An Update on the Extension of Riley to Probation Searches.

April 12, 2016
By Hanging Out with Carl Gunn


  • The Ninth Circuit recently invalidated a probation search of a cell phone, in part because of the far greater intrusion on privacy when a cell phone is searched that was recognized in Riley v. California.
  • The Ninth Circuit also put weight on the fact that the probation search condition didn’t unambigously identify cell phones as subject to search, the fact that the probation was for a nonviolent offense, and the fact that the suspected probation violation was relatively minor.
  • Look to extend this case and Riley to probation cell phone searches generally; the concerns in Riley mean that cell phone searches shouldn’t be permitted in any case, or at least the vast majority of cases.



At the beginning of last year, I put up a post about an argument made by Alex Yates, one of our appellate deputy federal public defenders here in the Central District, for an extension to probation searches of the Supreme Court’s recognition of the special nature of cell phones in Riley v. California, 134 S. Ct. 2473 (2014).  (See “How About an Extension of Riley to Probation Searches?” in the January 2015 link at the right.)  I described Alex’s arguments, attached her brief, and noted the case was pending in the Ninth Circuit.

Well, the Ninth Circuit issued an opinion in Alex’s case last month – United States v. Lara, ___ F.3d ___, 2016 WL 828100 (9th Cir. Mar. 3, 2016).  It held the probation search of her client’s cell phone was not permissible, at least “in the circumstances of this case.”  Id., 2016 WL 828100, at *7.  It pointed out a probationer does retain some expectation of privacy in his property, albeit a lesser one than an ordinary citizen, see id., 2016 WL 828100, at *4, and then evaluated and balanced that privacy interest against the governmental interest in conducting a probation search, see id., 2016 WL 828100, at *4-7.

The conditions the court found carried weight on the privacy interest side of the scale were (1) the fact that a probation search condition like the one in Lara which spoke only generally of “container[s]” and “property” did not “clearly and unambiguously encompass[ ] [the probationer’s] cell phone and the information contained therein” and (2) “the amount and character of data contained in, or accessed through, a cell phone and the corresponding intrusiveness of a cell phone search.”  Id., 2016 WL 828100, at *5.  In expanding on this last point, the court relied heavily on Riley:

Although Riley concerned warrantless searches of cell phones incident to arrest, the Court used sweeping language to describe the importance of cell phone privacy:

The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.  They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

      . . . Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read – nor would they have any reason to attempt to do so.  And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in [United States v.] Chadwick, [433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977),] rather than a container the size of the cigarette package in [U.S. v.] Robinson[, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)].

Riley, 134 S. Ct. at 2489.  A cell phone search “would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.”  Id. at 2491.

Lara , 2016 WL 828100, at *5-6 (emphasis in original).

The Lara opinion then recognized and discussed the interests on the government’s side of the scale – “combating recidivism and helping probationers integrate back into the community.”  It distinguished the strength of those interests in the case at bar from their strength in two prior cases relied upon by the government – United States v. Knights, 534 U.S. 112 (2001) and United States v. King, 736 F.2d 805 (9th Cir. 2013).  Where the suspected probation violations in King and Knights were, respectively, a homicide and setting an electrical facility on fire and causing $1.5 million in damage, the violation in Lara was missing a meeting with the probation officer.  Lara, 2016 WL 828100, at *6.  In addition, the probationer in King was on probation for a violent crime, where the probationer in Lara was on probation for “a nonviolent drug crime.”  Lara, 2016 WL 828100, at *4.

After summarizing these interests, the Court held:

On balance, we hold that in the circumstances of this case, the searches of Lara’s cell phone were unreasonable.  “[W]hen ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.’”  Riley, 134 S. Ct. at 2488 (quoting Maryland v. King, ___ U.S. ___, 133 S. Ct. 1958, 1979, 186 L. Ed. 2d 1 (2013)).  The same is true of probationers, especially nonviolent probationers who have not clearly and unambiguously consented to the cell phone search at issue.  Because of his status as a probationer, Lara’s privacy interest was somewhat diminished, but that interest was nonetheless sufficiently substantial to protect him from the two cell phone searches at issue here.

Lara, 2016 WL 828100, at *7.

Lara’s a great opinion, but its caveats leave it a little short of what the defense was arguing for (as set forth in the brief linked in my prior post).  What happens if the probationer’s conviction is for a violent offense?  What happens if the probation violation is a more serious one like those suspected in Knights and King?  What happens if the search condition expressly allows the search of cell phones?  Don’t give up if you have one of these cases. The special concerns posed by searches of cell phones which were recognized in Riley exist regardless of whether the condition is express, regardless of the nature of the offense the probationer is on probation for, and regardless of the nature of the suspected probation violation.  The arguments made by the defense ought to extend, and we need to try to extend them.  Officers always have the option of seeking a warrant and that’s what they ought to do when it’s the probationer’s whole cell phone life they want to explore.