1

Filed 2/28/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO MANUEL DELRIO,

Defendant and Appellant.

 A154848

 (San Mateo County

 Super. Ct. No. SF394912)

This case arises out of a warrantless search of the contents of a cell 

phone belonging to defendant Alejandro Manuel Delrio. At the time of the 

search, defendant was a convicted felon in the legal custody of the California 

Department of Corrections and Rehabilitation (CDCR) as he served out the 

remainder of his term on parole. As a parolee, defendant was subject to a 

statutorily mandated parole term that required him to submit to warrantless 

and suspicionless searches of his person, his residence, and any property 

under his control by a parole officer or other peace officer at any time. At the 

time of the cell phone search, police officers knew defendant was on parole 

and had specific, articulable reasons to suspect he was involved in a 

residential burglary.

Defendant pleaded guilty to first degree burglary after the trial court

denied his motion to suppress evidence obtained from the search of his cell 

phone. On appeal, defendant claims the search violated his Fourth 

Amendment rights because his written parole conditions gave him a 
2

reasonable expectation of privacy in the contents of his cell phone. We 

conclude that any expectation of privacy defendant may have had did not 

outweigh the government’s interest in conducting the search because the 

officers had specific reasons to suspect he was involved in a residential 

burglary. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2014, a residential burglary was committed in Redwood 

City. A surveillance video from a neighbor’s house showed two individuals 

walking from a black truck to the burglarized house and then walking away, 

each carrying a sack. After the residents of the home reported the burglary, 

Sheriff’s Deputy Robert Willett contacted defendant and told him that a 

vehicle registered to him had been involved in a burglary. Defendant denied 

any involvement, told the deputy that he had loaned the truck to a coworker, 

and further claimed that if the truck was involved with a burglary, it must 

have been used without his permission. Defendant then completed 

paperwork to report the vehicle stolen. 

Deputy Willett then viewed the surveillance video and concluded that 

one of the two individuals shown in the video had “a very close resemblance 

to the defendant.” Thus, Willett recommended that defendant be recontacted as a suspect. 

Sergeant Hector Acosta conducted a records check on defendant and 

determined that he was on active parole. At around 10:30 a.m. on September 

26, 2014, Acosta and several officers went to defendant’s house to conduct a 

parole search. While the officers searched the house, Acosta interviewed 

defendant and his girlfriend. Acosta showed defendant a still photo from the 

surveillance footage and said one of the suspects looked like him, but 

defendant denied involvement in the burglary. During the search of the 
3

house, officers located a cell phone that belonged to defendant. Acosta later 

testified at the suppression hearing that he believed defendant’s parole 

obligations required him to surrender his password, and Acosta may have 

told defendant, “ ‘you’re on parole. I need the passcode[,]’ ” or “give me your 

passcode.” Defendant complied, and Acosta gave the cell phone to a detective 

who used a Cellebrite device to download the contents of the phone before 

returning it to defendant. 

A few minutes after the officers left his house, defendant called 

Sergeant Acosta and asked him to return to the house. Upon the officers’ 

return, defendant showed Acosta a photograph from his cell phone in which 

defendant was holding five $100 bills. Defendant said the money was the 

proceeds from selling the stolen jewelry from the burglary. Defendant also 

told Acosta about his involvement in the burglary and said he should not 

have reported his vehicle stolen. 

Defendant was charged by information with first degree burglary 

(Pen. Code, § 460, subd. (a); count one); grand theft (id., § 487, subd. (a); 

count two); perjury (id., § 118, subd. (a); count three); and making a false 

report of a criminal offense (id., § 148.5, subd. (a); count four). As to count 

one, the information alleged a number of sentencing enhancements.

Defendant moved to suppress the evidence obtained from the cell phone 

search and all statements made by him as fruit of that search. The trial 

court denied the motion. Defendant then pleaded guilty to count one and 

admitted enhancements for being on parole after imprisonment for a prior 

serious or violent felony (Pen. Code, § 1203.085, subd. (b)); commission of a 

prior serious felony while on parole (id., § 1203.085, subd. (b)); having a prior 

strike (id., §§ 667, subds. (a)1), 1170.12, subd. (c)(1)); and having a prior 

serious felony conviction (id., § 667, subd. (a)(1)). The trial court sentenced 
4

defendant to seven years in state prison. Defendant appealed from the 

judgment based on the trial court’s allegedly erroneous denial of his motion

suppress (id., § 1538.5, subd. (m)). 

DISCUSSION

“Challenges to the admissibility of evidence obtained by a police search 

and seizure are reviewed under federal constitutional standards.” (People v. 

Schmitz (2012) 55 Cal.4th 909, 916 (Schmitz).) “The ‘touchstone of the 

Fourth Amendment is reasonableness,’ ” which “is measured in objective 

terms by examining the totality of the circumstances.” (Ohio v. Robinette

(1996) 519 U.S. 33, 39.) In determining reasonableness, courts assess the 

degree to which the search “intrudes upon an individual’s privacy,” as well as

“the degree to which it is needed for the promotion of legitimate 

governmental interests.” (United States v. Knights (2001) 534 U.S. 112, 118–

119 (Knights).)

A warrantless search is per se unreasonable under the Fourth 

Amendment absent a recognized exception. (U.S. Const., 4th Amend.; Katz v. 

United States (1967) 389 U.S. 347, 357.) Both the United States Supreme 

Court and the California Supreme Court recognize that a parole search 

conducted pursuant to California Penal Code section 3067, subdivision (b)(3), 

constitutes one of those exceptions. (Samson v. California (2006) 

547 U.S. 843 (Samson); Schmitz, supra, 55 Cal.4th at p. 916.) Under that 

statute, “every inmate eligible for release on parole ‘is subject to search or 

seizure by a . . . parole officer or other peace officer at any time of the day or 

night, with or without a search warrant or with or without cause.’ ” (Schmitz, 

at p. 916.) Upon release from incarceration, parolees are notified: “You and 

your residence and any property under your control may be searched without 

a warrant at any time by any agent of the Department of Corrections [and 
5

Rehabilitation] or any law enforcement officer.” (Cal. Code Regs., tit. 15, 

§ 2511, subd. (b)4.) Because such searches are mandated as a term of every 

parolee’s release, “an officer’s knowledge of a parolee’s status is equivalent to 

knowledge of the applicable search condition.” (Schmitz, at p. 922, fn. 13, 

citing People v. Middleton (2005) 131 Cal.App.4th 732, 739–740.) As the 

California Supreme Court has emphasized, “[w]arrantless, suspicionless 

searches are a vital part of effective parole supervision” in California. 

(Schmitz, at p. 924; accord, Samson, supra, at p. 854.) 

In examining whether a warrantless search of a parolee’s cell phone is 

constitutionally valid, we find it helpful to review the analysis of the United 

States Supreme Court in Samson, supra, 547 U.S. 843, which preceded the 

California Supreme Court’s decision in Schmitz, supra, 55 Cal.4th 909. In 

Samson, the issue was whether the warrantless and suspicionless search of a 

parolee’s person was reasonable within the meaning of the Fourth 

Amendment. In analyzing that issue, Samson looked to the totality of 

circumstances and weighed the privacy expectations of parolees against the 

interests of the government in conducting such searches. (Samson, at 

pp. 848–857.)

Samson deemed it significant that California parolees, like parolees

elsewhere, “have severely diminished expectations of privacy by virtue of 

their status alone” (Samson, supra, 547 U.S. at p. 852)—even below that of 

individuals on probation—because “parole is more akin to imprisonment than 

probation is to imprisonment” (id. at p. 850). That is, “an inmate-turnedparolee remains in the legal custody of the California Department of 

Corrections through the remainder of his term . . . and must comply with all 

of the terms and conditions of parole” (id. at p. 851), including the term

permitting warrantless and suspicionless searches at any time (Pen. Code, 
6

§ 3067, subds. (a), (b)(3)). Samson noted the additional circumstance that 

when the petitioner there signed the order submitting to the parole search 

term, he “thus was ‘unambiguously’ aware of it.” (Samson, at p. 852.)

“Examining the totality of circumstances pertaining to petitioner’s status as a 

parolee, ‘an established variation on imprisonment,’ [citation], including the 

plain terms of the parole search condition,” Samson concluded the “petitioner 

did not have an expectation of privacy that society would recognize as 

legitimate.” (Id. at p. 852, fn. omitted.)

Samson then turned to the governmental interests at stake. Samson

began by noting the Supreme Court’s repeated acknowledgement that the 

government’s interest in supervising parolees is “ ‘ “overwhelming” ’ ” because 

parolees “ ‘are more likely to commit future criminal offenses.’ ” (Samson, 

supra, 547 U.S. at p. 853.) Samson similarly relied on the high court’s

repeated acknowledgment that the governmental interests “in reducing 

recidivism, and thereby promoting reintegration and positive citizenship 

among probationers and parolees, warrant privacy intrusions that would not 

otherwise be tolerated under the Fourth Amendment.” (Samson, at p. 853.) 

Samson then considered empirical evidence regarding California recidivism 

rates among parolees and the “grave safety concerns that attend recidivism.” 

(Id. at pp. 853–854.) Recognizing that “the Fourth Amendment does not 

render the States powerless to address [such public safety] concerns 

effectively,” Samson determined that “California’s ability to conduct 

suspicionless searches of parolees serves its interest in reducing recidivism, 

in a manner that aids, rather than hinders, the reintegration of parolees into 

productive society.” (Id. at p. 854.)

Because the totality of the circumstances supported the reasonableness

of the warrantless and suspicionless parole search, Samson concluded there 
7

was no Fourth Amendment violation. (Samson, supra, 547 U.S. at p. 857.) 

In Schmitz, supra, 55 Cal.4th 909, the California Supreme Court likewise 

applied a totality of the-circumstances approach in concluding that three 

warrantless parole-based searches of items within a car belonging to and 

being driven by the defendant, in which the only parolee in the car was the 

front seat passenger, were reasonable under the Fourth Amendment because 

the searched items were within those areas of the vehicle where the officer 

reasonably expected that the parolee could have stowed or discarded personal 

belongings. (Schmitz, at pp. 921–922, 926.)

Although parole searches are generally exempt from the warrant 

requirement, case law recognizes that parolees nonetheless retain a reduced 

expectation of privacy and are not completely bereft of Fourth Amendment 

protection. (People v. Sanders (2003) 31 Cal.4th 318, 332; In re Jaime P.

(2006) 40 Cal.4th 128, 137; accord, United States v. Grandberry (9th Cir. 

2013) 730 F.3d 968, 975.) Thus, a parole search may still violate the Fourth 

Amendment if it is “arbitrary, capricious or harassing” (People v. Reyes (1998) 

19 Cal.4th 743, 752 (Reyes); accord, Samson, supra, 547 U.S. at p. 856), such 

as when a search is “made too often, or at an unreasonable hour, or if 

unreasonably prolonged or for other reasons establishing arbitrary or 

oppressive conduct by the searching officer” (Reyes, at pp. 753–754).

In the instant matter, there is no dispute that defendant was on parole 

at the time his cell phone was seized and its contents downloaded, or that the 

officers involved were aware of defendant’s parolee status at the time of the 

seizure. Defendant’s argument on appeal is that he nevertheless maintained 

a reasonable expectation of privacy in his cell phone and its contents because 

of certain language in the form used by the CDCR to notify him of his parole 

conditions. Specifically, defendant argues that because the CDCR form did 
8

not have boxes checked for certain so-called “special conditions of parole” that 

would have required him to give his consent to, and any passwords for, 

searches of his electronic devices, he was not provided clear and 

unambiguous notice that his cell phone was subject to a parole search.

Defendant cites no case in which a search or seizure of a parolee’s cell 

phone was invalidated under the Fourth Amendment, and our research has 

disclosed none. Federal courts have unanimously upheld such searches. (See 

Petersen v. Buyard (E.D.Cal. Oct. 3, 2019, No. 1:19-cv-00235-DAD-EPG) 2019 

U.S. Dist. Lexis 173026, at *14–18; United States v. Pacheco (10th Cir. 2018) 

884 F.3d 1031, 1040–1041; United States v. Jackson (8th Cir. 2017) 

866 F.3d 982, 984–986; United States v. Johnson (9th Cir. 2017) 

875 F.3d 1265, 1273–1276 (Johnson); United States. v. Luna (9th Cir. 2015) 

602 Fed. Appx. 363, 365; United States v. Farley (N.D.Cal. Nov. 9, 2015, 

No. 15-cr-00092-TEH) 2015 U.S. Dist. Lexis 152631, at *33–35; United States 

v. Johnson (11th Cir. 2014) 579 Fed. Appx. 920, 924–927; United States v. 

Martinez (N.D.Cal. Aug. 12, 2014, No. CR 13-00794 WHA)

2014 U.S. Dist. Lexis 112347.)1 The issue presented here is whether the 

unchecked boxes on defendant’s CDCR form, standing alone, is a 

circumstance warranting a break with this clear trend.

The terms and conditions of defendant’s parole release were set forth in 

a form used by the CDCR entitled “Notice and Conditions of Parole.”2 On its 

first page, the form contains a general term modeled after Penal Code 

section 3067, subdivision (b)(3), and California Code of Regulations, title 15, 

 

1 “Unpublished federal cases are not binding authority but they may be 

cited as persuasive.” (Hall v. Goodwill Industries of Southern California

(2011) 193 Cal.App.4th 718, 727, fn. 2.)

2 The form has a revision date of April 2013. 
9

section 2511, subdivision (b)4, which states: “You, your residence, and any 

property under your control are subject to search or seizure by a probation 

officer, an agent or officer of the California Department of Corrections and 

Rehabilitation, or any other peace officer, at any time of the day or night, 

with or without a search warrant, with or without cause.” In subsequent 

pages, the form lists various special conditions with boxes to check and a 

space for the parolee to initial.

In defendant’s case, the boxes that were checked off and initialed 

prohibited his use and possession of alcohol and narcotics, contact with the 

victim, association with co-defendants, and gang-related activity. No boxes 

were checked in the section titled “Computer Use and Electronic Media.” 

Condition 90 of this section states: “You shall not use any method to hide or 

prevent unauthorized users from viewing specific data or files; e.g., 

encryption, cryptography, steganography, compression, password protected 

files. Log in and password information shall be provided to your parole agent 

upon request.” Condition 92 states: “You shall consent to announced or 

unannounced examination and/or search of electronic devices to which you 

have access for the limited purpose of detecting content prohibited by your 

conditions of parole or court order; e.g., hard disks, zip disks, floppy diskettes, 

CD ROMs, optical disks, thumb drives, magnetic tape, and/or any other 

storage media whether installed within a device or removable and separate 

from the actual computer device.” Defendant argues that because these 

boxes were not checked, the form must be understood as excluding searches 

of his cell phone.

The People respond that the failure to check off conditions 90 and 92 is 

of no consequence because those paragraphs relate only to computers, not cell 

phones. On this point, we disagree. Most modern cell phones—including 
10

those available at the time of the September 2014 search here—are 

“minicomputers” (see Riley v. California (2014) 573 U.S. 373, 393 (Riley)) 

with many of the same capabilities commonly associated with computers, 

particularly in the areas targeted by the parole conditions relating to 

electronic media use (i.e., email, instant messaging, viewing sexually explicit 

materials or materials related to the parolee’s crime). Furthermore, by their 

terms, conditions 90 and 92 apply to any “electronic devices” capable of 

storing, accessing, and password-protecting digital “data.” This reasonably 

includes cell phones.

Defendant argues that an option to impose special conditions 90 and 92 

would be unnecessary if the general search term pertaining to “any property 

under your control” already encompasses searches of a parolee’s cell phone. 

Thus, defendant contends the CDCR form, considered as a whole, implies 

that searches of electronic devices are specifically covered by other 

paragraphs that were not selected in his case. The People notably fail to 

respond to this argument. Nevertheless, we conclude the failure to select 

such conditions in the CDCR form neither restricts reasonable searches and 

seizures nor necessarily gives rise to a privacy interest in the areas covered 

by the condition.

Conditions 90 and 92 are but two of 106 special conditions listed in the 

CDCR form that, if selected, either require or forbid certain conduct by a 

parolee. Such conditions, however, do not appear intended to set restrictions

on the searches and seizures authorized by Penal Code section 3067, 

subdivision (b)(3), or to elevate a parolee’s expectations of privacy. For 

instance, condition 46 states that a parolee shall not view, possess, or have 

access to any material depicting children in undergarments, nude, or 

partially nude, etc., and conditions 93 and 94 prohibit a parolee’s use of 
11

electronic media to view any and all sexually explicit content. When such 

special conditions are selected, the parolee’s failure to adhere may give rise to 

parole violation charges, but when they are not selected, it does not inevitably 

follow that a parolee thereby enjoys a privacy right in such materials.

3

At best, defendant identifies an ambiguity in the CDCR form as to the 

interplay between the general search term and the special electronic device 

conditions that remain unselected in a given case. But the question remains: 

what is the effect of the perceived ambiguity on the reasonableness of a 

parole search conducted under the auspices of a statutorily-imposed search 

condition? Relying on Samson, supra, 547 U.S. 843, defendant argues the 

above circumstance is sufficient to tilt the Fourth Amendment balance in 

favor of his privacy rights. In Samson, the high court determined that the 

petitioner’s acceptance of a “ ‘clearly expressed’ ” suspicionless parole search 

condition was one of the circumstances that significantly diminished the 

petitioner’s reasonable expectation of privacy. (Samson, at p. 852; see also 

Knights, supra, 534 U.S. at p. 120.) Pushing off from that portion of 

Samson’s analysis, defendant argues that an unclear and ambiguous cell 

phone search condition, such as the one here, has no similar effect.

Although there is some surface appeal to defendant’s argument, it 

ultimately falls short. As the California Supreme Court emphasized in 

Schmitz, Penal Code section 3067, subdivision (b)(3), provides that “every 

parolee is subject to warrantless and suspicionless parole searches,” and the 

reasonable scope of a parole search is not “strictly tied to the literal wording 

of the notification given to the parolee upon release.” (Schmitz, supra, 

55 Cal.4th at p. 928.) Thus, while the reasonableness of a probation search 

 

3 Notably, the record contains no evidence such as a declaration from 

defendant demonstrating his actual reliance on the unchecked boxes as an 

indication that cell phones were off limits to a parole search.
12

has been held dependent on the literal wording of the notification given to a

probationer, the reasonableness of a parole search does not derive from a 

theory of consent as has been found in probation search cases, but rather, is 

assessed based on the totality of the circumstances. (Id. at pp. 928–929.) 

Moreover, as Schmitz recognizes, officers are only required to know of an 

individual’s parole status in order to conduct a parole search. (Id. at p. 922, 

fn. 13.) Significantly, this means the officers who performed the parole 

search of defendant were not required to first ascertain and parse the 

language of the CDCR form, as defendant insists we do here.4 Thus, 

although the CDCR form issued to defendant may have lacked clarity with 

respect to searches of his electronic devices, that single circumstance is not 

dispositive of the Fourth Amendment challenge but is merely one of several

to consider in the totality of circumstances.

Defendant also draws our attention to the United States Supreme 

Court’s landmark decision in Riley, supra, 573 U.S. 373, as “another powerful 

reason to find that the exclusion of electronic device and password conditions 

from defendant’s search condition has constitutional significance.” In Riley, 

the high court held that a law enforcement officer may not conduct a 

warrantless search of a person’s cell phone under the exception to the 

warrant requirement for searches incident to arrest. In so holding, Riley

observed that “[c]ell phones differ in both a quantitative and a qualitative 

sense from other objects that might be kept on arrestee’s person. The term 

 

4 By contrast, in the case of probationers, “[a] search condition is not 

mandated by statute for every probationer, and probation search clauses are 

not worded uniformly. . . . Thus, the officer must have some knowledge not 

just of the fact someone is on probation, but of the existence of a search clause 

broad enough to justify the search at issue.” (People v. Douglas (2015) 

240 Cal.App.4th 855, 863.)
13

‘cell phone’ is itself misleading shorthand; many of these devices are in fact 

minicomputers that also happen to have the capacity to be used as a 

telephone. They could just as easily be called cameras, video players, 

rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, 

maps, or newspapers.” (Riley, at p. 393.) The court noted, in particular, the 

“immense storage capacity” of cell phones, their ability to collect many 

distinct types of information in once place, and the pervasiveness of cell 

phone use in everyday life. (Id. at pp. 394–395.) The court further noted the 

qualitative differences of cell phone records from other physical records, 

including the user’s Internet search browsing history or location information. 

(Id. at pp. 395–396.) In light of these unique characteristics, the court held, 

“[m]odern cell phones, as a category, implicate privacy concerns far beyond 

those implicated by the search of a cigarette pack, a wallet, or a purse. A 

conclusion that inspecting the contents of an arrestee’s pockets works no 

substantial additional intrusion on privacy beyond the arrest itself may make 

sense as applied to physical items, but any extension of that reasoning to 

digital data has to rest on its own bottom.” (Id. at p. 393.)

As the People point out, Riley is distinguishable because it involved a 

different exception to the warrant requirement (search incident to arrest), as 

well as different governmental interests (preventing harm to officers and 

destruction of evidence) than those promoted by the parole search exception. 

(See Riley, supra, 573 U.S. at p. 386.) We are aware of no court that has 

applied Riley’s holding to parole searches, and as indicated, federal decisions 

have thus far upheld warrantless searches of parolee cell phones. Although 

the United States Court of Appeals for the Ninth Circuit has applied some of 

Riley’s reasoning in a probation search case (United States v. Lara (9th Cir. 

2016) 815 F.3d 605 (Lara)), it declined to do so in a subsequent parole search
14

case on the ground that the defendant’s “parole status alone” distinguished 

the case from Lara and Riley. (Johnson, supra, 875 F.3d at p. 1275.) That 

said, we acknowledge that Riley made important observations about the 

unprecedented privacy concerns presented by modern cell phones which, 

along with the high court’s later decision in Carpenter v. United States (2018) 

138 S.Ct. 2206 (Carpenter),

5 support the “general argument that the Supreme 

Court has recently granted heightened protection to cell phone data.” 

(United States v. Wanjiku (7th Cir. 2019) 919 F.3d 472, 484; see also United 

States v. Rogers (N.D.Ind. Dec. 4, 2019, No. 1:18-CR-103-HAB) 2019 U.S. 

Dist. Lexis 210247, *7 [“It is certainly possible to read Riley, a case also 

decided in the context of an individual who was subject to a lesser 

expectation of privacy and come away with the conclusion that a warrant 

may be necessary for the search of a cell phone in all but those cases in which 

exigent circumstances exist.”].)

With these considerations in mind, we will assume, for the sake of 

argument, that where, as here, the scope of a parole search condition form 

lacks clarity with regard to cell phones, the parolee may have some 

reasonable expectation of privacy in his or her cell phone and its data. 

Nonetheless, as with any warrantless search, the reasonableness of the 

challenged parole search here depends on the totality of circumstances. 

Because a parolee remains in the legal custody of the CDCR (Samson, supra, 

547 U.S. at p. 851; People v. Smith (2009) 172 Cal.App.4th 1354, 1361), he or 

she cannot reasonably expect to be free of warrantless cell phone searches

under all circumstances, and any intrusion on this assumed privacy interest 

 

5 Carpenter held that the government’s access of historical cell phone 

records that chronicle a user’s past movements is a search under the Fourth 

Amendment. (Carpenter, supra, 138 S.Ct. at p. 2211.)
15

must still be balanced against the degree to which the search promotes 

legitimate governmental interests. (Schmitz, supra, 55 Cal.4th at p. 921.)

As discussed, California has an “overwhelming” interest in supervising 

parolees in order to detect possible parole violations, reduce recidivism, and 

promote reintegration of parolees into society. (Samson, supra, 547 U.S. at 

p. 853.) The government also “has a duty not only to assess the efficacy of its 

rehabilitative efforts but to protect the public, and the importance of the 

latter interest justifies the imposition of a warrantless search condition.” 

(Reyes, supra, 19 Cal.4th at p. 752.) Furthermore, the strength of the 

governmental interest in conducting a probation or parole search “ ‘varies 

depending on the degree to which the government has a specific reason to 

suspect that a particular probationer [or parolee] is reoffending or otherwise 

jeopardizing his [or her] reintegration into the community.’ ” (Lara, supra, 

815 F.3d at p. 612.)

In the instant case, the officers knew defendant was a parolee and they 

had specific, articulable reasons to suspect he was involved in a residential 

burglary and was therefore reoffending. The video surveillance evidence 

showed that the burglary involved defendant’s truck and two individuals, one 

of whom bore a “very close resemblance” to defendant. Under these 

circumstances, the government had a particularly acute interest in 

determining whether defendant had violated the conditions of his parole and 

was a danger to the public. (Cf. Lara, supra, 815 F.3d at p. 612 

[government’s interest in searching probationer who merely missed probation 

meeting was “worlds away” from searching probationer suspected of violent 

crime].) And it was reasonable for the investigating officers to believe there 

might be evidence of the burglary on defendant’s cell phone, such as text 

messages or calls with his accomplice, or photographs or location information 
16

regarding the targeted residence. Thus, despite any perceived expectation of 

privacy that defendant may have had in his cell phone due to the lack of 

clarity in the written search conditions, consideration of the totality of the 

circumstances presented leads us to conclude that the balance ultimately tilts 

in favor of the government’s substantial interests in supervising defendant 

and protecting the public.

Finally, we observe the cell phone search was not arbitrary, capricious, 

or harassing. (Reyes, supra, 19 Cal.4th at p. 752.) A search is arbitrary and 

capricious when the motivation for the search is unrelated to rehabilitative, 

reformative, or legitimate law enforcement purposes, or when the search is 

motivated by personal animosity toward the parolee. (In re Anthony S. (1992) 

4 Cal.App.4th 1000, 1004.) Because the officers here had specific reasons to 

suspect that defendant was involved in a residential burglary, the search was 

related to legitimate parole monitoring and law enforcement purposes, and 

there was no evidence suggesting the officers had personal animosity towards 

defendant. The search took place at a reasonable hour and was not 

unreasonably prolonged. (Reyes, at pp. 753–754.)6

 

6 We note In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) recently

held that a probation search condition allowing for warrantless electronic 

device searches was invalid under the test of People v. Lent (1975) 

15 Cal.3d 481 (Lent). In this case, defendant has never contended that the 

Lent test—which judicially interprets the requirement of Penal Code 

section 1203.1, subdivision (j), that “probation conditions be ‘reasonable’ ”

(Ricardo P., at p. 1128, italics added)—applies to parole searches, or that, if 

the Lent analysis were applied in the parolee context, the record here would 

be adequate to show an abuse of discretion under Lent’s three conjunctive 

prongs (Lent, at p. 486 [condition (1) has no relationship to crime of which 

offender was convicted, (2) relates to conduct which is not in itself criminal, 

and (3) requires or forbids conduct which is not reasonably related to future 

criminality]).
17

DISPOSITION

The judgment is affirmed.
18

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Jackson, J.

A154848
19

People v. Delrio

(A154848) 

Trial court: San Mateo County

Trial Judge: Hon. Donald J. Ayoob

Attorneys: 

John Alexander Halley for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Jeffrey M. Laurence, Senior 

Assistant Attorney General, Eric D. Share, Supervising Deputy 

Attorney General, Ronald E. Niver, Deputy Attorney General and 

Bruce Ortega, Deputy Attorney General for Plaintiff and 

Respondent.