This post examines an opinion from the California Court of Appeal – Fourth District: People v. Key, 2016 WL 6407997
(2016). The court begins the opinion by
explaining that
[f]ollowing Holly Key's guilty plea to possession of
marijuana for sale (Health & Safety Code, § 11359), the trial court
suspended imposition of sentence and placed Key on formal felony probation for
a period of three years, including as a condition of probation that Key submit
her `computers’ and `recordable media’ to search at any time (the electronic
search condition). Key contends that the electronic search condition is invalid
because it is unconstitutionally overbroad.
People v. Key, supra.
The Court of Appeals then outlines the facts that led to the
prosecution and to Key’s guilty plea:
While driving a car that had been
reported stolen by a rental car agency, Key was pulled over by the California
Highway Patrol. Upon searching the vehicle, officers found approximately 1,420
grams of marijuana in the rear hatch area. Key was charged with one count of
importing and transporting marijuana into California (Health & SafetyCode, § 11360, subd. (a)) and one count of possession of marijuana for sale (Health
& Safety Code, § 11359).
Key pled guilty to possession of marijuana for sale (Health &
Safety Code, § 11359) in exchange for an agreement that the People would
dismiss the remaining count and that Key would be sentenced to time served in
local custody and placed on probation.
People v. Key, supra.
The opinion goes on to explain that at
the sentencing hearing on January 8,
2016, defense counsel objected to conditions of probation that would require
Key to allow searches of her electronic devices. Defense counsel's objection
appears to have been occasioned by an addendum to the probation order which Key
was asked to sign, under which she would acknowledge and accept a waiver of her
rights as to searches under the Fourth Amendment to the United States Constitution (the Addendum). The Addendum specifically referenced Key's consent
to provide information that would otherwise be protected by the California Electronic Communications Privacy Act (Penal Code, § 1546, et seq.) (the
ECPA). Regarding the ECPA, the Addendum stated that Key agreed to the
examination of `call logs, text and voicemail messages, photographs, e[-]mails, and social media account contents contained on any device
or cloud or internet connected storage owned, operated, or controlled by the
defendant, including but not limited to mobile phones, computers, computer hard drives, laptops, gaming consoles, mobile
devices, tablets, storage media devices, thumb drives, Micro SD cards, external
hard drives, or any other electronic storage devices.’ The Addendum also
required Key to `disclose any and all passwords, passcodes, password patterns,
fingerprints, or other information required to gain access into any of the
aforementioned devices or social media accounts.’
People v. Key, supra.
The court continued, explaining that at
the outset of the sentencing hearing,
defense counsel originally asked for a continuance so that he could properly
brief his objections to the Addendum. He then changed his mind about the
continuance and instead proceeded to explain generally that `the conditions
requested are unconstitutional, invalid, based upon a variety of reasons.’
Among other things, defense counsel made the point that access to `electronic
information is fundamentally different and allows a much greater scope’ of
intrusion than a physical search of a probationer's home or car. Defense counsel
cited objections under `the 4th, 5th, 6th and 14th amendment, and the
California Constitution.’
The trial court rejected defense
counsel's argument and required Key's agreement to the Addendum as a condition
of probation. The trial court explained, `Well, in this case your client is
currently charged with a drug-related offense. She has a history of
drug-related offenses, at least one other one. And I do think it's necessary
for probation in order to make sure she's not engaged in any illegal activity
to make sure she is properly supervised to have that Addendum on there as a
search condition. And she's going to have a [Fourth] Amendment waiver anyway on
this case.’
Key signed the Addendum and the trial
court entered an order granting formal probation. The order includes, as one of
the conditions of probation, that Key shall `[s]ubmit person, vehicle,
residence, property, personal effects, computers, and recordable media to
search at any time . . . when required by [a probation officer] or law
enforcement officer.’ (Italics added.)
People v. Key, supra.
Next, the opinion notes that “Key filed a notice of appeal
on January 25, 2016.” People v. Key, supra. It goes on to explain that,
[o]n May 18, 2016, the parties entered
into a stipulation, approved by the trial court, which invalidated the
Addendum, nunc pro tunc, to the date
it was imposed. However, the terms of the stipulation, on its face, did not
apply to any of the probation conditions in the order granting formal
probation. Thus, Key remains subject to the probation condition requiring that
she submit her “computers . . . and recordable media to search.”
People v. Key, supra.
The Court of Appeals then begins its analysis of the issue
in the case, explaining that
Key's sole argument on appeal is that the
electronic search condition is unconstitutionally overbroad as it is not
narrowly tailored to avoid unnecessary infringement of her right to privacy.
It is without question that a person
has a constitutional right to privacy in the content of his or her electronic
devices, protected from search by the Fourth Amendment.
(Riley v. California (2014) 573 U.S.–––– [189 L.Ed.2d 430] [law
enforcement officers generally must secure a warrant before searching the
digital content of a cell phone incident to an arrest]; People v.
Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton )
[stating that `[i]t is well established that individuals retain a
constitutionally protected expectation of privacy in the contents of their
own computers,’ and
observing that `[m]uch of the reasoning in Riley—which recognized
how the immense storage capacity of modern cell phones allows users to carry
large volumes of data—would apply to other modern electronic devices’].) Here,
by requiring that Key submit her computers and
recordable media to search, the electronic search condition in the order
granting probation unquestionably imposes a limitation on Key's Fourth Amendment rights.
`[A]dult probationers, in preference to
incarceration, validly may consent to limitations upon their constitutional
rights.’ (People v. Olguin (2008) 45 Cal.4th 375, 384.) However,
`[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 875, 890.) Specifically, the issue is `whether the condition is
closely tailored to achieve its legitimate purpose.’ (Olguin, at p.
384.) `It is not enough to show the government's ends are compelling; the means
must be carefully tailored to achieve those ends.’ (People v. Harrisson (2005)
134 Cal.App.4th 637, 641.) `The essential question in an overbreadth challenge
is the closeness of the fit between the legitimate purpose of the restriction
and the burden it imposes on the defendant's constitutional rights—bearing in
mind, of course, that perfection in such matters is impossible, and that
practical necessity will justify some infringement.’ (In re E.O. (2010)
188 Cal. App. 4th 1149, 1153.)
People v. Key, supra.
Next, the Court of Appeals notes that,
`[w]ith respect to the standard of
review, while we generally review the imposition of probation conditions for
abuse of discretion, we review constitutional challenges to probation conditions
de novo.’ (Appleton, supra,
245 Cal.App.4th at p. 723.)
People v. Key, supra.
The Court of Appeals then began its analysis of the law and
of Key’s arguments, noting that
[h]ere, the trial court stated that the
purpose of the electronic search condition is `to make sure [Key is] not engaged
in any illegal activity’ by providing tools for the probation officer to `make
sure she is properly supervised.’ Similarly, the People state that the purpose
of the electronic search condition is to `address [Key's] future criminality.’
In light of this expressed purpose, Key argues that the electronic search
condition `is fatally not narrowly tailored to prevent future criminal
activity.’ Key contends that the electronic search condition is overbroad because
the court could impose `less restrictive alternatives to meet the People's goal
of preventing future criminal activity.’ Key does not suggest how the
electronic search condition could be narrowed to alleviate the overbreadth
problem, stating that she `questions whether the Court could modify the
electronic search condition to adequately preserve [Key's] constitutional
rights.’
In support of her argument that the
electronic search condition is impermissibly overbroad, Key relies primarily on
the Sixth District's opinion in Appleton, supra, 245
Cal.App.4th 717. In Appleton, the defendant, who pled no contest to
false imprisonment by means of deceit, challenged the probation condition
providing that `”[a]ny computers and all other electronic devices belonging to
the defendant, including but not limited to cellular telephones, laptop
computers or notepads, shall be subject to forensic analysis search for
material prohibited by law.”’ (Id. at p. 721.) Appleton concluded
that the electronic search condition was overbroad because it `would allow for
searches of vast amounts of personal information unrelated to defendant's
criminal conduct or his potential for future criminality.’ (Id. at p.
727.)
As Appleton observed,
`a search of defendant's mobile electronic devices could potentially expose a
large volume of documents or data, much of which may have nothing to do with
illegal activity. These could include, for example, medical records, financial
records, personal diaries, and intimate correspondence with family and
friends.’ (Id. at p. 725). Appleton
accordingly ordered that the electronic search condition be stricken as
overbroad, and it remanded the matter to the trial court to consider whether
the trial court could `impose a valid condition more narrowly tailored to the
state's interests.’ (Id. at p. 727.)
Key argues that the electronic search
condition at issue in this case is similarly overbroad because it is not
narrowly tailored for the purpose of supervising her to prevent future criminal
activity, as the access to her computers and devices containing recordable
media `constitute a digital record or nearly every aspect of her life,’
including `her most intimate details, . . . her every move, her political and
religious associations, and her sexual expression and thought,’ and thus
reaches more broadly than necessary to monitor her future criminality.
People v. Key, supra.
The court went on to explain that
Key also relies on the opinion of
Division One of the First District in In re P.O. (2016) 246
Cal.App.4th 288 (In re P.O.). In re P.O. determined
that Appleton, supra, 245 Cal.App.4th 717, was
persuasive on the overbreadth issue and concluded that a probation condition
imposed on a juvenile requiring him to ‘[s]ubmit . . . electronics including
passwords under [his] control to search’ was overbroad. (In re P.O. at
p. 292.)
The People, in contrast, advocate that
we decline to follow Appleton and instead follow a decision of
Division Four of the First District, in which our Supreme Court granted review
after the People filed their brief in this case. (In re J.E. (2016)
1 Cal.App.5th 795 (In re J.E.), review granted Oct. 12, 2016,
S236628.) In In re J.E., the minor was required as a condition of
probation to submit to a search of his ‘electronics, including passwords.’ (Id.
at p. 798.) In re J.E. explained that although a different
division of the First District had concluded in In re P.O., supra,
246 Cal.App.4th 288, that a nearly identical electronic search condition was
overbroad, the case before it differed because the minor's case was especially
severe, which `require[d] intensive supervision to ensure his compliance with
his probation conditions.’ (In re J.E., at p. 805.) Even had our Supreme
Court not granted review, we would not find In re J.E. to be
persuasive here for two reasons. First, unlike the minor in In re J.E.,
there is no indication in Key's criminal history or the details of the instant
offense that would indicate she requires especially intensive supervision to
address future criminality. More importantly, In re J.E. was a
juvenile wardship proceeding. As In re J.E.recognized, a minor is `deemed
to be more in need of guidance and supervision than adults, and . . . [his]
constitutional rights are more circumscribed. The state, when it asserts
jurisdiction over a minor, stands in the shoes of the parents ... [and] may
“curtail a child's exercise of . . . constitutional rights.”’ (In re J.E., supra,
at p. 805, quoting In re Antonio R.(2000) 78 Cal.App.4th 937, 941.)
People v. Key, supra.
The opinion continues, explaining that
[t]his case is also not like People
v. Ebertowski (2014) 228 Cal.App.4th 1170, which was cited in In
re J.E. during its discussion of overbreadth. (In re J.E., supra,
1 Cal.App.5th at p. 805.) In Ebertowski, the defendant pleaded no
contest to making criminal threats and resisting or deterring an officer, and
he admitted a gang allegation. (Ebertowski, at p. 1172.) The trial court
imposed a condition of probation stating that ‘[t]he defendant shall provide
all passwords to any electronic devices (including cellular phones, computers
or notepads) within his or her custody or control and shall submit said devices
to search at anytime [sic] without a warrant by any peace officer.’ (Id.
at p. 1173.) Ebertowski concluded that the electronic search
condition was not overbroad, as the defendant had a history of promoting his
gang on social media, and `access to all of defendant's devices and social
media accounts is the only way to see if defendant is ridding himself
of his gang associations and activities, as required by the terms of his
probation, or is continuing those associations and activities, in violation of
his probation.’ (Id. at p. 1175, italics added.) The court explained
that defendant had not suggested how the electronic search condition could be
more closely tailored to `the purpose of monitor[ing] and suppress [ing]
defendant's gang activity.’ (Ibid.) Here, in contrast, the articulated
purpose for having access to Key's electronic devices is much less compelling
and much less specific. Unlike in Ebertowski where the electronic
search condition was necessary because of a specific concern about gang
activity on social media, there has been no showing here that broad permission
to search any of Key's electronic devices is `the only way to see’ if Key is
remaining law abiding. (Ibid.)
In sum, we do not find the People's
argument for rejecting the holdings in Appleton and In
re P.O. to be persuasive. As in those cases, the electronic search
condition imposed on Key is very broad and the People have not attempted to
articulate how the provisions of the electronic search condition are narrowly
tailored to the purpose of monitoring Key's future criminality.
People v. Key, supra.
The court went on to explain that
[a]lthough Key takes the position that
no electronic search condition can be sufficiently tailored to avoid an
unnecessary infringement on her privacy rights given the circumstances
presented by her case, we decline to reach that issue and instead remand the
matter to the trial court to decide, in the first instance, whether and how to
fashion an appropriate electronic search condition. In so deciding, we have
kept in mind that during the sentencing hearing the trial court was under the
assumption that the Addendum would become part of the electronic search
condition, and it therefore did not have the opportunity to decide whether the
reference to `computers . . . and recordable media’ could be effectively
narrowed. Under those circumstances, it is appropriate to give the trial court
an opportunity to address the issue in the first instance.
We accordingly order that the
electronic search condition in the formal order of probation referring to the
search of `computers . . . and recordable media’ be stricken as overbroad, and
the matter be remanded to the trial court to consider whether, and how, the
electronic search condition can be narrowly tailored to addressing Key's future
criminality.
People v. Key, supra.
The court ended the opinion with a formal statement of its
disposition of the case:
We strike the portion of the formal
order of probation requiring Key to submit her `computers . . . and recordable
media’ to search, and we remand to the trial court with directions to consider
whether and how the electronic search condition can be more narrowly tailored.
People v. Key, supra.
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