FILED

NOT FOR PUBLICATION

MAY 19 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY LARIOS, No. 20-15764

Plaintiff-Appellant, D.C. No. 2:15-cv-02451-JAM-DMC v.

SCOTT LUNARDI; T. A. GARR; MEMORANDUM*

FOSTER, Lieutenant; R. J. JONES,

Defendants-Appellees,

and

MEL HUTSHELL; JOSEPH A.

FARROW,

Defendants.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted April 14, 2021 San Francisco, California

Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit Judges. Concurrence by Judge HUNSAKER.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Timothy Larios, a former California Highway Patrol (“CHP”) officer,

appeals from the district court’s judgment in his 42 U.S.C. § 1983 action, which

arose from the search of his personal cell phone during the course of a workplace

investigation in 2014. The district court granted summary judgment to the

defendant officials on qualified immunity grounds. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the

history of this case, we need not recount it here.

I

In evaluating a grant of qualified immunity, we address two questions: first,

whether there was a constitutional violation, and second, “whether the

constitutional right was clearly established in light of the specific context of the

case at the time of the events in question.” Mattos v. Agarano, 661 F.3d 433, 440

(9th Cir. 2011) (en banc) (internal quotation marks and citation omitted). We may

address either question first, see id., and if the answer is “no,” then the officer is

entitled to qualified immunity. We conclude that no clearly established law

prohibited the search of Larios’s text messages or the creation of a backup of his

cell phone data during the course of a workplace investigation.

Courts have not clearly established whether it is unconstitutional to search or

seize data from a personal cell phone under the workplace inspection exception to

2 the warrant requirement for public employers established in O’Connor v. Ortega,

480 U.S. 709, 722 (1987), and City of Ontario v. Quon, 560 U.S. 746, 756 (2010).

See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right

must be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.”).

Although Quon acknowledges that an individual may have a greater privacy

expectation in their personal cell phone than a workplace-provided device, the

opinion does not limit this warrant exception to workplace-provided devices only.

See Quon, 560 U.S. at 762–63 (factoring the expectation of privacy into the

“reasonable scope” inquiry of the test). Here, the CHP policy, which Larios

acknowledged in writing, provided that “[w]ork stored on any type of electronic

device is the property of the state and must be relinquished on demand.”

The district court properly concluded that the law was not clearly established

at the time of the events in question that a search or seizure of a personal cell

phone pursuant to the workplace exception and workplace policy was

unconstitutitional. In short, applicable “existing precedent” had not “placed the

statutory or constitutional question beyond debate,” Mattos, 661 F.3d at 442

(citation omitted), and that any possible unlawfulness in defendant officials’

actions was not “apparent.” Anderson, 483 U.S. at 640. Accordingly, we affirm

3 the district court’s grant of qualified immunity to the defendants. We need not,

and do not, address whether the search and seizure in this case was constitutional.

II

The district court did not abuse its discretion in denying Larios’s motion for

sanctions under a spoliation of evidence theory. See Goodman v. Staples The Off.

Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011). The district court observed

that Larios’s nine month delay in raising the issue was unreasonable, noting that

the motion was filed after discovery closed and the dispositive motion deadline

passed.

AFFIRMED.

4

FILED

Larios v. Lunardi, No. 20-15764 MAY 19 2021

MOLLY C. DWYER, CLERK

HUNSAKER, Circuit Judge, concurring: U.S. COURT OF APPEALS

I question whether the workplace exception to the Fourth Amendment’s

warrant requirement applies to the search of an employee’s personal cellphone

where the employee has not relinquished his privacy interests in the cellphone by

agreeing to give the employer access or by some other means. See Riley v.

California, 573 U.S. 373, 393–98 (2014) (discussing privacy interests in modern

cellphones and explaining “a cell phone search would typically expose to the

government far more than the most exhaustive search of a house”); O’Connor v.

Ortega, 480 U.S. 709, 715 (1987) (“The workplace includes those areas and items

that are related to work and are generally within the employer’s control.”); cf. City

of Ontario v. Quon, 560 U.S. 746, 762 (2010) (employee knew text messages were

subject to auditing); United States v. Gonzalez, 300 F.3d 1048, 1050 (9th Cir. 2002)

(employee knew and accepted workplace policy stating “employees were required

to allow . . . searches” of personal property). Here, the relevant workplace policy did

not give Larios’s employer the right to access or search his cellphone. The policy

provided only that work product is the employer’s property even if located on a

personal electronic device and must be turned over to the employer which can be

done without subjecting an employee’s personal electronic device, including a

cellphone, to search by the employer. I agree, however, that the application of the

1 workplace exception to an employee’s personal cellphone is not clearly established.

Rice v. Morehouse, 989 F.3d 1112, 1125 (9th Cir. 2021) (“[E]xisting precedent must

place the lawfulness of the particular [action] beyond debate.” (alterations in

original) (citation omitted)); Quon, 560 U.S. at 762 (recognizing that an individual

may have a greater interest in a personal cellphone but not addressing whether the

workplace exception is limited to government-controlled devices).

I also agree that even if the workplace exception applies—the sole legal

justification Defendants assert for their warrantless downloading of all the data on

Larios’s cellphone—and the scope of Defendants’ download violated this exception,

such violation was not clearly established for purposes of the qualified immunity

analysis. But the outcome of this case would be different for me if this were a scope

of search issue because the law is clear that an employer cannot rely on the

workplace exception to conduct a search that does not correlate to the legitimate

workplace objective of the employer’s search. Quon, 560 U.S. at 761; Gonzalez, 300

F.3d at 1054–55. That is, if an employer has a justifiable basis to search an

employee’s personal cellphone for communications with one specific person, that

does not give the employer the right to search everything else on the employee’s

cellphone while it is at it. But downloading all the data on Larios’s cellphone is not

a search issue in this case—it is a seizure issue. Larios’s argument is that Defendants

violated his Fourth Amendment rights by downloading the full contents of his

2 cellphone, which the record shows Defendants then used to conduct limited searches

tailored to the specific objective of their investigation—whether Larios was having

improper communications with a confidential informant. Existing precedent does

not clearly establish that a download, or seizure, of this breadth of data is

unconstitutional in this context. See U.S. Comprehensive Drug Testing, Inc., 621

F.3d 1162, 1177 (9th Cir. 2010) (en banc) (“We recognize the reality that over-

seizing data is an inherent part of the electronic search process . . . and this will be

far more common than in the days of paper records.”). Balancing an individual’s

privacy interests in the vast amount of data contained in modern cellphones against

the government’s legitimate investigative interests is a complex issue that we will

continue to grapple with in future days. Made only more complex by constantly

evolving technology. Indeed, there is indication in this case that Defendants had the

technological means to conduct a targeted seizure as well as search. But

nonetheless, based on the current state of the law, I concur.

3