State v. Lietzau

• Decision Date: 22 May 2020
• Docket Number: No. CR-19-0132-PR,CR-19-0132-PR
• Citation: 463 P.3d 200,248 Ariz. 576
• Parties: STATE of Arizona, Appellant, v. Bryan Mitchell LIETZAU, Appellee.
• Court: Arizona Supreme Court

248 Ariz. 576

463 P.3d 200

STATE of Arizona, Appellant,

v.Bryan Mitchell LIETZAU, Appellee.

No. CR-19-0132-PR

Supreme Court of Arizona.

Filed May 22, 2020

As Amended June 12, 2020

Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy County Attorney, Tucson, Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, David J. Euchner (argued), Abigail Jensen, Deputy Public Defenders, Tucson, Attorneys for Bryan Mitchell Lietzau

Mikel Steinfeld (argued), Phoenix, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, and JUSTICES BOLICK, GOULD, LOPEZ, BEENE, and MONTGOMERY joined.

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 Cell phones provide access to an immense array of private information, much of which is stored in the Cloud or on sites controlled by third parties. As such, the United States Supreme Court concluded in Riley v. California that people have uniquely broad expectations of privacy in cell phones and, therefore, a warrant is generally required to search them. 573 U.S. 373, 393–94, 401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In the wake of Riley , we are asked to decide whether Arizona's standard conditions of probation, which permit warrantless searches of a probationer's "property," apply to cell phones. We hold they do. We further hold that the search here was reasonable under the totality of the circumstances and therefore compliant with the Fourth Amendment.

BACKGROUND

¶2 In August 2014, the superior court entered judgment against Bryan Lietzau for the crime of aggravated harassment, a domestic violence offense and a class 6 undesignated felony. The court suspended imposition of a prison sentence on Lietzau and placed him on supervised probation for eighteen months. In return, Lietzau agreed to comply with uniform conditions of supervised probation and separate domestic violence probation terms, both of which outlined requirements for "leading a law-abiding lifestyle" and cooperating with the adult probation department ("APD"), among other terms and conditions. Pertinent here, Lietzau agreed to "submit to search and seizure of person and property by the APD without a search warrant" ("Condition 4").¹

¶3 A few months later, G.E. reported to the APD her suspicion that S.E., her thirteen-year-old daughter, and Lietzau were engaging in an "inappropriate relationship." APD surveillance officer Casey Camacho arrested Lietzau weeks later for violating several conditions of probation unrelated to S.E.: (1) failing to provide APD safe, unrestricted access to his residence; (2) failing to participate and cooperate in counseling or assistance programs as directed; (3) failing to take a drug test as directed; and (4) failing to perform community restitution. En route to jail, Camacho looked through text messages on Lietzau's cell phone and discovered numerous incriminating messages and photos between Lietzau and S.E. Camacho typed out the messages and gave his transcription and cell phone to police. The State subsequently indicted Lietzau on six counts of sexual conduct with a minor.

¶4 Lietzau moved to suppress all evidence gathered as a result of Camacho's cell phone search, arguing the search violated his state and federal constitutional rights to be free from unreasonable searches and seizures. The State responded that Condition 4 justified Camacho's warrantless search because a cell phone is "property." Both parties provided evidence supporting their positions, including a transcription of defense counsel's interview of Camacho. After conducting a non-evidentiary hearing, the court granted the motion.

¶5 The court first reviewed the holdings in Riley and United States v. Lara , 815 F.3d 605 (9th Cir. 2016), both of which addressed the unique privacy implications attendant to cell phone searches. The court then applied factors listed in State v. Adair , 241 Ariz. 58, 64 ¶¶ 23–25, 383 P.3d 1132, 1138 (2016), to determine whether the search was reasonable under the totality of the circumstances, and thus constitutionally permissible. The court ultimately found that the search was unreasonable because Condition 4 was not sufficiently broad to permit the search, Camacho had no proper purpose in searching the phone, the search was arbitrary, and the alleged probation violations involved only "administrative kinds of things."

¶6 The court of appeals reversed. State v. Lietzau , 246 Ariz. 380, 381 ¶ 1, 439 P.3d 839, 840 (App. 2019). After applying the Adair factors, it found that the search was reasonable. Id. at 384 ¶ 11, 439 P.3d at 843. Unlike the superior court, the court of appeals relied heavily on the fact that at the time of Lietzau's arrest, the APD and Camacho had been told about the suspected, inappropriate relationship between Lietzau and S.E. Id. This allegation, according to the court, gave the APD "a well-founded, non-arbitrary reason to suspect Lietzau of committing another felony while on probation." Id. ¶¶ 11–12. The court also found that the term "property" in Condition 4 included a cell phone, and that cell phones are " ‘ubiquitous’ repositories of communications and photos" that may reveal an inappropriate relationship with a minor. Id. at 385–86 ¶¶ 14–15, 439 P.3d at 844–45. Under the totality of these circumstances, the court concluded that Camacho's search of the cell phone was reasonable, and that the trial court erred by granting the motion to suppress. Id. at 386 ¶ 19, 439 P.3d at 845.

¶7 We granted Lietzau's petition for review to resolve issues of statewide importance that are likely to recur.

DISCUSSION

¶8 We review the trial court's suppression order for an abuse of discretion. See State v. Peoples , 240 Ariz. 244, 247 ¶ 7, 378 P.3d 421, 424 (2016). In doing so, we consider only the evidence presented at the suppression hearing and view that evidence in a light most favorable to upholding the court's ruling. Id. An error of law constitutes an abuse of discretion. Id.

I. Cell phones as "property" under Condition 4

¶9 Lietzau argues the court of appeals erred by finding that "property" in Condition 4 includes cell phones. He does not dispute that a cell phone constitutes "property" under the plain meaning of the word. See Property , Black's Law Dictionary (11th ed. 2019) (defining "property" as "the rights in a valued resource such as land, chattel, or an intangible"). Rather, he relies on the Supreme Court's decision in Riley to argue that the term "property" in Condition 4 necessarily excludes cell phones.

¶10 The Court in Riley recognized that cell phones are "minicomputers" that hold "a digital record of nearly every aspect of [people's] lives—from the mundane to the intimate" and are thus unlike the types of property carried in one place by people living before the digital age. Riley , 573 U.S. at 393–95, 134 S.Ct. 2473. As such, the Court concluded that a warrant is generally required to search a cell phone, and such devices are not subject to the search incident to arrest exception to the Fourth Amendment's warrant requirement. Id. at 401–03, 134 S.Ct. 2473; see also Peoples , 240 Ariz. at 248–49 ¶¶ 11–16, 378 P.3d at 425–26 (discussing Riley ).

¶11 Lietzau argues that after Riley , just as a warrant is generally required to search an arrestee's cell phone, a warrant is generally required to search a probationer's cell phone. Because the trial court was presumptively aware of Riley before placing Lietzau on probation, and the court could not impose an illegal condition, he asserts that Condition 4 necessarily excludes cell phones from its reach. Cf. Polk v. Hancock , 237 Ariz. 125, 129 ¶ 10, 347 P.3d 142, 146 (2015) (concluding the trial court erred by imposing illegal probation term despite the defendant's agreement because "parties cannot confer authority on the court that the law proscribes").

¶12 We disagree that Riley prohibits probation conditions authorizing warrantless searches of cell phones. Simply put, the Court did not address that issue. Conversely, it has recognized that supervising probationers "permit[s] a degree of impingement upon privacy that would not be constitutional if applied to the public at large" to "assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large." Griffin v. Wisconsin , 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). To that end, it has found that "a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens," including a condition requiring the probationer to "[s]ubmit his ... person, property, place of residence, vehicle [and] personal effects" to a warrantless search. United States v. Knights , 534 U.S. 112, 114, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ; see also State v. Montgomery , 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977) ("[A] probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection." (quoting People v. Mason , 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, 633 (1971) )). Nothing in Riley suggests that the substantial privacy concerns attendant to warrantless cell phone searches of arrestees, who have not been convicted of a crime, foreclose warrantless searches of probationers’ cell phones pursuant to a probation condition, assuming the search is otherwise reasonable. See Griffin , 483 U.S. at 873, 876, 107 S.Ct. 3164 (requiring a warrantless search of a probationer's home to be "reasonable" to comply with the Fourth Amendment).

¶13 Lara , relied on by the trial court, does not persuade us to exclude cell phones from the reach of Condition 4. Lara's probation conditions authorized warrantless, suspicionless searches of his "person and property, including any residence,...