State of Arizona v. Bryan Mitchell Lietzau ( 2020 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
____________________________________________
STATE OF ARIZONA,
Appellant,
v.
BRYAN MITCHELL LIETZAU,
Appellee.
______________________________________________
No. CR-19-0132-PR
Filed May 22, 2020
______________________________________________
Appeal from the Superior Court in Pima County
CR20162952-001
The Honorable Howard Fell, Judge Pro Tempore
REVERSED AND REMANDED
_________________
Opinion of the Court of Appeals, Division Two
246 Ariz. 380 (App. 2019)
Filed March 25, 2019
VACATED
_________________
COUNSEL:
Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy
County Attorney, Tucson, Attorneys for State of Arizona
Joel Feinman, Pima County Public Defender, David J. Euchner (argued),
Abigail Jensen, Deputy Public Defenders, Tucson, Attorneys for Bryan
Mitchell Lietzau
Mikel Steinfeld (argued), Phoenix, Attorney for Amicus Curiae Arizona
Attorneys for Criminal Justice
STATE V. LIETZAU
Opinion of the Court
____________________
VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
which CHIEF JUSTICE BRUTINEL, and JUSTICES BOLICK, GOULD,
LOPEZ, BEENE, and MONTGOMERY joined.
____________________
VICE CHIEF JUSTICE TIMMER, Opinion of the Court:
¶1 Cell phones provide access to an immense array of private
information, much of which is stored in the Cloud or on sites controlled by
third parties. As such, the United States Supreme Court concluded in Riley
v. California that people have uniquely broad expectations of privacy in cell
phones and, therefore, a warrant is generally required to search them. 573
U.S. 373, 393–94, 401 (2014). In the wake of Riley, we are asked to decide
whether Arizona’s standard conditions of probation, which permit
warrantless searches of a probationer’s “property,” apply to cell phones.
We hold they do. We further hold that the search here was reasonable
under the totality of the circumstances and therefore compliant with the
Fourth Amendment.
BACKGROUND
¶2 In August 2014, the superior court entered judgment against
Bryan Lietzau for the crime of aggravated harassment, a domestic violence
offense and a class 6 undesignated felony. The court suspended imposition
of a prison sentence on Lietzau and placed him on supervised probation for
eighteen months. In return, Lietzau agreed to comply with uniform
conditions of supervised probation and separate domestic violence
probation terms, both of which outlined requirements for “leading a law-
abiding lifestyle” and cooperating with the adult probation department
(“APD”), among other terms and conditions. Pertinent here, Lietzau
agreed to “submit to search and seizure of person and property by the APD
without a search warrant” (“Condition 4”).1
¶3 A few months later, G.E. reported to the APD her suspicion
that S.E., her thirteen-year-old daughter, and Lietzau were engaging in an
1 Similarly, the domestic violence probation terms required Lietzau to
“[s]ubmit to search and seizure of person and property by any probation
officer.”
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STATE V. LIETZAU
Opinion of the Court
“inappropriate relationship.” APD surveillance officer Casey Camacho
arrested Lietzau weeks later for violating several conditions of probation
unrelated to S.E.: (1) failing to provide APD safe, unrestricted access to his
residence; (2) failing to participate and cooperate in counseling or assistance
programs as directed; (3) failing to take a drug test as directed; and (4)
failing to perform community restitution. En route to jail, Camacho looked
through text messages on Lietzau’s cell phone and discovered numerous
incriminating messages and photos between Lietzau and S.E. Camacho
informed police, who then obtained a search warrant to search the cell
phone and discovered the messages. The State subsequently indicted
Lietzau on six counts of sexual conduct with a minor.
¶4 Lietzau moved to suppress all evidence gathered as a result
of Camacho’s cell phone search, arguing the search violated his state and
federal constitutional rights to be free from unreasonable searches and
seizures. The State responded that Condition 4 justified Camacho’s
warrantless search because a cell phone is “property.” Both parties
provided evidence supporting their positions, including a transcription of
defense counsel’s interview of Camacho. After conducting a non-
evidentiary hearing, the court granted the motion.
¶5 The court first reviewed the holdings in Riley and United States
v. Lara, 815 F.3d 605 (9th Cir. 2016), both of which addressed the unique
privacy implications attendant to cell phone searches. The court then
applied factors listed in State v. Adair, 241 Ariz. 58, 64 ¶¶ 23–25 (2016), to
determine whether the search was reasonable under the totality of the
circumstances, and thus constitutionally permissible. The court ultimately
found that the search was unreasonable because Condition 4 was not
sufficiently broad to permit the search, Camacho had no proper purpose in
searching the phone, the search was arbitrary, and the alleged probation
violations involved only “administrative kinds of things.”
¶6 The court of appeals reversed. State v. Lietzau, 246 Ariz. 380,
381 ¶ 1 (App. 2019). After applying the Adair factors, it found that the
search was reasonable. Id. at 384 ¶ 11. Unlike the superior court, the court
of appeals relied heavily on the fact that at the time of Lietzau’s arrest, the
APD and Camacho had been told about the suspected, inappropriate
relationship between Lietzau and S.E. Id. This allegation, according to the
court, gave the APD “a well-founded, non-arbitrary reason to suspect
Lietzau of committing another felony while on probation.” Id. ¶¶ 11–12.
The court also found that the term “property” in Condition 4 included a cell
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Opinion of the Court
phone, and that cell phones are “‘ubiquitous’ repositories of
communications and photos” that may reveal an inappropriate relationship
with a minor. Id. at 385–86 ¶¶ 14–15. Under the totality of these
circumstances, the court concluded that Camacho’s search of the cell phone
was reasonable, and that the trial court erred by granting the motion to
suppress. Id. at 386 ¶ 19.
¶7 We granted Lietzau’s petition for review to resolve issues of
statewide importance that are likely to recur.
DISCUSSION
¶8 We review the trial court’s suppression order for an abuse of
discretion. See State v. Peoples, 240 Ariz. 244, 247 ¶ 7 (2016). In doing so, we
consider only the evidence presented at the suppression hearing and view
that evidence in a light most favorable to upholding the court’s ruling. Id.
An error of law constitutes an abuse of discretion. Id.
I. Cell phones as “property” under Condition 4
¶9 Lietzau argues the court of appeals erred by finding that
“property” in Condition 4 includes cell phones. He does not dispute that a
cell phone constitutes “property” under the plain meaning of the word. See
Property, Black’s Law Dictionary (11th ed. 2019) (defining “property” as
“the rights in a valued resource such as land, chattel, or an intangible”).
Rather, he relies on the Supreme Court’s decision in Riley to argue that the
term “property” in Condition 4 necessarily excludes cell phones.
¶10 The Court in Riley recognized that cell phones are
“minicomputers” that hold “a digital record of nearly every aspect of
[people’s] lives—from the mundane to the intimate” and are thus unlike the
types of property carried in one place by people living before the digital
age. Riley, 573 U.S. at 393–95. As such, the Court concluded that a warrant
is generally required to search a cell phone, and such devices are not subject
to the search incident to arrest exception to the Fourth Amendment’s
warrant requirement. Id. at 401–03; see also Peoples, 240 Ariz. at 248–49
¶¶ 11–16 (discussing Riley).
¶11 Lietzau argues that after Riley, just as a warrant is generally
required to search an arrestee’s cell phone, a warrant is generally required
to search a probationer’s cell phone. Because the trial court was
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Opinion of the Court
presumptively aware of Riley before placing Lietzau on probation, and the
court could not impose an illegal condition, he asserts that Condition 4
necessarily excludes cell phones from its reach. Cf. Polk v. Hancock, 237 Ariz.
125, 129 ¶ 10 (2015) (concluding the trial court erred by imposing illegal
probation term despite the defendant’s agreement because “parties cannot
confer authority on the court that the law proscribes”).
¶12 We disagree that Riley prohibits probation conditions
authorizing warrantless searches of cell phones. Simply put, the Court did
not address that issue. Conversely, it has recognized that supervising
probationers “permit[s] a degree of impingement upon privacy that would
not be constitutional if applied to the public at large” to “assure that the
probation serves as a period of genuine rehabilitation and that the
community is not harmed by the probationer’s being at large.” Griffin v.
Wisconsin, 483 U.S. 868, 875 (1987). To that end, it has found that “a court
granting probation may impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens,” including a
condition requiring the probationer to “[s]ubmit his . . . person, property,
place of residence, vehicle [and] personal effects” to a warrantless search.
United States v. Knights, 534 U.S. 112, 114, 119 (2001); see also State v.
Montgomery, 115 Ariz. 583, 584 (1977) (“[A] probationer who has been
granted the privilege of probation on condition that he submit at any time
to a warrantless search may have no reasonable expectation of traditional
Fourth Amendment protection.” (quoting People v. Mason, 488 P.2d 630, 633
(Cal. 1971)). Nothing in Riley suggests that the substantial privacy concerns
attendant to warrantless cell phone searches of arrestees, who have not
been convicted of a crime, foreclose warrantless searches of probationers’
cell phones pursuant to a probation condition, assuming the search is
otherwise reasonable. See Griffin, 483 U.S. at 873, 876 (requiring a
warrantless search of a probationer’s home to be “reasonable” to comply
with the Fourth Amendment).
¶13 Lara, relied on by the trial court, does not persuade us to
exclude cell phones from the reach of Condition 4. Lara’s probation
conditions authorized warrantless, suspicionless searches of his “person
and property, including any residence, premises, container or vehicle under
[his] control.” Lara, 815 F.3d at 607. Probation officers searched text
messages on Lara’s phone and found evidence ultimately leading to a
criminal conviction. Id. at 608. The Ninth Circuit held that the district court
erred by not suppressing that evidence because the cell phone search was
unreasonable under the circumstances. Id. at 612, 614. Significantly, for our
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STATE V. LIETZAU
Opinion of the Court
purposes, the court concluded that the word “property” in Lara’s probation
conditions did not unambiguously include cell phone data. Id. at 611. It
pointed out that although the examples given in the condition “refer to
physical objects that can be possessed,” cell phone data cannot be physically
possessed and much information accessible through a phone, such as
banking and medical records, are possessed by third parties and are thus
not “under [Lara’s] control” as provided in the condition. Id.
¶14 Lara is distinguishable and, to the extent it is not, we reject its
reasoning. Condition 4 authorizes a warrantless search of Lietzau’s
“property” without qualifying examples, making it broader than the
condition in Lara. Regardless, we disagree with Lara that the inability to
physically possess digital data means it is not property when displayed on
a cell phone. Whether we consider digital data to be merged with the cell
phone displaying it, much like information written on paper, or treat it as
intangible, digital data constitutes “property.” See Property, Black’s Law
Dictionary, supra (including “chattel” and something “intangible” in the
definition of “property”).
¶15 In sum, the plain meaning of “property” in Condition 4
includes a cell phone. Riley does not vary that meaning. The trial court
erred by concluding otherwise.
II. Reasonableness of the search under the Fourth
Amendment
¶16 Lietzau argues that even if Condition 4 authorized a search of
his cell phone, Camacho’s search was unreasonable because it was
suspicionless and unrelated to the reason for Lietzau’s arrest or his
probation conditions. More specifically, he asserts that the search had
nothing to do with S.E., and the court of appeals “conjured its own factual
findings” to justify the search on that basis. The State responds that the
court of appeals correctly applied the Adair factors to conclude that the
search was reasonable and thus compliant with the Fourth Amendment.
¶17 We have previously found that probation conditions like
Condition 4 are “not an unreasonable or an unconstitutional limitation
upon [a probationer’s] right to be free from unreasonable searches and
seizures.” Montgomery, 115 Ariz. at 584. But we have never held that such
conditions alone are sufficient to make any search of a probationer’s person
or property reasonable under the Fourth Amendment. See Adair, 241 Ariz.
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 STATE V. LIETZAU
Opinion of the Court
at 61 ¶ 11 (declining to address the issue). Instead, we have concluded that
this condition diminishes a probationer’s reasonable expectation of privacy
in his person and property. See id. ¶ 12; Montgomery, 115 Ariz. at 584; see
also Knights, 534 U.S. at 119–20. We examine the particular circumstances
of a case to determine whether that diminished expectation, in combination
with other factors, renders a search reasonable under the Fourth
Amendment. See Adair, 241 Ariz. at 62 ¶ 18.
¶18 The most recent case from this Court to address probationary
searches is Adair. There, we considered whether reasonable suspicion was
required to authorize the warrantless search of a probationer’s home. Id. at
60 ¶ 9. After reviewing a trilogy of Supreme Court opinions and balancing
a probationer’s “significantly diminished privacy interests” against the
state’s “substantial” interests in preventing recidivism, protecting the
public, and reintegrating probationers into society, we concluded that a
warrantless probationary search complies with the Fourth Amendment if
the search is reasonable under the totality of the circumstances. Id. at 62–64
¶¶ 19–23.
¶19 The Adair Court identified a non-exhaustive list of factors
relevant to the reasonableness inquiry: (1) whether the “target of the search
[is] a known probationer subject to a valid, enforceable probation condition
allowing a warrantless search”; (2) whether the search is “conducted by a
probation officer in a proper manner and for the proper purpose of
determining whether the probationer was complying with probation
obligations”; (3) whether “the search [is] arbitrary, capricious or harassing”;
(4) “the nature and severity of the probationer’s prior conviction(s) for
which he is on probation”; (5) “the content and scope of the probation
conditions”; (6) “the nature and severity of the suspected criminal offenses
or probation violations giving rise to the search”; (7) “whether the
suspected crimes or violations are the same as or similar to the crimes of
which the probationer was previously convicted”; and (8) “the nature,
source, and plausibility of any extraneous information supporting the
search.” Id. ¶ 25 (citation omitted). Not all factors are relevant in every
case, and they are somewhat overlapping.
¶20 Applying the Adair factors here and viewing the facts in a
light most favorable to upholding the trial court’s ruling, we conclude that
Camacho’s search of Lietzau’s cell phone was reasonable under the totality
of the circumstances.
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STATE V. LIETZAU
Opinion of the Court
¶21 Lietzau was on supervised probation and subject to
Condition 4, which authorized a warrantless search of his “property,”
including his cell phone. As such, Lietzau had a diminished expectation of
privacy in his phone. See Knights, 534 U.S. at 119–20; Adair, 241 Ariz. at 61
¶ 12; Montgomery, 115 Ariz. at 584. Lietzau’s reasonable expectation of
privacy in his cell phone log, e-mails, and text messages was particularly
diminished because he could reasonably expect they would be searched to
determine his compliance with probation conditions, including conditions
forbidding contact with the victim and her family. The search was
conducted by a surveillance officer, and nothing suggests the search was
conducted in an improper manner.
¶22 The trial court found, without explanation, that Camacho
lacked a proper purpose for conducting the search and that the search was
arbitrary. During defense counsel’s interview of Camacho, counsel never
asked, and Camacho did not explain, the reason for the search.
Nevertheless, Lietzau argues the search was improper because Camacho
indicated that he searches probationers’ cell phones routinely, and he did
not say he searched Lietzau’s phone because of any suspected wrongdoing
or probation violation. To this end, Lietzau pieces together Camacho’s
assertions that he “go[es] through hundreds of phones a month,” he “didn’t
know one way or the other” whether Lietzau and S.E. text-messaged each
other, and he believed he did not need a warrant because Lietzau was on
probation.
¶23 Lietzau’s focus on Camacho’s subjective purpose for
searching the cell phone is misplaced. The reasonableness of a search turns
on objective criteria and not an officer’s subjective mindset or motivations.
See Kentucky v. King, 563 U.S. 452, 464 (2011) (“[W]e have never held, outside
limited contexts such as an inventory search or administrative inspection
. . . , that an officer’s motive invalidates objectively justifiable behavior
under the Fourth Amendment.” (citation omitted) (internal quotation
marks omitted)); see also State v. Hausner, 230 Ariz. 60, 73 ¶ 39 (2012) (to
same effect). An objective inquiry is consistent with other tests for
reasonableness and promotes “evenhanded law enforcement.” See King,
563 U.S. at 464 (citing Horton v. California, 496 U.S. 128, 138 (1990)). Thus, to
determine whether Camacho searched the cell phone for the proper
purpose of determining whether Lietzau was complying with his probation
obligations, we examine whether the circumstances, viewed objectively,
support such a finding. See Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011)
(“Fourth Amendment reasonableness is predominantly an objective
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STATE V. LIETZAU
Opinion of the Court
inquiry . . . [that asks] whether the circumstances, viewed objectively,
justify [the challenged] action.” (citations omitted) (quotation marks
omitted)).
¶24 Camacho, as the assigned surveillance officer, properly
monitored Lietzau’s compliance with probation conditions to assist the
APD’s efforts to simultaneously rehabilitate Lietzau and protect the victim
and society from future crimes. Cf. Knights, 534 U.S. at 119–21 (describing
the goals for probation as rehabilitation, protecting society from future
criminal violations, and integrating the probationer back into the
community); see also Montgomery, 115 Ariz. at 584 (noting that probation
conditions “aid in the rehabilitation process or prove a reasonable
alternative to incarceration as punishment for the crime committed”); Ariz.
R. Crim. P. 27.1(b) (stating a “court may impose conditions on a probationer
that promote rehabilitation and protect any victim”). One probation
condition required Lietzau to “maintain a crime-free lifestyle by obeying all
laws, and not engaging or participating in any criminal activity.” At the
time of the search, the APD and Camacho had been informed by G.E. on
more than one occasion that Lietzau, a twenty-two-year-old man, was
suspected of engaging in an “inappropriate relationship” with S.E., a
thirteen-year-old girl, which Camacho reasonably understood to mean a
sexual relationship. If G.E.’s suspicions were correct, Lietzau was
committing serious criminal offenses that not only violated his probation
conditions but victimized S.E.
¶25 As the court of appeals observed, text-messaging about sexual
relationships is commonly done among teens and young adults. See Lietzau,
246 Ariz. at 385 ¶ 14; see also Elizabeth M. Ryan, Sexting: How the State Can
Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended
Consequences for Minors and Young Adults, 96 Iowa L. Rev. 357, 360 (2010)
(observing that sending “sexually suggestive text messages and images”
via cell phone is a “social phenomenon among minors and young adults”).
Determining whether Lietzau’s text messages revealed a sexual
relationship with S.E. directly related to his compliance with probation
conditions, his rehabilitation, and the APD’s efforts to protect the public
from future crimes. Thus, Camacho had an objectively proper purpose for
searching those messages, even if that was not his subjective motivation.
See Adair, 241 Ariz. at 66 ¶ 32 (upholding probationary search that “directly
related” to the requirement that the probationer obey all laws and not
possess illegal drugs).
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STATE V. LIETZAU
Opinion of the Court
¶26 Even absent evidence that Lietzau and S.E. were engaging in
a suspected sexual relationship, Camacho had an objectively proper
purpose for searching the cell phone messages to ensure Lietzau’s
compliance with probation conditions. Lietzau, a domestic violence
offender, was prohibited from contacting the victim and her family as a
condition of probation. Checking Lietzau’s cell phone text messages to
determine whether he was obeying the non-contact condition constituted a
proper purpose for the search. Cf. Griffin, 483 U.S. at 875 (stating that
“probation serves as a period of genuine rehabilitation and [assures] that
the community is not harmed by the probationer’s being at large,” and
“[t]hese same goals require and justify the exercise of supervision to assure
that the restrictions are in fact observed”). Camacho did not have to suspect
that Lietzau had violated the non-contact condition to perform a cursory
search of the messages, both ensuring compliance and deterring future
violations. Cf. id. at 876 (analogizing a probation officer to a parent who
acts with “the welfare of the probationer” in mind and citing an officer’s
need to maximize “the deterrent effect” offered by expeditious searches).
¶27 Lietzau was also required to provide the APD access to his
residence, participate in counseling and drug testing, and perform
community restitution, all of which he failed to do within months after
being placed on probation. The trial court characterized these probation
violations as “administrative kinds of things” and implied they played no
part in determining whether Camacho’s search was reasonable. We
disagree. These conditions were imposed to rehabilitate Lietzau while
ensuring he did not pose a danger to society. By skipping counseling and
evading drug testing, Lietzau presented a presumptive threat for
reoffending, thus endangering the community. He simultaneously
prevented the ADP from fully assessing the level of that threat and
potentially enhancing its rehabilitative efforts by cutting off access to his
residence. Under these circumstances, checking the cell phone messages to
determine whether he was reoffending or otherwise posing a public threat
reasonably furthered the goals of rehabilitation and public protection. See
Samson v. California, 547 U.S. 843, 854 (2006) (observing that a probationer’s
incentive to conceal criminality “justifie[s] an ‘intensive’ system” for
supervision (citing Griffin, 483 U.S. at 875)).
¶28 We disagree with the trial court that the search was arbitrary.
A search is arbitrary, capricious, or harassing if it is “conducted for reasons
unrelated to the rehabilitative and reformative purposes of probation or
other legitimate law enforcement purposes.” People v. Bravo, 738 P.2d 336,
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STATE V. LIETZAU
Opinion of the Court
342 (Cal. 1987). Most often, determining whether a search was conducted
for a proper purpose will resolve whether the search was arbitrary,
capricious, or harassing. But a search directly related to a probation
condition can nevertheless be arbitrary, capricious, or harassing if, for
example, “motivated by personal animosity” or conducted “too often, or at
an unreasonable hour, or if unreasonably prolonged or for other reasons
establishing arbitrary or oppressive conduct by the searching officer.”
People v. Reyes, 968 P.2d 445, 451 (Cal. 1998) (citations omitted). Searches
conducted under those circumstances do not reasonably relate to the goals
of probation. Here, as explained, Camacho had a proper purpose in
searching Lietzau’s cell phone text messages that furthered the goals of
rehabilitating him and protecting the public. See supra ¶¶ 24–27. Nothing
suggests Camacho was motivated by an improper purpose, and Lietzau
does not suggest otherwise.
¶29 Finally, and importantly, Camacho’s search of the cell phone
did not delve deeper than reasonably necessary to determine whether
Lietzau was complying with his probation terms. Although Condition 4
diminished Lietzau’s reasonable expectation of privacy in his cell phone, it
did not eliminate it. See Knights, 534 U.S. at 118, 120. In short, Condition 4
did not grant Camacho carte blanche to indiscriminately search all
information accessible by the cell phone. Because a cell phone is a gateway
to a massive amount of personal information, see Riley, 573 U.S. at 393–95,
probationary searches must be limited to data reasonably expected to
contain information related to determining a probationer’s compliance with
probation conditions. The search here stayed within that boundary.
¶30 In sum, under the totality of the circumstances, we hold that
Camacho’s search of Lietzau’s cell phone was reasonable and therefore
compliant with the Fourth Amendment. The trial court erred by finding
otherwise.
CONCLUSION
¶31 We reverse the trial court’s order granting the motion to
suppress and remand for further proceedings. Although we agree with the
court of appeals’ disposition, we vacate its opinion to replace it with our
own.
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