Case o' The Week: Large Amounts of Fertilizer - Pineda-Moreno and GPS Tracking

Can a cop legally crawl underneath your car, in your private driveway, several feet from your home, in the dead-middle of the night, and install a GPS tracking device with which he'll follow your every move for the next week -- all without a search warrant?

Yep, in the Ninth (at least for now). United States v. Pineda-Moreno, __ F.3d __, 2009 WL 59215 (9th Cir. Jan. 11, 2009), decision available here.

Players: Decision by Judge O’Scannlain (below right).

Facts: A DEA agent noticed Pineda-Moreno, and others, buying large amounts of fertilizer at Home Depot. Id. at *1. “Recognizing the fertilizer as a type frequently used to grow marijuana,” (!?!) the agent followed the men to a Jeep and saw them drive away. Id.

A month later, DEA learned that the men were buying large quantities of groceries, irrigation equipment, and deer repellant. Id. Eventually, they followed the men back to a trailer rented by Pineda-Moreno. Id. Over the next four months, the agents tracked Pineda-Moreno using a magnetic GPS device placed under the Jeep. Id. They put GPS devices on the Jeep seven times; five in public places, and twice in his driveway, a few feet from his trailer. Id. There was no gate or “No Trespassing” sign leading to the driveway. Id. [Ed. Note: The agents had no search warrant].

GPS tracking revealed Pineda-Moreno leaving a marijuana grow; later searches revealed two garbage bags full of marijuana. Id. After his suppression motion was denied Pineda-Moreno entered a conditional plea of guilt and brought this appeal. Id.

Issue(s): “Pineda-Moreno argues that the agents violated his Fourth Amendment rights by entering his driveway between 4:00 a.m. and 5:00 a.m. and attaching the tracking devices to the underside of his Jeep.” Id. at *2.

Held: “Pineda-Moreno cannot show that the agents invaded an area in which he possessed a reasonable expectation of privacy when they walked up his driveway and attached the tracking device to his vehicle. Because the agents did not invade such an area, they conducted no search, and Pineda-Moreno can assert no Fourth Amendment violation.” Id. at *3.

Of Note: Pineda-Moreno is a disappointing curtilage decision, treating a driveway as a “semi-private area” that doesn’t deserve heightened Fourth Amendment protection (even when the agents are crawling around, feet from the defendant’s home, at 4:00 a.m. at night). Id. at *2.

More troubling, however, is the Court’s brief discussion of a very complex issue: the use of a sophisticated technology not generally available to the public (GPS tracking) without a warrant. Id. at *3. While an ‘82 Supreme Court case, Knotts, tolerated the use of a beeper in a car, there is a compelling argument that the Supreme’s later thermal-imaging decision in Kyllo modified the Fourth Amendment analysis for sophisticated surveillance technologies. Id. at *3. Pineda-Moreno gives this compelling argument short shrift, particularly in light of three state supreme courts that have held that the warrantless use of tracking devices is unconstitutional under their respective state constitutions. Id. at 4 & n.2 (discussing contrary authority).

How to Use: Like Ninth Circuit authority on the searches of computers preceding Comprehensive Drug Testing, Pineda-Moreno is nineteenth-century analysis glommed onto to twenty-first century technology. The warrantless use of GPS tracking is an unsettled area, likely to provoke Circuit splits and Supreme Court review, and is an issue worth preserving. (The D.C. Circuit has this issue before it now in Jones: see blog here.)

Note also that Pineda-Moreno assumes that a GPS unit only tracks a car in places where a cop could follow anyway. That is untrue: a GPS unit continues to transmit or collect location-data just as regularly when a car is driving on private land where police can not follow without a warrant. Even if Pineda-Moreno survives, it should be distinguished in cases where GPS monitoring revealed the movements of a defendant on land off-limits to cops without warrants.

For Further Reading: Our brainy friends at the Electronic Frontier Foundation have been fighting the good fight on the government’s use of warrantless GPS surveillance. For a good discussion of the enlightened state court decisions clamping down on this abuse, visit the EFF blog here.

Image of the Hon. Diarmuid O'Scannlain from http://monash.edu/news/monashmemo/archive/20040901/ Image of GPS tracking device from http://www.vellard.com.au/images/P/GPSWRT8B.jpg


Steven Kalar, Senior Litigator N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Tracking the Fourth Amendment - DC's Maynard and GPS Tracking

We've bemoaned the irony before: the Ninth Circuit is home to the world's most-innovative technology pioneers, yet often trails the nation in its Fourth Amendment jurisprudence on electronic surveillance. A slow week for cases in the Ninth lets us turn East to illustrate the point.

In Maynard, the D.C. Circuit this week delivered the gold standard for Fourth Amendment analysis of GPS tracking. United States v. Maynard, __ F.3d __, No. 08-3030 (D.C. Cir. Aug. 5, 2010), decision available here. The Maynard opinion politely rejects the (less-compelling) analysis of the Ninth's own recent Pinedo-Moreno decision, and presages a Supreme Court battle on GPS tracking.

Players: Big win for, among others, the Bay Area’s own Electronic Frontier Foundation (EFF).

Facts: Co-D Jones was convicted for his role in a cocaine conspiracy. Slip. Op. at 3. The Feds’ investigation of the case had included warrantless, 24-hour, GPS surveillance of Jones's jeep. Id. at 16.

Issue(s): “Jones argues his conviction should be overturned because the police violated the Fourth Amendment prohibition of ‘unreasonable searches’ by tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant.” Slip Op. at 16.

Held: “Jones argues the use of the GPS device violated his ‘reasonable expectation of privacy,’ Katz, . . . and was therefore a search subject to the reasonableness requirement of the Fourth Amendment. Of course, the Government agrees the Katz test applies here, but it argues we need not consider whether Jones’s expectation of privacy was reasonable because that question was answered in United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court held the use of a beeper device to aid in tracking a suspect to his drug lab was not a search. As explained below, we hold Knotts does not govern this case and the police action was a search because it defeated Jones’s reasonable expectation of privacy.” Id. at 16 (Katz full cite omitted).

Of Note: With Maynard the DC Circuit splits with the Ninth on warrantless GPS searches. See United States v. Pinedo-Moreno, 591 F.3d 1212 (9th Cir. 2010); see also blog here.

The DC Circuit has the much better argument. As the Maynard decision trenchantly observes, the Ninth’s decision failed to distinguish between short- and long-term surveillance, and did not wrestle with the core holding of the controlling Supreme Court decision in Knotts. Maynard, Slip. Op. at 20.

In light of the novel issue and circuit split, look for the Supremes to take up the issue soon (and, hopefully, adopt Maynard’s better analysis and result). Preserve GPS challenges in the Ninth; Pinedo-Moreno will hopefully join the Circuit’s list of Supreme Court reversals.

How to Use: There are two key, and persuasive, theses in Maynard that are invaluable for Fourth Amendment challenges to the abuse of technological surveillance. First, the Court explains that a “reasonable explanation of privacy” doesn’t ask what a private citizen could do to survey another, but rather “what a reasonable person expects another might actually do.” Id. at 23 (emphasis added). In Maynard, a stranger could have theoretically tracked Jones’s movements over a course of month – but the “likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Id. at 26 (emphasis added).

Next, the Court emphasizes that the whole of the lengthy surveillance is a greater infringement than the sum of its parts. Id. at 27. In Maynard, that meant that “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.” Id. at 29.

Those two insights apply with equal force to other novel technological surveillance – like obtaining cell-phone location data without a search warrant. Mine Maynard for these practical insights and export them to other Fourth Amendment challenges.

For Further Reading: GPS tracking is such a quaint technology: frankly, why bother, anymore? Much easier to get the suspect’s cell-phone location through its ping to the nearest cell tower, and track ‘em that way.

The Feds are now getting cell-phone location data with a staggering number of sealed applications in federal court, under a novel “hybrid” showing of suspicion far lower than probable cause. Are you troubled by the idea that the Feds are secretly tracking your movements via your phone, with very little judicial oversight? Bothered by the idea that the defense never even knows that this surveillance took place?

So is Magistrate Judge Stephen Wm. Smith (S.D. Tx).

Read Judge Smith's testimony before Congress here. His testimony is easily the most accessible, cogent, and persuasive summary of the hydra of statutes that bear on cell-phone tracking: a must-read for anyone wading into this important morass.


Image of the a world SMS tracking device from http://vehicle-tracking-usa.com/store/worldtracker-sms-gps-vehicle-tracking-system,Product.asp . Image of the "Electronic Surveillance Courthouse" from the Magistrate Judge Smith's testimony at http://judiciary.house.gov/hearings/pdf/Smith100624.pdf .


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Azalea Micturition - GPS Tracking, Pineda-Moreno

"This is precisely the wrong time for a court covering one-fifth of the country's population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement." United States v. Pineda-Moreno, 2010 WL 3169573 (9th Cir. Aug. 12, 2010) (Ord.) (Kozinski, C.J., dissenting from ord. denying rehearing en banc), decision available here.

Players: Hard-fought petition for rehearing by Oregon CJA counsel Harrison Latto. Dissent from denial of rehearing en banc by Chief Judge Kozinski, and Judges Reinhardt, Wardlaw, Paez, and Berzon.

Facts: “The facts are disturbingly simple. Police snuck onto Pineda-Moreno’s property in the dead of night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The [three-judge] panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.” Id. at *1 (Kozinski, C.J., dissenting).

Issue(s): Petition for rehearing en banc.

Held: “[T]he matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED.” Id. at *1.

Of Note: Chief Judge Kozinski begins his dissent with a bang: “The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.” Id. at *1. As is often the case (particularly of late) the CJ’s dissenting opinion is worth a read – both because he’s right, and also because of his love of expressive language. For example, the panel had upheld the action of the cops, explaining that they did nothing in the private driveway of the defendant’s home that neighborhood kids don’t do. To put it mildly, our Chief was unpersuaded. “[T]here’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage. ” Id. at *3 (Kozinski, C.J., dissenting).

How to Use: While the curtilage issue is troubling, it is the GPS holding in Pineda-Moreno that will hopefully wake the Supremes. Chief Judge Kozinski dismisses the panel’s “breezy” opinion and acknowledges the new Circuit split represented by Maynard. Id. at *4; see also id. at *6. As he warns, “In determining whether the tracking devices used in Pineda-Moreno’s case violate the Fourth Amendment’s guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy.” Id. at *5.

A good time to repeat some advice from last week’s memo on the great Maynard decision – preserve GPS challenges despite Pineda-Moreno. See blogs here (discussing Maynard and Ninth Circuit decisions bearing upon GPS surveillance) Pineda-Moreno deserves Supreme Court review, and the D.C. Circuit’s very recent decision on Maynard makes a much better argument for constitutional limitations on GPS tracking. (A head’s-up to the Stanford and Georgetown Supreme Court clinics, Sidley Austin’s pro bono Supreme Court Program, the Electronic Frontier Foundation, and the ACLU: Pineda-Moreno’s attorney Harrison Latto is in a fighting mood and is hungry for some amicus help).

For Further Reading: Chief Judge Kozinski ends his dissent with a parade of horribles, as he describes the government’s potential warrantless surveillance of citizens: tracking Winston and Julia near a hotel, surveilling Syme near a STD clinic, hunting-down Jones, Aaronson, and Rutherford at a political protest. Id. at *6. He also predicts that, “[s]ome day soon, we may wake up and find we’re living in Oceania.” Id. at *7. Remember those references, from your high school literature class?

Makes for a nice theme running throughout a powerful and persuasive dissent. Sadly, however, his literate references don’t feel like hyperbole.




Image of Big Brother from http://mstong.files.wordpress.com/2009/05/1984.jpg. Image of azeleas from http://www.flowerpictures1.com/r-azalea-18-azaleas-shrub-deciduous-255.htm


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Case o' The Week: SOS on GPS -- Pineda-Moreno and GPS tracking

Two years ago, almost to the day, Chief Judge Kozinski dissented from the denial of rehearing en banc on the first Pineda-Moreno decision (a seminal Fourth Amendment decision tolerating warrantless GPS tracking). He complained:

The Supreme Court in Knotts expressly left open whether twenty-four hour surveillance of any citizen of this country by means of dragnet-type law enforcement violates the Fourth Amendment’s guarantee of personal privacy. When requests for cell phone location information have become so numerous that the telephone company must develop a self-service website so that law enforcement agents can retrieve user data from the comfort of their desks, we can safely saw that such dragnet-type law enforcement practices are already in use. This is precisely the wrong time for a court covering one-fifth of the country’s population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement.

United States v. Pineda-Moreno, 617 F.3d 1120, 1126 (ord.) (Kozinski, C.J., dissenting from denial of reh'g en banc) (quotations and internal citation omitted); see also blog describing dissent here).

   Two years, a Supreme Court decision, and another Ninth Circuit opinion on the case have come and gone  --- and the Chief still does not have a square answer to his righteous Fourth Amendment beef. United States v. Pineda-Moreno, 2012 WL 3156217 (9th Cir. Aug. 6, 2012), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judges N.R. Smith and DJ Wolle. 

Facts: The DEA suspected Pineda-Moreno of running a marijuana grow. Id. at *1. With no warrant, they snuck onto his driveway and installed a tracking device on his Jeep. Id. Agents also stuck tracking devices to the Jeep while it was parked on public streets. Id. The tracking data (and info from earlier surveillance) lead to arrests, searches, and a federal prosecution. Id. Pineda-Moreno challenged the search, the original panel upheld it, a closely-divided en banc vote failed, cert. was filed. 

The Supremes then decided United States v. Jones, 132 S.Ct 945 (2012). “Jones holds that the government’s installation of a Global Positioning System (GPS) tracking device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ under the Fourth Amendment.” Id. at *2 (citing Jones, 132 S. Ct. at 949). The Supreme Court remanded Pineda-Moreno in light of Jones.

Issue(s): “In this matter which arose prior to the Supreme Court’s decision in . . . Jones . . ., we must decide whether to apply the exclusionary rule where law enforcement agents attached mobile tracking devices to the underside of a defendant’s car and used those devices to track the car’s movements.” Id. at *1.

Held: “[T]he agents’ conduct in attaching the tracking devices in public areas and monitoring them was authorized by then-binding circuit precedent. Those attachments yielded the critical information that justified stopping Pineda-Moreno. Whatever the effect of Jones, then, the critical evidence here is not subject to the exclusionary rule.” Id. at *3 (citation and footnote omitted).

Of Note: Nice, one supposes, to have the Court acknowledge the new Supreme Court law on curtilage intrusions, and conceding that cell tracking is a “search.” Id. at *3. The battle has shifted, however, to another front: the Leon / Herring / “Good Faith” pass for unlawful searches (a trend manifested most lately in Davis v. United States, 131S. Ct. 2419 (2011)). 

Relying on Davis, Judge O’Scannlain concludes that these lousy searches survive suppression because – even if unconstitutional – they were authorized by Ninth precedent when undertaken. Id. at *3. “Davis held that ‘searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.’” Id. at *2 (citation omitted). Flag Davis – its frustrating tolerance of unconstitutional searches will be the subject of many brouhahas this year.

How to Use: Whole swaths of Ninth law were (we think) mowed down by Jones: a possibility conceded by Judge O’Scannlain in Pineda-Moreno. Id. at *4 (discussing McIver, Hufford, Miroyan, Maisano and Magana). To echo C.J. Kozinski’s “1984”theme from the original litigation of this case, ‘tis now a Brave New World. If your case involves warrantless cell tracking, or trespassing onto a driveway, don’t be dissuaded by old Ninth law – Jones will have most or all of those cases in the dustbin by next summer. 

                                               

For Further Reading: If this all seems vaguely familiar, think back to the Ninth post-Gant. A very similar question of retroactivity and Herring came up after that Supreme Court Fourth Amendment decision. The Ninth decided it precisely the right way, that time. See United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010) (ord. denying reh’g en banc); see also blog entry here.  

  The only glitch? Gonzalez preceded the Supreme Court’s decision in Davis by a year. 

 Image of GPS tracking from http://www.advantrack.com/gps-tracking-atti-software/software.aspx

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

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United States v. Barraza-Maldonado, No. 12-3903 (8th Cir. Oct. 11, 2013)

--- The Eighth Circuit affirmed an order denying a defendant's motion to suppress GPS tracking information on a car that the defendant was using to smuggle cocaine from Arizona to Minnesota. The district court ruled that DEA agents were relying on settled Ninth Circuit law when, before Jones was decided, they attached a GPS tracking device to the car that the defendant would later use to transport the drugs to Minnesota. The Eighth Circuit affirmed this reasoning, holding that the agents were acting in good faith based on the state of the law in the Ninth Circuit at the time the device was attached, even though Minnesota state law had long required a warrant before attaching a GPS device to a car for law-enforcement tracking purposes.

The decision is here:

http://media.ca8.uscourts.gov/opndir/13/10/123903P.pdf



Case o' The Week: Ninth Maps Out New Hearsay Rules - Lizarraga-Tirado, Hearsay, and Machine-Generated Evidence

Consider these tacks with coordinates on a Google Earth map.

  Notice that one tack is north of the yellow U.S. - Mexico border, and one is south? 

  One of these two tacks isn't hearsay - it was generated by a “machine.” (Google algorithms in a Finnish server farm). The second tack, by contrast, was created on the map by a deliberately untruthful “person.” Fed. R. Evid. 801(a).

  Can you tell which tack is which?

  The Ninth can. United States v. Lizarraga-Tirado, 2015 WL 3772772 (9th Cir. June 18, 2015), decision available here.

Players:  Decision by Judge Kozinski, joined by Judge Graber and D.J. Ponsor.

Facts: Lizarraga-Tirado was charged with illegal reentry after being arrested at night near the border. Id. at *1. At trial he disputed he had crossed the border, and argued the agents had arrested him in Mexico. Id. An agent testified that she had documented the GPS coordinates of the arrest on a handheld device. Id. The government then introduced a Google Earth satellite image to illustrate the location of those coordinates. Id. The image (appended to the decision), has a “tack” that lists numerical coordinates that are in the U.S. Id. at Appendix A. The defense objected to the image on hearsay grounds. Id.

Issue(s): “Defendant claims that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay.” Id. at *2.

Held: 1. “Because a satellite image, like a photograph, makes no assertion, it isn’t hearsay.” Id. 2. “A tack placed by the Google Earth program and automatically labelled with GPS coordinates isn’t hearsay . . . Here, the relevant assertion isn’t made by a person; it’s made by the Google Earth program . . . Because the program makes the relevant assertion – that the tack is accurately placed at the labeled GPS coordinates – there’s no statement as defined by the hearsay rule. In reaching that conclusion, we join other circuits that have held that machine statements aren’t hearsay.” Id. at *3.

Of Note: Judge Kozinski, a tech aficionado, writes an interesting but somewhat troubling decision. How did the Ninth know that Google Earth tacked the tack on the map, instead of an agent placing it there and labeling it with the coordinates? That fact wasn’t established at trial. See id. at *1. 

  The Court deduces this critical fact (which makes a huge difference in the hearsay analysis) by running Google Earth itself, and comparing the results with the map introduced in evidence. Id. at *2 (taking judicial notice of the fact that the tack was automatically generated). The problem is that the Google-generated tack, and a human-created tack, are actually identical and are indistinguishable on a Google Earth picture. See image above.  

   Judges independently running software and taking judicial notice is uncomfortable territory. Evidence and tech gurus (and maybe I.P. folks?) will want to take a very close look at the Ninth’s techie initiative here.

  The little Lizarraga-Tirado decision could become a Big Case, as cell service providers comply with FCC E911rules, turn from cell site location methods, and rely more heavily on satellite location technologies (creating data ripe for federal agent conversion into Google Maps).

How to Use: Chafing at the idea of our Robot Overlords getting a hearsay pass? Take heart, John Connor: the fight goes on. Concerns that a “machine might malfunction, produce inconsistent results or have been tampered with” . . . “are addressed by the rules of authentication, not hearsay.” Id. at *3. Judge Kozinski reviews Fed. R. Evid. 901(a), and notes that the proponent must show that the machine is reliable and correctly calibrated. Id. at *3. That authentication challenge wasn’t raised in this case, so that fight survives for another day.

                                               

For Further Reading: Big week, for federal evidence. On June 18, the Supreme Court issued its latest Crawford decision in Ohio v. Clark. For thoughtful discussion of the decision (and the divisions that underlie the unanimous outcome), see Lyle Denniston, Opinion Analysis: Crawford narrowed, Atkins solidified, available here.   

Image from Google Maps 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org .

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Case o' The Week: Ninth Ain't Buying Gov's Cell Sell -- Lara, Cell Phones, "Containers" and Probationary Searches

  Ask not for whom the cell tolls; it tolls for thee.

United States v. Lara, 2015 WL 828100 (9th Cir. Mar. 3, 2016), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Paez and Berzon. Admirable win for Deputy FPD Alexandra Yates, CD Cal FPD.

Facts: Lara plead guilty to a California drug crime. 

  A condition of probation required him to submit to a search “without our without a warrant, probable cause, or reasonable suspicion.” Id. In his probation agreement, Lara also initialed a section where he agreed to “waive and give up” his Fourth Amendment right to be free from unreasonable searches and seizures. Id.

   Soon after Lara’s probationary term began Probation Officers showed up unannounced at his home, seized and searched his cell phone, and discovered pics of a gun and texts relating to its sale. Id. at *2. GPS coordinates in the gun-photo led to Lara’s mother’s house and discovery of the gun. Id. 

 Lara was charged federally with being a felon in possession. His motion to suppress was denied (before the Supreme Court had decided, in Riley, 134 S. Ct. 2473 (2014), that the police may not, without a warrant, examine the digital information stored on a cell phone seized incident to arrest). Id. at *3. 

  Lara pled guilty, “but preserved his right to challenge the denial of his motion.” Id. at *3.

Issue(s): “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.” Id. at *1.

Held: “We agree.” Id. 

 “The 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. We are not persuaded by any of these contentions.” Id. at *3.

Of Note: Does it gall you, to be handed a plea agreement where your client is asked to consent to unreasonable searches? (Or, put differently, where the agreement purports to waive the Fourth Amendment’s requirement that a search be reasonable?) It galls the Ninth, too. See id. at *3. It matters not what waivers the USAO and Probation concoct, “any search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment’s standard of reasonableness.” Id. 

  The rub, then, is what is “reasonable?” One answer could be that a suspicionless search of non-violent probationers is never reasonable – a potential bright-line hinted at in King, 736 F.3d 806 (9th Cir. 2013). Id. at *4. Judge Fletcher declines to go that far here, and instead conducts an individualized reasonableness assessment (that breaks Lara’s way).

How to Use: The search condition in Lara’s plea agreement covered “person and property, residence, premises, container and vehicle.” Id. at *5. It did not say “cell phone and information therein.” Id. Relying on Riley, the Ninth holds that a cell phone is not a container subject to this search clause. The information within the phone was therefore not fair game for a suspicionless search. Id. 

  Use Lara’s careful reading of the search clause when faced with probationary searches: the precise language of search clauses may be less broad than Probation assumes.

                                               

For Further Reading: Does Judge Fletcher's welcome and thoroughly modern understanding of cell phone privacy, id. at *5, foreshadow the outcome of the iPhone encryption battle when it finally hits the Ninth? Not exactly – though fair to speculate that Lara was well received at 1 Infinite Loop. 

  For one of the best descriptions of the actual technology at issue in the encryption battle, hit the EFF’s great post: A Technical Perspective on the Apple iPhone Case, available here.

Image of iPhone and gun from http://regmedia.co.uk/2013/06/28/side.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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