issue. Because of his status as a probationer, Lara’s privacy interest was somewhat diminished, but that interest was nonetheless sufficiently substantial to protect him from the two cell phone searches at issue here.