United States v. Lara

• Decision Date: 03 March 2016
• Docket Number: No. 14–50120.,14–50120.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Paulo LARA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

815 F.3d 605

UNITED STATES of America, Plaintiff–Appellee,

v.Paulo LARA, Defendant–Appellant.

No. 14–50120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2015.

Filed March 3, 2016.

Alexandra Wallace Yates (argued), Deputy Federal Public Defender, Hilary Potashner, Acting Federal Public Defender, Los Angeles, CA, for Defendant–Appellant.

Stephanie Yonekura, Acting United States Attorney, Robert E. Dugdale, Chief, Criminal Division, and Ryan Weinstein (argued), Assistant United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.

Before: WILLIAM A. FLETCHER, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

OPINION

W. FLETCHER

, Circuit Judge:

Appellant–Defendant Paulo Lara appeals his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1)

. At the time of his arrest, Lara was subject to a term of probation that required him to submit his "person and property, including any residence, premises, container or vehicle" to search and seizure "without a warrant, probable cause, or reasonable suspicion." Lara contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated when probation officers conducted two warrantless, suspicionless searches of his cell phone. He contends that the exclusionary rule requires the suppression of images, text messages, and GPS data found on his cell phone, as well as a gun and ammunition, as fruits of the illegal searches. We agree.

I. Factual and Procedural Background

On October 2, 2013, Probation Officers Jennifer Fix and Joseph Ortiz arrived unannounced at Lara's home after he had failed to report to Officer Fix. Lara had recently been placed on probation following a conviction for possession for sale and transportation of methamphetamine in violation of California Health & Safety Code §§ 11378

and 11379(a).

Lara's probation agreement required him to "submit [his] person and property, including any residence, premises, container or vehicle under [his] control, to search and seizure at any time of the day or night by any law enforcement officer, probation officer, or mandatory supervision officer, with or without a warrant, probable cause, or reasonable suspicion." As part of his probation agreement, Lara initialed a subsection entitled "Fourth Amendment waiver." That subsection provided:

I understand under the Fourth and Fourteenth Amendments to the United States Constitution, I have a right to be free from unreasonable searches and seizures. I waive and give up this right, and further agree that for the period during which I am on probation or mandatory supervision I will submit my person and property, including any residence, premises, container or vehicle under my control to search and seizure at any time of the day or night by any law enforcement officer, probation officer, post-release community supervision officer, or parole officer, with or without a warrant, probable cause, or reasonable suspicion.

Officer Fix stated in a sworn declaration, consistent with her later in-court testimony, that at her first meeting with Lara she read him the search and seizure term and asked whether he had any questions "concerning that term and what it entails." She stated that is her normal practice to note if a probationer has any questions about the terms, and she had nothing in her notes indicating that Lara had any such questions. Lara stated in a sworn declaration that when he accepted the terms and conditions of probation, he did not believe the search condition would allow his cell phone or data stored on the phone to be searched without his consent.

Officer Fix stated in her declaration, "It is standard protocol for probation officers to search the cell phones of probationers subject to search terms, especially if the probationer had been convicted of a drug trafficking offense." Officer Fix stated that she knew Lara had been convicted of a drug offense when she conducted the search. She stated that she and Officer Ortiz knew, based on their training and experience, that "drug traffickers commonly use cell phones to arrange narcotics sales."

After announcing that they were at the house to conduct a probation search, Officer Fix ordered Lara to sit on the couch. Officer Ortiz stated in a sworn declaration that he spotted a cell phone on a table next to the couch and examined it. He stated that he confirmed that the phone belonged to Lara. Cell phone company records showed that the name of the subscriber was "Peter" Lara, rather than "Paulo" Lara. The address listed on the subscriber record matched Lara's home address where he was found and where the search was conducted.

Officer Ortiz stated that he did not ask Lara's permission to search the cell phone, but that Lara did not object to his doing so. Officer Fix testified that it is the department's policy to search a cell phone when officers visit a probationer, even if the probationer objects.

Officer Ortiz stated in his declaration that he reviewed the most recently sent text messages on Lara's cell phone and discovered messages containing three photographs of a semiautomatic handgun lying on a bed. The pictures had been sent to "Al," who responded, asking if the gun was "clean." Lara replied, "yup." Al followed up by asking, "What is the lowest you will take for it?" and "How much?"

Officer Ortiz handcuffed Lara, and he and Officer Fix searched Lara's house and car for the gun. They did not find it, but they did find a folding knife, the possession of which violated the terms of Lara's probation. Officers Fix and Ortiz arrested Lara for possessing the knife in violation of his probation and brought the cell phone to the Orange County Regional Computer Forensics Lab.

Lab personnel found GPS data embedded in the photographs of the gun and thereby determined the address where they were taken. Investigation revealed the location to be the home of Lara's mother. Officer Fix testified at the suppression hearing that without the GPS data, she would not have had reason to visit Lara's mother's house.

Officers Fix and Ortiz, along with officers from the local police department, went to Lara's mother's home and showed her the photographs of the gun. She directed them to a bedroom that had bedding matching that in the photographs. In the closet of the bedroom, Officer Fix found a loaded handgun that resembled the gun depicted in the photographs.

Lara was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1)

. He moved to suppress the gun and ammunition on the ground that it had been found as a result of illegal searches of his cell phone by Officer Ortiz and the lab.

The district court held a hearing on the suppression motion and denied the motion. When the district court ruled on Lara's suppression motion, the Supreme Court had not yet decided Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014)

. In Riley, the Court held that police generally may not, without a warrant, examine the digital information stored on a cell phone seized incident to arrest. Id. at 2493.

After the district judge denied Lara's suppression motion, Lara pled guilty to the § 922(g)(1)

charge, but preserved his right to challenge the denial of his motion. Lara timely appealed.

II. Standard of Review

We review de novo a district court's denial of a motion to suppress, reviewing for clear error the district court's underlying factual findings. United States v. Mayer,

560 F.3d 948, 956 (9th Cir.2009).

III. Discussion

The government contends that there are three independent reasons to affirm the district court's denial of Lara's motion to suppress. First, the government contends that Lara consented to the initial cell phone data search by accepting the terms of his probation agreement, thereby waiving his Fourth Amendment protection against unreasonable searches and seizures. Second, the government contends that, even if Lara did not waive his Fourth Amendment rights, the warrantless search was lawful because it was reasonable. Third, the government contends that even if the cell phone search was unlawful, the evidence it yielded should not be suppressed because a good faith exception to the exclusionary rule applies. We are not persuaded by any of these contentions.

A. Waiver of Fourth Amendment Rights

Our discussion of the government's contention that Lara waived his Fourth Amendment rights may be brief. We have already held that a probationer's acceptance of a search term in a probation agreement does not by itself render lawful an otherwise unconstitutional search of a probationer's person or property. In United States v. Consuelo–Gonzalez, 521 F.2d 259, 261 (9th Cir.1975)

(en banc), we held that probationers do not entirely waive their Fourth Amendment rights by agreeing, as a condition of their probation, to "submit [their] person and property to search at any time upon request by a law enforcement officer." We explained that there is a limit on the price the government may exact in return for granting probation. Id. at 265. Specifically, "any search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment's standard of reasonableness." Id. at 262 ; see United States v. Scott, 450 F.3d 863, 868 (9th Cir.2006) (confirming this reading of Consuelo–Gonzalez 's holding).

The issue, therefore, is not solely whether Lara accepted the cell phone search as a condition of his probation, but whether the search that he accepted was reasonable. Lara's acceptance of the terms of probation, including suspicionless searches of his person and property, is one factor that bears on the reasonableness of the search, but it is not in itself dispositive. See Scott, 450 F.3d at 868

(suggesting that a defendant's agreement to a search condition in exchange for relief from prison is "a relevant factor in determining how strong his expectation of privacy is"); acco...