F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

P A U L O L A R

A , Defendant-Appellant

. No. 14-50120

D.C. No. 2:13-cr-00392- B RO-1

OPI NI O N

A ppeal from the United States District Court for the Central District of California B everly Reid O’Connell, District J udg e, Presiding

Arg ued and Submitted J uly 7, 2015—Pasadena, California

F iled March 3, 2016

B efore: W illiam A. F letcher, Ricahrd A. Paez , and Marsha

S. B erz on, Circuit J u d g es.
Opinion by

J udg e W

. F letcherU N I T E D S T A T E S V

. L A R A 2

SUMMARY *

Crim inal Law

The panel reversed the district court’s denial o f a motion
to suppress evidence obtained as a result of warrantless, suspicionless searches of the defendant’s cell p h one, a nd remanded for further proceeding s.

The panel noted that a probationer’s acceptance of a search term in a probation a g reement does not by itself render lawful a n o therwise unconstitutional search of a p r obationer’s
p erson or property

. The panel wrote that the issue i s n o t solely whether the defendant a ccepted a cell phone search a s

a conditi on of his probation, but w hether the search that he accepted was reasonable. B alancing the ex tent to which the searches intruded on the defendant’s substa ntial privacy interest in his cell phone and the data it c ontained ag ainst the
g overnment’s interests in combating r ecidivism and helping probationers integ rate back into the c ommunity
, t h e panel held that in the circumstances of this c a se the searches were unreasonable.

The panel concluded that t h e ex ception to the

ex c lusionary rule a

n nounced in Davis v. U

n i t e d States
, 131 S.Ct. 2419 (2011), does not apply to the c ircumstances o f this

case.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. L A R A 3

COUNSEL

Alex a ndra W allace Y ates (arg ued), Deputy F ederal Public Defender, H ilary Potashner, Acting F ederal Public Defender, L os Ang eles, California for Defendant-Appellant.

Stephanie Y onekura, Acting United States Attorney
, Robert E. Dugd a l e , Chief, Criminal Division, and Ry an W einstein (arg ued), A ssistant United States Attorney
, L os Ang eles, California for Plaintiff-Appellee.

OP INION

W

. F L ETCHER, Circuit J udg e:
Appellant-Defendant Paulo L ara a p p eals his c onviction for b eing a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 9 2 2(g )(1). At the time of his arrest, L ara w as subject to a term o f probation that r e q uired him to submit his “person a n d property , including any residence, premises, container or vehicle” to search a nd seiz ure “without a warrant, probable cause, or re a s onable suspicion.” L ara contends that his F ourth A mendment rig ht
to be free of unreasonable searches and seiz ures was v iolated

w h en probation officers conducted two warrantless
, suspicionless searches o f his cell phone. He contends that the

ex c lusionary rule requires the suppre ssion of imag es, tex t messag es, and GPS data found on h is c e l l p hone, as well a s

a gu n a n d ammunition, as fruits of the illeg al searches. W e ag ree.U N I T E D S T A T E S V

. L A R A 4

I . F actual and Procedural B ackg round

On October 2, 2013, Probation O fficers J ennifer F ix a nd J oseph Ortiz arrived unannounced a t L ara’s home af t er he h a d failed to report to Officer F ix

. L ara had recently b e e n placed on probation following a conviction for possession for sale and transportation of methamphetamine in viola t i o n o f California Health & Safety Code §§ 11378 and 11379(a).

L ara’s probation ag reement required him to “submit [ his]
pe r son and property , including any r esidence, premises, container or vehicle u nder [ his] control, to search and seiz ure at any time of the d ay or nig ht by any law enforcement officer, probation officer, o r m andatory supervision officer, with o r without a warrant, p r o bable c ause, or reasonable suspicion.” As part of his probation a g reement, L ara initialed

a subsection entitled “F ourth Ame n d m e n t waiver.” That subsection provided:

I understand under the F ourth a nd F ourteenth A m e n d m e n t s t o t h e U n i t e d S t a t e s Constitution, I h a v e a r ig ht to be free f rom

u n reasonable searches and seiz u res. I waiv e and g ive up this rig ht, and further ag ree that for the period during which I am on probation

or ma ndatory supervision I will submit my person and property , including any residence, premises, container o r vehicle under my control to search and seiz ure a t any time o f the day or n ig ht b y any law enforcement

o f f i ce r , p r o b a t i o n o f

f i c e r , p o s t

- r e l e a s e community supervision o fficer, or parole offic er , with or w ithout a warrant, probable cause, or reasonable suspicion.U N I T E D S T A T E S V

. L A R A 5

Officer F ix stated in a sworn declaration, consistent with her later in-court testimony
, that at her first meeting with L a ra she read him the search and seiz ure term and asked whet h er h e had any q

uestions “concerning that term and wha t i t ent a i l s

. ” She stated that is h er normal practice to note if a probationer has a

ny questions about the terms, and s h e h a d nothing in h er no t e s indicating that L ara had any such questions. L ara s t a ted in a sworn declaration that when he accepted the terms and conditions of p r obation, he did not believe the search condition would allow his cel l phone o r data stored on the phone to be searched without his consent.

Offic e r Fi x stated in her d eclaration, “I t is standard protocol f

or p robation officers to search the cell phones o f probationers subject t o s e arch terms, especially if the probationer h ad been c o nvicted of a drug trafficking offense.” Officer F ix stated that she knew L ara h ad been c o n v icted o f

a drug o ffense when she conducted the s e ar c h

. She stated that she and Officer Ortiz knew, based on their t r aining a nd

ex p erience, that “drug traffickers commonly use cell phones to arrang e narcotics sales.”

After a n n o u n c i ng that they were at the house to conduct

a probation search, Officer F ix or d e r ed L ara to sit o n the couch. Officer Ortiz st at e d i n a sworn declaration that he spotted a c e l l phone on a table n ex t to the couch a nd

ex a mine d it. He stated that he c onfirmed that the phone belong ed to L ara. Cell phone company records showed that the name of t h e subscriber was “Peter” L ara, rather than “Paulo” L ara. The address l i s t e d o n the subscriber record matched L ara’s home address where he was found a nd where the search was conducted.U N I T E D S T A T E S V

. L A R A 6

Officer Ortiz stated that he did not ask L ara’s permission
to search the cell phone, but that L a r a did not obj e c t t o his doing so. Officer F ix testified that it is the department’s policy to search a cell phone wh e n officers visit a probationer, even if the probationer objects.

Officer O rtiz stated in his declaration that he reviewed the
most recently sent tex t messag es on L ara’s cell phone a nd discovered message s containing three photog raphs of a semiautomatic handg un ly ing on a bed. The pictures h ad be en s e nt to “Al,” who responded, asking if the g u n was “clean.” L ara replied, “y up.” A l f

o l lowed up b y asking
, “W h a t is the lowest y ou w ill take for it? ” and “How much? ”

Officer Ortiz hand c u f

f ed L ara, and he and Officer F ix searched L ara’s house and car for the g un. They did n ot find it, but they did fi n d a f

o lding k nife, the possession of which violated the terms o f L ara’s probation. Officers F ix and Ortiz arrested L ara for possessing the knife i n v iolation of his probation and broug ht the cell phone to t h e O r a ng e County Reg ional Computer F o r ensics L a b.

L ab per s o n n el found GPS data embedded in the photog raphs o f the g un and thereby determin e d the address where they were taken. I nvestig ation revealed the location to be the home of L ara’s m o t h e r

. O fficer F ix testified at the suppression hearing that without the GPS data, she w ould not have had reason to visit L a ra’s mother’s house.

Officers F ix and O rtiz
, along with officers from the local police department, went to L ara’s mother’s home and showed her the photog raphs of the g un. She directed them t o a bedroom that had bedding matching that in the photog raphs.U N I T E D S T A T E S V

. L A R A 7

I n the closet of the bedroom, Officer F ix f o u nd a loaded handg un that resembled the g un depicted in the photog raphs.

L ara was charg ed 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 g un and ammunition

on the g r ound that it had been found a s a result o f illeg al searches of his cell phone by Officer Ortiz and the lab.

The district cou rt held a hearing on the suppression motion and denied the motion. W h en the district court ruled

on L ara’s suppression motion, the Supreme Court had not y et decided Riley v. California
, 1 34 S. Ct. 2473 (2014). I n Riley
, the Court h eld th a t police g enerally may not, without a warrant, e x amine the dig ital infor m a t i o n stored on a c ell phone seiz ed incident to arrest. I d . at 2493.

After the d istrict judg e denied L ara’s suppression motion, L ara pled g uilty to the § 922(g )(1) charg e, but preser v e d h is rig ht to challeng e the denial of his mo t i o n

. L ara timely appealed.

I I . Standard of Review

W e review de novo a district court’s denial of a motion to supp r e s s , reviewing f

or clear error the district court’s underly ing factual f

inding s. United S

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

I I I

. Discussion

The g overnment contends that there are three independent

reasons to affirm the district court’s denial of L ara’s motion
to suppress. F irst, the g overnment contends t h a t L a raU N I T E D S T A T E S V

. L A R A 8

consented to the i nitial c ell phone d ata search by accepting the terms of his prob a t i on ag reement, thereby waiving his F ourth Amendment protection ag ainst unreasonable searches and seiz ures. Second, the g overnment contends that, even if L ara did not waive his F ourth Amendment rig ht s , the

w a r rantless search was lawful because it was reasonable. Third, the g o vernment contends that even if the cel l phone search was unlawful, the evidence it y ielded shoul d not be suppressed because a g ood faith ex ception to the e x clusionary rule a pp l i e s

. W e are not persuaded by any of these contentions.

A. W aiver of F ourth Amendment Rig h ts

Our discussion of the g overnment’s contention that L a ra waived his F ourth Amendment rig hts may be brief. W e have already held that a probationer’s acceptance of a search term in a p robation ag reement d oes not by itself render lawful an otherwise unconstitutional search o f a p robationer’s person o r property

. I n United States v. Consuelo–Gonzalez
, 521 F .2d 259, 261 (9th Cir. 1 975) (en banc), we held that probationers do not entirel y w a ive their F ourth Amendment r ig hts b y ag reeing
, as a c ondition of their probation, to “submit [ their]
person and property to sear c h a t any time upon request by a law enforcement officer.” W e ex plained that there is a limit

on the price the g overnment may ex act in return for g ranting probation. Id

. at 265. Sp e c i f i cally
, “any search made
pu rs uant to the condition included in the terms of p robation
must n ecessarily meet the F ourth Amendment’s standard o f reasonableness.” Id

. at 262; see Unit e d States v. Scott
, 450 F .3d 863, 868 (9th Cir. 2006) (confirming this rea d i n g o f Consuelo-Gonzalez ’s holding ).U N I T E D S T A T E S V

. L A R A 9

The issue, therefore, is not solely w hether L a ra accepted
t h e cell phone search as a c ondition of his probation, b u t whether the search that h e acce pted was reasonable. L ara’s acceptance of the terms of p robation, including suspicionless searches o f his person and property , is one factor that bears

o n the reasonableness of the search, b u t it is not i n i t s el f dispositive. See S

c o t t , 450 F .3d at 868 (sug g esting that a defendant’s ag

reement to a search condition in ex c hang e for relief from prison is “a relevant f actor in determining h ow strong his ex pectation of privac y is”); accord United States

v. Knights
, 534 U.S. 1 12, 117–18 (2001) (declining to decide

w hether a probationer’s acceptance of a probation te r m authoriz ing w a rrantless searches w ithout probable cause constituted c o n sent sufficient to waive his F ourth Amendme nt rig hts, and opting instead to evaluate whether the search was r easonable in li g ht of the totality of the circumstances, including the probationer’s acceptance of the search condition).

B . Reasonableness of the Search

The reasonableness of the search r eq u ires a long er discussion. At the o utset, we reject the g overnment’s
sug g estion that our decision in Un i t e d States v. King
, 736 F .3d 805 ( 9 t h Cir. 2013), fully resolves this issue. I n King
, the police conducted a suspicionless search of a violent felon’s r es i dence, pursuant to a condition of probation that clearly authori z e d s u c h a search. W e u p held the search but

“ h[ e] ld only that a suspicionless search, conducted pursu a n t to a suspicionlesss-search condition of a v iolent felon’s probation a gr e e m e n t, does not v iolate the F ourth Amendment.” Id. at 8 10. W e ex pressly limited our holding
t o v i o l ent felons, writing
, “W e need n ot decide whether the F ourth Amend m ent permits suspicionless searches o fU N I T E D S T A T E S V

. L A R A 10

probationers who hav e not accepted a suspicionless-search

c o ndition, or of lower level offenders who have accepted a suspicionless-search condition
, b e c a u se those cases are not before us.” Id

. (emphasis added). King had been convicted of the violent crime of willfully inflicting corporal injury on

a c o habitant. Id

. a t 806. L ara , i n c o n t rast, had been convicted of a nonviolent drug crime.

B e cause King does not f

ully provide the answer, we must,

as we did in King
, e v aluate the circumstances of the particular case before u s to determine if the search was reasonable. I n doing so, we balance, “on the one hand, the deg ree to which [ the search] intrudes u

pon a n individual’s privacy and, on the other, the deg ree to which [ the s earch] is needed for the promotion of leg itimate g o vernmental intere s t s .” Knights
, 534 U.S. at 119 (quoting W yoming v. Houghton
, 526 U.S. 295, 300 (1999)). W e consider each side o f the balance in
turn.

1. L ara’s Privacy I nterest

The ex tent to which the search intruded on L a ra’s privacy depends on several factors, th e m o s t important of which a re his status as a pro b a t ioner, the clarity of the conditions o f probation, and the nature of the contents of a cell phone.

F irst, because L ara is on p robation, his reasonable

ex p ect a tion o f privacy is lower than someone w ho has completed p ro bation or who has never been convicted of a crime. Knights
, 534 U.S. at 120. B u t while the privacy interest of a probationer has been “sig nificantly diminished,” id
., it is still substantial. The Supreme Court has recog niz ed th a t a probationer’s privacy interest is g reater than a parolee’s. Samson v. California
, 547 U.S. 8 43, 850 (2006).U N I T E D S T A T E S V

. L A R A 11

F urthermore, L ara’s reasonable ex p ectatio n o f p rivacy is
g reater than that of probationers such a s King because he was not convicted of a particularly “serious and intimate” offense. King
, 736 F .3d at 809.

Second, the cell-phone searc h condition of L ara’s probation was not clear. The Supreme Court in Knights

ex p lai n ed that a probationer’s reasonable ex pectation o f privacy is “sig nificantly diminished” when the de fendant’s probation o r der “clearly ex pressed the search condition” o f which the probationer “was unambig uously informed.” 534 U.S. at 1 19–20. B ut the search t e r m in Knights ex pressly authoriz ed searches of the probationer’s “ place of r esidence,”

w h i c h was precisely what the officers searched. See id. at 114–15. That is not true here.

L ara a g r eed to “sub mit [ his] person a nd property , including a

ny residence, premises, container or vehicle under [ his] control to search and seiz ure.” None of these terms—in particular, neither “container” nor “property ”—clearly o r unambig uously e ncompasses his cell phone and the information contained therein. L ara’s cell phone w as not a “container.” The Suprem e C o u rt wrote in Riley that “[ t] reating a cell phone as a container whose contents may be searched incident to an arrest” was, a t best, “strained.” Riley
, 134 S. Ct. at 2491. I ndeed, the analog y between cell phones and c ontainers “ crumbles entirely when a cell phone is used
to access data located elsewhere, a t t h e t ap of a screen.” Id

. (emphasis added). W e relied on R iley in Camou
, holding that cell phones cannot be searched w hen o fficers otherwise have probable cause to search a vehicle and its containers. United States v. Camou
, 773 F

. 3 d 932, 942–43 ( 9th Cir. 2014). J ust

a s i t m akes no sense to call a cell phone a “container” for
purposes of a search incident to arrest ( Riley ) o r search of anU N I T E D S T A T E S V

. L A R A 12

automobile ( Camou ), it makes no sense to call a cell phone a “container” for purposes of a probation search.

Nor d oes the word “property ” unambig uously include c ell phone d a ta, especially wh en the word is read in conjunction with the lang uag e that follows. We repeat the relevant lang uag e here: “property
, including any residence, premises, container o r vehicle u nder my control.” Each of the specific ty pes of property named as ex amples r efer to p hy sical objects that c an be p ossessed. A cell phone is such an object, but c ell phone data
, w hich were the subject of the two searches in this
case, are n ot property in this s en s e

. F urther, the Court
recog niz ed in Riley that cell phones differ from conventional property in that they provide access to data, such as medical and banking records, that is held by third parties. 134 S. Ct.
at 2491. Such information n o t only c annot be possessed phy sically ; it is also not “under [ L ara’s] control,” a s provided in the search condition.

Third, the Court in Riley stressed the amount a nd character of d ata c ontained in, or accessed throug h, a c ell phone and the corresponding intrusiveness o f a cell phone search. Althoug h Riley concerned warrantl e s s searches o f cell phones i ncident to arrest, the Court used sweeping lang uag e to describe the importance of cell phone privacy :

The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to h a ve the capacity to be u s ed as a telephone. They could just a s e a s i l y be called cameras, video play ers, rolodex es, ca l endars, tape recorders, lib r a r ies, diaries, a lbums, televisions, maps, o r newspapers.U N I T E D S T A T E S V

. L A R A 13

. . . Most people cannot lug a r o u n d every piece of mai l t hey have received for the past several months, every picture they have taken,

or every b o ok o r article they have read—nor

w o u ld they have any reason to attempt to d o

so. And if they did, they w ould have to drag behind them a trunk of the sort held to require

a search warrant in Chadwi c k
, [ 433 U.S. 1 (1977),] rather than a container the siz e of the cig arette packag e in Robinson [
, 414 U.S. 218 (1973)]

. Riley
, 1 3 4 S

. Ct. at 2489. A cell phone search “ would ty pically ex pose to the g overnmen t far more than the most

ex h austive search of a house: A phone not only contai n s in dig ital form many sensitive records previously f oun d i n the home; it also c ontains a broad array o f private i n f o r m a tion

never found in a h ome in any form—unless the phone is.” Id. at 2491.

I n an a ttempt to undercut the foreg oing
, the g overnm e n t arg ues that L ara’s ex pectation of privacy in his cell phone data w as d iminished by the fact that his cell phone contract g ave his n am e as “ Peter” r ather than “Paolo” L ara, contending that L ara g ave a “fals e name” to h is c ell phone carrier in order to e vade detection by law enforcement. The
g o v e r n m ent’s arg ument is hig hly speculative, almost fancifu l

. I f L ar a s o ug h t to a v oid law enforcement detection b y providing an a

ng liciz ed f

irst n ame when dealing with his c ell phone carrier, he c hose a sing ularly ineffective m e ans o f achieving that g oal, especially when at the same time he g ave his actual last name and home address.U N I T E D S T A T E S V

. L A R A 14

I n sum, we conclude that L ara had a privacy interest in his cell phone an d t h e data it contained. That privacy interest

was substantial in lig ht of the broad amount of data contained in, or accessible throug h, his cell p h o n e

. W e recog niz e that his privacy interest was somewhat d iminished in lig ht o f L ara’s status as a p r obationer. B ut it w as not diminished o r waived because he accepted as a condition of his probation a clear and u

n e q uivocal search provision authoriz ing cell phone searches (he d id not) or because he s u bscribed to cell phone service using a different first name (he did).

2. The Government’s I

nterest

Probationary searches advance at least two r elated
g overnment interests

— combating recidivism and helping probationers integ r ate back into the community

. See S amson , 547 U.S. at 849; Knights
, 534 U.S

. a t 120–21. These a re important interests whose streng th in a particular case varies d e p e n d ing on the deg ree to which the g overnment has a specific reason to suspect that a parti c u lar p robationer is reoffending or otherwise jeopardiz ing h i s reinteg ration into the c ommunity

. I n Knights
, the o fficers had substantial evi dence showing that while on probation Knig hts h ad

v a n d aliz ed and set fire to an e lectrical facility and a n

a d joining telecommunications vault, causing an e stimated $1.5 m i l l ion in damag es. 534 U.S. at 114. I n King
, the officers suspected that the defendant was involved in a homicide a

nd knew that h e had been previously c onvicted o f the violent crime of w illfu l infliction o f corporal injury on a cohabitant. 736 F .3d at 806. I n cont r ast, in this c ase L a ra had merely missed a meeting w ith his probation officer. W e do not minimiz e the importance of comply ing with the terms

o f probation, including meeting at appointed times with the probation officer. B u t L a ra’s noncompliance was worldsU N I T E D S T A T E S V

. L A R A 15

away from the suspec t ed c r imes that prompted the searches in King and Knights

.

W e r ecog niz e that O fficer Ortiz searched L ara’s c ell
p h o n e knowing that he had been c onvicted of a drug cr i m e

a n d knowing that drug traffickers often use cell pho n e s t o arrang e sales. Given the ubiquity of cell phones, almost any crime involving more than a sing le person (and indeed many crimes involving just one person) would entail the use of c ell phones, whic h c an be used not only for placing calls a nd sending tex t messag es, but also for sending emails, looking
up directions, and conducting internet searche s o n v arious topics. This ubiquity cuts ag ainst the g overnment’s purported heig htened interest in c o nducting suspicionless searches o f the cell phones of probationers with controlled substances convictions.

3. B alancing

On b alance, w e hold that in the circumstances of this case the searches of L a

ra’s cell phone w e r e unreasonable. “[ W ] hen ‘privacy -related concerns a re weig hty enoug h’ a ‘search may require a warrant, notwithstanding the diminished ex pectat i o n s of privacy of the arrestee.’” Riley
, 1 3 4 S

. C t

. at 2488 (quoting Maryland v. King
, 133 S. Ct. 1958, 1979 (2013)). The same is true of p r o bationers, especially nonviolent probationers who have not clearly a nd unambig uously consented to the cell phone search at issue. B ecause of his status as a probationer, L a ra’s privacy interest was somewhat diminished, b ut that interest was nonetheless sufficiently substantial to protect him from the two cell phone searches at issue here.U N I T E D S T A T E S V

. L A R A 16

C. Ex ception for “B inding Appellate Precedent”

At the end of its fifty -five pag e brief to this court, t h e g overnment spends two-and-a-half pag es arg uing that even if the two searches of L ara ’ s c e l l phone violated the F ourth Amendment, a g ood faith ex ception to the ex clusionary rule should apply

. The g overnment did not make this arg ument in the district court, and c onsequently i t has failed to preserve this arg ument on appeal. Even if we were willing to a ssume that the g overnment did not w a i ve this arg ument, we would reject it on the merits.

The g overnment r elies on D avis v. United States
, 1 31 S. Ct. 2419 (2011), where t h e Supreme Court held that if an officer objectively relied o n “binding appellate prece d e n t ” that “ specifically authorize [ d ] ” the o f ficer’s search, evidence obtained as a result of that search need not be s u p p r e ssed. 131 S. Ct. at 2423–24, 2429. At the tim e o f t h e s earch in Davis
, the Court’s d ecision in New Y ork v. Belton
, 453 U.S. 454 (1981), w as understood to allow warrantless searches o f
passeng er compartments of vehicles incident to the arrest o f
recent occupants of the vehicle. I d

. a t 2 424. The Eleventh Circuit “had long read Bel t o n t o establish a brig ht-line rule authoriz ing substantially contempo r aneous vehicle searches incident t o a r rests of recent occupants.” Id. at 2426 (citing United States v. Gonzalez
, 71 F .3d 819, 822, 8 2 4–27 (11th Cir. 1996)). The Supreme Court subsequently modified the rule of Belton
, holding that a vehicle search incident to arrest is valid only

if the arrestee is within reaching distance of the
passeng er compartment d uring the search. Arizona v. Gant
, 556 U.S. 3 32 (2009)

. I n D avis
, officers conducted their search after the arrestee w a s removed f rom the vehicle a

nd placed in a patrol car. Thus, the search in Davis was valid under Belton and Gonzalez , but not under Gant

.U N I T E D S T A T E S V

. L A R A 17

The Court held in Davis that the search was invalid under the F ourth A mendment, but declined to suppress the evidence seiz ed. The Court wrote:

T he question here is whether to apply t h i s sanction [ of suppressing the evidence] when the police conduct a search in compliance with binding precedent that is later o verruled. B e cause suppression w o uld do nothing to d e t e r p o l i c e m i s c o n d u c t i n t h e s e

c ircumstances, and because it would come at

a hig h cos t to both the truth and the public safety
, we hold that searches conducted i n objectively reasonable reliance on binding appellate precedent a re n ot subject to the

ex c lusionary

rule.

Id. at 2423–24 (emphases added). The rule in Davis is clear:

a search conducted in objectively reaso n a ble reliance on “binding a

ppellate precedent” that “specif i c a lly authoriz es” the police’s search does not result in suppre s s i o n, even if it
turns out, based on a later d ecision, that the previously binding precedent is no long er binding

.

W e decline to e x pand the rule in D avis to cases in which the appellate precedent, r a ther than being binding
, is (at best) unclear. I f the question were qualified immunity
, the fact that th e p r e c edent is unclear would p rotect an individual officer from damag es. See Saucier v. Katz
, 53 3 U

. S

. 1 94, 205 (2001). B ut the question under Davis is n o t whether an officer should be shielded f rom damag es liability

. Rather, the question is what protection the F ourth Amendment affords a private individual from an unconstitu t ional search a nd seiz ure

. T he Court in Davis a d dressed that q uestion b yU N I T E D S T A T E S V

. L A R A 18

deny ing suppression only when “bindin g a p p e l l a t e precedent”

ex p ressly instructed the officer what to do.

Th e g overnment points out that Riley was not decided until after the searches in this case. B ut the g overnment cites

no pre- Riley case that constituted “binding a p pellate
pre cedent” upon which the officers could reasonably have relied at the ti m e o f the searches. Rather, the g overnment cites only cases from which it could h ave plausib l y a r g u ed that the searches were permissible. I t c ites People v. Diaz
, 244 P.3d 501, 502 (Cal. 2011), in which the C al i f o r n ia Supreme Court upheld a warrantless cell phone tex t messag e f older search after an arrest as having been “incident to a lawful custodial arrest.” I t hardly needs say

ing that a search incident to a

rrest is not the same thing as a w a rrantless, suspicionless, probation search. Nor is a case dealing with an incidental search on all fours w i t h a probation search. F urther, the g overnment cites pre- Riley conflicting authority in the California Court o f Appeal and i n t h e Ninth Circuit with respect to the effect of a probatione r’ s consent to searches. Compare People v. Medina
, 158 Cal. App. 4th 1571, 1576 (2007), with United States v. Scott
, 450 F .3d 863, 868 ( 9t h C i r

. 2 006). Even if we were to consider state intermediate court of appeal s d ecisions to be “binding appellate p recedent” within the meaning of Davis (a question

we do not decide), a conflict between the state appellate court and the Ninth Circuit with respect to a question in a case that could be broug ht to either c ourt can hardly be t h o u gh t to result in “binding appellate precedent.”

W e therefore c o n c l u de that the ex c eption to the

ex c lusionary rule a

n nounce d in Davis does not apply to the circumstances of this case.U N I T E D S T A T E S V

. L A R A 19

Conclusion

W e conclude that the initial search o f L a ra’s c e l l p h o ne data was unlawful and t h a t t he e x clusionary rule bars the admission of the evidence that was the fruit of that unlawful search. B ecause the second search of L ara’s c ell phone was itself the product of the initial unlawful search, the evidence from that search should also have been ex clude d

. W e therefore reverse the distric t c o u rt’s denial of L ara’s motion
to suppress and remand for fu rther proceeding s consistent with this opinion.

REVERSED and REMANDED

.