Coincidentally, this post, like my last one, examines an
opinion from the California Court of Appeal – First District. And, like my last post, it involves a
juvenile who had a run-in with law enforcement:
In Re P.O., 2016 WL 1321508.
If you are wondering why courts often use initials to
identify the juveniles who are involved in cases before a particular court, the
reason is to try to avoid publicity concerning the juvenile’s encounter(s) with
the criminal justice system. California Rule of Court 8.401(a) imposes this and other procedures for preserving the
minor’s anonymity. (Another tactic, as
the prior post illustrates, is to refer to the juvenile as “Minor”.)
The Court of Appeal begins its opinion by explaining that
P.O. appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he
admitted to a misdemeanor count of public intoxication. He claims that a
condition of his probation requiring him to submit to warrantless searches of
his `electronics including passwords’ is unreasonable under People v.
Lent (Supreme Court of California1975) 15 Cal.3d 481 (Lent)
and unconstitutionally overbroad.
In Re P.O., supra.
And, as courts routinely do, the Court of Appeals began its
analysis by explaining how, and why, the case arose:
In November 2014, the principal of
P.O.'s Pleasanton high school observed that P.O., who was 17 years old at the
time, appeared to be under the influence of drugs.1 P.O. admitted to using
hashish oil earlier that morning, and a search revealed 11 tablets of Xanax in
his pockets.
A few months later, the Alameda County
District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) seeking to have P.O. declared a ward of the court. The
petition alleged one misdemeanor count of unlawful possession of a controlled
substance, and P.O. ultimately admitted to an amended allegation that he
committed a misdemeanor count of public intoxication.
At the dispositional hearing, the
juvenile court declared P.O. a ward of the court and placed him on probation
with various conditions, three of which are at issue in this appeal. The first
requires him to `[s]ubmit person and any vehicle, room[,] or property, electronics
including passwords under [his] control to search by Probation Officer or peace
office[r] with or without a search warrant at any time of day or night.’ We
shall refer to the portion of this condition permitting searches of
`electronics including passwords’ as the electronics search condition. The other
two require him to `attend classes or job on time and regularly; be of good
behavior and perform well” and “be of good citizenship and good conduct.’
(Capitalization omitted.) We shall refer to these conditions as the
good-behavior conditions. A number of other conditions P.O. does not
challenge were also imposed, including conditions that he not use or possess
illegal drugs, not `associate with anyone [he] know[s] to use, deal[,] or
possess illegal drugs,’ and submit to drug testing.
P.O. objected to the electronics search
condition on the basis that there was no evidence to suggest he was buying or
selling drugs. In response, the juvenile court emphasized the need to help P.O.
avoid substance abuse. It then stated, `[T]o properly supervise these drug
conditions, we need to go on your web sites, check what you may be presenting
as far as your ability to purchase, to sell drugs, your ability to—we have
people who present themselves on the Internet using drugs or . . . in
possession of paraphernalia, and that's the only way we can properly supervise
these conditions[.]’
In Re P.O., supra.
(This post only reviews the court’s analysis of the
“electronic search condition” due to the lengthy analysis it conducts of that
issue (and of the second issue) . . . and because tha5 condition is the most
relevant to the issues this blog examines.)
The court then took up P.O.’s arguments on appeal, noting
that he claimed “the electronics search condition is (1) unreasonable
under People v. Lent, supra, . . . and (2)
unconstitutionally overbroad.” In
Re P.O., supra. The Court of Appeals
prefaced its analysis of both arguments with the comment that “[w]e disagree
with his first contention but agree with his second.” In Re P.O., supra.
It addressed P.O.’s arguments in the order in which he made
them, i.e., it began with his People v.
Lent argument:
When a minor is made a ward of the
juvenile court and placed on probation, the court `may impose and require any
and all reasonable conditions that it may determine fitting and proper to the
end that justice may be done and the reformation and rehabilitation of the ward
enhanced.’ (Welfare and Institutions Code section § 730, subd. (b); see also id., § 202, subd. (b).) `”In fashioning the conditions
of probation, the . . . court should consider the minor's entire social history
in addition to the circumstances of the crime.”’ (In re R.V. (2009)
171 Cal.App.4th 239, 246.) The court has `broad discretion to fashion
conditions of probation’ (In re Josh W. (1997) 55 Cal.App.4th 1, 5),
although `every juvenile probation condition must be made to fit the
circumstances and the minor.’ (In re Binh L. (1992) 5 Cal.App.4th
194, 203.) We review the imposition of a probation condition for an abuse of
discretion (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin)),
taking into account `the sentencing court's stated purpose in imposing it.’ (People
v. Fritchey (1992) 2 Cal.App.4th 829, 837.)
In Re P.O., supra.
This part of the opinion goes on to explain that a
juvenile court's discretion to impose
probation conditions is broad, but it has limits. (In re D.G. (2010)
187 Cal.App.4th 47, 52.) Under Lent, which applies to both
juvenile and adult probationers, a condition is `invalid [if] it “(1) has no
relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct
which is not reasonably related to future criminality.”’ (Lent, supra, 15
Cal.3d at p. 486; In re Josh W., supra, 55 Cal.App.4th at pp.
5–6.) “This test is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term.” (Olguin, supra, 45
Cal.4th at p. 379.)
Although the Attorney General does not
raise the issue, we question whether P.O. preserved this claim. He objected
below to the electronics search condition, but he did not specify his basis for
doing so. The failure to object that a probation condition is unreasonable
under Lent, supra, 15 Cal.3d 481 generally forfeits the
contention on appeal. (In re Vincent G. (2008) 162 Cal.App.4th 238,
246; see also People v. Welch, Welch (1993) 5 Cal.4th 228,
235) Even assuming the claim is preserved, however, we reject it on the merits.
Although the electronics search condition satisfies the first two prongs under Lent required to invalidate a condition,
it does not satisfy the third.
The first prong under Lent that
must be met to invalidate a probation condition requires the condition to have
no relationship to the offender's crime. P.O. argues that the electronics
search condition has no relationship to his crime because the record contains
no evidence about his use of electronic devices, much less his use of `electronics
or social media to display drug use.’ The Attorney General effectively concedes
that the first prong is met, and we agree that the challenged condition has no
relationship to P.O.'s crime of being intoxicated in public.
The second prong required to invalidate
a probation condition—that the condition relates to conduct that is not itself
criminal—is also met here, because there is nothing inherently illegal about
using electronic devices. (In re Erica R., supra, 240 Cal.App.4th
at p. 913) The Attorney General agrees that `as a general matter, using electronic
devices is not illegal,’ and she does not contest that the second prong is met.
We conclude that the third prong
required to invalidate a probation condition is not met, however, because the
electronics search condition is reasonably related to future criminality.
Under Olguin, supra, 45 Cal.4th 375, a probation condition that
enables probation officers `to supervise [their] charges effectively is . . . “reasonably
related to future criminality.”’ (Id. at pp. 380–381.) This is true
`even if [the] condition . . . has no relationship to the crime of which a
defendant was convicted.’ (Ibid.) Here, the condition reasonably relates
to enabling the effective supervision of P.O.'s compliance with other probation
conditions. Specifically, the condition enables peace officers to review P.O.'s
electronic activity for indications that P.O. has drugs or is otherwise engaged
in activity in violation of his probation. We cannot say that the juvenile
court's given reason for imposing the condition—that minors are apt to use
electronic devices to show off their drug use or ability to procure drugs—was
speculative or otherwise constituted an abuse of discretion.
In Re P.O., supra.
The Court of Appeals went on to point out that
[a]nother published opinion holding
that an electronics search condition was unreasonable under Lent,
supra, 15 Cal.3d 481 has been issued since our prior opinions on
the same subject. In In re Mark C., supra, 244
Cal.App.4th 520, Division Two followed its earlier decision in In re
Erica R., supra, 240 Cal.App.4th 907 and held tha the third
prong of Lent was not satisfied because the condition was not
reasonably related to future criminality. (Mark C., at p. 535.) In
reaching this holding, Mark C. made two primary points with
which we disagree.
First, Mark C. distinguished Olguin,
supra, 45 Cal.4th 375 on the basis that the probation condition
in Olguin—which required the probationer to disclose any pets he
kept at his home—`did not extend the scope of the warrantless search of the
probationer's residence, rather it facilitated the search of the residence by
mitigating the potential of any pet residing with the probationer ‘to distract,
impede, and endanger probation officers in the exercise of their supervisory
duties.’ [Citation.] Thus, it enabled the ‘probation officer to supervise his
or her charges effectively.’ ” (Mark C., supra, 244 Cal.App.4th at
p. 533) The court continued, `We do not read Olguin to hold that
every condition that might enable a probation officer to supervise
his or her minor charges more effectively is necessarily “reasonably related to
future criminality.”’ [Citation.] Such a reading would effectively eliminate
the reasonableness requirement that the court in Olguin discusses
at some length. [Citation.] Requiring [the minor] to copy his probation officer
on all his e-mails, and forward all his postings on social media to his
probation officer might also facilitate his probation officer's supervision of
him, as would requiring him to wear a body camera. But Olguin no
more justifies these hypothetical probation conditions than the actual
electronics search condition in this case.” (Mark C., at p. 533,
italics in original.)
In Re P.O., supra.
The court went on to explain that, in
our view, this point misconstrues the
reasonableness requirement discussed in Olguin, supra, 45
Cal.4th 375. Olguin 's mention of reasonableness occurred during a
discussion of the burden that compliance with the probation condition imposed
on the probationer. (Id. at pp. 383–384.) It is this burden that
must be reasonable, not the condition itself. (Ibid.) It may well be
that a probation condition requiring a minor to forward all electronic
communications to the probation officer or to wear a body camera would be
unreasonable under Lent, supra, 15 Cal.3d 481, but it would be
so because of the burden it imposed on the minor—not because it invaded the
minor's privacy (a constitutional concern better addressed by the overbreadth
doctrine), and certainly not because it lacked a connection to preventing
future criminality.
Second, Mark C. distinguished Olguin,
supra, 45 Cal.4th 375 because Olguin involved an
adult probationer, stating, `Adults, but not minors, have the right to refuse
probation. Accordingly, search conditions that apply to a minor must be
tailored to fit the minor's particular rehabilitative needs; if they do not,
they are invalid under Lent.’ (Mark C., supra, 244
Cal.App.4th at p. 534.) Mark C. considered the electronics
search condition not to be so tailored because there was `nothing in [the
minor's] offense or personal history show[ing] a connection between his use of
electronic devices or social media and any criminal activity’ and thus `there
[was] no reason to believe that the . . . condition [would] serve the
rehabilitative function of preventing [the minor] from committing future
criminal acts.’ (Id. at p. 535.)
If this reasoning were correct, then
juvenile courts would be unable to impose standard search conditions permitting
warrantless searches of a minor's person, residence, vehicle, and other
physical locations without a showing that those locations were all connected to
past criminal conduct. In fact, such conditions are routinely imposed despite
their potential to invade minors' privacy. (See, e.g., In re Binh L.,
supra, 5 Cal.App.4th at pp. 203–204; In re Laylah K. (1991)
229 Cal.App.3d 1496, 1502–1503.) Although `a minor cannot be made subject to an
automatic search condition’ (Binh L., at p. 203), this requires a
court to consider whether a search condition is appropriate under the
circumstances before imposing it, not to find a connection between the
locations to be searched and the minor's past conduct. And to the extent the
concern with the reasonableness of electronics search conditions stems from the
impact electronic searches have on privacy, the fact that a probationer is a
minor justifies more intrusive probation conditions, as we
discuss further below.
In sum, we conclude that the
electronics search condition is valid under Lent, supra, 15
Cal.3d 481 because it is reasonably related to future criminality.
In Re P.O., supra.
The Court of Appeals then took up the issue as to whether
the electronics search condition was fatally “overbroad.” In Re
P.O., supra. It began its analysis
of that issue by noting that the
electronics search condition is
overbroad because it is not narrowly tailored to further P.O.'s rehabilitation.
When a probation condition imposes
limitations on a person's constitutional rights, it `”must closely tailor those
limitations to the purpose of the condition”’—that is, the probationer's reformation
and rehabilitation —`”to avoid being invalidated as unconstitutionally
overbroad.”’ (Olguin, supra, 45 Cal.4th at p. 384; In re
Victor L. (2010) 182 Cal.App.4th 902, 910.) `The essential question in
an overbreadth challenge is the closeness of the fit between the legitimate
purpose of the restriction and the burden it imposes on the [probationer]'s
constitutional rights—bearing in mind, of course, that perfection in such
matters is impossible, and that practical necessity will justify some
infringement.’ (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) `”Even
conditions which infringe on constitutional rights may not be invalid [as long
as they are] tailored specifically to meet the needs of the juvenile.’” (In re Tyrell J. (1994) 8 Cal.4th
68, 82, disapproved on other grounds in In re Jaime P. (2006)
40 Cal.4th 128, 130; In re D.G., supra, 187 Cal.App.4th at p.
52.)
In Re P.O., supra.
The court went on to explain that a probation condition
imposed on a minor must be narrowly
tailored to both the condition's purposes and the minor's needs, but “`a condition
. . . that would be unconstitutional or otherwise improper for an adult
probationer may be permissible for a minor under the supervision of the juvenile
court.’” (In re Victor L., supra, 182 Ca. App. 4th at p.
910, quoting In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena
K.).) `This is because juveniles are deemed to be more in need of guidance
and supervision than adults, and because a minor's constitutional rights are
more circumscribed. The state, when it asserts jurisdiction over a minor,
stands in the shoes of the parents. And a parent may ‘curtail a child's
exercise of . . . constitutional rights . . . [because a] parent's own
constitutionally protected `liberty’ includes the right to `bring up children’
[citation] and to `direct the upbringing and education of children.’
[Citation.]’” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
Whether a probation condition is unconstitutionally overbroad presents a
question of law reviewed de novo. (In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143.)
The Attorney General argues that P.O.
forfeited this claim by failing to object on constitutional grounds below. P.O.
acknowledges that he did not raise the overbreadth issue before the juvenile
court, but he argues that the issue `presents a pure question of law’ and does
not require an objection below to be preserved on appeal. (See Sheena
K., supra, 40 Cal.4th at p. 885.) We disagree with his
characterization of his claim but nevertheless exercise our discretion to reach
the issue. (See People v. Williams (1998) 17 Cal.4th 148,
161–162, fn. 6.)
In Re P.O., supra.
It began by noting that
P.O.'s claim is that the electronics
search condition infringes upon his constitutional right to privacy in the way
it impacts his cell phone use. (See In re Carmen M. (2006) 141
Cal.App.4th 478, 490 [recognizing minors' right to privacy]; see
also People v. Appleton (2016) 245 Cal.App.4th 717, 724 [discussing
privacy interest in electronic devices].)
We agree with P.O. that the electronics
search condition is overbroad in its authorization of searches of cell phones
and electronic accounts accessible through such devices because it is not
narrowly tailored to its purpose of furthering his rehabilitation. According to
the juvenile court, the condition's purpose is to allow monitoring of P.O.'s
involvement with drugs, but the condition does not limit the types of data that
may be searched in light of this purpose. Instead, it permits review of all
sorts of private information that is highly unlikely to shed any light on
whether P.O. is complying with the other conditions of his probation,
drug-related or otherwise. (Appleton, at pp. 719, 725 [probation
condition overbroad where it authorized `search[es] of [the] defendant's mobile
electronic devices [that] could potentially expose a large volume of documents
or data, much of which may have nothing to do with illegal activity,’ including
`medical records, financial records, personal diaries, and intimate
correspondence’].)
In reaching this conclusion, we are
aware that Division Four recently held that a substantively identical probation
condition was not overbroad. (In re A.S., supra, 245
Cal.App.4th at pp. 761–762.) The court determined that the condition in that
case was sufficiently tailored to its rehabilitative purpose in light of the
case's `rather unique constellation of facts’—including the minor's `serious
mental illnesses, . . . dysfunctional family life, . . . significant gap in her
educational training, and poor social choices.’ (Id. at pp. 771,
774.)
In contrast, the condition here is not
sufficiently tailored because P.O.'s needs are less severe and the condition's
purpose is accordingly less expansive. Although we disagree with P.O. that no
electronics search condition is warranted at all because other conditions of
his probation constitute `less restrictive alternatives to meet the state's
goal[s] of rehabilitation and public safety,’ we hold that the condition must
be modified to limit authorization of warrantless searches of P.O.'s cell phone
data and electronic accounts to media of communication reasonably likely to
reveal whether he is boasting about drug use or otherwise involved with drugs.
In addition, while P.O. must disclose to peace officers passwords necessary to
gain access to these accounts, to the extent any other types of digital
accounts maintained by him are password protected, he is not required to
disclose those passwords.
In Re P.O., supra.
The court therefore held that the
search condition in
the minute order for the May 7, 2015 hearing, which currently reads, `Submit
person and any vehicle, room or property, electronics including passwords under
your control to search by Probation Officer or peace office[r] with or without
a search warrant at any time of day or night,’ is modified to read: `Submit
your person and any vehicle, room, or property under your control to a search
by the probation officer or a peace officer, with or without a search warrant,
at any time of the day or night. Submit all electronic devices under your
control to a search of any medium of communication reasonably likely to reveal
whether you are boasting about your drug use or otherwise involved with drugs,
with or without a search warrant, at any time of the day or night, and provide
the probation or peace officer with any passwords necessary to access the
information specified. Such media of communication include text messages,
voicemail messages, photographs, e-mail accounts, and social media accounts.’
In Re P.O.,
supra. It also held that, “[as] As
so modified, the juvenile court's order is affirmed.” In Re P.O., supra.
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