United States v. Paulo Lara

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50120

Plaintiff-Appellee,

D.C. No.

v. 2:13-cr-00392-

BRO-1

PAULO LARA,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted

July 7, 2015—Pasadena, California

Filed March 3, 2016

Before: William A. Fletcher, Ricahrd A. Paez, and Marsha

S. Berzon, Circuit Judges.

Opinion by Judge W. Fletcher

2 UNITED STATES V. LARA

SUMMARY*

Criminal Law

The panel reversed the district court’s denial of a motion

to suppress evidence obtained as a result of warrantless,

suspicionless searches of the defendant’s cell phone, and

remanded for further proceedings.

The panel noted that a probationer’s acceptance of a

search term in a probation agreement does not by itself render

lawful an otherwise unconstitutional search of a probationer’s

person or property. The panel wrote that the issue is not

solely whether the defendant accepted a cell phone search as

a condition of his probation, but whether the search that he

accepted was reasonable. Balancing the extent to which the

searches intruded on the defendant’s substantial privacy

interest in his cell phone and the data it contained against the

government’s interests in combating recidivism and helping

probationers integrate back into the community, the panel

held that in the circumstances of this case the searches were

unreasonable.

The panel concluded that the exception to the

exclusionary rule announced in Davis v. United States, 131

S.Ct. 2419 (2011), does not apply to the circumstances of this

case.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. LARA 3

COUNSEL

Alexandra Wallace Yates (argued), Deputy Federal Public

Defender, Hilary Potashner, Acting Federal Public Defender,

Los Angeles, California for Defendant-Appellant.

Stephanie Yonekura, Acting United States Attorney, Robert

E. Dugdale, Chief, Criminal Division, and Ryan Weinstein

(argued), Assistant United States Attorney, Los Angeles,

California for Plaintiff-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

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 of 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.

4 UNITED STATES V. LARA

I. Factual and Procedural Background

On October 2, 2013, Probation Officers Jennifer Fix and

Joseph Ortiz arrived unannounced at Lara’s home after he

had failed to report to Officer Fix. Lara had recently been

placed on probation following a conviction for possession for

sale and transportation of methamphetamine in violation of

California Health & Safety Code §§ 11378 and 11379(a).

Lara’s probation agreement required him to “submit [his]

person and property, including any residence, premises,

container or vehicle under [his] control, to search and seizure

at any time of the day or night by any law enforcement

officer, probation officer, or mandatory supervision officer,

with or without a warrant, probable cause, or reasonable

suspicion.” As part of his probation agreement, Lara initialed

a subsection entitled “Fourth Amendment waiver.” That

subsection provided:

I understand under the Fourth and Fourteenth

Amendments to the United States

Constitution, I have a right to be free from

unreasonable searches and seizures. I waive

and give up this right, and further agree that

for the period during which I am on probation

or mandatory supervision I will submit my

person and property, including any residence,

premises, container or vehicle under my

control to search and seizure at any time of

the day or night by any law enforcement

officer, probation officer, post-release

community supervision officer, or parole

officer, with or without a warrant, probable

cause, or reasonable suspicion.

UNITED STATES V. LARA 5

Officer Fix stated in a sworn declaration, consistent with

her later in-court testimony, that at her first meeting with Lara

she read him the search and seizure term and asked whether

he had any questions “concerning that term and what it

entails.” She stated that is her normal practice to note if a

probationer has any questions about the terms, and she had

nothing in her notes indicating that Lara had any such

questions. Lara stated in a sworn declaration that when he

accepted the terms and conditions of probation, he did not

believe the search condition would allow his cell phone or

data stored on the phone to be searched without his consent.

Officer Fix stated in her declaration, “It is standard

protocol for probation officers to search the cell phones of

probationers subject to search terms, especially if the

probationer had been convicted of a drug trafficking offense.”

Officer Fix stated that she knew Lara had been convicted of

a drug offense when she conducted the search. She stated

that she and Officer Ortiz knew, based on their training and

experience, that “drug traffickers commonly use cell phones

to arrange narcotics sales.”

After announcing that they were at the house to conduct

a probation search, Officer Fix ordered Lara to sit on the

couch. Officer Ortiz stated in a sworn declaration that he

spotted a cell phone on a table next to the couch and

examined it. He stated that he confirmed that the phone

belonged to Lara. Cell phone company records showed that

the name of the subscriber was “Peter” Lara, rather than

“Paulo” Lara. The address listed on the subscriber record

matched Lara’s home address where he was found and where

the search was conducted.

6 UNITED STATES V. LARA

Officer Ortiz stated that he did not ask Lara’s permission

to search the cell phone, but that Lara did not object to his

doing so. Officer Fix testified that it is the department’s

policy to search a cell phone when officers visit a

probationer, even if the probationer objects.

Officer Ortiz stated in his declaration that he reviewed the

most recently sent text messages on Lara’s cell phone and

discovered messages containing three photographs of a

semiautomatic handgun lying on a bed. The pictures had

been sent to “Al,” who responded, asking if the gun was

“clean.” Lara replied, “yup.” Al followed up by asking,

“What is the lowest you will take for it?” and “How much?”

Officer Ortiz handcuffed Lara, and he and Officer Fix

searched Lara’s house and car for the gun. They did not find

it, but they did find a folding knife, the possession of which

violated the terms of Lara’s probation. Officers Fix and Ortiz

arrested Lara for possessing the knife in violation of his

probation and brought the cell phone to the Orange County

Regional Computer Forensics Lab.

Lab personnel found GPS data embedded in the

photographs of the gun and thereby determined the address

where they were taken. Investigation revealed the location to

be the home of Lara’s mother. Officer Fix testified at the

suppression hearing that without the GPS data, she would not

have had reason to visit Lara’s mother’s house.

Officers Fix and Ortiz, along with officers from the local

police department, went to Lara’s mother’s home and showed

her the photographs of the gun. She directed them to a

bedroom that had bedding matching that in the photographs.

UNITED STATES V. LARA 7

In the closet of the bedroom, Officer Fix found a loaded

handgun that resembled the gun depicted in the photographs.

Lara was charged with being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1). He moved to suppress the gun and ammunition

on the ground that it had been found as a result of illegal

searches of his cell phone by Officer Ortiz and the lab.

The district court held a hearing on the suppression

motion and denied the motion. When the district court ruled

on Lara’s suppression motion, the Supreme Court had not yet

decided Riley v. California, 134 S. Ct. 2473 (2014). In Riley,

the Court held that police generally may not, without a

warrant, examine the digital information stored on a cell

phone seized incident to arrest. Id. at 2493.

After the district judge denied Lara’s suppression motion,

Lara pled guilty to the § 922(g)(1) charge, but preserved his

right to challenge the denial of his motion. Lara timely

appealed.

II. Standard of Review

We review de novo a district court’s denial of a motion to

suppress, reviewing for clear error the district court’s

underlying factual findings. United States v. Mayer, 560 F.3d

948, 956 (9th Cir. 2009).

III. Discussion

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

8 UNITED STATES V. 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.

A. Waiver of Fourth Amendment Rights

Our discussion of the government’s contention that Lara

waived his Fourth Amendment rights may be brief. We have

already held that a probationer’s acceptance of a search term

in a probation agreement does not by itself render lawful an

otherwise unconstitutional search of a probationer’s person or

property. In United States v. Consuelo–Gonzalez, 521 F.2d

259, 261 (9th Cir. 1975) (en banc), we held that probationers

do not entirely waive their Fourth Amendment rights by

agreeing, as a condition of their probation, to “submit [their]

person and property to search at any time upon request by a

law enforcement officer.” We explained that there is a limit

on the price the government may exact in return for granting

probation. Id. at 265. Specifically, “any search made

pursuant to the condition included in the terms of probation

must necessarily meet the Fourth Amendment’s standard of

reasonableness.” Id. at 262; see United States v. Scott, 450

F.3d 863, 868 (9th Cir. 2006) (confirming this reading of

Consuelo-Gonzalez’s holding).

UNITED STATES V. LARA 9

The issue, therefore, is not solely whether Lara accepted

the cell phone search as a condition of his probation, but

whether the search that he accepted was reasonable. Lara’s

acceptance of the terms of probation, including suspicionless

searches of his person and property, is one factor that bears

on the reasonableness of the search, but it is not in itself

dispositive. See Scott, 450 F.3d at 868 (suggesting that a

defendant’s agreement to a search condition in exchange for

relief from prison is “a relevant factor in determining how

strong his expectation of privacy is”); accord United States

v. Knights, 534 U.S. 112, 117–18 (2001) (declining to decide

whether a probationer’s acceptance of a probation term

authorizing warrantless searches without probable cause

constituted consent sufficient to waive his Fourth

Amendment rights, and opting instead to evaluate whether the

search was reasonable in light of the totality of the

circumstances, including the probationer’s acceptance of the

search condition).

B. Reasonableness of the Search

The reasonableness of the search requires a longer

discussion. At the outset, we reject the government’s

suggestion that our decision in United States v. King, 736

F.3d 805 (9th Cir. 2013), fully resolves this issue. In King,

the police conducted a suspicionless search of a violent

felon’s residence, pursuant to a condition of probation that

clearly authorized such a search. We upheld the search but

“h[e]ld only that a suspicionless search, conducted pursuant

to a suspicionlesss-search condition of a violent felon’s

probation agreement, does not violate the Fourth

Amendment.” Id. at 810. We expressly limited our holding

to violent felons, writing, “We need not decide whether the

Fourth Amendment permits suspicionless searches of

10 UNITED STATES V. LARA

probationers who have not accepted a suspicionless-search

condition, or of lower level offenders who have accepted a

suspicionless-search condition, because those cases are not

before us.” Id. (emphasis added). King had been convicted

of the violent crime of willfully inflicting corporal injury on

a cohabitant. Id. at 806. Lara, in contrast, had been

convicted of a nonviolent drug crime.

Because King does not fully provide the answer, we must,

as we did in King, evaluate the circumstances of the particular

case before us to determine if the search was reasonable. In

doing so, we balance, “on the one hand, the degree to which

[the search] intrudes upon an individual’s privacy and, on the

other, the degree to which [the search] is needed for the

promotion of legitimate governmental interests.” Knights,

534 U.S. at 119 (quoting Wyoming v. Houghton, 526 U.S.

295, 300 (1999)). We consider each side of the balance in

turn.

1. Lara’s Privacy Interest

The extent to which the search intruded on Lara’s privacy

depends on several factors, the most important of which are

his status as a probationer, the clarity of the conditions of

probation, and the nature of the contents of a cell phone.

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. 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 (2006).

UNITED STATES V. LARA 11

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.

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. 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. That is not true here.

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.” Id.

(emphasis added). We relied on Riley in Camou, holding that

cell phones cannot be searched when officers otherwise have

probable cause to search a vehicle and its containers. United

States v. Camou, 773 F.3d 932, 942–43 (9th Cir. 2014). Just

as it makes no sense to call a cell phone a “container” for

purposes of a search incident to arrest (Riley) or search of an

12 UNITED STATES V. LARA

automobile (Camou), it makes no sense to call a cell phone a

“container” for purposes of a probation search.

Nor does the word “property” unambiguously include cell

phone data, especially when the word is read in conjunction

with the language that follows. We repeat the relevant

language here: “property, including any residence, premises,

container or vehicle under my control.” Each of the specific

types of property named as examples refer to physical objects

that can be possessed. A cell phone is such an object, but cell

phone data, which were the subject of the two searches in this

case, are not property in this sense. Further, the Court

recognized in Riley that cell phones differ from conventional

property in that they provide access to data, such as medical

and banking records, that is held by third parties. 134 S. Ct.

at 2491. Such information not only cannot be possessed

physically; it is also not “under [Lara’s] control,” as provided

in the search condition.

Third, the Court in Riley stressed the amount and

character of data contained in, or accessed through, a cell

phone and the corresponding intrusiveness of a cell phone

search. 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.

UNITED STATES V. LARA 13

. . . 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 Chadwick, [433 U.S. 1

(1977),] rather than a container the size of the

cigarette package in Robinson[, 414 U.S. 218

(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.

In an attempt to undercut the foregoing, the government

argues that Lara’s expectation of privacy in his cell phone

data was diminished by the fact that his cell phone contract

gave his name as “Peter” rather than “Paolo” Lara,

contending that Lara gave a “false name” to his cell phone

carrier in order to evade detection by law enforcement. The

government’s argument is highly speculative, almost fanciful.

If Lara sought to avoid law enforcement detection by

providing an anglicized first name when dealing with his cell

phone carrier, he chose a singularly ineffective means of

achieving that goal, especially when at the same time he gave

his actual last name and home address.

14 UNITED STATES V. LARA

In sum, we conclude that Lara had a privacy interest in his

cell phone and the data it contained. That privacy interest

was substantial in light of the broad amount of data contained

in, or accessible through, his cell phone. We recognize that

his privacy interest was somewhat diminished in light of

Lara’s status as a probationer. But it was not diminished or

waived because he accepted as a condition of his probation a

clear and unequivocal search provision authorizing cell phone

searches (he did not) or because he subscribed to cell phone

service using a different first name (he did).

2. The Government’s Interest

Probationary searches advance at least two related

government interests — combating recidivism and helping

probationers integrate back into the community. See Samson,

547 U.S. at 849; Knights, 534 U.S. at 120–21. These are

important interests whose strength in a particular case varies

depending on the degree to which the government has a

specific reason to suspect that a particular probationer is

reoffending or otherwise jeopardizing his reintegration into

the community. In Knights, the officers had substantial

evidence showing that while on probation Knights had

vandalized and set fire to an electrical facility and an

adjoining telecommunications vault, causing an estimated

$1.5 million in damages. 534 U.S. at 114. In King, the

officers suspected that the defendant was involved in a

homicide and knew that he had been previously convicted of

the violent crime of willful infliction of corporal injury on a

cohabitant. 736 F.3d at 806. In contrast, in this case Lara

had merely missed a meeting with his probation officer. We

do not minimize the importance of complying with the terms

of probation, including meeting at appointed times with the

probation officer. But Lara’s noncompliance was worlds

UNITED STATES V. LARA 15

away from the suspected crimes that prompted the searches

in King and Knights.

We recognize that Officer Ortiz searched Lara’s cell

phone knowing that he had been convicted of a drug crime

and knowing that drug traffickers often use cell phones to

arrange sales. Given the ubiquity of cell phones, almost any

crime involving more than a single person (and indeed many

crimes involving just one person) would entail the use of cell

phones, which can be used not only for placing calls and

sending text messages, but also for sending emails, looking

up directions, and conducting internet searches on various

topics. This ubiquity cuts against the government’s purported

heightened interest in conducting suspicionless searches of

the cell phones of probationers with controlled substances

convictions.

3. Balancing

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, 133 S. Ct.

1958, 1979 (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.

16 UNITED STATES V. LARA

C. Exception for “Binding Appellate Precedent”

At the end of its fifty-five page brief to this court, the

government spends two-and-a-half pages arguing that even if

the two searches of Lara’s cell phone violated the Fourth

Amendment, a good faith exception to the exclusionary rule

should apply. The government did not make this argument in

the district court, and consequently it has failed to preserve

this argument on appeal. Even if we were willing to assume

that the government did not waive this argument, we would

reject it on the merits.

The government relies on Davis v. United States, 131 S.

Ct. 2419 (2011), where the Supreme Court held that if an

officer objectively relied on “binding appellate precedent”

that “specifically authorize[d]” the officer’s search, evidence

obtained as a result of that search need not be suppressed.

131 S. Ct. at 2423–24, 2429. At the time of the search in

Davis, the Court’s decision in New York v. Belton, 453 U.S.

454 (1981), was understood to allow warrantless searches of

passenger compartments of vehicles incident to the arrest of

recent occupants of the vehicle. Id. at 2424. The Eleventh

Circuit “had long read Belton to establish a bright-line rule

authorizing substantially contemporaneous vehicle searches

incident to arrests of recent occupants.” Id. at 2426 (citing

United States v. Gonzalez, 71 F.3d 819, 822, 824–27 (11th

Cir. 1996)). The Supreme Court subsequently modified the

rule of Belton, holding that a vehicle search incident to arrest

is valid only if the arrestee is within reaching distance of the

passenger compartment during the search. Arizona v. Gant,

556 U.S. 332 (2009). In Davis, officers conducted their

search after the arrestee was removed from the vehicle and

placed in a patrol car. Thus, the search in Davis was valid

under Belton and Gonzalez, but not under Gant.

UNITED STATES V. LARA 17

The Court held in Davis that the search was invalid under

the Fourth Amendment, but declined to suppress the evidence

seized. The Court wrote:

The question here is whether to apply this

sanction [of suppressing the evidence] when

the police conduct a search in compliance

with binding precedent that is later overruled.

Because suppression would do nothing to

deter police misconduct in these

circumstances, and because it would come at

a high cost to both the truth and the public

safety, we hold that searches conducted in

objectively reasonable reliance on binding

appellate precedent are not subject to the

exclusionary rule.

Id. at 2423–24 (emphases added). The rule in Davis is clear:

a search conducted in objectively reasonable reliance on

“binding appellate precedent” that “specifically authorizes”

the police’s search does not result in suppression, even if it

turns out, based on a later decision, that the previously

binding precedent is no longer binding.

We decline to expand the rule in Davis to cases in which

the appellate precedent, rather than being binding, is (at best)

unclear. If the question were qualified immunity, the fact that

the precedent is unclear would protect an individual officer

from damages. See Saucier v. Katz, 533 U.S. 194, 205

(2001). But the question under Davis is not whether an

officer should be shielded from damages liability. Rather, the

question is what protection the Fourth Amendment affords a

private individual from an unconstitutional search and

seizure. The Court in Davis addressed that question by

18 UNITED STATES V. LARA

denying suppression only when “binding appellate precedent”

expressly instructed the officer what to do.

The government points out that Riley was not decided

until after the searches in this case. But the government cites

no pre-Riley case that constituted “binding appellate

precedent” upon which the officers could reasonably have

relied at the time of the searches. Rather, the government

cites only cases from which it could have plausibly argued

that the searches were permissible. It cites People v. Diaz,

244 P.3d 501, 502 (Cal. 2011), in which the California

Supreme Court upheld a warrantless cell phone text message

folder search after an arrest as having been “incident to a

lawful custodial arrest.” It hardly needs saying that a search

incident to arrest is not the same thing as a warrantless,

suspicionless, probation search. Nor is a case dealing with an

incidental search on all fours with a probation search.

Further, the government cites pre-Riley conflicting authority

in the California Court of Appeal and in the Ninth Circuit

with respect to the effect of a probationer’s consent to

searches. Compare People v. Medina, 158 Cal. App. 4th

1571, 1576 (2007), with United States v. Scott, 450 F.3d 863,

868 (9th Cir. 2006). Even if we were to consider state

intermediate court of appeals decisions to be “binding

appellate precedent” within the meaning of Davis (a question

we do not decide), a conflict between the state appellate court

and the Ninth Circuit with respect to a question in a case that

could be brought to either court can hardly be thought to

result in “binding appellate precedent.”

We therefore conclude that the exception to the

exclusionary rule announced in Davis does not apply to the

circumstances of this case.

UNITED STATES V. LARA 19

Conclusion

We conclude that the initial search of Lara’s cell phone

data was unlawful and that the exclusionary rule bars the

admission of the evidence that was the fruit of that unlawful

search. Because the second search of Lara’s cell phone was

itself the product of the initial unlawful search, the evidence

from that search should also have been excluded. We

therefore reverse the district court’s denial of Lara’s motion

to suppress and remand for further proceedings consistent

with this opinion.

REVERSED and REMANDED.