                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 14-50120
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      2:13-cr-00392-
                                             BRO-1
PAULO LARA,
               Defendant-Appellant.          OPINION


      Appeal from the United States District Court
          for the Central District of California
    Beverly Reid O’Connell, District Judge, Presiding

                 Argued and Submitted
           July 7, 2015—Pasadena, California

                  Filed March 3, 2016

Before: William A. Fletcher, Richard A. Paez, and Marsha
               S. Berzon, Circuit Judges.

              Opinion by Judge W. Fletcher
2                    UNITED STATES V. LARA

                           SUMMARY*


                          Criminal Law

    The panel reversed the district court’s denial of a motion
to suppress evidence obtained as a result of warrantless,
suspicionless searches of the defendant’s cell phone, and
remanded for further proceedings.

    The panel noted that a probationer’s acceptance of a
search term in a probation agreement does not by itself render
lawful an otherwise unconstitutional search of a probationer’s
person or property. The panel wrote that the issue is not
solely whether the defendant accepted a cell phone search as
a condition of his probation, but whether the search that he
accepted was reasonable. Balancing the extent to which the
searches intruded on the defendant’s substantial privacy
interest in his cell phone and the data it contained against the
government’s interests in combating recidivism and helping
probationers integrate back into the community, the panel
held that in the circumstances of this case the searches were
unreasonable.

    The panel concluded that the exception to the
exclusionary rule announced in Davis v. United States, 131
S.Ct. 2419 (2011), does not apply to the circumstances of this
case.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. LARA                     3

                        COUNSEL

Alexandra Wallace Yates (argued), Deputy Federal Public
Defender, Hilary Potashner, Acting Federal Public Defender,
Los Angeles, California for Defendant-Appellant.

Stephanie Yonekura, Acting United States Attorney, Robert
E. Dugdale, Chief, Criminal Division, and Ryan Weinstein
(argued), Assistant United States Attorney, Los Angeles,
California for Plaintiff-Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

    Appellant-Defendant Paulo Lara appeals his conviction
for being a felon in possession of a firearm and ammunition
in violation of 18 U.S.C. § 922(g)(1). At the time of his
arrest, Lara was subject to a term of probation that required
him to submit his “person and property, including any
residence, premises, container or vehicle” to search and
seizure “without a warrant, probable cause, or reasonable
suspicion.” Lara contends that his Fourth Amendment right
to be free of unreasonable searches and seizures was violated
when probation officers conducted two warrantless,
suspicionless searches of his cell phone. He contends that the
exclusionary rule requires the suppression of images, text
messages, and GPS data found on his cell phone, as well as
a gun and ammunition, as fruits of the illegal searches. We
agree.
4                 UNITED STATES V. LARA

           I. Factual and Procedural Background

    On October 2, 2013, Probation Officers Jennifer Fix and
Joseph Ortiz arrived unannounced at Lara’s home after he
had failed to report to Officer Fix. Lara had recently been
placed on probation following a conviction for possession for
sale and transportation of methamphetamine in violation of
California Health & Safety Code §§ 11378 and 11379(a).

    Lara’s probation agreement required him to “submit [his]
person and property, including any residence, premises,
container or vehicle under [his] control, to search and seizure
at any time of the day or night by any law enforcement
officer, probation officer, or mandatory supervision officer,
with or without a warrant, probable cause, or reasonable
suspicion.” As part of his probation agreement, Lara initialed
a subsection entitled “Fourth Amendment waiver.” That
subsection provided:

       I understand under the Fourth and Fourteenth
       Amendments to the United States
       Constitution, I have a right to be free from
       unreasonable searches and seizures. I waive
       and give up this right, and further agree that
       for the period during which I am on probation
       or mandatory supervision I will submit my
       person and property, including any residence,
       premises, container or vehicle under my
       control to search and seizure at any time of
       the day or night by any law enforcement
       officer, probation officer, post-release
       community supervision officer, or parole
       officer, with or without a warrant, probable
       cause, or reasonable suspicion.
                   UNITED STATES V. LARA                       5

    Officer Fix stated in a sworn declaration, consistent with
her later in-court testimony, that at her first meeting with Lara
she read him the search and seizure term and asked whether
he had any questions “concerning that term and what it
entails.” She stated that is her normal practice to note if a
probationer has any questions about the terms, and she had
nothing in her notes indicating that Lara had any such
questions. Lara stated in a sworn declaration that when he
accepted the terms and conditions of probation, he did not
believe the search condition would allow his cell phone or
data stored on the phone to be searched without his consent.

    Officer Fix stated in her declaration, “It is standard
protocol for probation officers to search the cell phones of
probationers subject to search terms, especially if the
probationer had been convicted of a drug trafficking offense.”
Officer Fix stated that she knew Lara had been convicted of
a drug offense when she conducted the search. She stated
that she and Officer Ortiz knew, based on their training and
experience, that “drug traffickers commonly use cell phones
to arrange narcotics sales.”

    After announcing that they were at the house to conduct
a probation search, Officer Fix ordered Lara to sit on the
couch. Officer Ortiz stated in a sworn declaration that he
spotted a cell phone on a table next to the couch and
examined it. He stated that he confirmed that the phone
belonged to Lara. Cell phone company records showed that
the name of the subscriber was “Peter” Lara, rather than
“Paulo” Lara. The address listed on the subscriber record
matched Lara’s home address where he was found and where
the search was conducted.
6                 UNITED STATES V. LARA

    Officer Ortiz stated that he did not ask Lara’s permission
to search the cell phone, but that Lara did not object to his
doing so. Officer Fix testified that it is the department’s
policy to search a cell phone when officers visit a
probationer, even if the probationer objects.

    Officer Ortiz stated in his declaration that he reviewed the
most recently sent text messages on Lara’s cell phone and
discovered messages containing three photographs of a
semiautomatic handgun lying on a bed. The pictures had
been sent to “Al,” who responded, asking if the gun was
“clean.” Lara replied, “yup.” Al followed up by asking,
“What is the lowest you will take for it?” and “How much?”

     Officer Ortiz handcuffed Lara, and he and Officer Fix
searched Lara’s house and car for the gun. They did not find
it, but they did find a folding knife, the possession of which
violated the terms of Lara’s probation. Officers Fix and Ortiz
arrested Lara for possessing the knife in violation of his
probation and brought the cell phone to the Orange County
Regional Computer Forensics Lab.

    Lab personnel found GPS data embedded in the
photographs of the gun and thereby determined the address
where they were taken. Investigation revealed the location to
be the home of Lara’s mother. Officer Fix testified at the
suppression hearing that without the GPS data, she would not
have had reason to visit Lara’s mother’s house.

    Officers Fix and Ortiz, along with officers from the local
police department, went to Lara’s mother’s home and showed
her the photographs of the gun. She directed them to a
bedroom that had bedding matching that in the photographs.
                  UNITED STATES V. LARA                     7

In the closet of the bedroom, Officer Fix found a loaded
handgun that resembled the gun depicted in the photographs.

    Lara was charged 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 gun and ammunition
on the ground that it had been found as a result of illegal
searches of his cell phone by Officer Ortiz and the lab.

    The district court held a hearing on the suppression
motion and denied the motion. When the district court ruled
on Lara’s suppression motion, the Supreme Court had not yet
decided Riley v. California, 134 S. Ct. 2473 (2014). In Riley,
the Court held that police generally may not, without a
warrant, examine the digital information stored on a cell
phone seized incident to arrest. Id. at 2493.

    After the district judge denied Lara’s suppression motion,
Lara pled guilty to the § 922(g)(1) charge, but preserved his
right to challenge the denial of his motion. Lara timely
appealed.

                  II. Standard of Review

   We review de novo a district court’s denial of a motion to
suppress, reviewing for clear error the district court’s
underlying factual findings. United States v. Mayer, 560 F.3d
948, 956 (9th Cir. 2009).

                       III. Discussion

    The government contends that there are three independent
reasons to affirm the district court’s denial of Lara’s motion
to suppress. First, the government contends that Lara
8                 UNITED STATES V. LARA

consented to the initial cell phone data search by accepting
the terms of his probation agreement, thereby waiving his
Fourth Amendment protection against unreasonable searches
and seizures. Second, the government contends that, even if
Lara did not waive his Fourth Amendment rights, the
warrantless search was lawful because it was reasonable.
Third, the government contends that even if the cell phone
search was unlawful, the evidence it yielded should not be
suppressed because a good faith exception to the exclusionary
rule applies. We are not persuaded by any of these
contentions.

         A. Waiver of Fourth Amendment Rights

    Our discussion of the government’s contention that Lara
waived his Fourth Amendment rights may be brief. We have
already held that a probationer’s acceptance of a search term
in a probation agreement does not by itself render lawful an
otherwise unconstitutional search of a probationer’s person or
property. In United States v. Consuelo–Gonzalez, 521 F.2d
259, 261 (9th Cir. 1975) (en banc), we held that probationers
do not entirely waive their Fourth Amendment rights by
agreeing, as a condition of their probation, to “submit [their]
person and property to search at any time upon request by a
law enforcement officer.” We explained that there is a limit
on the price the government may exact in return for granting
probation. Id. at 265. Specifically, “any search made
pursuant to the condition included in the terms of probation
must necessarily meet the Fourth Amendment’s standard of
reasonableness.” Id. at 262; see United States v. Scott, 450
F.3d 863, 868 (9th Cir. 2006) (confirming this reading of
Consuelo-Gonzalez’s holding).
                 UNITED STATES V. LARA                     9

    The issue, therefore, is not solely whether Lara accepted
the cell phone search as a condition of his probation, but
whether the search that he accepted was reasonable. Lara’s
acceptance of the terms of probation, including suspicionless
searches of his person and property, is one factor that bears
on the reasonableness of the search, but it is not in itself
dispositive. See Scott, 450 F.3d at 868 (suggesting that a
defendant’s agreement to a search condition in exchange for
relief from prison is “a relevant factor in determining how
strong his expectation of privacy is”); accord United States
v. Knights, 534 U.S. 112, 117–18 (2001) (declining to decide
whether a probationer’s acceptance of a probation term
authorizing warrantless searches without probable cause
constituted consent sufficient to waive his Fourth
Amendment rights, and opting instead to evaluate whether the
search was reasonable in light 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 requires a longer
discussion. At the outset, we reject the government’s
suggestion that our decision in United States v. King, 736
F.3d 805 (9th Cir. 2013), fully resolves this issue. In King,
the police conducted a suspicionless search of a violent
felon’s residence, pursuant to a condition of probation that
clearly authorized such a search. We upheld the search but
“h[e]ld only that a suspicionless search, conducted pursuant
to a suspicionlesss-search condition of a violent felon’s
probation agreement, does not violate the Fourth
Amendment.” Id. at 810. We expressly limited our holding
to violent felons, writing, “We need not decide whether the
Fourth Amendment permits suspicionless searches of
10                UNITED STATES V. LARA

probationers who have not accepted a suspicionless-search
condition, or of lower level offenders who have accepted a
suspicionless-search condition, because those cases are not
before us.” Id. (emphasis added). King had been convicted
of the violent crime of willfully inflicting corporal injury on
a cohabitant. Id. at 806. Lara, in contrast, had been
convicted of a nonviolent drug crime.

    Because King does not fully provide the answer, we must,
as we did in King, evaluate the circumstances of the particular
case before us to determine if the search was reasonable. In
doing so, we balance, “on the one hand, the degree to which
[the search] intrudes upon an individual’s privacy and, on the
other, the degree to which [the search] is needed for the
promotion of legitimate governmental interests.” Knights,
534 U.S. at 119 (quoting Wyoming v. Houghton, 526 U.S.
295, 300 (1999)). We consider each side of the balance in
turn.

                  1. Lara’s Privacy Interest

    The extent to which the search intruded on Lara’s privacy
depends on several factors, the most important of which are
his status as a probationer, the clarity of the conditions of
probation, and the nature of the contents of a cell phone.

     First, because Lara is on probation, his reasonable
expectation of privacy is lower than someone who has
completed probation or who has never been convicted of a
crime. Knights, 534 U.S. at 120. But while the privacy
interest of a probationer has been “significantly diminished,”
id., it is still substantial. The Supreme Court has recognized
that a probationer’s privacy interest is greater than a
parolee’s. Samson v. California, 547 U.S. 843, 850 (2006).
                  UNITED STATES V. LARA                      11

Furthermore, Lara’s reasonable expectation of privacy is
greater than that of probationers such as King because he was
not convicted of a particularly “serious and intimate” offense.
King, 736 F.3d at 809.

    Second, the cell-phone search condition of Lara’s
probation was not clear. The Supreme Court in Knights
explained that a probationer’s reasonable expectation of
privacy is “significantly diminished” when the defendant’s
probation order “clearly expressed the search condition” of
which the probationer “was unambiguously informed.” 534
U.S. at 119–20. But the search term in Knights expressly
authorized searches of the probationer’s “place of residence,”
which was precisely what the officers searched. See id. at
114–15. That is not true here.

    Lara agreed to “submit [his] person and property,
including any residence, premises, container or vehicle under
[his] control to search and seizure.” None of these terms—in
particular, neither “container” nor “property”—clearly or
unambiguously encompasses his cell phone and the
information contained therein. Lara’s cell phone was not a
“container.” The Supreme Court wrote in Riley that
“[t]reating a cell phone as a container whose contents may be
searched incident to an arrest” was, at best, “strained.” Riley,
134 S. Ct. at 2491. Indeed, the analogy between cell phones
and containers “crumbles entirely when a cell phone is used
to access data located elsewhere, at the tap of a screen.” Id.
(emphasis added). We relied on Riley in Camou, holding that
cell phones cannot be searched when officers otherwise have
probable cause to search a vehicle and its containers. United
States v. Camou, 773 F.3d 932, 942–43 (9th Cir. 2014). Just
as it makes no sense to call a cell phone a “container” for
purposes of a search incident to arrest (Riley) or search of an
12                UNITED STATES V. LARA

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

    Nor does the word “property” unambiguously include cell
phone data, especially when the word is read in conjunction
with the language that follows. We repeat the relevant
language here: “property, including any residence, premises,
container or vehicle under my control.” Each of the specific
types of property named as examples refer to physical objects
that can be possessed. A cell phone is such an object, but cell
phone data, which were the subject of the two searches in this
case, are not property in this sense. Further, the Court
recognized 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 not only cannot be possessed
physically; it is also not “under [Lara’s] control,” as provided
in the search condition.

    Third, the Court in Riley stressed the amount and
character of data contained in, or accessed through, a cell
phone and the corresponding intrusiveness of a cell phone
search. Although Riley concerned warrantless searches of
cell phones incident to arrest, the Court used sweeping
language 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 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.
                 UNITED STATES V. LARA                    13

           . . . Most people cannot lug around every
       piece of mail they have received for the past
       several months, every picture they have taken,
       or every book or article they have read—nor
       would they have any reason to attempt to do
       so. And if they did, they would have to drag
       behind them a trunk of the sort held to require
       a search warrant in Chadwick, [433 U.S. 1
       (1977),] rather than a container the size of the
       cigarette package in Robinson[, 414 U.S. 218
       (1973)].

Riley, 134 S. Ct. at 2489. A cell phone search “would
typically expose to the government far more than the most
exhaustive search of a house: A phone not only contains in
digital form many sensitive records previously found in the
home; it also contains a broad array of private information
never found in a home in any form—unless the phone is.” Id.
at 2491.

    In an attempt to undercut the foregoing, the government
argues that Lara’s expectation of privacy in his cell phone
data was diminished by the fact that his cell phone contract
gave his name as “Peter” rather than “Paolo” Lara,
contending that Lara gave a “false name” to his cell phone
carrier in order to evade detection by law enforcement. The
government’s argument is highly speculative, almost fanciful.
If Lara sought to avoid law enforcement detection by
providing an anglicized first name when dealing with his cell
phone carrier, he chose a singularly ineffective means of
achieving that goal, especially when at the same time he gave
his actual last name and home address.
14                UNITED STATES V. LARA

    In sum, we conclude that Lara had a privacy interest in his
cell phone and the data it contained. That privacy interest
was substantial in light of the broad amount of data contained
in, or accessible through, his cell phone. We recognize that
his privacy interest was somewhat diminished in light of
Lara’s status as a probationer. But it was not diminished or
waived because he accepted as a condition of his probation a
clear and unequivocal search provision authorizing cell phone
searches (he did not) or because he subscribed to cell phone
service using a different first name (he did).

                2. The Government’s Interest

    Probationary searches advance at least two related
government interests — combating recidivism and helping
probationers integrate back into the community. See Samson,
547 U.S. at 849; Knights, 534 U.S. at 120–21. These are
important interests whose strength in a particular case varies
depending on the degree to which the government has a
specific reason to suspect that a particular probationer is
reoffending or otherwise jeopardizing his reintegration into
the community. In Knights, the officers had substantial
evidence showing that while on probation Knights had
vandalized and set fire to an electrical facility and an
adjoining telecommunications vault, causing an estimated
$1.5 million in damages. 534 U.S. at 114. In King, the
officers suspected that the defendant was involved in a
homicide and knew that he had been previously convicted of
the violent crime of willful infliction of corporal injury on a
cohabitant. 736 F.3d at 806. In contrast, in this case Lara
had merely missed a meeting with his probation officer. We
do not minimize the importance of complying with the terms
of probation, including meeting at appointed times with the
probation officer. But Lara’s noncompliance was worlds
                  UNITED STATES V. LARA                     15

away from the suspected crimes that prompted the searches
in King and Knights.

    We recognize that Officer Ortiz searched Lara’s cell
phone knowing that he had been convicted of a drug crime
and knowing that drug traffickers often use cell phones to
arrange sales. Given the ubiquity of cell phones, almost any
crime involving more than a single person (and indeed many
crimes involving just one person) would entail the use of cell
phones, which can be used not only for placing calls and
sending text messages, but also for sending emails, looking
up directions, and conducting internet searches on various
topics. This ubiquity cuts against the government’s purported
heightened interest in conducting suspicionless searches of
the cell phones of probationers with controlled substances
convictions.

                        3. Balancing

    On balance, we hold that in the circumstances of this case
the searches of Lara’s cell phone were unreasonable.
“[W]hen ‘privacy-related concerns are weighty enough’ a
‘search may require a warrant, notwithstanding the
diminished expectations of privacy of the arrestee.’” Riley,
134 S. Ct. at 2488 (quoting Maryland v. King, 133 S. Ct.
1958, 1979 (2013)). The same is true of probationers,
especially nonviolent probationers who have not clearly and
unambiguously consented to the cell phone search at issue.
Because of his status as a probationer, Lara’s privacy interest
was somewhat diminished, but that interest was nonetheless
sufficiently substantial to protect him from the two cell phone
searches at issue here.
16                UNITED STATES V. LARA

     C. Exception for “Binding Appellate Precedent”

    At the end of its fifty-five page brief to this court, the
government spends two-and-a-half pages arguing that even if
the two searches of Lara’s cell phone violated the Fourth
Amendment, a good faith exception to the exclusionary rule
should apply. The government did not make this argument in
the district court, and consequently it has failed to preserve
this argument on appeal. Even if we were willing to assume
that the government did not waive this argument, we would
reject it on the merits.

    The government relies on Davis v. United States, 131 S.
Ct. 2419 (2011), where the Supreme Court held that if an
officer objectively relied on “binding appellate precedent”
that “specifically authorize[d]” the officer’s search, evidence
obtained as a result of that search need not be suppressed.
131 S. Ct. at 2423–24, 2429. At the time of the search in
Davis, the Court’s decision in New York v. Belton, 453 U.S.
454 (1981), was understood to allow warrantless searches of
passenger compartments of vehicles incident to the arrest of
recent occupants of the vehicle. Id. at 2424. The Eleventh
Circuit “had long read Belton to establish a bright-line rule
authorizing substantially contemporaneous vehicle searches
incident to arrests of recent occupants.” Id. at 2426 (citing
United States v. Gonzalez, 71 F.3d 819, 822, 824–27 (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
passenger compartment during the search. Arizona v. Gant,
556 U.S. 332 (2009). In Davis, officers conducted their
search after the arrestee was removed from the vehicle and
placed in a patrol car. Thus, the search in Davis was valid
under Belton and Gonzalez, but not under Gant.
                  UNITED STATES V. LARA                      17

    The Court held in Davis that the search was invalid under
the Fourth Amendment, but declined to suppress the evidence
seized. The Court wrote:

       The question here is whether to apply this
       sanction [of suppressing the evidence] when
       the police conduct a search in compliance
       with binding precedent that is later overruled.
       Because suppression would do nothing to
       deter police misconduct in these
       circumstances, and because it would come at
       a high cost to both the truth and the public
       safety, we hold that searches conducted in
       objectively reasonable reliance on binding
       appellate precedent are not subject to the
       exclusionary rule.

Id. at 2423–24 (emphases added). The rule in Davis is clear:
a search conducted in objectively reasonable reliance on
“binding appellate precedent” that “specifically authorizes”
the police’s search does not result in suppression, even if it
turns out, based on a later decision, that the previously
binding precedent is no longer binding.

    We decline to expand the rule in Davis to cases in which
the appellate precedent, rather than being binding, is (at best)
unclear. If the question were qualified immunity, the fact that
the precedent is unclear would protect an individual officer
from damages. See Saucier v. Katz, 533 U.S. 194, 205
(2001). But the question under Davis is not whether an
officer should be shielded from damages liability. Rather, the
question is what protection the Fourth Amendment affords a
private individual from an unconstitutional search and
seizure. The Court in Davis addressed that question by
18                UNITED STATES V. LARA

denying suppression only when “binding appellate precedent”
expressly instructed the officer what to do.

    The government points out that Riley was not decided
until after the searches in this case. But the government cites
no pre-Riley case that constituted “binding appellate
precedent” upon which the officers could reasonably have
relied at the time of the searches. Rather, the government
cites only cases from which it could have plausibly argued
that the searches were permissible. It cites People v. Diaz,
244 P.3d 501, 502 (Cal. 2011), in which the California
Supreme Court upheld a warrantless cell phone text message
folder search after an arrest as having been “incident to a
lawful custodial arrest.” It hardly needs saying that a search
incident to arrest is not the same thing as a warrantless,
suspicionless, probation search. Nor is a case dealing with an
incidental search on all fours with a probation search.
Further, the government cites pre-Riley conflicting authority
in the California Court of Appeal and in the Ninth Circuit
with respect to the effect of a probationer’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 (9th Cir. 2006). Even if we were to consider state
intermediate court of appeals decisions to be “binding
appellate precedent” 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 brought to either court can hardly be thought to
result in “binding appellate precedent.”

    We therefore conclude that the exception to the
exclusionary rule announced in Davis does not apply to the
circumstances of this case.
                  UNITED STATES V. LARA                     19

                         Conclusion

    We conclude that the initial search of Lara’s cell phone
data was unlawful and that the exclusionary rule bars the
admission of the evidence that was the fruit of that unlawful
search. Because the second search of Lara’s cell phone was
itself the product of the initial unlawful search, the evidence
from that search should also have been excluded. We
therefore reverse the district court’s denial of Lara’s motion
to suppress and remand for further proceedings consistent
with this opinion.

   REVERSED and REMANDED.
