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Name: People v. Sandee
Case #: D070732
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/13/2017

Warrantless search of probationer’s cell phone permissible based on her consent to be subject to warrantless searches of her “property” and “personal effects.” In 2015, police conducted a probation search of Sandee’s cell phone and found incriminating text messages indicating Sandee was involved in selling narcotics. Sandee moved to suppress the text messages. The trial court denied the motion, finding her cell phone fell within the scope of her probation search conditions. Sandee pleaded guilty to drug offenses and appealed. Held: Affirmed. In Riley v. California (2014) 573 U.S.__, the court held in the context of a search incident to arrest that police may not search a cell phone without a warrant, unless an exception to the warrant requirement applies. A probation search is one such exception. In California, a search conducted pursuant to a valid probation search condition is lawful so long as (1) it is not undertaken for harassment or arbitrary or capricious reasons, and (2) the search does not exceed the scope of the probationer’s consent. (People v. Bravo (1987) 43 Cal.3d 600.) The scope of the search condition is determined under an objective test, according to what a reasonable person would understand from the language of the search condition. Here, Sandee was subject to a general search condition authorizing search of her “property” and “personal effects.” A reasonable, objective person at the time of the search would understand this condition to extend to Sandee’s cell phone, given that the order was worded broadly, a cell phone is both property and a personal effect, and there was no language excluding her cell phone or other electronic devices from search. The court distinguished United States v. Lara (2016) 815 F.3d 605, where the Ninth Circuit applied a balancing approach to determine whether a probation search was reasonable under the totality of the circumstances, instead of the approach set forth in Bravo.

The Electronic Communications Privacy Act (EPCA), which went into effect on January 1, 2016, does not apply to a probation search that took place before the Act’s effective date. The EPCA provides, inter alia, that a government entity may physically access electronic device information “[e]xcept where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation.” Sandee argued that the EPCA makes it illegal for police to search data on her cell phone without her consent and without a clear and unambiguous electronic devices probation search condition. However, the EPCA was not in effect at the time of the search of Sandee’s cell phone in 2015. Accordingly, a reasonable person at the time of the search would not have understood the EPCA to restrict the scope of Sandee’s probation conditions. The court also distinguished In re I.V. (2017) 11 Cal.App.5th 259 on the ground that it considered a search that took place after the enactment of the EPCA.

The full opinion is available on the court’s website here: