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Ninth Circuit: Warrantless Probationary Cell Phone Search Unconstitutional

The Ninth Circuit Court of Ap­peals has held that a warrantless, suspicionless search of a probationer’s cell phone violated the Fourth Amendment, and that evidence discovered during the search must be suppressed.

Paulo Lara was on probation for a California drug offense. His probation agreement required him to submit to warrantless, suspicionless searches of his person and property; he was also required to initial a “Fourth Amendment waiver.”

On October 2, 2013, probation officers Jennifer Fix and Joseph Ortiz arrived unannounced at Lara’s residence after he failed to appear for a meeting.

Ortiz spotted a cell phone and examined it. He reviewed the most recently sent text messages and discovered a text containing three photos of a semiautomatic handgun on a bed. The picture had been sent to “Al,” who asked if the gun was “clean.” Lara responded “yup” and Al asked “What is the lowest you will take for it?” and “How much?”

Fix and Ortiz did not find a gun in the house. They did find a knife, however, which violated the terms of Lara’s probation, and he was arrested.

Lara’s cell phone was then taken to a forensics lab for analysis. Lab personnel found GPS data embedded in the photographs of the gun and determined they had been taken at the residence of Lara’s mother.

Fix, Ortiz and police officers went to Lara’s mother’s home and showed her the pictures. She directed them to a bedroom that had bedding matching the photographs, and Fix discovered a loaded handgun in the bedroom closet.

Lara was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the evidence found at his mother’s house, arguing the underlying search of his cell phone violated his rights under the Fourth Amendment.

After the district court denied his motion, Lara pleaded guilty but preserved his right to challenge the denial of the motion to suppress.

The Ninth Circuit held on March 3, 2016 that Lara did not consent to the initial cell phone search or waive his Fourth Amendment rights by accepting the terms of his probation agreement.

“Lara had a privacy interest in his cell phone and the data it contained,” the Court of Appeals concluded. “That privacy interest was substantial in light of the broad amount of data contained in, or accessible through, his cell phone.” In balancing governmental interests with Lara’s privacy interest, the Court held “that ... the searches of Lara’s cell phone were unreasonable” and “the exception to the exclusionary rule” set forth in Davis v. United States, 131 S.Ct. 2419 (2011) “does not apply to the circumstances of this case.”

Therefore, the evidence obtained from the cell phone search should have been suppressed. The case was remanded to the district court for further proceedings. See: United States v. Lara, 815 F.3d 605 (9th Cir. 2016). 

Related legal case

United States v. Lara