Mar 07

Ninth Circuit Sharply Circumscribes Cell-Phone Searches in Light of Riley

We here at White Collar Alert get excited by Riley v. California.  We’ve previously written about it here, here, and here.  And with good reason—smartphones have become a central part of most of our daily lives, and contain some of our most sensitive personal information.  Well, we’re back with Riley news out of the Ninth Circuit, where last week the court reaffirmed the digital-privacy rights of smartphone users by suppressing evidence illegally obtained from a criminal defendant’s cell phone.

As we’ve noted before, the Supreme Court has observed that cell phones are so important to many of us that a “proverbial visitor from Mars might conclude they were an important feature of human anatomy,” which “place vast quantities of personal information literally in the hands of individuals.”  That’s why police ordinarily must have a warrant to search a phone, even incident to an arrest.

But what happens when you’re on probation?  That was the question resolved yesterday in United States v. Lara.  As is quite often the case when a defendant is placed on probation, Lara agreed to certain conditions in order to secure his release from jail to probation.  One of those things was a blanket “Fourth Amendment Waiver,” which permitted the government to search his “person and property, including any residence, premises, container or vehicle under [his] control” at any time. Lara, ___ F.3d ___, No 14-50120, slip op. at 4 (9th Cir. Mar 3, 2016).  When the police came knocking at Lara’s door to conduct a “probation search,” one of the officers found Lara’s cell phone in the living room and searched it. Id. at 5.  Lo and behold, Lara was trying to sell an acquaintance a gun, and had sent him pictures of guns using the smartphone. Id.

Armed with the photographs, the police were able to use GPS data to determine the pictures were taken at Lara’s mother’s house – somewhere the police would have had absolutely no reason to look – and found a gun there that belonged to Lara.  It’s illegal under federal law for a felon to possess a gun (though Justice Thomas suggested at argument in Voisine v. United States last week he thinks otherwise about misdemeanors), and so Lara, a felon, was charged with a federal firearms offense.

Before trial (and before Riley), the district court denied Lara’s suppression motion, and he appealed.

The Ninth Circuit, with the benefit of the intervening Riley decision, reversed.  While it noted that Lara’s acceptance of the waiver bore on the reasonableness of the search, it held that searching Lara’s phone was unreasonable, since his privacy interests outweighed the government’s interest in combatting recidivism and integrating probationers back into their communities. Lara, ___ F.3d. ___, No 14-50120, slip op. at 14-15.  While Lara’s probationary status diminished his privacy interest, it did not extinguish or waive it.  Of particular interest, the court held that the “waiver” was no waiver at all because it was equivocal and unclear.  Looking to Riley, the court observed that it made “no sense to call a cell phone a ‘container,’” and that a phone is not the kind of “property” meant to be encompassed by the waiver, when read in conjunction with the other types of things that waiver included. Id. at 11-12.  It also rejected the government’s suggestion (as “almost fanciful”) that Lara’s decision to Anglicize his name (from “Paolo” to “Peter”) on his phone bill somehow diminished his privacy interest.  Under the exclusionary rule, Lara’s case goes back to the district court, where the government will be unable to present the fruits of its illegal search.

And so, go out into the light and breathe, and text, freely.  Riley’s advance continues to sweep the nation’s courts, and data-privacy supporters have scored another significant legal victory.

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