This post examines a recent opinion from the California Court of Appeals – First District: In re Patrick F., 2015 WL 7009056
(2015). The court begins by explaining
that “Patrick F. . . . was declared a
ward of the juvenile court after admitting an allegation of second degree
burglary.” In re Patrick F., supra. The Court of Appeals goes on to
explain that
[o]n the morning of June 11, 2014,
17–year–old [Patrick F.] burglarized the home of his next-door neighbor with
the assistance of an adult cousin who was on parole. The neighbor had left
earlier in the day, and when she returned home around noon the house had been
ransacked and a gold ring and about $87 in rolled coins were missing. After he
was apprehended, [Patrick F.] admitted to police that he had entered the
neighbor's home and taken the property while his cousin acted as a lookout.
The district attorney filed a juvenile
wardship petition alleging [Patrick F.] had committed a first degree residential
burglary. (California Penal Code § 459) The petition was amended to allege
second degree burglary and [Patrick F.] admitted the allegation. . . . During
an interview with the probation officer who prepared a report for the
dispositional hearing, [Patrick F.] said he had decided to steal from his
neighbor because he wanted marijuana and he did not feel comfortable asking his
parents for money he was going to spend on drugs. He acknowledged smoking
marijuana up to three times a day and admitted he had not attended school
regularly for a long time. He also acknowledged his marijuana use had
influenced his decision not to attend school.
In re Patrick F.,
supra.
The opinion goes on to explain that at the
dispositional hearing, the court
adjudged [Patrick F.] a ward and placed him on probation, with [him] to reside
with family members. The conditions of probation included a search term
requiring [Patrick F.] to `[s]ubmit person and any vehicle, room or property
[and] any electronics and passwords under
your control to search by Probation Officer or peace office[r] with or without
a search warrant at any time of day or night.’ Defense counsel objected to [Patrick
F.’s] cell phone and electronics being
included in the search term, arguing there was no nexus between such items and
the burglary.
The court disagreed: `Well, it's also
important to have as part of his supervision, given somebody who['s] been at
that point where he was smoking, I think, three times a day. And I find
from practice, that minors who are particularly using drugs or involved in
offenses will very often post details about any offenses that they have or even
photographs of them with drugs or paraphernalia or themselves smoking marijuana
with friends. So I think it's a very important part of supervision, but your
objection is noted for the record.’
In re Patrick F.,
supra.
The Court of Appeals then begins its analysis of the
parties’ respective arguments, noting, initially, that
[Patrick F.] argues the electronics search condition
imposed by the court is invalid under People v. Lent, 15 Cal.3d 481
(California Supreme Court 1975), because it has no relationship to the
underlying offense, relates to conduct that is not illegal, and is not
reasonably related to deterring future criminal activity. He additionally
claims the condition is unconstitutionally overbroad and poses a risk of
illegal eavesdropping under California's Invasion of Privacy Act (California Penal Code § 630 et seq.). These issues have been recently addressed in three
published cases from different divisions of the Court of Appeal for the First
District, each of which considered the legality of a virtually identical
electronics search condition.
In In re Erica R., supra, California Court of Appeals - Division Two of this court held the condition was invalid under Lent, because
it had no relationship to the commitment offense of misdemeanor possession of
Ecstasy. Having reached this conclusion, the court found it unnecessary to
address the defendant's constitutional challenge or her claim the probation
condition would allow illegal eavesdropping.
In In re Malik J.,
(California Court of Appeals 2015) (Malik J.), Division Three found
the condition to be unconstitutionally overbroad in a case where the
defendant's juvenile probation had been violated based on his possession of
marijuana and his commission of three robberies, one of which involved an
iPhone. The court in Malik J. modified the search condition to
eliminate the requirement that the defendant supply passwords to his social
media sites, but allowed a search of the phone itself after it had been
disabled from any Internet or cellular connection for the purpose of
determining whether it had been stolen.
Most recently, in In re Ricardo
P., 2015 WL 6387774 (California Court of Appeals 2015), Division One
considered a challenge to an electronics search condition in a case where the
defendant had been adjudicated a ward based on two counts of residential
burglary and, like [Patrick F.] in this case, had admitted drug use. The Ricardo
P. court concluded that although an electronics search condition was
valid under Lent because it was reasonably related to monitoring
the defendant's future criminality, the condition was overbroad in allowing the
probation officer access to data that was not reasonably likely to reveal
whether the defendant was using drugs. . . . It also rejected the defendant's
claim that the condition posed a risk of electronic eavesdropping based on his
lack of standing to raise the issue on behalf of the third parties who were
arguably affected. . . .
Having had the benefit of our
colleagues' intellectual legwork and thoughtful analyses, we are persuaded by
the rationale of Ricardo P., the circumstances of which are
the most similar to the case before us. We conclude the challenged electronics
search condition, though reasonable under Lent, was overbroad
as drafted, and order it modified accordingly. We reject [Patrick F.’s]
contention that the condition must be stricken in its entirety due to the risk
of unlawful eavesdropping on third parties.
In re Patrick F.,
supra.
The Court of Appeals then took up the issue it deferred in
the passage quoted above, i.e., the “reasonableness of the electronics search”
under the California Supreme Court’s decision in People v. Lent, supra. In re
Patrick F., supra. It began by explaining that California’s
Welfare and Institutions Code section
730, subdivision (b) authorizes the juvenile court `to impose and require
any and all reasonable conditions that it may determine fitting and proper to
the end that justice may be done and the reformation and rehabilitation of the
ward enhanced.’ (See In re Sheena K., 40 Cal.4th 875, 889 (California
Supreme Court (2007)). A
condition of probation that would be legally impermissible for an adult
criminal defendant is not necessarily unreasonable for a juvenile receiving
guidance and supervision from the juvenile court. (In re Sheena K., supra; In
re Walter P. (2009) 170 Cal.App.4th 100 (California Court of Appeals
2009) (In re Walter P.).)
`An appellate court will not disturb
the juvenile court's broad discretion over probation conditions absent an abuse
of discretion. . . . We grant this broad discretion so that the juvenile court
may serve its rehabilitative function and further the legislative policies of
the juvenile court system. . . . In fashioning the conditions of probation, the
juvenile court should consider the minor's entire social history in addition to
the circumstances of the crime. . . .’ In
re Walter P., supra).
In re Patrick F.,
supra.
The court went on to explain that under
People
v. Lent, supra, `”[a] condition of probation will not be held
invalid unless it `(1) has no relationship to the crime of which the offender
was convicted, (2) relates to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably related to future
criminality. . . .’ This test is conjunctive—all three prongs must be satisfied
before a reviewing court will invalidate a probation term. . . . As such, even
if a condition of probation has no relationship to the crime of which a
defendant was convicted and involves conduct that is not itself criminal, the
condition is valid as long as the condition is reasonably related to preventing
future criminality. . . .’ (People v. Olguin, 45 Cal.4th 375 (California Court of Appeals 2008). .
. .
In re Patrick F.,
supra.
The court then began applying the above holdings and rules
to Patrick F.’s case:
In the case before us, an electronics
search condition was reasonably related to future criminality even if it was
not directly related to the underlying burglary. [Patrick F.] told the
probation officer he used marijuana frequently and had committed the burglary
to get money to buy marijuana. He also acknowledged he was not going to school
on a regular basis, due in part to his marijuana use. Both drug use and truancy
have been recognized by the Legislature as `precursor[s] of serious
criminality.’ (In re P.A., (2012) 211 Cal. App. 4th 23, 36
(California Court of Appeals 2012) [citing legislative history of Welfare& Institutions Code, § 729.3, authorizing drug testing for delinquent
minors who remain placed in parents' custody]; see In re Robert M.,163
Cal.App.3d 812 (California Court of Appeals 1985) [school attendance as
probation condition upheld because reasonably related to future criminality].)
As recognized by the trial court, and
as any modern parent would likely attest, access to a teen's electronic
communications and social media can be a useful tool in tracking and monitoring
drug transactions, drug usage and communications with other individuals
associated with drugs. (See People
v. Olguin, supra [probation condition `that enables a probation officer to
supervise his charges effectively’ is reasonably related to future criminality]; People v. Ebertowski, 228 Cal.App.4th 1170
(California Court of Appeals 2014) [password condition was necessary for
probation officer to implement search, association and gang conditions in case
where defendant was convicted of threatening and resisting peace officer for
the benefit of his gang].)
In re Patrick F.,
supra.
The Court of Appeals explained that it “respectfully
disagree[d]” with the decision in
In
re Erica R., supra, in its conclusion that because there was nothing in the
record to tie the use of electronics to the minor's commitment offense --
possession of Ecstasy -- there was no reason to believe an electronics search
condition would serve a rehabilitative purpose. In re Erica R., supra. An electronics search condition such as the
one in this case is `not about prohibiting particular conduct but [is] instead
about enabling the effective supervision of probationers, [bringing them]
within the ambit of People v.
Olguin, supra.
Nothing in People
v. Olguin, nor in any other case of which we are aware, requires a
connection between a probationer's past conduct and the locations that may be
searched to uphold a search condition under People v. Lent, supra. Because
no such connection is required, conditions permitting searches of probationers'
vehicles, for example, are permissible regardless of whether the record shows
that the probationer has access to a vehicle or has engaged in illegal activity
related to a vehicle. Given the ubiquity of electronic devices, particularly
cell phones, we cannot say that an electronics search condition is unreasonable
simply because the record does not show that the probationer necessarily has
access to such devices or has used them to engage in illegal activity.’ (In
re Ricardo P., supra.) Because of its relationship to future criminality,
the electronics search condition is reasonable under Lent.
In re Patrick F.,
supra.
The court also noted that Patrick F. argued that the
electronics search condition is
unconstitutionally overbroad because it `forces him to surrender his privacy
rights in regards to matters that are not reasonably related to deterring
criminal behavior.’ We review this constitutional challenge de novo. (In re
Shaun R., 188 Cal.App.4th 1129 (California Court of Appeals 2010)).
`”A probation condition that imposes
limitations on a person's constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.”’ . . . Under this doctrine, ‘“a governmental
purpose to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.’“ . . . People v. Ebertowski, 228 Cal.App.4th 1170 (California Court of
Appeals 2014).
In re Patrick F.,
supra.
It also pointed out that while the Juvenile Court’s
discretion to impose probation conditions
is broad, it is not `boundless.’ (In re
Frank V., 233 Cal.App.3d 1232 (California Court of Appeals 2007). The
electronics search condition in this case does not limit the types of data
(whether on the phone or accessible through the phone) that may be searched. [Patrick
F.] has a privacy interest in the information contained on his electronic
devices. This interest is trumped by the state's interest in effectively
monitoring his probation, but only to the extent the information is reasonably
likely to yield evidence of drug use, other criminal activity or noncompliance
with probation conditions. The electronics search condition as currently
written `permits review of all sorts of private information that is highly
unlikely to shed any light on whether [appellant] is complying with the other
conditions of his probation, drug-related or otherwise.’ (In re Ricardo P., 2015
WL 6387774 (California Court of Appeals 2015)).
Although we do not find a
constitutional impediment to allowing officers to search data likely to reveal
drug use or other criminal activities by a minor, many types of data available
on a cell phone or electronic device would not fall into this category. Banking
information, online games, musical libraries, medical records and electronic
books, magazines and newspapers, for example, are unlikely to assist the
probation officer in supervising appellant. Conversely, call logs, `text
and voicemail messages, photographs, e-mails, and social-media accounts’ are
reasonably likely to reveal whether he is using drugs or otherwise violating
the terms of his probation. (In re Ricardo P., supra). We will
therefore order the probation condition modified accordingly.
In re Patrick F.,
supra.
The Court of Appeals therefore concluded its opinion by
stating that the search condition
of the probation order, which currently
reads, `Submit person and any vehicle, room or property [and] any electronics
and passwords under your control to search by Probation Officer or peace
office[r] with or without a search warrant at any time of the day or night’ is
modified to read: ‘Submit your person and any vehicle, room or property under
your control to a search by the probation officer or a peace officer, with or
without a search warrant, at any time of the day or night. Submit all
electronic devices under your control to a search of any text messages,
voicemail messages, call logs, photographs, e-mail accounts and social media
accounts, with or without a search warrant, at any time of the day or night,
and provide the probation or peace officer with any passwords necessary to access
the information specified.’
In re Patrick F.,
supra. The court ended its opinion by ordering that “[a]s so
modified, the judgment is affirmed.” In
re Patrick F., supra.
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