Certain Certiorari: The Digital Privacy Rights of Probationers

Abstract

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices. As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law. My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Specifically, the Court is bound to hear whether Riley v. California—its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area—applies to probationers. David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car. Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting. Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones—life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.” Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.”

But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases? Because the Court’s most on-point precedents—one involving a probationer (United States v. Knights), the other a parolee (Samson v. California)—indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events. One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court. This Essay details why and how.

Keywords: Sentencing, Probation, Parole, Fourth Amendment, Search, Seizure, Privacy, Digital, Cellphone, Electronics, Supreme Court

JEL Classification: K14