Cell Phone Search Of Suspected Statutory Rapist Who Violated Probation Was Constitutional Under Circumstances, Arizona Supreme Court Rules

A probation officer did not violate a Tucson man's Fourth Amendment rights when he searched a cell phone and found evidence that the suspect was engaged in a sexual relationship with a 13-year old girl, the Arizona Supreme Court ruled this morning.

"Under the totality of circumstances, we hold that (the search) was reasonable and therefore
compliant with the Fourth Amendment," Vice Chief Justice Ann Timmer wrote on behalf of the unanimous Court. The opinion reversed the trial court's decision to keep the text messages from being used at Bryan Lietzau's trial. (The Court of Appeals had also reversed the judge's decision, but today's Supreme Court opinion replaces the earlier decision.)

Lietzau was on probation for domestic violence aggravated harassment. Later in 2014, a woman called his probation officer with concerns that the man was having a sexual relationship with her 13-year old daughter. The defendant was not permitted to contact either the woman or the daughter. The probation officer arrested Lietzau for other violations of his probation agreement, and searched his cell phone while bringing Lietzau to jail. He found "numerous text messages between Lietzau and (the minor)." The Tucson Police Department then got a search warrant and found incriminating photos and messages.

At trial, he argued that the initial search violated his Fourth Amendment rights against unreasonable search and seizure, and that it was unreasonable under the totality of circumstances. The Supreme Court decided that the standard probation conditions that allow searches of "property" do include cell phones - and the digital data contained inside the cell phone.

"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." Rather, it gives them a diminished expectation of privacy. The opinion then analyzed a number of factors and reached different conclusions from the trial court judge.

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