People v. Delrio ( 2020 )

Filed 2/28/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A154848
v.
ALEJANDRO MANUEL DELRIO, (San Mateo County
Super. Ct. No. SF394912)
Defendant and Appellant.
This case arises out of a warrantless search of the contents of a cell
phone belonging to defendant Alejandro Manuel Delrio. At the time of the
search, defendant was a convicted felon in the legal custody of the California
Department of Corrections and Rehabilitation (CDCR) as he served out the
remainder of his term on parole. As a parolee, defendant was subject to a
statutorily mandated parole term that required him to submit to warrantless
and suspicionless searches of his person, his residence, and any property
under his control by a parole officer or other peace officer at any time. At the
time of the cell phone search, police officers knew defendant was on parole
and had specific, articulable reasons to suspect he was involved in a
residential burglary.
Defendant pleaded guilty to first degree burglary after the trial court
denied his motion to suppress evidence obtained from the search of his cell
phone. On appeal, defendant claims the search violated his Fourth
Amendment rights because his written parole conditions gave him a
1
reasonable expectation of privacy in the contents of his cell phone. We
conclude that any expectation of privacy defendant may have had did not
outweigh the government’s interest in conducting the search because the
officers had specific reasons to suspect he was involved in a residential
burglary. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2014, a residential burglary was committed in Redwood
City. A surveillance video from a neighbor’s house showed two individuals
walking from a black truck to the burglarized house and then walking away,
each carrying a sack. After the residents of the home reported the burglary,
Sheriff’s Deputy Robert Willett contacted defendant and told him that a
vehicle registered to him had been involved in a burglary. Defendant denied
any involvement, told the deputy that he had loaned the truck to a coworker,
and further claimed that if the truck was involved with a burglary, it must
have been used without his permission. Defendant then completed
paperwork to report the vehicle stolen.
Deputy Willett then viewed the surveillance video and concluded that
one of the two individuals shown in the video had “a very close resemblance
to the defendant.” Thus, Willett recommended that defendant be re-
contacted as a suspect.
Sergeant Hector Acosta conducted a records check on defendant and
determined that he was on active parole. At around 10:30 a.m. on September
26, 2014, Acosta and several officers went to defendant’s house to conduct a
parole search. While the officers searched the house, Acosta interviewed
defendant and his girlfriend. Acosta showed defendant a still photo from the
surveillance footage and said one of the suspects looked like him, but
defendant denied involvement in the burglary. During the search of the
2
house, officers located a cell phone that belonged to defendant. Acosta later
testified at the suppression hearing that he believed defendant’s parole
obligations required him to surrender his password, and Acosta may have
told defendant, “ ‘you’re on parole. I need the passcode[,]’ ” or “give me your
passcode.” Defendant complied, and Acosta gave the cell phone to a detective
who used a Cellebrite device to download the contents of the phone before
returning it to defendant.
A few minutes after the officers left his house, defendant called
Sergeant Acosta and asked him to return to the house. Upon the officers’
return, defendant showed Acosta a photograph from his cell phone in which
defendant was holding five $100 bills. Defendant said the money was the
proceeds from selling the stolen jewelry from the burglary. Defendant also
told Acosta about his involvement in the burglary and said he should not
have reported his vehicle stolen.
Defendant was charged by information with first degree burglary
(Pen. Code, § 460, subd. (a); count one); grand theft (id., § 487, subd. (a);
count two); perjury (id., § 118, subd. (a); count three); and making a false
report of a criminal offense (id., § 148.5, subd. (a); count four). As to count
one, the information alleged a number of sentencing enhancements.
Defendant moved to suppress the evidence obtained from the cell phone
search and all statements made by him as fruit of that search. The trial
court denied the motion. Defendant then pleaded guilty to count one and
admitted enhancements for being on parole after imprisonment for a prior
serious or violent felony (Pen. Code, § 1203.085, subd. (b)); commission of a
prior serious felony while on parole (id., § 1203.085, subd. (b)); having a prior
strike (id., §§ 667, subds. (a)1), 1170.12, subd. (c)(1)); and having a prior
serious felony conviction (id., § 667, subd. (a)(1)). The trial court sentenced
3
defendant to seven years in state prison. Defendant appealed from the
judgment based on the trial court’s allegedly erroneous denial of his motion
suppress (id., § 1538.5, subd. (m)).
DISCUSSION
“Challenges to the admissibility of evidence obtained by a police search
and seizure are reviewed under federal constitutional standards.” (People v.
Schmitz (2012) 55 Cal. 4th 909, 916 (Schmitz).) “The ‘touchstone of the
Fourth Amendment is reasonableness,’ ” which “is measured in objective
terms by examining the totality of the circumstances.” (Ohio v. Robinette
(1996) 519 U.S. 33, 39.) In determining reasonableness, courts assess the
degree to which the search “intrudes upon an individual’s privacy,” as well as
“the degree to which it is needed for the promotion of legitimate
governmental interests.” (United States v. Knights (2001) 534 U.S. 112, 118–
119 (Knights).)
A warrantless search is per se unreasonable under the Fourth
Amendment absent a recognized exception. (U.S. Const., 4th Amend.; Katz v.
United States (1967) 389 U.S. 347, 357.) Both the United States Supreme
Court and the California Supreme Court recognize that a parole search
conducted pursuant to California Penal Code section 3067, subdivision (b)(3),
constitutes one of those exceptions. (Samson v. California (2006)
547 U.S. 843 (Samson); Schmitz, supra, 55 Cal.4th at p. 916.) Under that
statute, “every inmate eligible for release on parole ‘is subject to search or
seizure by a . . . parole officer or other peace officer at any time of the day or
night, with or without a search warrant or with or without cause.’ ” (Schmitz,
at p. 916.) Upon release from incarceration, parolees are notified: “You and
your residence and any property under your control may be searched without
a warrant at any time by any agent of the Department of Corrections [and
4
Rehabilitation] or any law enforcement officer.” (Cal. Code Regs., tit. 15,
§ 2511, subd. (b)4.) Because such searches are mandated as a term of every
parolee’s release, “an officer’s knowledge of a parolee’s status is equivalent to
knowledge of the applicable search condition.” (Schmitz, at p. 922, fn. 13,
citing People v. Middleton (2005) 131 Cal. App. 4th 732, 739–740.) As the
California Supreme Court has emphasized, “[w]arrantless, suspicionless
searches are a vital part of effective parole supervision” in California.
(Schmitz, at p. 924; accord, Samson, supra, at p. 854.)
In examining whether a warrantless search of a parolee’s cell phone is
constitutionally valid, we find it helpful to review the analysis of the United
States Supreme Court in Samson, supra, 547 U.S. 843, which preceded the
California Supreme Court’s decision in Schmitz, supra, 55 Cal. 4th 909. In
Samson, the issue was whether the warrantless and suspicionless search of a
parolee’s person was reasonable within the meaning of the Fourth
Amendment. In analyzing that issue, Samson looked to the totality of
circumstances and weighed the privacy expectations of parolees against the
interests of the government in conducting such searches. (Samson, at
pp. 848–857.)
Samson deemed it significant that California parolees, like parolees
elsewhere, “have severely diminished expectations of privacy by virtue of
their status alone” (Samson, supra, 547 U.S. at p. 852)—even below that of
individuals on probation—because “parole is more akin to imprisonment than
probation is to imprisonment” (id. at p. 850). That is, “an inmate-turned-
parolee remains in the legal custody of the California Department of
Corrections through the remainder of his term . . . and must comply with all
of the terms and conditions of parole” (id. at p. 851), including the term
permitting warrantless and suspicionless searches at any time (Pen. Code,
5
§ 3067, subds. (a), (b)(3)). Samson noted the additional circumstance that
when the petitioner there signed the order submitting to the parole search
term, he “thus was ‘unambiguously’ aware of it.” (Samson, at p. 852.)
“Examining the totality of circumstances pertaining to petitioner’s status as a
parolee, ‘an established variation on imprisonment,’ [citation], including the
plain terms of the parole search condition,” Samson concluded the “petitioner
did not have an expectation of privacy that society would recognize as
legitimate.” (Id. at p. 852, fn. omitted.)
Samson then turned to the governmental interests at stake. Samson
began by noting the Supreme Court’s repeated acknowledgement that the
government’s interest in supervising parolees is “ ‘ “overwhelming” ’ ” because
parolees “ ‘are more likely to commit future criminal offenses.’ ” (Samson,
supra, 547 U.S. at p. 853.) Samson similarly relied on the high court’s
repeated acknowledgment that the governmental interests “in reducing
recidivism, and thereby promoting reintegration and positive citizenship
among probationers and parolees, warrant privacy intrusions that would not
otherwise be tolerated under the Fourth Amendment.” (Samson, at p. 853.)
Samson then considered empirical evidence regarding California recidivism
rates among parolees and the “grave safety concerns that attend recidivism.”
(Id. at pp. 853–854.) Recognizing that “the Fourth Amendment does not
render the States powerless to address [such public safety] concerns
effectively,” Samson determined that “California’s ability to conduct
suspicionless searches of parolees serves its interest in reducing recidivism,
in a manner that aids, rather than hinders, the reintegration of parolees into
productive society.” (Id. at p. 854.)
Because the totality of the circumstances supported the reasonableness
of the warrantless and suspicionless parole search, Samson concluded there
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was no Fourth Amendment violation. (Samson, supra, 547 U.S. at p. 857.)
In Schmitz, supra, 55 Cal. 4th 909, the California Supreme Court likewise
applied a totality of the-circumstances approach in concluding that three
warrantless parole-based searches of items within a car belonging to and
being driven by the defendant, in which the only parolee in the car was the
front seat passenger, were reasonable under the Fourth Amendment because
the searched items were within those areas of the vehicle where the officer
reasonably expected that the parolee could have stowed or discarded personal
belongings. (Schmitz, at pp. 921–922, 926.)
Although parole searches are generally exempt from the warrant
requirement, case law recognizes that parolees nonetheless retain a reduced
expectation of privacy and are not completely bereft of Fourth Amendment
protection. (People v. Sanders (2003) 31 Cal. 4th 318, 332; In re Jaime P.
(2006) 40 Cal. 4th 128, 137; accord, United States v. Grandberry (9th Cir.
2013) 730 F.3d 968, 975.) Thus, a parole search may still violate the Fourth
Amendment if it is “arbitrary, capricious or harassing” (People v. Reyes (1998)
19 Cal. 4th 743, 752 (Reyes); accord, Samson, supra, 547 U.S. at p. 856), such
as when a search is “made too often, or at an unreasonable hour, or if
unreasonably prolonged or for other reasons establishing arbitrary or
oppressive conduct by the searching officer” (Reyes, at pp. 753–754).
In the instant matter, there is no dispute that defendant was on parole
at the time his cell phone was seized and its contents downloaded, or that the
officers involved were aware of defendant’s parolee status at the time of the
seizure. Defendant’s argument on appeal is that he nevertheless maintained
a reasonable expectation of privacy in his cell phone and its contents because
of certain language in the form used by the CDCR to notify him of his parole
conditions. Specifically, defendant argues that because the CDCR form did
7
not have boxes checked for certain so-called “special conditions of parole” that
would have required him to give his consent to, and any passwords for,
searches of his electronic devices, he was not provided clear and
unambiguous notice that his cell phone was subject to a parole search.
Defendant cites no case in which a search or seizure of a parolee’s cell
phone was invalidated under the Fourth Amendment, and our research has
disclosed none. Federal courts have unanimously upheld such searches. (See
Petersen v. Buyard (E.D.Cal. Oct. 3, 2019, No. 1:19-cv-00235-DAD-EPG) 2019
U.S. Dist. Lexis 173026, at *14–18; United States v. Pacheco (10th Cir. 2018)
884 F.3d 1031, 1040–1041; United States v. Jackson (8th Cir. 2017)
866 F.3d 982, 984–986; United States v. Johnson (9th Cir. 2017)
875 F.3d 1265, 1273–1276 (Johnson); United States. v. Luna (9th Cir. 2015)
602 Fed. Appx. 363, 365; United States v. Farley (N.D.Cal. Nov. 9, 2015,
No. 15-cr-00092-TEH) 2015 U.S. Dist. Lexis 152631, at *33–35; United States
v. Johnson (11th Cir. 2014) 579 Fed. Appx. 920, 924–927; United States v.
Martinez (N.D.Cal. Aug. 12, 2014, No. CR 13-00794 WHA)
2014 U.S. Dist. Lexis 112347.)1 The issue presented here is whether the
unchecked boxes on defendant’s CDCR form, standing alone, is a
circumstance warranting a break with this clear trend.
The terms and conditions of defendant’s parole release were set forth in
a form used by the CDCR entitled “Notice and Conditions of Parole.”2 On its
first page, the form contains a general term modeled after Penal Code
section 3067, subdivision (b)(3), and California Code of Regulations, title 15,
1 “Unpublished federal cases are not binding authority but they may be
cited as persuasive.” (Hall v. Goodwill Industries of Southern California
(2011) 193 Cal. App. 4th 718, 727, fn. 2.)
2 The form has a revision date of April 2013.
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section 2511, subdivision (b)4, which states: “You, your residence, and any
property under your control are subject to search or seizure by a probation
officer, an agent or officer of the California Department of Corrections and
Rehabilitation, or any other peace officer, at any time of the day or night,
with or without a search warrant, with or without cause.” In subsequent
pages, the form lists various special conditions with boxes to check and a
space for the parolee to initial.
In defendant’s case, the boxes that were checked off and initialed
prohibited his use and possession of alcohol and narcotics, contact with the
victim, association with co-defendants, and gang-related activity. No boxes
were checked in the section titled “Computer Use and Electronic Media.”
Condition 90 of this section states: “You shall not use any method to hide or
prevent unauthorized users from viewing specific data or files; e.g.,
encryption, cryptography, steganography, compression, password protected
files. Log in and password information shall be provided to your parole agent
upon request.” Condition 92 states: “You shall consent to announced or
unannounced examination and/or search of electronic devices to which you
have access for the limited purpose of detecting content prohibited by your
conditions of parole or court order; e.g., hard disks, zip disks, floppy diskettes,
CD ROMs, optical disks, thumb drives, magnetic tape, and/or any other
storage media whether installed within a device or removable and separate
from the actual computer device.” Defendant argues that because these
boxes were not checked, the form must be understood as excluding searches
of his cell phone.
The People respond that the failure to check off conditions 90 and 92 is
of no consequence because those paragraphs relate only to computers, not cell
phones. On this point, we disagree. Most modern cell phones—including
9
those available at the time of the September 2014 search here—are
“minicomputers” (see Riley v. California (2014) 573 U.S. 373, 393 (Riley))
with many of the same capabilities commonly associated with computers,
particularly in the areas targeted by the parole conditions relating to
electronic media use (i.e., email, instant messaging, viewing sexually explicit
materials or materials related to the parolee’s crime). Furthermore, by their
terms, conditions 90 and 92 apply to any “electronic devices” capable of
storing, accessing, and password-protecting digital “data.” This reasonably
includes cell phones.
Defendant argues that an option to impose special conditions 90 and 92
would be unnecessary if the general search term pertaining to “any property
under your control” already encompasses searches of a parolee’s cell phone.
Thus, defendant contends the CDCR form, considered as a whole, implies
that searches of electronic devices are specifically covered by other
paragraphs that were not selected in his case. The People notably fail to
respond to this argument. Nevertheless, we conclude the failure to select
such conditions in the CDCR form neither restricts reasonable searches and
seizures nor necessarily gives rise to a privacy interest in the areas covered
by the condition.
Conditions 90 and 92 are but two of 106 special conditions listed in the
CDCR form that, if selected, either require or forbid certain conduct by a
parolee. Such conditions, however, do not appear intended to set restrictions
on the searches and seizures authorized by Penal Code section 3067,
subdivision (b)(3), or to elevate a parolee’s expectations of privacy. For
instance, condition 46 states that a parolee shall not view, possess, or have
access to any material depicting children in undergarments, nude, or
partially nude, etc., and conditions 93 and 94 prohibit a parolee’s use of
10
electronic media to view any and all sexually explicit content. When such
special conditions are selected, the parolee’s failure to adhere may give rise to
parole violation charges, but when they are not selected, it does not inevitably
follow that a parolee thereby enjoys a privacy right in such materials.3
At best, defendant identifies an ambiguity in the CDCR form as to the
interplay between the general search term and the special electronic device
conditions that remain unselected in a given case. But the question remains:
what is the effect of the perceived ambiguity on the reasonableness of a
parole search conducted under the auspices of a statutorily-imposed search
condition? Relying on Samson, supra, 547 U.S. 843, defendant argues the
above circumstance is sufficient to tilt the Fourth Amendment balance in
favor of his privacy rights. In Samson, the high court determined that the
petitioner’s acceptance of a “ ‘clearly expressed’ ” suspicionless parole search
condition was one of the circumstances that significantly diminished the
petitioner’s reasonable expectation of privacy. (Samson, at p. 852; see also
Knights, supra, 534 U.S. at p. 120.) Pushing off from that portion of
Samson’s analysis, defendant argues that an unclear and ambiguous cell
phone search condition, such as the one here, has no similar effect.
Although there is some surface appeal to defendant’s argument, it
ultimately falls short. As the California Supreme Court emphasized in
Schmitz, Penal Code section 3067, subdivision (b)(3), provides that “every
parolee is subject to warrantless and suspicionless parole searches,” and the
reasonable scope of a parole search is not “strictly tied to the literal wording
of the notification given to the parolee upon release.” (Schmitz, supra,
55 Cal.4th at p. 928.) Thus, while the reasonableness of a probation search
3 Notably, the record contains no evidence such as a declaration from
defendant demonstrating his actual reliance on the unchecked boxes as an
indication that cell phones were off limits to a parole search.
11
has been held dependent on the literal wording of the notification given to a
probationer, the reasonableness of a parole search does not derive from a
theory of consent as has been found in probation search cases, but rather, is
assessed based on the totality of the circumstances. (Id. at pp. 928–929.)
Moreover, as Schmitz recognizes, officers are only required to know of an
individual’s parole status in order to conduct a parole search. (Id. at p. 922,
fn. 13.) Significantly, this means the officers who performed the parole
search of defendant were not required to first ascertain and parse the
language of the CDCR form, as defendant insists we do here.4 Thus,
although the CDCR form issued to defendant may have lacked clarity with
respect to searches of his electronic devices, that single circumstance is not
dispositive of the Fourth Amendment challenge but is merely one of several
to consider in the totality of circumstances.
Defendant also draws our attention to the United States Supreme
Court’s landmark decision in Riley, supra, 573 U.S. 373, as “another powerful
reason to find that the exclusion of electronic device and password conditions
from defendant’s search condition has constitutional significance.” In Riley,
the high court held that a law enforcement officer may not conduct a
warrantless search of a person’s cell phone under the exception to the
warrant requirement for searches incident to arrest. In so holding, Riley
observed that “[c]ell phones differ in both a quantitative and a qualitative
sense from other objects that might be kept on arrestee’s person. The term
4 By contrast, in the case of probationers, “[a] search condition is not
mandated by statute for every probationer, and probation search clauses are
not worded uniformly. . . . Thus, the officer must have some knowledge not
just of the fact someone is on probation, but of the existence of a search clause
broad enough to justify the search at issue.” (People v. Douglas (2015)
240 Cal. App. 4th 855, 863.)
12
‘cell phone’ is itself misleading shorthand; many of these devices are in fact
minicomputers that also happen to have the capacity to be used as a
telephone. They could just as easily be called cameras, video players,
rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions,
maps, or newspapers.” (Riley, at p. 393.) The court noted, in particular, the
“immense storage capacity” of cell phones, their ability to collect many
distinct types of information in once place, and the pervasiveness of cell
phone use in everyday life. (Id. at pp. 394–395.) The court further noted the
qualitative differences of cell phone records from other physical records,
including the user’s Internet search browsing history or location information.
(Id. at pp. 395–396.) In light of these unique characteristics, the court held,
“[m]odern cell phones, as a category, implicate privacy concerns far beyond
those implicated by the search of a cigarette pack, a wallet, or a purse. A
conclusion that inspecting the contents of an arrestee’s pockets works no
substantial additional intrusion on privacy beyond the arrest itself may make
sense as applied to physical items, but any extension of that reasoning to
digital data has to rest on its own bottom.” (Id. at p. 393.)
As the People point out, Riley is distinguishable because it involved a
different exception to the warrant requirement (search incident to arrest), as
well as different governmental interests (preventing harm to officers and
destruction of evidence) than those promoted by the parole search exception.
(See Riley, supra, 573 U.S. at p. 386.) We are aware of no court that has
applied Riley’s holding to parole searches, and as indicated, federal decisions
have thus far upheld warrantless searches of parolee cell phones. Although
the United States Court of Appeals for the Ninth Circuit has applied some of
Riley’s reasoning in a probation search case (United States v. Lara (9th Cir.
2016) 815 F.3d 605 (Lara)), it declined to do so in a subsequent parole search
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case on the ground that the defendant’s “parole status alone” distinguished
the case from Lara and Riley. (Johnson, supra, 875 F.3d at p. 1275.) That
said, we acknowledge that Riley made important observations about the
unprecedented privacy concerns presented by modern cell phones which,
along with the high court’s later decision in Carpenter v. United States (2018)
138 S. Ct. 2206 (Carpenter),5 support the “general argument that the Supreme
Court has recently granted heightened protection to cell phone data.”
(United States v. Wanjiku (7th Cir. 2019) 919 F.3d 472, 484; see also United
States v. Rogers (N.D.Ind. Dec. 4, 2019, No. 1:18-CR-103-HAB) 2019 U.S.
Dist. Lexis 210247, *7 [“It is certainly possible to read Riley, a case also
decided in the context of an individual who was subject to a lesser
expectation of privacy and come away with the conclusion that a warrant
may be necessary for the search of a cell phone in all but those cases in which
exigent circumstances exist.”].)
With these considerations in mind, we will assume, for the sake of
argument, that where, as here, the scope of a parole search condition form
lacks clarity with regard to cell phones, the parolee may have some
reasonable expectation of privacy in his or her cell phone and its data.
Nonetheless, as with any warrantless search, the reasonableness of the
challenged parole search here depends on the totality of circumstances.
Because a parolee remains in the legal custody of the CDCR (Samson, supra,
547 U.S. at p. 851; People v. Smith (2009) 172 Cal. App. 4th 1354, 1361), he or
she cannot reasonably expect to be free of warrantless cell phone searches
under all circumstances, and any intrusion on this assumed privacy interest
5 Carpenter held that the government’s access of historical cell phone
records that chronicle a user’s past movements is a search under the Fourth
Amendment. (Carpenter, supra, 138 S.Ct. at p. 2211.)
14
must still be balanced against the degree to which the search promotes
legitimate governmental interests. (Schmitz, supra, 55 Cal.4th at p. 921.)
As discussed, California has an “overwhelming” interest in supervising
parolees in order to detect possible parole violations, reduce recidivism, and
promote reintegration of parolees into society. (Samson, supra, 547 U.S. at
p. 853.) The government also “has a duty not only to assess the efficacy of its
rehabilitative efforts but to protect the public, and the importance of the
latter interest justifies the imposition of a warrantless search condition.”
(Reyes, supra, 19 Cal.4th at p. 752.) Furthermore, the strength of the
governmental interest in conducting a probation or parole search “ ‘varies
depending on the degree to which the government has a specific reason to
suspect that a particular probationer [or parolee] is reoffending or otherwise
jeopardizing his [or her] reintegration into the community.’ ” (Lara, supra,
815 F.3d at p. 612.)
In the instant case, the officers knew defendant was a parolee and they
had specific, articulable reasons to suspect he was involved in a residential
burglary and was therefore reoffending. The video surveillance evidence
showed that the burglary involved defendant’s truck and two individuals, one
of whom bore a “very close resemblance” to defendant. Under these
circumstances, the government had a particularly acute interest in
determining whether defendant had violated the conditions of his parole and
was a danger to the public. (Cf. Lara, supra, 815 F.3d at p. 612
[government’s interest in searching probationer who merely missed probation
meeting was “worlds away” from searching probationer suspected of violent
crime].) And it was reasonable for the investigating officers to believe there
might be evidence of the burglary on defendant’s cell phone, such as text
messages or calls with his accomplice, or photographs or location information
15
regarding the targeted residence. Thus, despite any perceived expectation of
privacy that defendant may have had in his cell phone due to the lack of
clarity in the written search conditions, consideration of the totality of the
circumstances presented leads us to conclude that the balance ultimately tilts
in favor of the government’s substantial interests in supervising defendant
and protecting the public.
Finally, we observe the cell phone search was not arbitrary, capricious,
or harassing. (Reyes, supra, 19 Cal.4th at p. 752.) A search is arbitrary and
capricious when the motivation for the search is unrelated to rehabilitative,
reformative, or legitimate law enforcement purposes, or when the search is
motivated by personal animosity toward the parolee. (In re Anthony S. (1992)
4 Cal. App. 4th 1000, 1004.) Because the officers here had specific reasons to
suspect that defendant was involved in a residential burglary, the search was
related to legitimate parole monitoring and law enforcement purposes, and
there was no evidence suggesting the officers had personal animosity towards
defendant. The search took place at a reasonable hour and was not
unreasonably prolonged. (Reyes, at pp. 753–754.)6
6 We note In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) recently
held that a probation search condition allowing for warrantless electronic
device searches was invalid under the test of People v. Lent (1975)
15 Cal. 3d 481 (Lent). In this case, defendant has never contended that the
Lent test—which judicially interprets the requirement of Penal Code
section 1203.1, subdivision (j), that “probation conditions be ‘reasonable’ ”
(Ricardo P., at p. 1128, italics added)—applies to parole searches, or that, if
the Lent analysis were applied in the parolee context, the record here would
be adequate to show an abuse of discretion under Lent’s three conjunctive
prongs (Lent, at p. 486 [condition (1) has no relationship to crime of which
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]).
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DISPOSITION
The judgment is affirmed.
17
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Jackson, J.
A154848
18
People v. Delrio
(A154848)
Trial court: San Mateo County
Trial Judge: Hon. Donald J. Ayoob
Attorneys:
John Alexander Halley for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Eric D. Share, Supervising Deputy
Attorney General, Ronald E. Niver, Deputy Attorney General and
Bruce Ortega, Deputy Attorney General for Plaintiff and
Respondent.
19