AZ: Cell phones are “property” subject to probation searches

“Cell phones provide access to an immense array of private information, much of which is stored in the Cloud or on sites controlled by third parties. As such, the United States Supreme Court concluded in Riley v. California that people have uniquely broad expectations of privacy in cell phones and, therefore, a warrant is generally required to search them. 573 U.S. 373, 393-94, 401 (2014). In the wake of Riley, we are asked to decide whether Arizona’s standard conditions of probation, which permit warrantless searches of a probationer’s ‘property,’ apply to cell phones. We hold they do. We further hold that the search here was reasonable under the totality of the circumstances and therefore compliant with the Fourth Amendment.” State v. Lietzau, 2020 Ariz. LEXIS 139 (May 22, 2020) (If a search of the home is reasonable, why not a cell phone? Depends on the intrusiveness.):

¶28 We disagree with the trial court that the search was arbitrary. A search is arbitrary, capricious, or harassing if it is “conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.” People v. Bravo, 738 P.2d 336, 342 (Cal. 1987). Most often, determining whether a search was conducted for a proper purpose will resolve whether the search was arbitrary, capricious, or harassing. But a search directly related to a probation condition can nevertheless be arbitrary, capricious, or harassing if, for example, “motivated by personal animosity” or conducted “too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.”

People v. Reyes, 968 P.2d 445, 451 (Cal. 1998) (citations omitted). Searches conducted under those circumstances do not reasonably relate to the goals of probation. Here, as explained, Camacho had a proper purpose in searching Lietzau’s cell phone text messages that furthered the goals of rehabilitating him and protecting the public. See supra ¶¶ 24-27. Nothing suggests Camacho was motivated by an improper purpose, and Lietzau does not suggest otherwise.

¶29 Finally, and importantly, Camacho’s search of the cell phone did not delve deeper than reasonably necessary to determine whether Lietzau was complying with his probation terms. Although Condition 4 diminished Lietzau’s reasonable expectation of privacy in his cell phone, it did not eliminate it. See Knights, 534 U.S. at 118, 120. In short, Condition 4 did not grant Camacho carte blanche to indiscriminately search all information accessible by the cell phone. Because a cell phone is a gateway to a massive amount of personal information, see Riley, 573 U.S. at 393-95, probationary searches must be limited to data reasonably expected to contain information related to determining a probationer’s compliance with probation conditions. The search here stayed within that boundary.

¶30 In sum, under the totality of the circumstances, we hold that Camacho’s search of Lietzau’s cell phone was reasonable and therefore compliant with the Fourth Amendment. The trial court erred by finding otherwise.