People v. Malik J. , 193 Cal. Rptr. 3d 370 ( 2015 )

Filed 9/29/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re MALIK J., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
MALIK J., A143355
Defendant and Appellant. (Alameda County
Super. Ct. No. C169285)
Malik J., a minor, appeals from a dispositional order issued pursuant to Welfare &
Institutions Code section 602 after he admitted an allegation that he violated the terms of
his probation. He contends the court unconstitutionally imposed a condition of probation
that requires him and his family to permit searches of and disclose all passwords to their
electronic devices and social media sites. We agree the condition is overbroad and order
it to be modified to conform to constitutional requirements.
BACKGROUND
On the night of September 21, 2014, 17-year-old Malik and one or two
companions physically assaulted and robbed three different women near the MacArthur
Street BART station. Malik had previously been adjudged a ward of the court after
admitting a robbery in 2012, and was on probation in the custody of an aunt. Among the
conditions of probation imposed for the 2012 adjudication was that Malik “submit person
and any vehicle, room or property 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.”
1
The Alameda County District Attorney filed a notice of probation violation
alleging that Malik committed three robberies and possessed eight baggies of marijuana.
At the dispositional hearing, Malik admitted the probation violations. The court ordered
him detained at juvenile hall pending out of home placement and continued all previously
ordered terms and conditions of probation, “[i]ncluding the search clauses.”
The prosecutor interjected that Malik had been working with two other
individuals, which “would indicate electronic devices might be used to coordinate with
other people, and one of these robberies involved an iPhone, which means electronic
devices on his person might be stolen.” In response, over a defense objection, the court
added additional probation conditions that required Malik and possibly his family to
provide all passwords and submit to searches of electronic devices and social media sites.
“So you’re to—and the family—is to provide all passwords to any electronic devices
including cell phones, computers and notepads within your custody and control, and
submit to search of devices at any time to any peace officer. And also provide any
passwords to any social media sites, including [F]acebook, Instagram, and submit those
[s]ites to any peace officer with or without a warrant.”1
The signed minute order states this probation condition somewhat differently,
omitting the references to Malik’s family and social media sites. It states: “Minor is
ordered to provide all passwords to any electronic devices, including cell phones,
computers or [notepads], within your custody or control, and submit such devices to
search at any time without a warrant by any peace officer.”
Malik filed this timely appeal.
DISCUSSION
I. Legal Principles
Welfare and Institutions Code section 730 authorizes the juvenile court to “impose
and require any and all reasonable conditions that it may determine fitting and proper to
1
For ease of reference, we will refer to this probation condition as the “electronics
search condition.”
2
the end that justice may be done and the reformation and rehabilitation of the ward
enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) In planning conditions of probation,
the juvenile court must consider the minor’s entire social history, in addition to the
circumstances of the offense. (In re Todd L. (1980) 113 Cal. App. 3d 14 (Todd L.).)
The juvenile court has broad discretion to formulate probation conditions. (In re
Tyrell J. (1994) 8 Cal. 4th 68, 81, 20, overruled on other grounds in In re Jaime P. (2006)
40 Cal. 4th 128, 130; In re Josh W. (1997) 55 Cal. App. 4th 1, 5.) Because juvenile
probation conditions are imposed on the minor to ensure his rehabilitation, “[a] condition
of probation which is impermissible for an adult criminal defendant is not necessarily
unreasonable for a juvenile receiving guidance and supervision from the juvenile court.”
(Todd L., supra, 113 Cal.App.3d at p. 19; In re Frankie J. (1988) 198 Cal. App. 3d 1149,
1153.) Indeed, a juvenile court may impose a condition of probation that would be
unconstitutional in an adult context, “so long as it is tailored to specifically meet the
needs of the juvenile.” (Josh W., supra, at p. 5.) “This is because juveniles are deemed
to be more in need of guidance and supervision than adults, and because a minor’s
constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a
minor, stands in the shoes of the parents. And a parent may ‘curtail a child’s exercise of
the constitutional rights . . . [because a] parent’s own constitutionally protected “liberty”
includes the right to “bring up children” [citation] and to “direct the upbringing and
education of children.” [Citation.]’ [Citations.]” (In re Antonio R. (2000) 78
Cal. App. 4th 937, 941.)
But the juvenile court’s discretion is not unlimited. A probation condition is
invalid if 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.” (People v. Lent (1975) 15 Cal. 3d
481, 486 (Lent).) In addition, a juvenile court may not adopt probation conditions that
are constitutionally vague or overbroad. (In re Sheena K. (2007) 40 Cal. 4th 875, 889–
891 (Sheena K.); In re Victor L. (2010) 182 Cal. App. 4th 902, 910 (Victor L.).)
3
While we generally review the court’s imposition of a probation condition for
abuse of discretion, we review constitutional challenges to probation conditions de novo.
(In re Shaun R. (2010) 188 Cal. App. 4th 1129, 1143.) In an appropriate case, a probation
condition that is not sufficiently precise or narrowly drawn may be modified in this court
and affirmed as modified. (See, e.g., Sheena K., supra, 40 Cal.4th at p. 892; People v.
Lopez (1998) 66 Cal. App. 4th 615, 629.)
II. Overbreadth and Vagueness
Malik argues the electronics condition fails under Lent because it bears no
reasonable relationship to his criminality, and restricts his constitutional rights of privacy
and freedom of expression without being narrowly tailored. The People maintain the
condition is justified by Malik’s history of robbing people of their cell phones and his
claim that he does not himself own a cell phone. “[I]t is manifestly reasonable to impose
the probation search condition so that, if [Malik] were found in possession of a cell
phone, a probation or police officer could check the phone to determine whether it had
been stolen.” True, as far as it goes. But the electronics search condition goes
considerably farther than permitting police to search a cell phone to determine whether
Malik is the owner. It also requires him to turn over his passwords to, and authorizes
unfettered searches of, all of his electronic devices and all of his social media accounts.
As Malik observes, identifying whether an electronic device is stolen has no relationship
to accessing the content of his social media accounts.
Under the overbreadth doctrine, “conditions of probation that impinge on
constitutional rights must be tailored carefully and reasonably related to the compelling
state interest in reformation and rehabilitation.” (Victor L., supra, 182 Cal.App.4th at p.
910; Sheena K., supra, 40 Cal.4th at p. 890.) The mismatch here is of concern, because
the threat of unfettered searches of Malik’s electronic communications significantly
encroaches on his and potentially third parties’ constitutional rights of privacy and free
speech. “Modern cell phones are not just another technological convenience. With all
they contain and all they may reveal, they hold for many Americans ‘the privacies of
life[.]’ [Citation]. The fact that technology now allows an individual to carry such
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information in his hand does not make the information any less worthy of the protection
for which the Founders fought.” (Riley v. California (2014) ___ U.S. ___, ___ [134 S. Ct.
2473, 2494–2495, 2491] (Riley).) In view of these significant privacy implications, the
electronics search condition must be modified to omit the requirement that Malik turn
over passwords to social media sites and to restrict searches to those electronic devices
found in his custody and control.
But this does not mean that officers would have the unfettered right to retrieve any
information accessible from any phone or computer in Malik’s possession. The
probation condition allowing officers to search property in Malik’s control is nominally
broad enough to allow the search of electronic devices. Such a condition allows
warrantless searches of a probationer’s property so long as they are not arbitrary,
capricious or harassing. (In re Jaime P., supra, 40 Cal.4th at p. 136.) While a search
condition diminishes a juvenile probationer’s reasonable expectation of privacy, it does
not entirely preclude it. (Ibid.) As is evident here, the ubiquitous advent of cell phones
and their capacity both to store and to remotely access vast quantities of personal
information (see Riley, supra, 134 S.Ct at pp. 2479–2480) require us to consider the
extent to which an officer may search such devices pursuant to a probation search
condition without violating the probationer’s diminished privacy interests.
As observed in Riley, supra, “it is no exaggeration to say that many of the more
than 90% of American adults who own a cell phone keep on their person a digital record
of nearly every aspect of their lives—from the mundane to the intimate. [Citation.]
Allowing the police to scrutinize such records on a routine basis is quite different from
allowing them to search a personal item or two in the occasional case.” (135 S.Ct at p.
2490.) The exact measure of a probationer’s expectation of privacy in the context of
electronic devices is further complicated by the fact that “the data a user views on many
modern cell phones [and other devices] may not in fact be stored on the device itself.”
(Riley, supra, 134 S.Ct. at p. 2491.) Information stored in a remote location cannot be
considered in the probationer’s possession nor entirely within his or her control.
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Remotely stored information may also implicate the privacy interests of third
parties who are not otherwise subject to search or court supervision. This remains true
even if the information is posted to a social networking website or a large group of
people. There are hundreds of social networking websites, but all essentially have the
same characteristics. They allow users to create their unique personal profile, and
establish their own network of friends or join existing groups with common interests.
Although a user’s personal profile is potentially viewable by anyone, the websites have
privacy features that allow users to set limits on who may access their information and
what information may be shared generally. Some websites default their settings to allow
broad public access, while others default to more private access. (Abilmouna, Social
Networking Sites: What An Entangled Web We Weave (2012) 39 W. St. U. L.Rev. 99,
102.) In recognition that users of electronic media have a legitimate interest in the
confidentiality of communications in electronic storage at a communications facility,
congress passed the Stored Communications Act (18 U.S.C. § 2701 et seq.). User
information stored by social networking sites is protected by the act, and several courts
have recognized that users have a reasonable Fourth Amendment expectation of privacy
in electronic communications, and that a warrant based upon probable cause may be
required to obtain their content. (Facebook v. Superior Court (2015) ____ Cal.App.4th
____ [2015 WL 5244640, 6, 7].)
These principles usefully inform the application of a search clause to electronic
devices within a probationer’s control or possession. Officers must be able to determine
ownership of any devices in a probationer’s custody or within his or her control, and
search them if they belong to the probationer or if officers have a good faith belief that he
or she is a permissive user. But in performing such searches, officers must show due
regard for information that may be beyond a probationer’s custody or control or implicate
the privacy rights of the probationer or third parties. Officers should not be allowed to
conduct a forensic examination of the device utilizing specialized equipment that would
allow them to retrieve deleted information that is not readily accessible to users of the
device without such equipment. They should also first disable the device from any
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internet or cellular connection. These measures will limit a search to information that is
stored on the device and accessible to the probationer, and thus in the probationer’s
possession and subject to his or her control. 2
But we reject Malik’s contention that it is unreasonable even to require him to
provide passwords for electronics found in his custody and control because officers can
identify a phone’s legal owner by using identifying numbers and codes found on the
devices. “The essential question in an overbreadth challenge is the closeness of the fit
between the legitimate purpose of the restriction and the burden it imposes on the
defendant’s constitutional rights—bearing in mind, of course, that perfection in such
matters is impossible, and that practical necessity will justify some infringement.” (In re
E.O. (2010) 188 Cal. App. 4th 1149, 1153.) That officers could potentially determine
whether a phone or computer has been stolen without obtaining the password does not
make it an abuse of discretion to require Malik to provide it for that limited purpose.
We also reject Malik’s claim that the electronics search condition is
unconstitutionally vague because the phrase “any electronic devices” could be interpreted
to encompass Kindles, Playstations, and iPods, or the codes to his car, home security
system, or ATM card. “A restriction is unconstitutionally vague if it is not
‘ “ ‘sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether the condition has been violated.’ ” ’ [Citation.] A restriction
failing this test does not give adequate notice—‘fair warning’—of the conduct
proscribed. [Citations.]” (In re E.O., supra, 188 Cal.App.4th at p. 1153.) “ ‘In deciding
the adequacy of any notice afforded those bound by a legal restriction, we are guided by
the principles that “abstract legal commands must be applied in a specific context,” and
2
In light of this conclusion, we need not address Malik’s argument that allowing
law enforcement unfettered access to all of his electronic activities poses a risk of illegal
eavesdropping under the Invasion of Privacy Act. We also note that there is no indication
Malik used email, texting or social networking websites to facilitate his criminal
activities, and we express no opinion as to whether the electronics search condition would
be valid as imposed if he had. (See, e.g., People v. Ebertowski (2014) 228 Cal. App. 4th
1170, 1176–1177 [Lent standard satisfied where evidence showed defendant was a gang
member who used social media to promote his gang].)
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that, although not admitting of “mathematical certainty,” the language used must have “
‘reasonable specificity.’ ” ’ [Citation.]” (In re Shaun R., supra, 188 Cal.App.4th at p.
1144, italics omitted.) Here, the court imposed the electronics search condition in
response to concerns that Malik might use cell phones to coordinate with other offenders,
and that he had previously robbed people of their iPhones. The court listed cell phones,
computers and notepads as examples of the devices subject to search. We think it was
reasonably clear that the condition applies to similar electronic devices within Malik’s
custody and control that might be stolen property, and not, as Malik conjectures, to
authorize a search of his Kindle to see what books he is reading or require him to turn
over his ATM password. “[C]onditions [of probation] need not be spelled out in great
detail in court as long as defendant knows what they are[.]” (In re Frankie J., supra, 198
Cal. App. 3d 1149 at p. 1155.)
II. The Electronics Condition Does Not Extend To Malik’s Family
Malik argues the extension of the electronics and social media search condition to
his family violates his family’s Fourth Amendment and due process rights because the
juvenile court had no jurisdiction over Malik’s family members; his family had no notice
that they were being stripped of their fourth amendment protections; and it was
fundamentally unfair to Malik because his family members could refuse to abide by it. If
that was the court’s intent, we agree. Only Malik was adjudicated to be in violation of
the law. It goes without saying that only Malik was being placed on probation and,
therefore, could be directly subjected to the conditions of probation.
The People appropriately do not attempt to defend the search condition as applied
to Malik’s family. Rather, they ask us to view the clerk’s written order, which omits any
reference to the family, as prevailing over the court’s oral pronouncement. “If ‘an
irreconcilable conflict exists between the transcripts of the court reporter and the court
clerk, the modern rule is not automatic deference to the reporter’s transcript, but rather
adoption of the transcript due more credence under all the surrounding circumstances.”
(People v. Rodriguez (2013) 222 Cal. App. 4th 578, 586; People v. Smith (1983) 33 Cal. 3d
596, 599.) The People maintain the juvenile court could not have intended to subject
8
Malik’s family members to the search condition because, in essence, Malik did not live
with any of his relatives, but we fail to see why their conclusion follows from its premise.
The People’s view that the clerk’s order is more reliable is also hard to square with the
fact that it omits the requirement regarding social media sites, an omission the People
implicitly agree was a clerical error.
Another explanation, which we think plausible, is that the reference to Malik’s
family was to ensure that passwords for any devices in Malik’s custody or control, even if
owned by a family member, would be provided to peace officers when requested. In the
end, though, it does not matter. Whether or not the court meant what it said, the
probation condition is indisputably unconstitutional so far as it could be read to require
individuals other than Malik to submit to warrantless searches of their electronic devices
or turn over their passwords to police on demand. Any reference to his family must
therefore be stricken.
DISPOSITION
The electronics condition is ordered modified to omit reference to Malik’s family
and passwords to social media sites, and to authorize warrantless searches of electronic
devices in Malik’s custody and control only after the device has been disabled from any
internet or cellular connection and without utilizing specialized equipment designed to
retrieve deleted information that is not readily accessible to users of the device. As so
modified, the judgment is affirmed.
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_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
In re Malik J., A43355
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Trial Court: Alameda County Superior Court
Trial Judge: Honorable Mark Kliszewski
Counsel:
First District Appellate Project, Nathan Siedman for Defendant and Appellant, Malik J.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Donna M.
Provenzano, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney
General for Plaintiff and Respondent, the People.
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