The search of defendant’s cell phone violated the Fourth Amendment because his probation search condition did not expressly state that his cell phone was subject to a suspicionless search. Lara was on probation for drug offenses. His probation terms required him to submit his “person and property, including any residence, premises, container or vehicle” to a warrantless search. Probation officers conducted a warrantless search of his cell phone, which led to the discovery of a gun in his possession. He was charged with being a felon in possession of a gun and ammunition (18 U.S.C. § 922, subd. (g)(1)). He moved to suppress the evidence as the fruit of an unlawful search. After the district court denied the motion, Lara entered a plea to the charge. He appealed the denial of his suppression motion. Held: Reversed. A defendant’s acceptance of a search term of probation does not automatically render lawful an otherwise unconstitutional search of the probationer’s person or property. A warrantless search made pursuant to a probation search term must still be reasonable under the Fourth Amendment. Although Lara was on searchable probation, his expectation of privacy was nonetheless greater than a parolee’s or a probationer who was convicted of a violent or serious felony. In addition, the search terms of his probation did not clearly state that it included suspicionless searches of his cell phone, which does not unambiguously fall within the meaning of a “container” or “property.” Lara therefore had a privacy interest in his cell phone and the vast amount of data it contains, which outweighed the government’s interest in conducting the suspicionless probation search.

The good faith exception to the exclusionary rule does not apply because there was no “binding appellate precedent” that specifically authorized the search of defendant’s cell phone. The prosecution, relying on Davis v. U.S. (2011) 131 S.Ct. 2419, argued that even if the search was unlawful, a good faith exception should apply and the evidence should not be suppressed. In Davis the Supreme Court held that searches conducted in objectively reasonable reliance on “binding appellate precedent” are not subject to the exclusionary rule. However, the rule in Davis should not be expanded to cases in which the appellate precedent is, at best, unclear. While it is true that Riley v. California (2014) 134 S.Ct. 2473 [holding that, generally, police may not conduct a warrantless examination of a cell phone incident to arrest], was decided after the district court’s denial of Lara’s motion to suppress, the government cited no pre-Riley cases that constituted “binding appellate precedent” upon which the officers here could have reasonably relied to conduct the search.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/03/14-50120.pdf