This post examines an opinion from the U.S. Court of Appeals for the 9th Circuit: U.S. v. Lara, 2016 WL 828100
(2015). The Court of Appeals is
reviewing a U.S. District Court Judge’s denial of Lara’s motion to suppress
certain evidence. U.S. v. Lara, supra.
The court begins by explaining that
Paulo Lara appeals his conviction for
being a felon in possession of a firearm and ammunition in violation of 18 U.S. Code § 922(g)(1). At the time of his arrest, Lara was subject to a term of
probation that required him to submit his `person and property, including any
residence, premises, container or vehicle’ to search and seizure `without a
warrant, probable cause, or reasonable suspicion.’ Lara contends that his
Fourth Amendment right to be free from unreasonable searches and seizures was
violated when probation officers conducted two warrantless, suspicionless
searches of his cell phone. He contends that the exclusionary rule requires the
suppression of images, text messages, and GPS data found on his cell phone, as
well as a gun and ammunition, as fruits of the illegal searches. We agree.
U.S. v. Lara, supra.
The Court of Appeals began its analysis of Lara’s argument by
explaining the circumstances of the search and seizure at issue in the case:
On October 2, 2013, Probation Officers
Jennifer Fix and Joseph Ortiz arrived unannounced at Lara's home after he had
failed to report to Officer Fix. Lara had recently been placed on probation
following a conviction for possession for sale and transportation of
methamphetamine in violation of California Health & Safety Code §§
11378 and 11379(a).
Lara's probation agreement required him
to `submit [his] person and property, including any residence, premises,
container or vehicle under [his] control, to search and seizure at any time of
the day or night by any law enforcement officer, probation officer, or
mandatory supervision officer, with or without a warrant, probable cause, or
reasonable suspicion.’ As part of his probation agreement, Lara initialed a
subsection entitled “Fourth Amendment waiver.” That subsection provided:
`I understand under the Fourth and
Fourteenth Amendments to the United States Constitution, I have a right to be
free from unreasonable searches and seizures. I waive and give up this right,
and further agree that for the period during which I am on probation or
mandatory supervision I will submit my person and property, including any
residence, premises, container or vehicle under my control to search and
seizure at any time of the day or night by any law enforcement officer,
probation officer, post-release community supervision officer, or parole
officer, with or without a warrant, probable cause, or reasonable suspicion.’
U.S. v. Lara, supra. The opinion goes on to explain that
Officer Fix stated in a sworn
declaration, consistent with her later in-court testimony, that at her first
meeting with Lara she read him the search and seizure term and asked whether he
had any questions `concerning that term and what it entails.’ She stated that
is her normal practice to note if a probationer has any questions about the
terms, and she had nothing in her notes indicating that Lara had any such
questions. Lara stated in a sworn declaration that when he accepted the terms
and conditions of probation, he did not believe the search condition would
allow his cell phone or data stored on the phone to be searched without his
consent.
Officer Fix stated in her declaration,
`It is standard protocol for probation officers to search the cell phones of
probationers subject to search terms, especially if the probationer had been
convicted of a drug trafficking offense.’ Officer Fix stated that she knew Lara
had been convicted of a drug offense when she conducted the search. She stated
that she and Officer Ortiz knew, based on their training and experience, that `drug
traffickers commonly use cell phones to arrange narcotics sales.’
U.S. v. Lara, supra. The opinion then outlines what happened with
regard to Lara’s cell phone:
After announcing that they were at the
house to conduct a probation search, Officer Fix ordered Lara to sit on the
couch. Officer Ortiz stated in a sworn declaration that he spotted a cell phone
on a table next to the couch and examined it. He stated that he confirmed that
the phone belonged to Lara. Cell phone company records showed that the name of
the subscriber was `Peter’ Lara, rather than `Paulo’ Lara. The address listed
on the subscriber record matched Lara's home address where he was found and
where the search was conducted.
Officer Ortiz stated that he did not
ask Lara's permission to search the cell phone, but that Lara did not object to
his doing so. Officer Fix testified that it is the department's policy to
search a cell phone when officers visit a probationer, even if the probationer
objects.
Officer Ortiz stated in his declaration
that he reviewed the most recently sent text messages on Lara's cell phone and
discovered messages containing three photographs of a semiautomatic handgun
lying on a bed. The pictures had been sent to `Al,’ who responded, asking if
the gun was `clean.’ Lara replied, `yup.’ Al followed up by asking, `What is
the lowest you will take for it?’ and `How much?’
Officer Ortiz handcuffed Lara, and he
and Officer Fix searched Lara's house and car for the gun. They did not find
it, but they did find a folding knife, the possession of which violated the
terms of Lara's probation. Officers Fix and Ortiz arrested Lara for possessing
the knife in violation of his probation and brought the cell phone to the
Orange County Regional Computer Forensics Lab.
Lab personnel found GPS data embedded
in the photographs of the gun and thereby determined the address where they
were taken. Investigation revealed the location to be the home of Lara's
mother. Officer Fix testified at the suppression hearing that without the GPS
data, she would not have had reason to visit Lara's mother's house.
Officers Fix and Ortiz, along with
officers from the local police department, went to Lara's mother's home and
showed her the photographs of the gun. She directed them to a bedroom that had
bedding matching that in the photographs. In the closet of the bedroom, Officer
Fix found a loaded handgun that resembled the gun depicted in the photographs.
U.S. v. Lara, supra.
The Court of Appeals concludes the prefatory section of its
opinion by explaining that
Lara was charged with being a felon in
possession of a firearm and ammunition, in violation of 18 U.S. Code §
922(g)(1). He moved to suppress the gun and ammunition on the ground that it
had been found as a result of illegal searches of his cell phone by Officer
Ortiz and the lab.
The [U.S. District Court Judge] held a
hearing on the suppression motion and denied the motion. When the district
court ruled on Lara's suppression motion, the Supreme Court had not yet
decided Riley v. California,134 S.Ct. 2473 (2014). In Riley, the Court held
that police generally may not, without a warrant, examine the digital
information stored on a cell phone seized incident to arrest. Riley v. California, supra.
After the district judge denied Lara's
suppression motion, Lara pled guilty to the § 922(g)(1) charge, but
preserved his right to challenge the denial of his motion. Lara timely
appealed.
U.S. v. Lara, supra.
The Court of Appeals began its analysis of Lara’s argument
on appeal by explaining that
[t]he government contends that there
are three independent reasons to affirm the district court's denial of Lara's
motion to suppress. First, the government contends that Lara consented to the
initial cell phone data search by accepting the terms of his probation
agreement, thereby waiving his Fourth Amendment protection against unreasonable
searches and seizures. Second, the government contends that, even if Lara did
not waive his Fourth Amendment rights, the warrantless search was lawful
because it was reasonable. Third, the government contends that even if the cell
phone search was unlawful, the evidence it yielded should not be suppressed
because a good faith exception to the exclusionary rule applies.
U.S. v. Lara, supra.
The Court of Appeals then went through the government’s
three arguments, beginning with the issue of waiver of Lara’s 4th
Amendment rights. It began by noting that
[w]e have already held that a
probationer's acceptance of a search term in a probation agreement does not by
itself render lawful an otherwise unconstitutional search of a probationer's
person or property. In U.S. v. Consuelo–Gonzalez, 521 F.2d 259
(1975) (en banc), we held that probationers do not entirely waive their Fourth
Amendment rights by agreeing, as a condition of their probation, to `submit
[their] person and property to search at any time upon request by a law enforcement
officer.’ We explained that there is a limit on the price the government may
exact in return for granting probation. U.S. v. Consuelo–Gonzalez, supra. Specifically, `any search made pursuant to the
condition included in the terms of probation must necessarily meet the Fourth
Amendment's standard of reasonableness.’ U.S. v. Consuelo–Gonzalez,
supra; see U.S. v. Scott,450 F.3d 863 (U.S. Court of Appeals for the 9th
Circuit 2006) (confirming this reading of Consuelo–Gonzalez 's
holding).
The issue, therefore, is not solely
whether Lara accepted the cell phone search as a condition of his probation,
but whether the search that he accepted was reasonable. Lara's acceptance of
the terms of probation, including suspicionless searches of his person and property,
is one factor that bears on the reasonableness of the search, but it is not in
itself dispositive. See U.S.
v. Scott, 450 F.3d 863 (U.S. Court of Appeals for the 9th
Circuit 2006) (suggesting a defendant's agreement to a search condition in exchange
for relief from prison is `a relevant factor in determining how strong his
expectation of privacy is’); accord U.S. v. Knights, 534 U.S. 112 (2001) (declining to decide whether a probationer's acceptance of
a probation term authorizing warrantless searches without probable cause
constituted consent sufficient to waive his Fourth Amendment rights, and opting
instead to evaluate whether the search was reasonable in light of the totality
of the circumstances, including the probationer's acceptance of the search
condition).
U.S. v. Lara, supra.
The Court of Appeals then took up the issue of the
“reasonableness of the search.” U.S. v. Lara, supra. It began by explaining that
[a]t the outset, we reject the
government's suggestion that our decision in United States v. King, 736
F.3d 805 (2013), fully resolves this issue. In King, the
police conducted a suspicionless search of a violent felon's residence,
pursuant to a condition of probation that clearly authorized such a search. We
upheld the search but `h[e]ld only that a suspicionless search, conducted
pursuant to a suspicionless-search condition of a violent felon's probation
agreement, does not violate the Fourth Amendment.’ U.S. v. King, supra. We expressly limited our holding to violent
felons, writing, `We need not decide whether the Fourth Amendment permits
suspicionless searches of probationers who have not accepted a
suspicionless-search condition, or of lower level offenders who have
accepted a suspicionless-search condition, because those cases are not
before us.’ U.S. v. King, supra (emphasis
added). King had been convicted of the violent crime of willfully inflicting
corporal injury on a cohabitant. U.S.
v. King, supra. Lara, in contrast, had been convicted of a nonviolent drug
crime.
Because King does not
fully provide the answer, we must, as we did in King, evaluate the
circumstances of the particular case before us to determine if the search was
reasonable. In doing so, we balance, “on the one hand, the degree to which [the
search] intrudes upon an individual's privacy and, on the other, the degree to
which [the search] is needed for the promotion of legitimate governmental
interests.” U.S. v. Knights, supra (quoting Wyoming v. Houghton, 526 U.S. 295 (1999)). We consider each side of the balance
in turn.
U.S. v. Lara, supra.
The court began with “Lara’s privacy interest”, e.g., 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.” U.S. v. Lara, supra. After considering various factors, and the
government’s argument to the contrary, the Court of Appeals concluded 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).
U.S. v. Lara, supra. The court went on to find that
[g]iven 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.
U.S. v. Lara, supra. It therefore held that “[b]ecause 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.” U.S.
v. Lara, supra.
Finally, the Court of Appeals noted that
[a]t the end of its fifty-five page
brief to this court, the government spends two-and-a-half pages arguing that
even if the two searches of Lara's cell phone violated the Fourth Amendment, a
good faith exception to the exclusionary rule should apply. The government did
not make this argument in the district court, and consequently it has failed to
preserve this argument on appeal. Even if we were willing to assume that the
government did not waive this argument, we would reject it on the merits.
U.S. v. Lara, supra.
It therefore held that
the initial search of Lara's cell phone
data was unlawful and that the exclusionary rule bars the admission of the
evidence that was the fruit of that unlawful search. Because the second search
of Lara's cell phone was itself the product of the initial unlawful search, the
evidence from that search should also have been excluded. We therefore reverse
the district court's denial of Lara's motion to suppress and remand for further
proceedings consistent with this opinion.
U.S. v. Lara, supra.
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