CA9: While cell phone privacy interest is substantial, state’s interest in parole searches of cell phones is greater

While the general reasonable expectation of privacy in a cell phone is weighty, it still succumbs to the state’s interest in parole searches of a cell phone to insure compliance with parole requirements. The record also supports consent given by defendant’s aunt with whom he lived. United States v. Johnson, 2017 U.S. App. LEXIS 23911 (9th Cir. Nov. 27, 2017):

… Riley’s emphasis on the almost sui generis nature of cell phones weighed heavily in Lara. In that case, despite the defendant’s status as a probationer, and even though he agreed to “submit [his] person and property, including any residence, premises, container or vehicle under [his] control to search and seizure” as a term of his probation, we ultimately concluded that the defendant’s privacy interest “was substantial in light of the broad amount of data contained in, or accessible through, his cell phone.” Lara, 815 F.3d at 611-12. Under Riley and Lara, therefore, Johnson’s claim of an enhanced privacy interest in the contents of his cell phone appears weighty.

As previously noted, however, the government’s interest in supervising parolees is “substantial.” Samson, 547 U.S. at 853. Those interests include combating recidivism, promoting reintegration, and effectively detecting parole violations. Id. at 853-54. Requiring officers to obtain a warrant before searching a parolee’s cell phone would often undermine the state’s ability to supervise effectively thousands of parolees and prevent concealment of criminal conduct as in the case here. See id. at 854. Lara held that these governmental interests were ultimately insufficient to overcome a probationer’s substantial privacy interest in his cell phone, although the government’s interests were reduced when the suspected probation violation (missing an appointment with the probation officer) was not a serious or violent crime. See 815 F.3d at 612.

Despite these significant competing interests, we hold that the warrantless searches of Johnson’s cell phone were constitutionally reasonable, given Johnson’s status as a parolee. Johnson’s parolee status may be of even greater concern here due to his lengthy and serious criminal history involving violent offenses. But most persons released on parole supervision are completing a sentence that involved incarceration for serious offenses. We do not think a workable rule can be fashioned for officers on the street based on an argument that police should first examine the severity of the parolee’s prior criminal record in determining whether or not they may conduct a warrantless search of a parolee or his cell phone when the parolee is subject to a search condition.