Cal.4: Probation search of “property, personal effects” reasonably includes a cell phone and its data

A probation search of “property, personal effects” reasonably includes a cell phone and its data. There are no limits on what “personal effects” means in the search condition paperwork. And, this was misdemeanor probation, and the search of the phone included text messages. People v. Sandee, 2017 Cal. App. LEXIS 791 (4th Dist. Sept. 13, 2017):

B. The Search of Sandee’s Cell Phone Was Within the Scope of the Search Conditions in Her Probation Orders

As we have explained, as a condition of probation in several misdemeanor cases Sandee agreed to “[s]ubmit person, vehicle, place of residence, property, personal effects to search at any time with or without a warrant, and with or without reasonable cause,” and the detective in this case relied on that probation search condition to conduct the warrantless search of Sandee’s cell phone. Accordingly, the question presented here is whether the warrantless search of Sandee’s cell phone was permitted under the probation search exception to the warrant requirement in that the search fell within the scope of the Fourth Amendment waivers in Sandee’s probation orders.

As our Supreme Court explained in Bravo, supra, 43 Cal.3d 600, when interpreting the scope of a Fourth Amendment waiver agreed to by the defendant as a condition of probation, the “waiver of [the defendant’s] Fourth Amendment rights must be interpreted on the basis of an objective test.” (Bravo, at p. 606.) Under this approach, “[t]he search condition must … be interpreted on the basis of what a reasonable person would understand from the language of the condition itself, not on the basis of appellant’s subjective understanding, or under a strict test in which a presumption against waiver is applied.” (Id. at p. 607.) The reason for this rule is that “[l]aw enforcement officers who rely on search conditions in probation orders, the probationer himself [or herself], and other judges who may be called upon to determine the lawfulness of a search, must be able to determine the scope of the condition by reference to the probation order. We cannot expect police officers and probation agents who undertake searches pursuant to a search condition of a probation agreement to do more than give the condition the meaning that would appear to a reasonable, objective reader. They can neither inquire into the subjective understanding of the probationer, nor analyze the condition in light of legal precedent drawing fine points based on minor differences in the wording of search conditions in other probation orders.” (Id. at pp. 606–607.)

For the purpose of our analysis, it is important to determine the appropriate timeframe for determining the reasonable meaning of the search condition in Sandee’s probation orders. We conclude that the proper inquiry focuses on what a reasonable, objective person would understand the search condition to mean at the time of the search. We reach this conclusion based on our Supreme Court’s focus in Bravo, supra, 43 Cal.3d 600, on the limitations of law enforcement officers who conduct the search. Bravo explained that an objective test is appropriate because officers “can neither inquire into the subjective understanding of the probationer, nor analyze the condition in light of legal precedent drawing fine points based on minor differences in the wording of search conditions in other probation orders.” (Id. at pp. 606–607.) If law enforcement officers cannot be expected to draw fine points based on legal precedent when interpreting the search condition’s reasonable meaning, those officers certainly cannot be expected to possess an understanding based on future legal developments.

Turning to the language of the probation search condition, we conclude that at the time the search was conducted a reasonable, objective person would understand it to encompass a search of Sandee’s cell phone. In the probation search condition, Sandee agreed to submit her “property” and “personal effects” to search at any time. The probation search condition is worded very broadly and contains no language whatsoever that would limit the terms “property” and “personal effects” to exclude Sandee’s cell phone or other electronic devices and the data stored on them. As a cell phone is indisputably the property of the person who possesses it and constitutes part of his or her personal effects, a reasonable person would understand the terms “property” and “personal effects” to include Sandee’s cell phone and the data on it.

I’ve been waiting to see one of these. My state adopted a broad suspicionless probation and parole search statute in the 2015 legislative session, and the police are really having fun with it. I’ve seen this question on list servs, and I always expected this outcome. More to the point: How can you avoid that outcome? A house is private as is a cell phone, and a house is subject to a parole or probation search without reasonable suspicion here. The only limit is “reasonableness”; i.e., they can’t trash the place. But what is “reasonable”? It’s whatever the court thinks it is that day.