Was a warrantless search of defendant's cellular telephone by probation officers reasonable?

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Appellant-Defendant Paulo Lara appeals his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 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.
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First, because Lara is on probation, his reasonable expectation of privacy is lower than someone who has completed probation or who has never been convicted of a crime. Knights, 534 U.S. at 120, 122 S.Ct. 587. But while the privacy interest of a probationer has been "significantly diminished," id., it is still substantial. The Supreme Court has recognized that a probationer's privacy interest is greater than a parolee's. Samson v. California, 547 U.S. 843, 850, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Furthermore, Lara's reasonable expectation of privacy is greater than that of probationers such as King because he was not convicted of a particularly "serious and intimate" offense. King, 736 F.3d at 809.
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Second, the cell-phone search condition of Lara's probation was not clear. The Supreme Court in Knights explained that a probationer's reasonable expectation of privacy is "significantly diminished" when the defendant's probation order "clearly expressed the search condition" of which the probationer "was unambiguously informed." 534 U.S. at 119-20, 122 S.Ct. 587. But the search term in Knights expressly authorized searches of the probationer's "place of residence," which was precisely what the officers searched. See id. at 114-15, 122 S.Ct. 587. That is not true here.
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Lara agreed to "submit [his] person and property, including any residence, premises, container or vehicle under [his] control to search and seizure." None of these terms — in particular, neither "container" nor "property" — clearly or unambiguously encompasses his cell phone and the information contained therein. Lara's cell phone was not a "container." The Supreme Court wrote in Riley that "[t]reating a cell phone as a container whose contents may be searched incident to an arrest" was, at best, "strained." Riley, 134 S.Ct. at 2491. Indeed, the analogy between cell phones and containers "crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen."

Anton Vialtsin, Esq.
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