State v. Lietzau

• Decision Date: 25 March 2019
• Docket Number: No. 2 CA-CR 2018-0011,2 CA-CR 2018-0011
• Citation: 246 Ariz. 380,439 P.3d 839
• Parties: The STATE of Arizona, Appellant, v. Bryan Mitchell LIETZAU, Appellee.
• Court: Arizona Court of Appeals

246 Ariz. 380

439 P.3d 839

The STATE of Arizona, Appellant,

v.Bryan Mitchell LIETZAU, Appellee.

No. 2 CA-CR 2018-0011

Court of Appeals of Arizona, Division 2.

Filed March 25, 2019

Barbara LaWall, Pima County Attorney, By Jacob R. Lines, Deputy County Attorney, Tucson, Counsel for Appellant

Joel Feinman, Pima County Public Defender, By Abigail Jensen and Abigail Okrent, Assistant Public Defenders, Tucson, Counsel for Appellee

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred.

ESPINOSA, Judge:

¶1 The state appeals the trial court’s suppression of evidence taken from Bryan Lietzau’s cell phone, arguing the court erred in denying its request to present testimony from Lietzau’s probation officer at the suppression hearing and in granting Lietzau’s motion to suppress. For the following reasons, we reverse and remand.

Factual and Procedural Background

¶2 "We discuss only those facts relevant to the suppression ruling challenged on appeal," State v. Navarro , 241 Ariz. 19, ¶ 2, 382 P.3d 1234 (App. 2016), viewing them "in the light most favorable to sustaining the trial court’s ruling," State v. Gonzalez , 235 Ariz. 212, ¶ 2, 330 P.3d 969 (App. 2014). Because no testimony was taken at the suppression hearing under review, we draw the facts from the record of the hearing, including the materials appended to the motions, and non-disputed facts presented in the parties' briefs.¹ See Navarro , 241 Ariz. 19, n.1, 382 P.3d 1234.

¶3 In August 2014, Lietzau was placed on probation for aggravated harassment. In accordance with the terms of his written conditions of supervised probation, Lietzau agreed to submit to "search and seizure of person and property" by the Adult Probation Department "without a search warrant." He also agreed to grant safe access to his residence and property, submit to searches and seizures of "person and property by any probation officer," and provide probation officers with truthful answers to inquiries.

¶4 In early December 2014, a woman contacted Lietzau’s probation officer to report "an inappropriate relationship" she believed Lietzau was having with her thirteen-year-old daughter, S.E. A few weeks later, a probation surveillance officer arrested Lietzau for violating conditions of his probation based on his failure to provide access to his residence, participate in counseling programs, comply with drug testing, and perform community restitution. On the way to the jail, the surveillance officer examined Lietzau’s cell phone and saw numerous text messages between Lietzau and S.E. The probation department reported these findings to the Tucson Police Department ("TPD"); a police detective then obtained a search warrant² and discovered incriminating photos and text messages in the phone. Lietzau was subsequently indicted on charges of sexual conduct with a minor.

¶5 Lietzau filed a motion to suppress all evidence gleaned from his cell phone, citing Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and arguing the initial search violated his Fourth Amendment rights because warrants "are required for searches of cell phones incident to arrest." He also contended, in the alternative, that the search was unreasonable under the totality of the circumstances, citing State v. Adair , 241 Ariz. 58, 383 P.3d 1132 (2016). The state countered that no constitutional violation occurs when a warrantless search is expressly authorized in a probationer’s terms of probation, and maintained that the search of Lietzau’s phone fell within the scope of the search conditions in his probation orders, and therefore was "within the probation search exception to the warrant requirement." The state further argued that Riley was "inapposite" because the defendants there were not on probation, and the search here was in compliance with Adair . The trial court granted Lietzau’s motion to suppress, reasoning that the surveillance officer’s search of the phone had not been related to Lietzau’s "administrative" violations of probation, and was therefore "arbitrary," and impermissible. The state appealed; we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4032(6).

Discussion

¶6 The state contends the trial court erred by suppressing the cell phone evidence because the surveillance officer’s examination of Lietzau’s phone "was reasonable," and therefore "constitutional" under Adair . It also suggests the search was consensual pursuant to Lietzau’s conditions of probation, in which he "agreed and acknowledged" that his personal property could be searched without a warrant. We review a trial court’s ruling on a motion to suppress for abuse of discretion, Adair , 241 Ariz. 58, ¶ 9, 383 P.3d 1132, but review de novo the court’s ultimate legal determination whether the search complied with the Fourth Amendment, State v. Davolt , 207 Ariz. 191, ¶ 21, 84 P.3d 456 (2004).

¶7 The United States and Arizona Constitutions protect against unreasonable searches and seizures, U.S. Const. amend. IV ; Ariz. Const. art. II, § 8, and a search conducted without a warrant is presumed unreasonable, absent certain exceptions to this rule, State v. Gant , 216 Ariz. 1, ¶ 8, 162 P.3d 640 (2007). A search incident to arrest is one such exception, see Davis v. United States , 564 U.S. 229, 234-35, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), which the United States Supreme Court justified because of "the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime," Chimel v. California , 395 U.S. 752, 764, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The exception, however, does not extend to the search of data contained on cell phones. Riley , 573 U.S. at 386, 134 S.Ct. 2473. In Riley , the Court recognized the significant information stored on cell phones that "implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Id . at 393, 134 S.Ct. 2473. Thus, a warrant is generally required before a cell phone is searched, even if the search is incident to arrest. Id. at 401, 134 S.Ct. 2473 ; see also State v. Peoples , 240 Ariz. 244, ¶ 13, 378 P.3d 421 (2016) ("[C]ell phones contain ‘the privacies of life’ and are therefore worthy of Fourth Amendment protection." (quoting Riley , 573 U.S. at 403, 134 S.Ct. 2473 )).

¶8 Here, the trial court considered Riley because the surveillance officer searched Lietzau’s cell phone a short time after arresting him for probation violations, but correctly noted that Riley did not "deal with the issue of when someone’s on probation, and they've agreed to allow the Probation Department to search their property." The court then considered United States v. Lara , a Ninth Circuit case reversing the denial of a suppression motion based on a warrantless and suspicionless search of a probationer’s cell phone, in part because his terms of probation did not clearly encompass such a search. 815 F.3d 605, 607, 610, 614 (9th Cir. 2016). The trial court lastly discussed Adair and concluded the search of Lietzau’s phone was improper. The state contends the court erroneously relied on Lara because it is significantly distinguishable from Lietzau’s case, and, in any event, not binding on Arizona courts, and argues the court misapplied Adair .

Probationary Search

¶9 Our supreme court has held that when a defendant is on probation, "his expectations of privacy are less than those of other citizens not so categorized." State v. Montgomery , 115 Ariz. 583, 584, 566 P.2d 1329 (1977). More recently in Adair , the court described a probationer’s privacy interests as "significantly diminished." 241 Ariz. 58, ¶ 23, 383 P.3d 1132 (quoting United States v. Knights , 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ). The court then balanced those interests against the state’s substantial interests in public safety and reducing recidivism and, rejecting the argument that some level of founded suspicion was required to conduct a warrantless search, held that a "search of [a] residence pursuant to the probation conditions complied with the Fourth Amendment if it was reasonable under the totality of the circumstances." Id . ¶¶ 15-23. The court went on to identify factors to consider when determining the reasonableness of a search. Id. ¶ 25. For example, as this court had previously noted, "[t]he target of the search must be a known probationer subject to a valid, enforceable probation condition allowing a warrantless search," "[t]he search must be conducted by a probation officer in a proper manner and for the proper purpose of determining whether the probationer was complying with probation obligations," and "the search must not be arbitrary, capricious[,] or harassing." Id. (quoting State v. Adair , 238 Ariz. 193, ¶ 21, 358 P.3d 614 (App. 2015) ). Other factors bearing on reasonableness include

the nature and severity of the probationer’s prior conviction(s) for which he is on probation; the content and scope of the probation conditions; the nature and severity of the suspected criminal offenses or probation violations giving rise to the search; whether the suspected crimes or violations are the same as or similar to the crimes of which the probationer was previously convicted; and the nature, source, and plausibility of any extraneous information supporting the search.

Id. The trial court here cited these factors and concluded the search was unreasonable, finding it "arbitrary" and therefore in violation of Lietzau’s constitutional rights. As stated earlier, we review its legal conclusion de novo. Davolt , 207 Ariz. 191, ¶ 21, 84 P.3d 456.

¶10 At the outset, we note that the facts of Lietzau’s case may be viewed as falling somewhere on a spectrum between Lara , to the extent that case may be persuasive, and Adair , the binding precedent of our supreme court. As in Lara , the search here involved a...