People v. Wright ( 2019 )

Filed 7/2/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C082729
Plaintiff and Respondent, (Super. Ct. No. 16FE011619)
v.
CHRISTOPHER WRIGHT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Jack
Sapunor, Judge. Affirmed as modified.
Jin H. Kim, under appointment by the Court of Appeal for Defendant and
Appellant.
Xavier Becerra, Attorney General, Stephen G. Herndon, Supervising Deputy
Attorney General, Matthew A. Kearney, Deputy Attorney General for Plaintiff and
Respondent.
Defendant Christopher Wright admitted a felony violation of Penal Code section
530.5, subdivision (c)(3), acquiring personal identifying information with intent to
1
defraud, in relation to the possession of about 60 credit cards, driver’s licenses, gift cards
and Social Security cards in the names of other persons. (Statutory references that follow
are to the Penal Code unless otherwise stated.) The trial court placed defendant on
probation with various terms and conditions, including that defendant submit his
electronic storage devices and e-mail/Internet accounts to search without a search
warrant.
Defendant now contends (1) the electronic device search condition is invalid under
People v. Lent (1975) 15 Cal. 3d 481, 486 (Lent)1; (2) the electronic device search
condition violates his right to privacy and is overbroad; (3) the electronic device search
condition violates his privilege against self-incrimination; (4) the electronic device search
condition violates the California Electronic Communications Privacy Act (§ 1546 et
seq.); (5) the e-mail/Internet account search condition violates his right to privacy and his
privilege against self-incrimination; (6) his counsel was ineffective in failing to object to
the e-mail/Internet account search condition; (7) the urinalysis test fee is unauthorized
and cannot be made a condition of probation; (8) the order granting probation must be
modified to make clear that payment of the court facility fee is not a condition of
probation; and (9) the criminal impact fee is unauthorized. Defendant withdrew his
contention that certain probation conditions must be modified to include a scienter
requirement.
We modify the order granting probation to strike the urinalysis testing fee and the
criminal impact fee, and to provide that the court facility fee is not imposed as a
condition of probation, but instead is imposed as an order of the trial court entered at
judgment. We affirm the order granting probation as modified.
1 Lent was superseded by statute on another ground, as stated in People v. Wheeler
(1992) 4 Cal. 4th 284, 290-291.
2
FACTS AND PROCEEDINGS
Defendant entered a plea of no contest to willfully and unlawfully acquiring and
retaining the personal identifying information of 10 or more persons with intent to
defraud. He waived referral to probation and requested immediate judgment and
sentencing.
The People asked the trial court to impose an electronic device search condition to
help the probation department monitor whether defendant was violating the law.
The People submitted the declaration of Detective Sean Smith in support of the
request. Detective Smith was a member of the Sacramento Valley Hi Tech Crimes Task
Force, an agency which investigated cyber crimes. Detective Smith averred, based on his
training and experience, that persons who committed identity theft and fraud crimes
commonly used electronic devices to research and purchase victim information and
manufacture counterfeit credit cards, checks and identifications. The detective explained
how electronic devices could be used to commit identity theft and fraud crimes. He said,
for example, that cell phones were commonly used to photograph and store victim
information, identify locations where the defendant intended to commit fraud, and
deposit counterfeit checks into bank accounts. Detective Smith explained why it was
necessary to search all content on a device and obtain password information in identity
theft and fraud cases.
Defendant’s trial counsel objected to the electronic device search condition
because there was no indication a cell phone or electronic device was used in this case or
that defendant manufactured the items found in his car, and defendant’s only prior crime
was for driving stolen cars. Defendant’s trial counsel argued the electronic device search
condition was not tailored to defendant or the current offense and was overbroad. He
also argued the condition violated defendant’s Fifth Amendment rights in that it required
defendant to disclose passwords. Defendant’s trial counsel pointed out that another
3
probation condition already required disclosure of e-mail/Internet accounts and access to
computers, networks and passwords. Defendant’s trial counsel did not object to the e-
mail/Internet account search condition.
The trial court imposed the electronic device search condition over defendant’s
objection. It said, “It does appear that computers, cell phones, other electronic devices
are extremely useful in violating this code section. One can violate it by possessing these
things and also the manufacture of these things or the negotiation of various instruments
can be facilitated through the use of these electronic devices. So I think there is a nexus
here in this case, given the offense.”
The trial court suspended imposition of sentence and placed defendant on formal
probation for five years. It imposed 19 specific conditions of probation including a
general search condition which provided, “Defendant shall submit his person, property
and automobile and any object under [his] control to search and seizure in or out of . . .
[his] presence . . . , by any law enforcement officer and/or probation officer, at any time
of the day or night, with or without his consent, with or without a warrant.”
The trial court also imposed an electronic device search condition as follows:
“P.C. 1546 searchable - Defendant shall submit his . . . person, place, property,
automobile, electronic storage devices, and any object under his . . . control, including but
not limited to cell phone and computers, to search and seizure by any law enforcement
officer or probation officer, any time of the day or night, with or without a warrant, with
or without his . . . presence or further consent. [¶] Defendant being advised of his . . .
constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this
regard, and having accepted probation, is deemed to have waived same and also
specifically consented to searches of his . . . electronic storage devices. [¶] Defendant
shall provide access to any electronic storage devices and data contained therein,
including disclosing and providing any and all information necessary to conduct a
search.”
4
In addition, the trial court imposed an e-mail/Internet account search condition:
“Defendant shall disclose all email accounts, all internet accounts and any other means of
access to any computer or computer network, all passwords and access codes. Defendant
shall consent to the search of such email and internet accounts at any time and for the
seizure of any information without a search warrant or probable cause.”
Defendant was also prohibited from possessing, controlling or using a personal
checking account, unless authorized by his probation officer; possessing personal
identifying information of another person, as defined in section 530.5, without prior
approval of the probation department; possessing an access card, as defined in section
484d, subdivision (2), in the name of another without prior approval of the probation
department; possessing software designed for manufacturing checks or blank check
paper; knowingly possessing a scanner; possessing an access card reader or encoder;
intentionally concealing the source, destination or content of any electronic
communication transmitted or otherwise sent by defendant; providing false information
about his identity to an electronic communications service provider, as defined in section
2510(15) of title 18 of the United States Code, when purchasing or agreeing to purchase
any service from that provider which allows defendant to send and receive electronic
communications; and possessing any software and/or hardware designed to encrypt or
decrypt computer files.
Defendant was further required to pay restitution, a restitution fine under section
1202.4, subdivision (b), a criminal impact fee pursuant to section 1465.7, subdivision (a),
a urinalysis test fee, and a court facility fee pursuant to Government Code section 70373.
Defendant filed a brief opposing the electronic device search condition after the
sentencing hearing. He asserted privacy, overbreadth, the Electronic Communications
Privacy Act and his Fifth Amendment privilege against self-incrimination as the basis for
his objection and asked the trial court to narrowly tailor the condition to fit the
5
government’s purposes. The appellate record does not indicate whether a further hearing
was requested or held based on defendant’s written brief.
DISCUSSION
I
The Electronic Search Condition Is Not Invalid Under Lent
Defendant claims the electronic device search condition is invalid under Lent,
supra, 15 Cal.3d at page 486, because the condition is unrelated to his current offense,
possession of electronic storage devices is lawful, and the condition is not reasonably
related to his future criminality. We disagree.
A grant of probation is an act of clemency. (People v. Moran (2016) 1 Cal.5th
398, 402 (Moran).) Probation is a privilege, not a right. (Ibid.) When an offender
chooses probation, thereby avoiding incarceration, the sentencing court may impose
reasonable conditions of probation as it “may determine are fitting and proper to the end
that justice may be done, that amends may be made to society for the breach of the law,
for any injury done to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the probationer.” (§ 1203.1, subd.
(j).) Section 1203.1 grants sentencing courts broad discretion to impose probation
conditions to foster rehabilitation and protect public safety. (People v. Carbajal (1995)
10 Cal. 4th 1114, 1120.)
“ ‘Generally, “[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 . . . .’ [Citation.]” [Citation.] This test[, which the
California Supreme Court adopted in Lent,] is conjunctive—all three prongs must be
satisfied before a reviewing court will invalidate a probation term. [Citations.] As such,
even if a condition of probation has no relationship to the crime of which a defendant was
6
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.’ [Citation.]”
(Moran, supra, 1 Cal.5th at p. 403.)
We review the validity of a probation condition under Lent for abuse of discretion.
(Moran, supra, 1 Cal.5th at p. 403; People v. Carbajal, supra, 10 Cal.4th at p. 1121.) We
will not disturb the trial court’s decision to impose a particular condition of probation
unless that choice is arbitrary and exceeds the bounds of reason, all of the circumstances
being considered. (Moran, supra, 1 Cal.5th at p. 403; People v. Anderson (2010)
50 Cal. 4th 19, 32.) As the party challenging the condition, defendant must clearly show
that the condition is irrational or arbitrary. (People v. Balestra (1999) 76 Cal. App. 4th 57,
63 (Balestra).) Absent such a showing, we presume the sentencing court “ ‘ “acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” [Citation.] Concomitantly, “[a]
decision will not be reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’ [Citations.]” [Citation.]’ ” (Ibid.)
Addressing the first and second Lent factors, the Attorney General agrees there is
no evidence an electronic device played a role in the current offense, and using an
electronic device is not criminal. Turning to the third Lent factor, however, the Attorney
General argues the electronic device search condition is reasonably related to preventing
future criminality. We agree.
Probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled,
but only . . . conditional liberty properly dependent on observance of special [probation]
restrictions.’ [Citation.] [¶] These restrictions are meant to assure that the probation
serves as a period of genuine rehabilitation and that the community is not harmed by the
probationer’s being at large. [Citation.] These same goals require and justify the
7
exercise of supervision to assure that the restrictions are in fact observed.” (Griffin v.
Wisconsin (1987) 483 U.S. 868, 874-875 [97 L. Ed. 2d 709, 718] (Griffin).)
In general, a probation search condition helps “ ‘deter further offenses by the
probationer and to ascertain whether he [or she] is complying with the terms of . . .
probation.’ [Citation.]” (People v. Bravo (1987) 43 Cal. 3d 600, 610 (Bravo); see People
v. Robles (2000) 23 Cal. 4th 789, 795 (Robles).) “By allowing close supervision of
probationers, probation search conditions serve to promote rehabilitation and reduce
recidivism while helping to protect the community from potential harm by probationers.”
(Robles, supra, 23 Cal.4th at p. 795.) A term of probation that facilitates effective
supervision of a probationer is, therefore, reasonably related to deterring future
criminality. (People v. Olguin (2008) 45 Cal. 4th 375, 378, 380-381 (Olguin).)
In Olguin, the probationer had agreed to the warrantless search of his residence.
The California Supreme Court there held that a condition requiring the probationer to
notify his probation officer of the presence of pets at the probationer’s residence was
reasonably related to future criminality because the pet disclosure condition helped
protect probation officers during compliance visits and facilitated unannounced searches
of the probationer’s residence, aimed at discovering whether the probationer was
complying with the terms of his probation. (Olguin, supra, 45 Cal.4th at pp. 381-382.)
Similarly, the appellate court in Balestra upheld a condition requiring the probationer to
submit her person and property to search with or without probable cause, concluding that
such condition served the rehabilitative purpose of helping a probation officer ensure that
his or her charge was obeying all laws. (Balestra, supra, 76 Cal.App.4th at pp. 61, 64-
68.) For that reason, the condition was reasonably related to future criminality. (Ibid.;
see Olguin, supra, 45 Cal.4th at p. 381.) An electronic device search condition is
likewise reasonably related to preventing a defendant’s future criminality. (People v.
Valdivia (2017) 16 Cal.App.5th 1130, 1137-1139, review granted Feb. 14, 2018,
S245893 (Valdivia) [electronic device search condition was reasonably related to future
8
criminality because it helped the probation officer ensure that the defendant was
complying with the conditions of his probation by obeying all laws]; In re P.O. (2016)
246 Cal. App. 4th 288, 293-296 [electronic device search condition was reasonably related
to future criminality because it enabled peace officers to review the probationer’s
electronic activity for indications that the probationer had drugs or was otherwise
violating his probation].) 2
Here, defendant admitted that he willfully, and with intent to defraud, acquired the
personal identifying information of 10 or more persons. The trial court found that
electronic devices would be extremely useful in manufacturing, obtaining and using the
kinds of items found in defendant’s possession. The trial court imposed other probation
conditions aimed at deterring defendant’s commission of identity theft crimes in the
future. Defendant does not challenge those other terms of his probation. Searching
defendant’s cell phone, computers and other electronic storage devices would enable
defendant’s probation officer to ascertain whether defendant is complying with the other
unchallenged conditions of defendant’s probation.
2 The California Supreme Court granted review in a number of cases challenging
electronic device search conditions. The lead case is In re Ricardo P. (2015)
241 Cal. App. 4th 676, review granted Feb. 17, 2016, S230923. Some of the cases now
before the Supreme Court concluded, like Valdivia, an opinion from this court, that the
electronic device search condition was reasonably related to future criminality. (People
v. Trujillo (2017) 15 Cal.App.5th 574, 583, review granted Nov. 29, 2017, S244650
(Trujillo); In re J.E. (2016) 1 Cal.App.5th 795, 801-803, review granted Oct. 12, 2016,
S236628; In re George F. (2016) 248 Cal. App. 4th 734, 740-742, review granted Sept. 14,
2016, S236397; In re A.S. (2016) 245 Cal. App. 4th 758, 770-772, review granted May 25,
2016, S233932; In re Alejandro R. (2015) 243 Cal. App. 4th 556, 563-567, review granted
Mar. 9, 2016, S232240; In re Patrick F. (2015) 242 Cal. App. 4th 104, 109-111, review
granted Feb. 17, 2016, S231428; In re Ricardo P., supra, 241 Cal. App. 4th 676, review
granted.) Others invalidated electronic device search conditions under the third Lent
factor. (People v. Bryant (2017) 10 Cal.App.5th 396, 401-406, review granted June 28,
2017, S241937; In re Mark C. (2016) 244 Cal. App. 4th 520, 532-535, review granted Apr.
13, 2016, S232849.)
9
While nothing in the record indicates that defendant used an electronic device to
acquire, obtain, manufacture or use the credit cards, driver’s licenses, gift cards, and
Social Security cards found in his possession, the trial court’s finding that electronic
devices can facilitate the commission of identity theft crimes is not outside the bounds of
reason. (People v. Valenzuela (2012) 205 Cal. App. 4th 800, 803 [the defendant possessed
credit card information, dates of birth, Social Security numbers, telephone numbers, and
addresses for three people which he obtained from a Web site that advertised the sale of
people’s personal identifying information]; People v. Love (2008) 166 Cal. App. 4th 1292,
1295-1296 [use of credit card information belonging to other people to make
unauthorized online purchases]; People v. Shabtay (2006) 138 Cal. App. 4th 1184, 1188-
1189 [same].) Whatever the outer limits of Olguin may be, we conclude that in this case,
the electronic device search condition imposed by the trial court would facilitate the
effective supervision of defendant during his probation period by helping his probation
officer determine whether defendant was complying with the terms of his probation,
thereby deterring the future commission of identity theft crimes by defendant,
effectuating the rehabilitative purpose of section 1203.1 and protecting the public.
(Olguin, supra, 45 Cal.4th at pp. 378, 380-381; Valdivia, supra, 16 Cal.App.5th at
pp. 1138-1139, review granted; id. at pp. 1137-1138 [rejecting the contention that a
probation condition must have a specific connection to the facts of the current offense or
the defendant’s past criminal conduct]; In re P.O., supra, 246 Cal.App.4th at p. 295; see
People v. Mason (1971) 5 Cal. 3d 759, 764 (Mason), [validating a search condition aimed
at deterring or discovering subsequent criminal offenses], disapproved on another ground
in Lent, supra, 15 Cal.3d at p. 486, fn. 1; Balestra, supra, 76 Cal.App.4th at pp. 65-68.)
As the Supreme Court explained in Olguin, as a general rule, “[a] condition of probation
that enables a probation officer to supervise his or her charges effectively is . . .
‘reasonably related to future criminality.’ ” (Olguin, supra, 45 Cal.4th at pp. 380-381.)
10
Defendant nevertheless argues the electronic device search condition is not
reasonably related to his future criminality because there is no reasonable relationship
between the condition and his current offense or his social and criminal history.
Defendant asks us to follow In re Erica R. (2015) 240 Cal. App. 4th 907 and In re J.B.
(2015) 242 Cal. App. 4th 749.
The minor in In re Erica R. admitted to misdemeanor possession of Ecstasy after a
school counselor found a baggie of pills in her purse. (In re Erica R., supra,
240 Cal.App.4th at p. 909.) The juvenile court placed the minor under supervision with
the condition that she submit to searches of her electronic devices and turn over her
passwords to her probation officer. (Ibid.) The juvenile court said, “ ‘I found in practice
that many juveniles, many minors, who are involved in drugs tend to post information
about themselves and drug usage. They post photos of themselves using drugs and drug
paraphernalia. This is the way of keeping track [of] her drug usage, not just a way of
testing her.’ ” (Id. at p. 910, fn. omitted.) The Court of Appeal struck the electronic
device search condition under Lent because there was no evidence connecting the minor’s
electronic device or social media usage to her offense or to a risk of future criminal
conduct. (In re Erica R., supra, at pp. 909-910.) With regard to the third factor under
Lent, the appellate court said the record did not support a conclusion that the electronic
device search condition was reasonably related to future criminality because nothing in
the minor’s past or current offenses or her personal history showed a predisposition to use
electronic devices or social media in connection with criminal activity. (Id. at p. 913.)
The minor in In re J.B. admitted committing a petty theft. (In re J.B., supra,
242 Cal.App.4th at p. 752.) The trial court placed the minor on probation with the
condition that he submit to searches of his electronics and disclose his passwords. (Ibid.)
The trial court explained it imposed the condition because the minor admitted using
marijuana, people who used drugs tended to record their usage on the Internet, the
condition deterred the minor from committing crimes and allowed his probation officer to
11
monitor what he was doing, the minor’s grade point average was 0.0, and on one
occasion the minor played on his cell phone during an interview with his mother and the
probation officer. (Id. at p. 753.) The Court of Appeal held the electronic device search
condition was unreasonable because there was no evidence connecting the minor’s
electronic device or social media usage to his offense or to a risk of future criminal
conduct. (Id. at pp. 752, 756-757.)
We do not find In re Erica R. persuasive because it does not consider the
California Supreme Court’s interpretation of Lent’s third factor in Olguin. The condition
in Olguin—requiring notice of the presence of pets kept at the defendant’s residence—
had no relationship to the defendant’s offense of driving under the influence of alcohol.
(Olguin, supra, 45 Cal.4th. at pp. 379-380.) That fact, however, did not require
invalidating the probation condition under Lent. There is also no indication in the
Supreme Court’s opinion in Olguin that the defendant had any pets, planned to have a
pet, or had a history of engaging in conduct which interfered with compliance visits or
unannounced searches. Nevertheless, Olguin held that the pet notice condition was
reasonably related to deterring future criminality because it facilitated the effective
supervision of the probationer; in particular, the condition helped probation officers make
unscheduled visits and conduct unannounced searches of the probationer’s residence,
which was a term of probation the defendant did not challenge. (Id. at pp. 378, 380-381.)
In re Erica R. failed to consider whether the electronic device search condition in that
case would aid in the effective supervision of the minor and serve the goals of probation.
(In re Erica R., supra, 240 Cal.App.4th at pp. 913-915.)
In re J.B. considered Olguin but questioned whether Olguin “justifies a probation
condition that facilitates [the] general supervision of a ward’s activities if the condition
requires or forbids noncriminal conduct bearing no relation to the minor’s offense that is
not reasonably related to potential future criminality as demonstrated by the minor’s
history and prior misconduct.” (In re J.B., supra, 242 Cal.App.4th at p. 757.) Olguin,
12
however, does not require the risk of future criminality to be established by the
probationer’s history and prior misconduct. (Olguin, supra, 45 Cal.4th at pp. 380-381.)
Also, In re J.B. conflates the analysis under Lent with a determination whether a
probation condition is unconstitutionally overbroad. (In re J.B., supra, 242 Cal.App.4th
at pp. 757-758; In re P.O., supra, 246 Cal.App.4th at p. 296 [claim of violation of the
minor’s privacy is better addressed by the overbreadth doctrine and not under Lent); cf.
Moran, supra, 1 Cal.5th 398 at pp. 406-408 [examining validity under Lent separately
from constitutional claims]; Olguin, supra, 45 Cal.4th at pp. 384-387 [same].) As we
have explained, the electronic device search condition in this case is valid under Lent, as
interpreted in Olguin.
II
The Electronic Device Search Condition Is Not Unconstitutionally Overbroad
Defendant also claims the electronic device search condition is unconstitutionally
overbroad in that it infringes on his state and federal constitutional rights to privacy.
The Attorney General first responds that defendant waived his privacy claims by
consenting to the electronic device search condition. We reject the Attorney General’s
contention. A defendant who accepts a term of probation may, after objecting in the trial
court, challenge the condition as unconstitutional. (Moran, supra, 1 Cal.5th at p. 403, fn.
5; People v. Woods (1999) 21 Cal. 4th 668, 678, fn. 5; People v. Brandão (2012)
210 Cal. App. 4th 568, 572.) Defendant objected to the electronic device search condition
in the trial court, asserting that the condition violated his right to privacy and was
overbroad. The record does not show that he waived his right to challenge the condition
on appeal on those grounds.
We also reject the Attorney General’s claim that defendant forfeited his state
constitutional claims. We interpret defendant’s trial court objection to include a state
constitutional claim.
13
Defendant asserts the search condition is overbroad because it violates his right to
privacy under the Fourth and Fourteenth Amendments to the federal constitution and
article 1, section 1, of the state constitution. We disagree. But before we explain why,
we first discuss the test we are to apply to determine whether the condition violates
defendant’s right to privacy. It is a different test than what a number of courts have
applied to this issue.
A. The Inapplicability of the “Closely Tailored” Test
Generally, “ ‘[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.’ (In re Sheena K. (2007)
40 Cal. 4th 857, 890[.])” (Olguin, supra, 45 Cal.4th at p. 384; People v. Harrisson (2005)
134 Cal.App.4th, 637, 641.) Many of the appellate courts, including a panel of this court,
that have evaluated the constitutionality of electronic device search conditions did so
using this “closely tailored” test. (See Valdivia, supra, 16 Cal.App.5th at p. 1142, review
granted; People v. Appleton (2016) 245 Cal. App. 4th 717, 723; In re Ricardo P., supra,
241 Cal. App. 4th 676, review granted.) 3
3 Some of the cases now before the California Supreme Court that held electronic
device search conditions were valid under Lent were, nevertheless, unconstitutionally
overbroad because they were not tailored to limit the impact on the probationer’s privacy
rights. (Valdivia, supra, 16 Cal.App.5th at p. 1142, review granted; In re Ricardo P.,
supra, 241 Cal.App.4th at pp. 687-689, review granted; In re Alejandro R., supra,
243 Cal.App.4th at pp. 567-568, review granted; In re Patrick F., supra, 242 Cal.App.4th
at pp. 112-114, review granted.)
Others upheld electronic device search conditions against an overbreadth
challenge based on the alleged violation of the probationer’s privacy rights. (People v.
Maldonado (2018) 22 Cal.App.5th 138, 144-145, review granted June 20, 2018, S248800
[condition not overbroad because prohibition against arbitrary, capricious, or harassing
searches sufficiently protected defendant]; Trujillo, supra, 15 Cal.App.5th at pp. 586-589,
review granted [probation was needed to monitor the defendant; search condition was no
different than conditions authorizing warrantless searches of a probationer’s residence];
14
However, a more deferential standard of review applies where the constitutional
right being infringed is the defendant’s right to privacy. The privacy right defendant
asserts arises from the privacy interests protected by the Fourth Amendment. The test for
reviewing infringements of Fourth Amendment privacy is not whether the infringement is
closely tailored to its governmental purpose. Instead, it is whether the infringement is
reasonable after weighing the competing interests.
“The Fourth Amendment commands that searches and seizures be reasonable.
What is reasonable depends upon all of the circumstances surrounding the search or
seizure and the nature of the search or seizure itself. (New Jersey v. T.L.O. [(1985)
469 U.S. 325, 337-342] [83 L. Ed. 2d 720].) The permissibility of a particular law
enforcement practice is judged by ‘balancing its intrusion on the individual’s Fourth
Amendment interests against its promotion of legitimate governmental interests.’
[Citations.]” (U.S. v. Montoya de Hernandez (1985) 473 U.S. 531, 537 [87 L. Ed. 2d
381].) Whether a search is reasonable “is determined by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests.” (U.S. v.
Knights (2001) 534 U.S. 112, 118-119 [151 L. Ed. 2d 497] (Knights) (internal quotation
marks omitted).)
In re Q.R. (2017) 7 Cal.App.5th 1231, 1236-1239, review granted Apr. 12, 2017,
S240222 [“robust access” to the minor’s electronic devices was critical to probation
supervision in case where the minor used an electronic device to commit the charged
offenses]; In re J.E., supra, 1 Cal.App.5th at pp. 803-807, review granted [minor’s
circumstances required intensive supervision]; People v. Nachbar (2016) 3 Cal.App.5th
1122, 1128-1130, review granted Dec. 14, 2016, S238210 [electronic device search
condition was suitably tailored in light of the defendant’s need for intensive monitoring];
In re A.S., supra, 245 Cal.App.4th at pp. 772-775, review granted the minor’s broad array
of problems required intensive supervision].)
The California Supreme Court did not grant review on the issue of overbreadth in
the above cases. However, the court, after first deferring further action in the case, has
asked the parties in Trujillo to submit briefing on the issue.
15
We apply the same test when evaluating infringements of the state constitutional
right of privacy under article 1, section 1. Unlike other state constitutional rights, “[t]he
‘privacy’ protected by [article 1, section 1] is no broader in the area of search and seizure
than the ‘privacy’ protected by the Fourth Amendment . . . .” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal. 4th 1, 30, fn. 9.) “Under the Fourth Amendment and the
parallel search and seizure clause of the California Constitution (art. I, § 13), the
reasonableness of particular searches and seizures is determined by a general balancing
test ‘weighing the gravity of the governmental interest or public concern served and the
degree to which the [challenged government conduct] advances that concern against the
intrusiveness of the interference with individual liberty.’ [Citation.]” (Id. at pp. 29-30,
fn. omitted.; People v. Buza (2018) 4 Cal.5th 658, 684-685.)
The United States Supreme Court has not required a probation or parole search
condition be “closely tailored” when it infringes on an expectation of privacy. Instead, it
has evaluated the condition under the general balancing test just described to determine
whether the intrusion was reasonable under the circumstances. In Knights, supra,
534 U.S. 112, the court upheld the constitutionality of searches made pursuant to the
probation condition commonly used in California requiring the probationer to submit his
“ ‘person, property, place of residence, vehicle, personal effects, to search at anytime,
with or without a search warrant[.]’ ” (Id. at p. 114.) Affirming the investigative search
of a probationer’s home and vehicle who was suspected of arson, the court ruled the
search was reasonable under “our general Fourth Amendment approach of ‘examining
the totality of the circumstances,’ [citation], with the probation search condition being a
salient circumstance” (id. at p. 118), an approach the court called its “ordinary Fourth
Amendment analysis[.]” (Id. at p. 122.) The balance of the state’s interest in
rehabilitating the probationer and protecting the public from additional harm by him
outweighed the probationer’s limited interest in privacy. (Id. at p. 121.)
16
The Knights court did not address whether the probation condition so diminished
the probationer’s expectation of privacy that a search without individualized suspicion
would have satisfied the Fourth Amendment’s reasonableness requirement. (Knights,
supra, 534 U.S. at p. 120, fn. 6.) It did not because the search before it was supported by
reasonable suspicion. (Ibid.) In Samson v. California (2006) 547 U.S. 843 [165 L. Ed. 2d
520] (Samson), the court addressed that issue, albeit in the context of a parole search
condition.
The Samson court upheld the warrantless and suspicionless search of a parolee. It
did so by applying the same balancing test of reasonableness it applied in Knights:
“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree
to which it intrudes upon an individual’s privacy and, on the other, the degree to which it
is needed for the promotion of legitimate governmental interests.’ ([Knights, supra,
534 U.S. at pp.] 118-119 (internal quotation marks omitted.)” (Samson, supra, 547 U.S.
at p. 848.) Upholding the search, the court found the state’s interests in supervising
parolees, who have a high recidivism rate, and reintegrating them into the community
were “substantial” and “overwhelming” in light of the parolee’s reduced interest in
privacy. (Id. at pp. 850-855.) Although Samson noted parolees have fewer expectations
of privacy than probationers (id. at p. 850), the balancing test for conditions affecting
both probationers and parolees is reasonableness, and the government may still impose
reasonable conditions that deprive a probationer of freedoms enjoyed by law-abiding
citizens. (Knights, supra, 534 U.S. at p. 119.)
The United States Supreme Court has used the same balancing test of
reasonableness to review other infringements of Fourth Amendment privacy rights
without determining whether the intrusion was “closely tailored” to its purpose. For
example, by applying the balancing test, the court found to be reasonable, and thus
constitutional, a state statute requiring officers to take a DNA swab from persons charged
with committing crimes of violence even though the swab was taken without a warrant
17
(Maryland v. King (2013) 569 U.S. 435, 448 [186 L. Ed. 2d 1]); a warrantless search of
public employees’ offices and desks (O’Connor v. Ortega (1987) 480 U.S. 709, 725-726
[94 L. Ed. 2d 714]; and warrantless searches of school students (New Jersey v. T.L.O.,
supra, 469 U.S. at pp. 341-342). Applying the same balancing test of reasonableness, the
high court found unconstitutional a police officer’s warrantless search of an arrestee’s
cell phone. (Riley v. California (2014) 573 U.S. 373 [189 L. Ed. 2d 430] (Riley).) While
the competing interests in these cases were different from each other, the high court
nonetheless applied the general balancing test of reasonableness to determine
constitutionality in each of them.
The California Supreme Court has yet to speak on the constitutionality of
electronic device probation search conditions, perhaps because under California law,
probation search conditions are constitutionally valid due to the probationer’s waiver of
all Fourth Amendment rights when the probationer accepts probation. (Bravo, supra,
43 Cal.3d at p. 607; Mason, supra, 5 Cal.3d at pp. 765-766.)4
In many similar contexts, however, the California Supreme Court has reviewed the
constitutionality of a search or a search condition’s infringement on Fourth Amendment
privacy under the general balancing test of reasonableness, not whether the condition was
closely tailored. For example, the court upheld as reasonable, and thus constitutional, a
statute’s requirement to collect DNA samples from persons arrested for felonies (People
v. Buza, supra, 4 Cal.5th at pp. 684-691); a statute’s requirement to collect DNA samples
from convicted felons (People v. Robinson (2010) 47 Cal. 4th 1104, 1120-1122); and a
condition requiring an arrestee released from custody on his own recognizance to submit
4 The Knights court did not address the condition’s validity under California’s
doctrine of consent because it found the search reasonable. (Knights, supra, 534 U.S. at
p. 118.)
18
himself to random drug tests and warrantless searches and seizures (In re York (1995)
9 Cal. 4th 1133, 1137, 1150-1151).
The California Supreme Court has applied the balancing test in other contexts
involving the right to privacy. It applied the balancing test to conclude a probation
condition requiring the probationer to waive his psychotherapist-patient privilege did not
violate his right to privacy. (People v. Garcia (2017) 2 Cal.5th 792, 810-811.) It also
applied the balancing test to determine that a trial court’s erroneous disclosure of a
parolee’s statements to his therapist in a hearing to commit the parolee as a sexually
violent predator did not violate the parolee’s Fourth Amendment privacy. (People v.
Gonzales (2013) 56 Cal. 4th 353, 386.)
The California Supreme Court has analyzed the constitutionality of parole search
conditions under the balancing test for reasonableness. In People v. Reyes (1998)
19 Cal. 4th 743 (Reyes), the court applied the balancing test to hold that a warrantless
blanket search condition imposed on a parolee and executed without suspicion of
wrongdoing did not violate the Fourth Amendment. (Id. at p. 752.) “When parole or
probation searches are involved,” the court wrote, “the balance struck between individual
interest and government necessity is implicit in the determination that a ‘warrantless
search condition is a reasonable term’ in a parole or probation agreement.” (Ibid.)
In People v. Schmitz (2012) 55 Cal. 4th 909, the California Supreme Court applied
the balancing test to hold a warrantless search of a known parolee who was a passenger in
a vehicle did not violate the driver’s Fourth Amendment rights. (Id. at pp. 921-922.) The
court described the test as follows: “Whether a search is reasonable within the meaning
of the Fourth Amendment depends on the ‘ “totality of the circumstances.” ’ [Citations.]
This test includes an assessment of the degree to which a search promotes legitimate
governmental interests, balanced against the degree to which it intrudes upon an
individual’s privacy. [Citations.] Both we and the United States Supreme Court have
employed traditional standards of reasonableness to evaluate the constitutionality of
19
warrantless vehicle searches and parole searches. Accordingly, we consider whether the
officer’s search here was reasonable, with a ‘salient circumstance’ being the presence of a
parolee subject to a search condition. [Citations.]” (Id. at pp. 921-922.)
The California Supreme Court has also applied the balancing test in probation and
parole search cases involving third parties’ privacy rights. In Robles, supra, 23 Cal. 4th
789, the court determined the police violated the defendant’s reasonable expectations of
privacy under the Fourth Amendment when they searched a garage attached to his
residence that he shared with a probationer, and they did so without a warrant, without
consent, and without knowing the roommate was on probation. (Id. at p. 800.) The court
reached the same conclusion when police searched an apartment shared by the defendant
and a parolee without knowing the parolee’s status. (People v. Sanders (2003) 31 Cal. 4th
318, 330.) The issue again was reasonableness: “[W]hether a search is reasonable must
be determined based upon the circumstances known to the officer when the search is
conducted.” (Id. at p. 334.)
Even though the California Supreme Court has reviewed privacy challenges to
probation search conditions almost uniformly under the doctrines of consent and waiver,
it has indicated the reasonableness balancing test would apply were it not reviewing the
condition as one of consent. In its first case to address these issues, Mason, supra,
5 Cal. 3d 759, the high court decided the case based on waiver, but it stated the
reasonableness test was also at play: “We have heretofore suggested . . . that persons
conditionally released to society, such as parolees, may have a reduced expectation of
privacy, thereby rendering certain intrusions by governmental authorities ‘reasonable’
which otherwise would be invalid under traditional constitutional concepts, at least to the
extent that such intrusions are necessitated by legitimate governmental demands
[Citations.] Thus, a probationer who has been granted the privilege of probation on
condition that he submit [himself] at any time to a warrantless search may have no
20
reasonable expectation of traditional Fourth Amendment protection.” (Id. at pp. 764-
765.)
And at least on one occasion, the court has upheld a blanket probation search
condition under the general balancing test of reasonableness as well as consent. In
People v. Ramos (2004) 34 Cal. 4th 494, the court upheld on the basis of reasonableness a
search of a suspect’s home and truck conducted pursuant to a probation condition
authorizing warrantless searches of “person, property and automobile” at any time. (Id.
at pp. 504-506.) In none of these cases did the court reach its decision based on whether
the unlimited search conditions were “closely tailored” to their purpose.
In contrast, the cases that require a probation condition be closely tailored to its
purpose, and on which other courts of appeal have relied when reviewing an electronic
device search condition, did not involve a right to privacy under the Fourth Amendment.
In Olguin, supra, 45 Cal. 4th 375, the probationer claimed the condition requiring him to
notify his probation officer of pets infringed his rights of speech and association, not his
privacy rights. (Id. at p. 384.) The court in In re Sheena K., supra, 40 Cal. 4th 875, by
applying the “closely tailored” test, found a condition prohibiting the probationer from
associating with anyone not approved by the probation officer to be unconstitutionally
vague in violation of due process, not Fourth Amendment privacy. (Id. at p. 890.) The
authority that In re Sheena K. relied on to impose the “closely tailored” test, In re White
(1979) 97 Cal. App. 3d 141, held a condition prohibiting a probationer convicted of
prostitution from being in certain geographical areas violated the probationer’s right to
travel. (Id. at pp. 148-150.) And in People v. Harrisson, supra, 134 Cal. App. 4th 637, a
case heavily relied upon as authority for the “closely tailored” test, this court applied that
test to invalidate conditions that infringed on the probationer’s rights to work,
communicate, and associate with others. (Id. at p. 642.) The case did not concern the
Fourth Amendment right to privacy. Indeed, the opinion’s claim that “[i]t is not enough
to show the government’s ends are compelling” does not square with the United States
21
Supreme Court’s and the California Supreme Court’s Fourth Amendment jurisprudence.
(Id. at p. 641.)
We thus conclude the courts of appeal that have applied the “closely tailored” test
to a probation search condition allowing the search of a probationer’s electronic devices
applied the wrong test. The appropriate test is the balancing of interests to determine
reasonableness that the United States Supreme Court and the California Supreme Court
consistently apply to alleged violations of Fourth Amendment privacy rights. This test
correctly determines a person’s right to privacy against unreasonable searches and
seizures.
Understanding the reasonableness test is the proper standard of review leads to
another important conclusion: “ ‘If the search is reasonable, there is no constitutional
problem, for the Fourth Amendment only protects individuals from unreasonable
searches and seizures. (Skinner [v. Railway Labor Executives’ Assn. (1989) 489 U.S.
602], 619 [103 L. Ed. 2d 639].)’ ” (People v. Travis (2006) 139 Cal. App. 4th 1271, 1282,
quoting U.S. v. Sczubelek (3d Cir. 2005) 402 F.3d 175, 182, italics added.) In other
words, if the search condition is constitutionally reasonable, it is by definition not
overbroad.
Thus, our review of the electronic device search condition does not look for
overbreadth under the “closely tailored” standard. Rather, it weighs defendant’s interest
in his privacy against the state’s interests in support of the search condition. “ ‘The
touchstone of the Fourth Amendment is reasonableness . . . .’ ([Knights, supra, 534 U.S.
at pp.] 118-119 [].) ‘When faced with . . . diminished expectations of privacy, minimal
intrusions, or the like, the Court has found that certain general, or individual,
circumstances may render a warrantless search or seizure reasonable.’ (Illinois v.
McArthur (2001) 531 U.S. 326, 330 [148 L. Ed. 2d 838]; accord, People v. Robinson,
[supra, 47 Cal.4th at p.] 1120.)
22
“Whether a search is reasonable within the meaning of the Fourth Amendment
depends on the ‘ “totality of the circumstances.” ’ (Samson, supra, 547 U.S. at p. 848;
see Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L. Ed. 2d 347].) This test includes an
assessment of the degree to which a search promotes legitimate governmental interests,
balanced against the degree to which it intrudes upon an individual’s privacy. (Samson,
supra, at p. 848; [Wyoming v. Houghton (1999) 526 U.S. 295,] 300 [143 L. Ed. 2d 408].)”
(People v. Schmitz, supra, 55 Cal.4th at p. 921.) Accordingly, we consider whether the
electronic device search condition was reasonable, with a “salient circumstance” being
defendant was subject to the search condition as a condition of probation. (Knights,
supra, 534 U.S. at p. 118; accord, Samson, supra, 547 U.S. at p. 848.) We review the
constitutionality of probation conditions de novo. (In re Malik J. (2015) 240 Cal. App. 4th
896, 901.)
B. The Electronic Device Search Condition Agreed to by Defendant and Imposed
by the Court was Constitutionally Reasonable
Weighing the competing interests, we turn first to determine the degree to which
the electronic device search condition promotes legitimate governmental interests. We
have discussed the government’s interest already. (See pp. 7-9, supra.) The Knights
court explained it clearly: “In assessing the governmental interest side of the balance, it
must be remembered that ‘the very assumption of the institution of probation’ is that the
probationer ‘is more likely than the ordinary citizen to violate the law.’ (Griffin,[ supra,
483 U.S. at p.] 880.) The recidivism rate of probationers is significantly higher than the
general crime rate. [Citation.] And probationers have even more of an incentive to
conceal their criminal activities and quickly dispose of incriminating evidence than the
ordinary criminal because probationers are aware that they may be subject to supervision
and face revocation of probation, and possible incarceration, in proceedings in which the
trial rights of a jury and proof beyond a reasonable doubt, among other things, do not
apply. [Citations.]
23
“The State has a dual concern with a probationer. On the one hand is the hope that
he will successfully complete probation and be integrated back into the community. On
the other is the concern, quite justified, that he will be more likely to engage in criminal
conduct than an ordinary member of the community. . . . [The state’s] interest in
apprehending violators of the criminal law, thereby protecting potential victims of
criminal enterprise, may therefore justifiably focus on probationers in a way that it does
not on the ordinary citizen.” (Knights, supra, 534 U.S. at pp. 120-121.)
Further, the effectiveness of a search condition as a deterrent to committing more
crime “is enhanced by the potential for random searches.” (Reyes, supra, 19 Cal.4th at
p. 753.)
“Moreover, it must be remembered that probation is an ‘important aspect[] of the
state’s penal system,’ the ‘optimum successful functioning’ of which ‘is of compelling
public interest.’ [Citation.]” (Robles, supra, 23 Cal.4th at p. 799.) The electronic device
search condition significantly promotes the state’s interest in the effectiveness of its penal
system, protecting the community, and in rehabilitating defendant by authorizing
probation officers to determine from defendant’s electronic devices whether defendant is
complying with the terms of his probation and the law and is integrating into the
community in lawful ways.
In addition, the search condition promotes the state’s specific interest in defendant,
for, as mentioned above, it relates to the crime to which defendant admitted committing.
He admitted to acquiring personal identifying information unlawfully. As the trial court
found, electronic devices are extremely useful in manufacturing, obtaining, and using the
kinds of items found in defendant’s possession. The state thus has grounds to believe
future similar criminality by defendant would be found on his cell phone and other
electronic devices.
We compare the state’s interest in the search condition with the degree to which
the condition intrudes upon defendant’s privacy. To assess this factor, we look “to a
24
hierarchy of privacy interests. Reasonable expectations of privacy that society is
prepared to recognize as legitimate receive the greatest level of protection; diminished
expectations of privacy are more easily invaded; and subjective expectations of privacy
that society is not prepared to recognize as legitimate have no protection. [Citations.]”
(Reyes, supra, 19 Cal.4th at p. 751.)
There is no doubt defendant had a diminished expectation of privacy due to his
status as a probationer. “ ‘Probation, like incarceration, is “a form of criminal sanction
imposed by a court upon an offender after verdict, finding, or plea of guilty.” ’ (Griffin,
supra, at [p.] 874 (quoting G. Killinger, H. Kerper, & P. Cromwell, Probation and Parole
in the Criminal Justice System 14 (1976)). Probation is ‘one point . . . on a continuum of
possible punishments ranging from solitary confinement in a maximum-security facility
to a few hours of mandatory community service.’ ([Id. at p.] 874.) Inherent in the very
nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every
citizen is entitled.” ’ (Ibid., quoting Morrissey v. Brewer [(1972)] 408 U.S. 471, 480
[33 L. Ed. 2d 484] [].) Just as other punishments for criminal convictions curtail an
offender’s freedoms, a court granting probation may impose reasonable conditions that
deprive the offender of some freedoms enjoyed by law-abiding citizens.” (Knights,
supra, 534 U.S. at p. 119.)
Defendant’s expectation of privacy is further reduced by his understanding and
accepting the search condition. “[T]he expectation of privacy [is] greatly reduced when
the subject of the search is on notice that his activities are being routinely and closely
monitored.” (Reyes, supra, 19 Cal.4th at p. 753.) The probation order clearly expressed
the search condition, and defendant was “unambiguously informed of it. The probation
condition thus significantly diminished [defendant’s] reasonable expectation of privacy.”
(Knights, supra, 534 U.S. at pp. 119-120, fn. omitted.)
Weighing the state’s interests and defendant’s reduced interests, we conclude the
electronic device search condition here is reasonable for purposes of the Fourth
25
Amendment and does not offend defendant’s diminished expectations of privacy. The
degree to which the search condition promotes the government’s significant, if not
compelling, interests in integrating defendants and protecting the community outweighs
defendant’s limited expectations against government intrusion.
The intrusion is little different from the condition authorizing warrantless searches
of defendant’s residence. Like an electronic device, “a person’s home also contains
considerable confidential information and is a place in which a person has the absolute
right to be ‘left alone,’ and thus has long been provided the highest level of protection
from governmental interference.” (Trujillo, supra, 15 Cal.App.5th at p. 587.) “[W]hen it
comes to the Fourth Amendment, the home is first among equals. At the Amendment’s
‘very core’ stands ‘the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’ (Silverman v. United States [(1961)] 365 U.S.
505, 511 [5 L. Ed. 2d 734] [].)” (Florida v. Jardines (2013) 569 U.S. 1, 6 [185 L. Ed. 2d
495].) “ ‘[T]he “physical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.” ’ (Payton v. New York (1980) 445 U.S. 573, 585
[63 L. Ed. 2d 639].)” (People v. Schmitz, supra, 55 Cal.4th at p. 919.) As a “basic
principal of Fourth Amendment law . . . searches and seizures inside a man’s house
without warrant are per se unreasonable in the absence of some one of a number of well
defined ‘exigent circumstances.’ ” (Coolidge v. New Hampshire (1971) 403 U.S. 443,
477-478 [29 L. Ed. 2d 564].)
“Yet courts routinely uphold probation conditions granting probation officers
broad authority to search a probationer’s residence without a warrant or reasonable
cause.” (Trujillo, supra, 15 Cal.App.5th at p. 588; Knights, supra, 534 U.S. at pp. 118-
122; People v. Woods, supra, 21 Cal.4th at pp. 674-675.) Courts uphold these conditions
as reasonable even though the conditions are not expressly limited or tailored in some
26
way to restrict the search’s scope. This is due to the probationer’s reduced expectation of
privacy. We see little difference between the two types of search conditions.5
Many courts of appeal that have invalidated an electronic device search condition
as overbroad in violation of a probationer’s right to privacy have relied on Riley, supra,
573 U.S. 373 to conclude the condition was not closely tailored to further its purpose and
would allow the searching officers to view items the courts believed had little to do with
the state’s interest in integrating the probationer and protecting the community.
(Valdivia, supra, 16 Cal.App.5th at pp. 1142-1145, review granted6; Appleton, supra,
245 Cal.App.4th at pp. 724-725.)
Riley held that a police officer’s warrantless search of a civilian’s cell phone
incident to his arrest was an unreasonable search in violation of the Fourth Amendment.
Riley’s Fourth Amendment analysis was made in the context of searches incident to arrest
and not in the context of probation. (Riley, supra, 573 U.S. at p. 382.) As a result, it is
5 Defendant was also subject to warrantless searches of his residence, and he did not
object to that condition.
6 Valdivia struck an electronic device search condition identical to the one in this
case as unconstitutionally overbroad because, under the circumstances in that case, there
was no substantial reason for believing that evidence of future criminal activity by the
defendant was likely to be found on electronic storage devices under the defendant’s
control. (Valdivia, supra, 16 Cal.App.5th at pp. 1135-1136, 1145-1147, review granted.)
The defendant in Valdivia pleaded no contest to a charge of inflicting corporal injury on a
spouse. (Id. at p. 1134.) There was no evidence the defendant used an electronic device
in committing the crime or for a wrongful purpose in the past. (Id. at p. 1145.) And there
was no indication that he had previously physically assaulted his wife. (Ibid.) The
Valdivia court said the record, unlike the record in this case, demonstrated little
likelihood or even possibility that evidence of illegal activity will be found in the devices
subject to search under the condition. (Ibid.)
Without deciding whether the analysis in Valdivia is correct, we observe that the
nature of defendant’s offense (identity theft) and other specific probation terms targeted
at deterring re-offense provide stronger justification for the imposition of an electronic
device search condition here than in Valdivia.
27
inapposite because a probationer is not entitled to the same expectation of privacy as an
ordinary citizen (Mason, supra, 5 Cal.3d at p. 768), and the governmental interests
supporting a warrantless search incident to a lawful arrest are different from those
justifying a probation search condition. (Riley, supra, 573 U.S. at pp. 384-385 [concerns
for officer safety and evidence preservation underlie the search incident to arrest
exception to the warrant requirement]; cf. Knights, supra, 534 U.S. at pp. 120-121
[state’s interests are that the probationer will successfully complete probation and
integrate back into the community and protect the community from future lawbreaking by
the probationer].)
Nonetheless, courts have relied on Riley’s discussion of privacy concerns
implicated by cell phone searches to invalidate electronic device search conditions.
Defendant’s main argument against the search condition is based on Riley. In dicta, the
Riley court stated, “[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.” (Riley,
supra, 573 U.S. at p. 396, italics omitted.) Despite this statement, we believe Riley is
distinguishable and does not foreclose our ruling.
Riley stated the data accessible on cell phones was quantitatively different from
traditional records. (Riley, supra, 573 U.S. at pp. 391-395.) But Riley made its
comparison of a cell phone to objects that a civilian arrestee might keep on his person,
such as a cigarette pack, a wallet or a purse, not a house. (Id. at pp. 392-393.) Many of
the uses the Riley court stated would be part of a cell phone could certainly be in a
probationer’s residence and subject to search. Such items include “cameras, video
players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps,
or newspapers.” (Id. at p. 393.) Like cell phones, homes can hold “millions of pages of
text, thousands of pictures, and hundreds of videos.” (Id. at p. 394.) Like cell phones,
28
homes can collect in one place “many distinct types of information—an address, a note, a
prescription, a bank statement, a video—that reveal much more in combination than any
isolated record.” (Ibid.) And, as already shown, probation conditions authorizing
warrantless searches of homes are reasonable.
Riley notes, “Prior to the digital age, people did not typically carry a cache of
sensitive personal information with them as they went about their day.” (Riley, supra,
573 U.S. at p. 395.) But people maintained, and continue to maintain, “a cache of
sensitive personal information” in their homes. Photos, medicines, financial statements,
books, magazines, receipts, mail, clothing, trinkets, equipment, and even garbage may
reflect “ ‘a wealth of detail about [a person’s] familial, political, professional, religious,
and sexual associations.’ ” (Id. at p. 396, quoting U.S. v. Jones (565 U.S. 400, 415
[181 L. Ed. 2d 911] conc. opn. of Sotomayor, J. [warrantless attachment of GPS monitor
to car was a search].) A peace officer searching a probationer’s residence will see all of
this information and still not violate the probationer’s Fourth Amendment rights. Simply
because a cell phone may allow access to more of this type of information in one place
does not give the probationer a greater expectation of privacy in the same type of
information than he keeps in his home. “[T]he fact that a search of an electronic device
may uncover comparatively more private information than the search of a person, or a
personal item like a wallet, does not establish that a warrantless electronic search
condition of probation is per se unconstitutional.” (People v. Guzman (2018)
23 Cal.App.5th 53, 65.)
Riley also stated that data stored on cell phones was “qualitatively different” than
physical records. (Riley, supra, 573 U.S. at p. 395.) Browsing histories could reveal
private concerns, historic location information could reconstruct a person’s movements
down to the minute and inside a building, and installed mobile application software “can
form a revealing montage of the user’s life.” (Id. at p. 396; Carpenter v. U.S. (2018)
__ U.S. __ [201 L. Ed. 2d 507] [police acquisition of wireless carrier’s cell-site records
29
revealing the past locations of suspect’s cell phone was a search that required a warrant].)
Additionally, the data stored on cell phones may not be stored on the device itself but
instead on remote servers. (Riley, supra, 573 U.S. at p. 397.)
We do not dispute these characteristics of cell phone data. What we dispute with
our sister courts is whether they put a cell phone beyond reach of a warrantless probation
search of a probationer’s home or person where the cell phone is found. This issue Riley
expressly did not decide. (Riley, supra, 573 U.S. at p. 395, fn. 1.)
We believe these qualitative characteristics do not imbue a probationer’s cell
phone with greater privacy protection than his home due to the state’s significant interests
in integrating the probationer and protecting the public and the probationer’s limited
expectations of privacy. The state already can obtain much of this qualitatively-different
information from probationers in other ways. For example, unlike with a citizen, the
state has a strong interest in knowing a probationer’s whereabouts and activities. Thus,
courts may order a probationer as a condition of probation to be subject to continuous
electronic monitoring by GPS. (§ 1210.7; In re R.V. (2009) 171 Cal. App. 4th 239, 247-
248.) Cell phone data that records a probationer’s whereabouts is little different from
what the state can already lawfully acquire.
Similarly, if a court requires the probationer as a condition of probation to work
and earn money, it may require the probationer to keep a record of his expenses and
earnings and report them to the probation officer. (§ 1203.1, subd. (d); People v. Quiroz
(2011) 199 Cal. App. 4th 1123, 1129-1130.) Such records would be as detailed, if not
more so, as the probationer’s bank statements. And third party interests have not been a
concern in probation or consent searches when the probationer has common or superior
authority over the area or item being searched. (See People v. Woods, supra, 21 Cal.4th
at pp. 675-676.)
Moreover, the risk of disclosing the probationer’s confidential information is little
different whether police search a phone or a home. Officers searching a probationer’s
30
cell phone will treat it no differently than they treat private information and items they
find in a home. Any possible item a probationer could store in a home, be it innocuous or
embarrassing, benign or incriminating, officers have seen without a warrant and without
probable cause during a probation search even though the specific item or information is
not relevant to the search’s purposes. This has caused courts no concern so long as the
search itself is reasonably related to the purposes of probation. (Robles, supra, 23 Cal.4th
at p. 797.)
Moreover, the search of a phone, like a home, will be adequately circumscribed by
law. Any “concern that California’s suspicionless search system gives officers unbridled
discretion to conduct searches, thereby inflicting dignitary harms that arouse strong
resentment in parolees [or probationers] and undermine their ability to reintegrate into
productive society, is belied by California’s prohibition on ‘arbitrary, capricious or
harassing’ searches.” (Samson, supra, 547 U.S. at p. 856; Bravo, supra, 43 Cal.3d at
pp. 610–611.)
To be sure, officers will conduct a thorough search. “[A] consent search [which a
probation search is in California], to be effective, must be thorough.” (People v.
Crenshaw (1992) 9 Cal. App. 4th 1403, 1415.) “[T]he reasonable understanding of what
search means . . . is to look for things that the officer suspects may be evidence of a
crime.” (People v. Williams (1980) 114 Cal. App. 3d 67, 73.) “[T]he term ‘search’
implies something more than a superficial, external examination. It entails ‘looking
through,’ ‘rummaging,’ ‘probing,’ ‘scrutiny,’ and ‘examining internally.’ ” (U.S. v. Snow
(2d Cir. 1995) 44 F.3d 133, 135.)
However, when an officer views a private or confidential item on an electronic
device that does not further probation’s purposes of enforcing the law and rehabilitating
the probationer, the officer will simply pay no attention to the item and continue on with
the search, just as officers do in probation home searches. They will not further disclose,
31
duplicate, or reveal the irrelevant information. To do so would almost certainly
constitute capricious or harassing behavior and render the search invalid.
We thus believe the concerns Riley expressed about searching a citizen’s cell
phone do not apply to probationers. Their reduced expectations of privacy are
significant, as they have been convicted of a crime, are on probation in lieu of
imprisonment, are more likely to reengage in criminal behavior, and the state can already
obtain from them much of the information a cell phone records. These reduced
expectations do not outweigh the state’s interest in rehabilitating the probationer,
protecting the public from harm, and ensuring the success of its penal system. We
conclude the electronic device search condition is reasonable and does not violate
defendant’s Fourth Amendment right to privacy.
III
The Privilege Against Self-Incrimination
Defendant next argues the electronic device search condition is void because it
violates his state and federal constitutional privilege against self-incrimination.
As the Attorney General points out, defendant did not raise a state constitutional
self-incrimination claim in the trial court. Defendant’s trial court objection was based
solely on the Fifth Amendment to the federal Constitution. In addition, defendant’s
appellate briefs do not analyze his state constitutional claims with citation to supporting
authority. For those reasons, we do not consider defendant’s state constitutional claim.
(People v. Wilson (2008) 44 Cal. 4th 758, 790, fn. 6; People v. Barnett (1998) 17 Cal. 4th
1044, 1107, fn. 37.)
“The Fifth Amendment, in relevant part, provides that no person ‘shall be
compelled in any criminal case to be a witness against himself.’ It has long been held
that this prohibition not only permits a person to refuse to testify against himself at a
criminal trial in which he is a defendant, but also ‘privileges him not to answer official
32
questions put to him in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings.’ [Citation.] In all
such proceedings, [¶] ‘a witness protected by the privilege may rightfully refuse to
answer unless and until he is protected at least against the use of his compelled answers
and evidence derived therefrom in any subsequent criminal case in which he is a
defendant . . . . Absent such protection, if he is nevertheless compelled to answer, his
answers are inadmissible against him in a later criminal prosecution.’ [Citation.]”
(Minnesota v. Murphy (1984) 465 U.S. 420, 426 [79 L. Ed. 2d 409, 418].)
A probationer retains the protections of the Fifth Amendment privilege against
self-incrimination. (Minnesota v. Murphy, supra, 465 U.S. at p. 426.) However,
requiring a probationer to answer questions relevant to his or her probationary status,
where the answer may result in revocation of probation but does not pose a realistic threat
of incrimination in a separate criminal proceeding, does not give rise to a Fifth
Amendment claim. (Id. at p. 435, fn. 7.) “[A] State may validly insist on answers to
even incriminating questions and hence sensibly administer its probation system, as long
as it recognizes that the required answers may not be used in a criminal proceeding and
thus eliminates the threat of incrimination. Under such circumstances, a probationer’s
‘right to immunity as a result of his compelled testimony would not be at stake,’
[citations], and nothing in the Federal Constitution would prevent a State from revoking
probation for a refusal to answer that violated an express condition of probation or from
using the probationer’s silence as ‘one of a number of factors to be considered by the
finder of fact’ in deciding whether other conditions of probation have been violated.
[Citation.]” (Ibid.)
The electronic device search condition in this case requires defendant to provide
any and all information necessary to conduct a search of electronic storage devices under
defendant’s control. While conditioning the grant of probation on a waiver of the Fifth
Amendment privilege would be unconstitutional (Garcia, supra, 2 Cal.5th at p. 803), the
33
electronic device search condition here does not require defendant to waive his privilege
against self-incrimination. Even if the condition requiring defendant to provide
information necessary to conduct an electronic search constitutes compelled testimonial
communications, nothing on the face of the probation condition authorizes the use of any
compelled statements against defendant in a criminal proceeding. Accordingly, the
electronic device search condition does not violate defendant’s Fifth Amendment rights.
(Chavez v. Martinez (2003) 538 U.S. 760, 767-769 [155 L. Ed. 2d 984, 994-995]
[compulsive questioning, without more, does not violate the Fifth Amendment; a
violation of the Fifth Amendment only occurs when compelled statements are used
against the defendant in a criminal case]; Garcia, supra, 2 Cal.5th at pp. 806-807 [statute
mandating participation in polygraph examinations as part of sex offender management
program does not violate the probationer’s Fifth Amendment rights where the
probationer’s statements could not be used in a subsequent criminal prosecution];
Maldonado v. Superior Court (2012) 53 Cal. 4th 1112, 1127, 1134 [the Fifth Amendment
does not prohibit the government from eliciting self-incriminating disclosures; it only
bars the use of such disclosures in a criminal proceeding against the person who made
them]; Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704, 727 [“Constitutionally
based prophylactic rules . . . have arisen to protect the core [Fifth Amendment] privilege,
but the right against self-incrimination is not itself violated until statements obtained by
compulsion are used in criminal proceedings against the person from whom the
statements were obtained”].) Because no violation of defendant’s constitutional right has
been shown, we do not consider defendant’s related overbreadth claim.
34
IV
The California Electronic Communications Privacy Act
Defendant also argues the electronic device search condition is invalid under the
California Electronic Communications Privacy Act (ECPA) because he did not give
specific consent to access his electronic storage devices.
The ECPA was enacted in 2015 and went into effect on January 1, 2016, before
defendant was sentenced. (Stats. 2015, ch. 651, § 1.) As relevant here, under the ECPA
a government entity may not “access electronic device information by means of physical
interaction or electronic communication with the electronic device,” unless it obtains the
“specific consent of the authorized possessor of the device.” (Ibid. [§ 1546.1, subds.
(a)(3), (c)(3)].) The issue here is whether defendant gave specific consent to access data
on his electronic storage devices within the meaning of section 1546.1, subdivision (c).
Our task in interpreting a statute is to determine the Legislature’s intent so as to
effectuate the purpose of the statute. (In re C.H. (2011) 53 Cal. 4th 94, 100.) We begin
by examining the words of the statute because they are generally the most reliable
indicator of legislative intent. (Ibid.) We give the words of the statute their ordinary and
usual meaning. (Ibid.) If the meaning of the words used in the statute is without
ambiguity, the statutory language controls. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc.
(1992) 6 Cal. App. 4th 1233, 1239.) If the statutory language is ambiguous or subject to
more than one interpretation, we may resort to extrinsic sources, including the ostensible
objects to be achieved and the legislative history. (John v. Superior Court (2016)
63 Cal. 4th 91, 96; In re R.V. (2015) 61 Cal. 4th 181, 192.) We “ ‘select the construction
that comports most closely with the Legislature’s apparent intent, with a view to
promoting rather than defeating the statutes’ general purpose, and to avoid a construction
that would lead to unreasonable, impractical, or arbitrary results.’ ” (Poole v. Orange
35
County Fire Authority (2015) 61 Cal. 4th 1378, 1385; see People v. Hunt (1999)
74 Cal. App. 4th 939, 945-947.)
The apparent purpose of the ECPA is to restrict government access to “electronic
device information.” The ECPA authorizes government access to such information by
means of “physical interaction or electronic communication” with the device upon the
“specific consent” of the “authorized possessor of the device.” (Stats. 2015, ch. 651, § 1
[§ 1546.1, subd. (c)(3)].) “ ‘Specific consent’ means consent provided directly to the
government entity seeking information . . . .” (Stats. 2015, ch. 651, § 1 [§ 1546, subd.
(k)].)
In accepting probation, defendant expressly consented to subject the electronic
storage devices under his control to search by any law enforcement or probation officer.
Defendant waived his rights under the ECPA and “specifically consented to searches of
his . . . electronic storage devices.”
Defendant argues he did not give specific consent within the meaning of the
ECPA because the terms of his probation do not identify any agency to which he was
giving consent. But neither section 1546 nor 1546.1 states that the party giving consent
must identify the government entity to which consent is given. (Stats. 2015, ch. 651, § 1
[§§ 1546, subd. (k), 1546.1, subd. (c)(3)].)
Defendant also contends he did not give specific consent because he did not
consent directly to anyone other than the trial judge. We reject that claim. It is
reasonable to imply from defendant’s consent to electronic device searches by any law
enforcement or probation officer that defendant provided consent directly to law
enforcement and probation authorities. The alternative of requiring the People to
anticipate and name every government entity which may conduct an electronic device
search pursuant to the probation condition, requiring each government entity to which a
consent applies to participate in the defendant’s sentencing, or requiring a separate
consent whenever a government entity seeks to conduct an electronic device search
36
pursuant to the probation condition, could unnecessarily hamper grants of probation and
impair the significant government interests served in supervising probationers.
Moreover, we do not glean from the language of sections 1546 and 1546.1—and
the parties have not provided us with any legislative history materials showing—an intent
to prohibit electronic device search probation conditions. The ECPA does not mention
probation. In the absence of any indication that the Legislature intended to affect
electronic device search conditions imposed as part of the supervision of probationers
when it enacted the ECPA, we decline to reach such a conclusion.
After defendant was sentenced, the Legislature amended section 1546.1 to provide
that a government entity may access electronic device information by means of physical
interaction or electronic communication with the device “if the device is seized from an
authorized possessor of the device who is subject to an electronic device search as a clear
and unambiguous condition of probation . . . .” (Stats. 2016, ch. 541, § 3.5 [§ 1546.1,
subd. (c)(10), eff. Jan. 1, 2017].) The comments sections of the bill analyses, of which
defendant asks us to take judicial notice, suggest that section 1546.1, subdivision (c)(10)
addressed an unintended interpretation of the original statute.7 The amendment further
indicates no legislative intent that the ECPA would affect electronic device search
conditions.
V
The E-mail/Internet Account Search
Defendant further argues the e-mail/Internet account search condition violates his
constitutional right to privacy and privilege against self-incrimination for the same
reasons the electronic device search condition violates those rights. That search
7 We grant defendant’s unopposed request for judicial notice. (Evid. Code, §§ 452,
subd. (c), 453, subd. (a), 459.)
37
condition provides: “Defendant shall disclose all email accounts, all internet accounts
and any other means of access to any computer or computer network, all passwords and
access codes. Defendant shall consent to the search of such email and internet accounts
at any time and for the seizure of any information without a search warrant or probable
cause.”
Although he acknowledges he did not object to the e-mail/Internet account search
condition in the trial court, defendant says he did not forfeit his appellate claims because
he brings a facial constitutional challenge only. The Attorney General urges that
defendant forfeited his appellate claims because he challenges the e-mail/Internet account
search condition as applied to his case and he did not raise such claims in the trial court.
While he maintains his appellate claims present a facial challenge, defendant
argues the trial court must specifically tailor the e-mail/Internet account search condition
to his offenses and personal history, a claim which does not involve pure questions of
law. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261; People v. Kendrick (2014)
226 Cal. App. 4th 769, 777-778.) In any event, it appears from this record that an
objection to the e-mail/Internet account search condition on the same grounds raised and
rejected as to the electronic device search condition would have been an idle act.
Accordingly, we consider defendant’s claims on the merits. (People v. Abbaszadeh
(2003) 106 Cal. App. 4th 642, 648; People v. Scalzi (1981) 126 Cal. App. 3d 901, 907.)
For the reasons we have explained with regard to the electronic device search
condition, we conclude the e-mail/Internet account search condition does not violate
defendant’s right to privacy under the Fourth Amendment and the California Constitution
because it authorizes a reasonable search in light of the government’s prevailing interests
in protecting the public and rehabilitating defendant when balanced against his
significantly reduced interest in privacy. We reject defendant’s claim that the e-
mail/Internet account search condition violates his Fifth Amendment rights for the
reasons we have explained regarding the electronic device search condition.
38
VI
Ineffective Assistance of Counsel
Defendant says his trial counsel provided ineffective assistance by failing to object
that the e-mail/Internet account search condition was invalid under Lent and violated his
right to privacy and privilege against self-incrimination.
Because we addressed defendant’s constitutional challenges to the e-mail/Internet
account search condition, we need not consider his related ineffective assistance of
counsel claim. We limit our discussion to defendant’s claim that his trial counsel
rendered ineffective assistance by failing to object to the e-mail/Internet account search
condition under Lent.
To establish ineffective assistance of counsel, defendant must prove that his
(1) trial counsel’s representation was deficient because it fell below an objective standard
of reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to defendant. (People v. Maury (2003) 30 Cal. 4th 342, 389; Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L. Ed. 2d 674, 693].) If defendant makes an
insufficient showing on either of those components, his ineffective assistance claim fails.
(People v. Holt (1997) 15 Cal. 4th 619, 703; Strickland v. Washington, supra, 466 U.S. at
p. 687.)
Defendant must affirmatively prove prejudice to establish ineffective assistance.
(People v. Mickel (2016) 2 Cal.5th 181, 198.) “[T]he record must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury,
supra, 30 Cal.4th at p. 389.) Defendant must show a reasonable probability of a more
favorable result. (People v. Ledesma (1987) 43 Cal. 3d 171, 217-218; Strickland v.
Washington, supra, 466 U.S. at pp. 693-694.)
39
Defendant fails to show a reasonable probability that the trial court would have
stricken the e-mail/Internet account search condition had defendant’s trial counsel
objected to the condition under Lent. The trial court rejected the arguments by defense
counsel that the electronic device search condition should not be imposed, and defendant
does not convince us the trial court would have ruled differently regarding the e-
mail/Internet account search condition.
VII
The Urinalysis Testing Fee
In addition, defendant claims the urinalysis testing fee imposed by the trial court is
unauthorized under section 1203.1ab, and even if it is authorized, it cannot be made a
condition of probation because probation costs are collateral to the offense.
The probation department recommended a $367.81 main jail booking fee and a
$67.03 main jail classification fee, among other fees. The recommendation noted that the
monthly cost of probation supervision was $46 and urinalysis testing was $25 per test.
The trial court did not impose a main jail booking fee, main jail classification fee, or
monthly probation supervision fee, but it did impose a urinalysis testing fee. Defendant
did not object to the urinalysis testing fee.
Sections 1203.1ab and 1210.1 and Health and Safety Code section 11551 do not
authorize the trial court’s order. Section 1203.1ab authorizes an order requiring, as a
condition of probation, a defendant convicted of an offense involving the unlawful
possession, use, sale or other furnishing of any controlled substance to pay the cost of
drug and substance abuse testing, under certain circumstances. Section 1210.1 requires
drug testing as a condition of probation in a case where the defendant was convicted of a
nonviolent drug possession offense. (§ 1210.1, subd. (a).) Defendant was not convicted
of a drug-related offense. Moreover, even when it applies, Health and Safety Code
section 11551, which authorizes periodic drug tests in certain circumstances, does not
40
authorize an order requiring the probationer to pay the cost of administering the tests.
(Health & Saf. Code, § 11551, subds. (a), (d).)
The Attorney General argues section 1203.1, subdivision (j) authorized the trial
court to order defendant to undergo urinalysis testing and to pay for the cost of such
testing as a means to foster his rehabilitation and ensure public safety. Section 1203.1,
subdivision (j) provides that a sentencing court may impose reasonable conditions of
probation “as it may determine are fitting and proper to the end that justice may be done,
that amends may be made to society for the breach of the law, for any injury done to any
person resulting from that breach, and generally and specifically for the reformation and
rehabilitation of the probationer.” A sentencing court’s exercise of discretion under
section 1203.1, subdivision (j) must be reasonable. (People v. Beal (1997 )
60 Cal. App. 4th 84, 86.) As we have explained, a condition of probation will not be held
invalid unless it has no relationship to the crime of which the defendant was convicted,
relates to conduct which is not in itself criminal, and is not reasonably related to future
criminality. (Moran, supra, 1 Cal.5th at p. 403; Lent, supra, 15 Cal.3d at p. 486.)
Nothing in the record indicates defendant had used illegal drugs or consumed
alcohol. Although we review the trial court’s order under the deferential abuse of
discretion standard (Moran, supra, 1 Cal.5th at p. 403), there is simply no support in this
record for the challenged probation condition. (Cf. People v. Shimek (1988)
205 Cal. App. 3d 340, 342-343 [proper to impose drug testing probation condition on a
defendant convicted of unlawful cultivation of marijuana because the condition would aid
in determining whether the defendant was once again using and cultivating marijuana
unlawfully].) Accordingly, we will modify the probation order to strike the condition
requiring defendant to pay a $25 urinalysis testing fee.
41
VIII
The Court Facility Fee
Defendant further argues the order granting probation must be modified to make
clear that payment of the court facility fee imposed under Government Code section
70373 is not a condition of probation, and to strike the criminal impact fee imposed
pursuant to section 1465.7, subdivision (a) as unauthorized. The Attorney General
agrees.
We also agree. (§ 1202.4, subd. (e); People v. Kim, (2011) 193 Cal. App. 4th 836,
842-843.) We will modify the order granting probation to clarify that the payment of the
court facility fee imposed under Government Code section 70373 is not a condition of
probation but rather a separate order of the court entered at judgment. In addition, we
will modify the order granting probation to strike the criminal impact fee imposed
pursuant to section 1465.7, subdivision (a).
42
DISPOSITION
The order granting probation is modified to strike the following: the condition
requiring defendant to pay a $25 urinalysis testing fee, and the requirement that defendant
pay a criminal impact fee pursuant to section 1465.7, subdivision (a). In addition, the
order granting probation is modified to provide that the court facility fee imposed
pursuant to Government Code section 70373 is not imposed as a condition of probation,
but instead is imposed as an order of the trial court entered at judgment. The order
granting probation is otherwise affirmed.
HULL, Acting P. J.
I concur:
HOCH, J.
43
Mauro, J., Concurring and Dissenting.
I fully concur with parts I, III, IV, VI, VII, and VIII of the majority opinion, but
I disagree with parts II and V addressing the electronic device search condition and the e-
mail/internet search condition (hereafter the e-search conditions), which the majority
opinion appears to analyze in the same manner. Although the majority opinion disagrees
with the test applied in some other published opinions, I would reach the same result
regardless of the test. Whether the appropriate test is the “closely tailored” test or the
“reasonableness” test (see the majority opinion at part IIA), I would remand the matter to
the trial court to craft more closely tailored, or more reasonable, e-search conditions.
Given the current state of technology, I disagree with the majority that the
intrusion imposed by the e-search conditions “is little different from the condition
authorizing warrantless searches of defendant’s residence.” (Maj. opn. ante, at p. 26)
Unless the e-search conditions are limited in some way, they authorize a potentially far
greater intrusion than the search of a residence. Several years ago, in Riley v. California
(2014) 573 U.S. 373 [189 L. Ed. 2d 430] (Riley), the United States Supreme Court
described the capability of modern mobile devices. (Id. at p. 394.) Since then, electronic
devices have become even more powerful and capable. An unlimited authorization to
search electronic devices implicates privacy concerns far beyond the inspection of an
individual’s pockets or even the most exhaustive search of a house (see id. at pp. 392-
397) because modern electronic devices can perform a myriad of functions and can
access significant amounts of private information.
Certainly, mobile devices can be used as telephones, calendars, address books,
diaries, note pads, cameras, video players, tape recorders, albums, maps, and web
browsers. (Riley, supra, 573 U.S. at p. 393.) They can also reveal a person's private
interests or concerns and other details of life. (Id. at pp. 395-396.) The “apps” on a
person's cell phone can disclose his or her medical, political, legal, financial, sexual,
1
religious and other private interests or concerns. (Ibid.) They can support sobriety,
arrange intimate relationships, and track health condition and care, including menstrual
cycles, blood pressure, pregnancy, diabetes, and medications. Because electronic devices
can contain and reveal so much information, they now hold “ ‘the privacies of life.’ ”
(Id. at p. 403.)
But the reach of online access is now so extensive and pervasive that the
challenged e-search conditions may also permit intrusion into the privacy of those who
are not on probation, did not consent to have their private information viewed, and may
have no idea their information is being viewed. Modern devices have the capability to
determine the location of family members and friends. They can also be used to access
the social media postings of others, even when those other individuals have attempted to
limit access to their content through appropriate privacy settings. In addition, with the
passwords that the e-search conditions require defendant to divulge, defendant’s
electronic devices may permit access to numerous confidential family member accounts
and records. I am unaware of any case holding that when an individual consents to
probation, officers may observe the location of the probationer’s family members and
friends throughout the country, and may also view, without a warrant, confidential family
records and account information held by employers, financial institutions, health plans,
hospitals, doctors, retirement plans, retailers, schools, media outlets, transportation
providers, restaurants and food delivery services, entertainment and streaming businesses,
cloud storage providers, associations, and political organizations. Yet all of that
information may be available through a single mobile device.
The state certainly has interests in reducing recidivism, apprehending violators of
the criminal law, and helping probationers integrate back into the community. It is also
true that probationers have reduced privacy interests. Nevertheless, persons on probation
subject to search conditions retain some residual expectation of privacy. (In re Jaime P.
2
(2006) 40 Cal. 4th 128, 136-137; see also United States v. Lara (9th Cir. 2016) 815 F.3d
605, 611-612.)
Here, I would conclude the unlimited e-search conditions challenged in this case
are overbroad and unreasonable. The interest in controlling future identity theft, while
significant, is simply not addressed by search conditions that could be used to review a
genealogy report or a child’s school records. I understand the concern that if a search
authorization is expressly limited, the probationer may move criminal activities to the
protected location. But that is a concern with any search limitation, and it is not a
sufficient basis under the law to permit unfettered search authorization.
_________________________
Mauro, J.
3