Conditions of Probation Can’t Include Cell Phone Search Without Connection to the Crime

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People v. Bryant, (Cal. App. 2nd Dist. 2017)

Officers investigating a noise and trespassing complaint in an apartment parking lot spoke with Bryant as he sat in a car. An officer smelled the strong odor of marijuana and asked Bryant to step out. A subsequent search of the car revealed an unregistered semi-automatic .45 caliber handgun under Bryant’s seat. Bryant’s DNA matched DNA found on the gun’s magazine.

Bryant was convicted of carrying a concealed firearm in a vehicle. His sentence included a two-year probation period. One of the conditions of probation required Bryant to submit to searches of texts, emails and photographs on his mobile phone or other electronic device. Bryant appealed the imposition of the supervision term, arguing that the search condition was not reasonably related to future criminality.

The Court of Appeals agreed with Bryant, ruling that the prosecution did not show any reasonable connection between Bryant’s digital device use and the weapons crime conviction or any future criminality: “No cellular phone or electronic device was involved in the crime and there is no evidence that Bryant would use such devices to engage in future criminal activity.” Had there been some nexus between Bryant’s digital life and his crime—such as meeting a crime victim through social media or using his mobile phone for arranging drug deals or human trafficking—the court would almost certainly have reached a different result.

The court also expressed concern for Bryant’s Fourth Amendment rights: Even as a convicted criminal on probation, he doesn’t lose all constitutional protection. Citing the Supreme Court, the court noted that “a cellular phone search could potentially reveal ‘a digital record of nearly every aspect of [its owner’s life]—from the mundane to the intimate’” (Riley v. California, 134 S.Ct. 2473, 2489 (2014)).

Related: Passcode not required to protect phone from warrantless search, Abandoned cell phone doesn’t implicate concerns raised in Riley v. California

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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