How About an Extension of Riley to Probation Searches?

January 20, 2015
By Hanging Out with Carl Gunn


  • There’s an argument that Riley applies to probation searches, so the usual looser standards for probation searches don’t extend to the search of a cell phone.
  • Even the Cotterman case as it presently stands can be used to support this argument.
  • Riley may not just bar suspicionless probation searches of cell phones; it may bar even searches based on just reasonable suspicion.


One of our local star deputy federal public defenders, Alex Yates, who saw the post two weeks ago on the Camou case extending
Riley to automobile searches (see “An Application and Extension of
Riley v. California on Cell Phone Searches” in the January 2015 link at the right) e-mailed me about a brief she recently wrote arguing for
Riley’s extension to probation searches. It’s a great example of how we can be looking to extend
Riley, so I thought I’d share it with you.

I can’t write it up any better than Alex – and certainly can’t do it in a short blog post – so I’m attaching her brief with its wonderful argument here. Initially, it has a good summary and application of some of the same language that I highlighted in my prior posts on
Riley, noting the much more intrusive and expansive nature of a search when the item searched is a cell phone. Secondly, Alex’s brief adds several other good points, some of which are general and some of which are specific to probation searches. Included among those points are:

1. A great collection of internet and other sources on the ubiquity and importance of cell phones, especially for poor people who may not be able to afford a regular computer.

2. The point that a probation search of a cell phone reveals not just information and/or activity since the person was placed on probation but also information and activity prior to the period of probation.

3. How and why a search condition authorizing the search of all “property” of the probationer doesn’t really put him or her on notice that all the private information on – or accessible through – a cell phone will become accessible to the probation officer.

It also struck me that some of the language in the Cotterman case that I’ve posted about previously – and actually suggested challenging after
Riley (see “Does
Riley v. California Affect
United States v. Cotterman?” and “Does
Riley v. California Affect
United States v. Cotterman Even More?” in the September 2014 link at the right) – could be used to support Alex’s argument. You may recall from a post on
Cotterman soon after it came out (see “Back to the Brave New World of Computer Searches: A Good (or at Least Improved) New Ninth Circuit Decision” in the March 2013 link at the right) that there’s both good and bad in
Cotterman’s holdings. One of the good holdings is that the ordinary border search rule allowing completely suspicionless searches doesn’t apply to forensic searches of laptop computers (and presumably, after
Riley, cell phones) being brought across the border. Because of the same sorts of concerns expressed in
Riley – in particular, the type and amount of personal information stored on such devices, including “the most intimate details of our lives,”
United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (en banc) – the Ninth Circuit held the ordinary border search rule requiring no suspicion at all didn’t apply to forensic searches of laptop computers. The court only gave us a reasonable suspicion requirement (though query whether that’s still enough after
Riley, as discussed in the post-Riley posts referenced above), but they did give us that.

By analogy, any rule allowing suspicionless searches based on probation status (and note the caveats in Alex’s briefs about when, if at all, those are ever allowed), shouldn’t extend to cell phones. Just like the general border search rule considered in Cotterman didn’t apply to forensic searches of laptop computers – and similarly shouldn’t apply to cell phones – because of the far greater intrusion, any general probation search rule shouldn’t extend to cell phones. So even the limited helpful holding in
Cotterman may support us when the probation search is completely suspicionless.

There remains the question of whether there can be a probation search of a cell phone even when there is reasonable suspicion, which wasn’t an issue presented in Alex’s case, as I understand it. We should challenge even that sort of search based on Riley, however, using some of the same arguments suggested in my second
Riley post on challenges to
Cotterman (the “Does
Riley v. California Affect
United States v. Cotterman Even More?” post referenced above and in the September 2014 link at the right). If the diminished expectation of privacy of arrestees considered in
Riley wasn’t sufficient to change the ordinary probable cause and warrant requirements when the intrusion was into a person’s whole life on his or her cell phone, the diminished expectations of privacy of a traveler at the border or a probationer shouldn’t be sufficient either. Just as the probable cause and warrant requirements remained for arrestees when the intrusion was so extreme, they ought to remain for travelers at the border and probationers.
Riley certainly suggests the argument, if not a definitive answer.