9th Cir. Extends Digital Privacy to Probationers

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By Lance Rogers

March 3 — Government agents may not comb through the digital data on a probationer's mobile phone just because the man signed a condition of probation saying the government had the right to search his “property” at any time, the U.S. Court of Appeals for the Ninth Circuit ruled March 3.

The decision cements the Ninth Circuit's view that a probationer's acceptance of a search term in a probation agreement doesn't by itself justify otherwise unconstitutional searches and extends some digital privacy rights to nonviolent probationers.

“We explained that there is a limit on the price the government may exact in return for granting probation,” the court said in an opinion by Judge William A. Fletcher.

General Waiver Isn't Dispositive

The government didn't get very far with its argument that Paulo Lara waived his privacy rights when he signed off on the general search condition.

Although Lara agreed the government could conduct suspicionless searches of his person and his property, “including any residence, premises, container or vehicle under [his] control,” that waiver wasn't dispositive of the issue because none of those terms unambiguously applies to a mobile phone and the data stored on it, the court said.

Searches of probationers must, like any other search, be reasonable, and that determination is made by balancing the degree to which the search intrudes on an individual's privacy against the degree to which the search is needed to advance a legitimate government interest, the court said.

The government was on soft footing in this case not only because these probation conditions didn't specifically mention anything about mobile phones, but also because these devices contain in digital form sensitive records and private information often never found in any home in any form, the court said.

The agents conducted the spot search after Lara—who had been convicted of a drug crime—missed a scheduled meeting with his probation officer. When the agents grabbed his mobile phone and searched it, they found suspicious text messages and a state lab later used the phone's GPS history to locate a gun.

Balancing Test

Lara had a substantial privacy interest in his mobile phone and the data it contained, the court said, citing Riley v. California, 2014 BL 175779 (U.S. 2014), which held that police need a warrant to search the mobile phones of arrestees because mobile phones contain so much personal information .

Although that privacy interest was somewhat diminished by Lara's status as a probationer and the government had a clear interest in combatting recidivism and helping probationers reintegrate themselves into the community, that didn't justify rummaging through the phone of a nonviolent probationer for missing a meeting, the court said.

Judges Richard A. Paez and Marsha S. Berzon joined the opinion.

The Federal Public Defender's Office, Los Angeles, represented Lara. The U.S. Attorney's Office, Los Angeles, represented the government.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full text at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_PAULO_LARA_BRO_1_De.