Sunday, March 13, 2016

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

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


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