Individuals on supervised probation in Arizona are subject to several standard conditions of probation. These are conditions that apply to all probationers. Probationers might also have additional conditions related their specific crime. Standard conditions in Arizona include:

• Maintaining a “crime-free” lifestyle
• Prohibition from possession of firearms and other types of weapons
• Reporting any police encounter to your probation officer
• Permitting warrantless searches and seizures of your “person and property”
• Providing unrestricted access to your residence
• Participating in drug testing and counseling
• Working or going to school
• Prohibition on contact with the victim of the crime and
• Restitution payments, community service, reporting requirements and travel restrictions.

Recently, the Arizona Supreme Court ruled that probationer’s cell phones are included in the definition “property” that is subject to warrantless searches and seizures, as long as the search is “reasonable under the totality of circumstances.” This blog post will discuss the details of the case that led to this ruling, how the Court differentiated this case from the many other cases that found almost all warrantless cell phone searches unconstitutional, and what kinds of probationary cell phone searches would be considered “reasonable.”

Constitutionality of Warrantless Probationary Cell Phone Search

The defendant in this case, Lietzau, was on probation after being convicted of felony aggravated harassment, a domestic violence offense. He was sentenced to 18 months of supervised probation, subject to the uniform conditions of probation in Arizona and additional terms specific to domestic violence offenders. This included the standard conditions of maintaining a crime-free lifestyle, not having any contact with the victim, and permitting warrantless searches of his person and property.

A few months into his probation, the Adult Probation Division (APD) received a report from the mother of a thirteen-year-old girl who believed Lietzau, 22, was having an “inappropriate relationship” with the girl. After receiving the report, an APD officer arrested Lietzau for probation violations of not allowing APD to access his residence, not reporting for drug tests and counseling, and failing to perform his community service obligations. On the way to the jail, the officer looked through Lietzau’s text messages and found incriminating messages and photos sent between Lietzau and the minor. He was indicted on six counts of sexual conduct with a minor.

The trial court ruled that the search was not reasonable because the search did not relate to the charges on which Lietzau was arrested, which were administrative violations of probation. The appeals court reversed the decision, finding that the search was reasonable because APD had reason to suspect that Lietzau had committed another felony while on probation and that the cell phone might logically have evidence related to the crime, and that cell phones were “property” subject to warrantless search under the conditions of probation. The Arizona Supreme Court upheld the appellate court decision.

The Arizona Supreme Court Differentiated Lietzau From Other Precedent Cell Phone Search Cases

Generally, law enforcement needs a warrant to search a cell phone, even when someone is arrested with the phone in their possession. There is now even disagreement among the Circuit Courts as to whether warrantless cell phone searches at the U.S. border should be permitted.

Courts recognize the significance of the privacy interest that people have in their cell phones and have given that data corresponding constitutional protections from law enforcement searches. But, probationers inherently must give up some constitutional protections as a condition of not being incarcerated. In Arizona, probationers have a diminished right to privacy because a condition of their probation is to permit warrantless searches and seizures of their person and property (but with some limitations.) These types of conditions have been upheld as constitutional by the Court, when balanced against the public safety interest of preventing probationers from endangering the community.

The defendant argued that the contents of a cell phone are not property, and thus not covered by the condition. This was the reasoning applied by the trial court, because there is a 9th circuit case, U.S. v Lara, in which a probationer had agreed to permit warrantless, suspicionless searches of “person and property, including any residence, premises, container, or vehicle under his control.” Here, the 9th circuit decided that cell phone data was not “property,” and that the condition of parole did not “unambiguously include cell phone data” because all the examples in the condition referred to items that could be “physically possessed,” and cell phone data was actually possessed by third parties.

The Arizona Supreme Court reasoned that because the Arizona probation condition simply permits warrantless searches of “person and property,” without further describing property, the Arizona condition is not analogous to the one in Lara (which is not binding precedent on the Court), and since the Arizona condition is broader, a probationer should assume it extends to all types of property, even intangible property (which, the Court pointed out, is included in the Black’s Law Dictionary plain meaning of “property”). The Court also disagreed that cell phone data was not in the physical possession of the defendant, reasoning that digital data is “merged with the phone…much like information written on paper.”

Ultimately, the Court held that the cell phone data was “property,” and therefore subject to warrantless search as a condition of probation, as long as the search was not unreasonable.

What is a Reasonable Warrantless Search as a Condition of Probation?

The Court reasoned that warrantless searches as a condition of probation must be “reasonable under the totality of circumstances,” taking into account the diminished privacy expectations of a probationer and the “substantial interest in preventing recidivism.” The Court looked at a recent Arizona case addressing the reasonableness of warrantless probationary searches, State v. Adair. The holding in this case identified eight factors which should be considered:

1. whether the target of the search is a known probationer subject to warrantless searches
2. whether the search was conducted for the “purpose of determining whether the probationer was in compliance with probation obligations” and “conducted in a proper manner”
3. whether the search was “arbitrary, capricious, or harassing”
4. “the nature and severity of the probationer’s prior convictions for which he is on probation”
5. “the content and scope of the probation conditions”
6. “the nature and severity of the suspected criminal offense giving rise to the search”
7. whether the crime the probationer is suspected of is similar or related to the crime for which he is on probation
8. the reliability of the information regarding suspected criminal activity by the probationer

Here, Lietzau was on probation for felony harassment, therefore the Court reasoned that a cell phone search was reasonable to determine whether the probationer was in compliance with probation obligations, and that the defendant should have reasonably expected that his digital data could be searched. The person conducting the search was a probation compliance officer, charged with enforcing these obligations.

The defendant argued that the officer did not give him a reason for the search and told him that he routinely searches probationer’s cell phones because no warrant is necessary. However, the Court reasoned that the officer’s subjective motive was not relevant as long as the search was objectively justified. At the time of the search, the officer had been informed on more than one occasion that the defendant was suspected of being in an “inappropriate relationship” (as described by the informant) with a minor. The Court also found that it was reasonable for the officer to assume this conduct might be documented through text message and that if the defendant were sending sexually explicit texts to a minor, that would be a violation of a condition of his parole.

The Court went even further, holding that even if there had been no suspicion of the inappropriate contact with a minor, the officer’s search of the defendant’s phone would still have been reasonable, to check for compliance with the no-contact order with the victim, even if the officer had no evidence of a violation of the no-contact order. Furthermore, in this case, the probationer was non-compliant with several other conditions of probation, giving the officer ample reason to suspect the defendant “presented a presumptive threat for reoffending,” and that a search under these circumstances would serve a “reformative” purpose and therefore was not arbitrary.

The Court did hold that the condition of probation permitting warrantless searches does not give officers “carte blanche” access to everything on a probationer’s phone, but should be limited to the locations in the phone most likely to “contain information to determine the probationer’s compliance with probation conditions.” Here, the officer also limited his search to the text messages, the place most likely to yield information regarding violations of probation conditions.
Given the estimated 85,000 individuals on probation in Arizona, and the Court’s clear decision that it considers cell phones to be part of the property subject to warrantless search as a condition of probation, this is a decision that will likely become a standard part of the prosecutorial toolkit.

If you are on probation and your cell phone data was used against you to prove you violated a condition of probation, it is important that you choose a defense attorney that is keeping up with all the changes in this area of the law to determine whether the evidence against you was the result of a legal search.