The Juvenile, Home Probation and the Probation Condition

This post examines a recent decision from the Court of Appeal – First District, California: In re Carlos H., 2017 WL 695953 (2017). The opinion begins by explaining that

Carlos was initially declared a ward January 2013 after he admitted two petitions alleging a robbery and a misdemeanor criminal threat. Since then, Carlos has been in and out of juvenile custody numerous times and admitted two criminal offenses. The underlying offenses in the present action were committed in late 2015 after Carlos had absconded from his most recent group home placement.

On January 6, 2016, a petition was filed alleging that Carlos possessed a concealable firearm on October 22, 2015 (Penal Code § 29610). On February 24, 2016, a petition was filed alleging that on December 9, 2015, Carlos possessed an assault weapon (§ 30605, subd. (a)) and that he had received a large capacity magazine (§ 32310, subd. (a)). Carlos admitted the concealable firearm charge as a misdemeanor and the assault weapon charge as a felony. The third charge was dismissed.

The disposition report prepared by the probation department states, `Reports indicates that minor is involved in Norteño gangs. The minor denies being a part of a gang, but admits that he associates with Norteño gang members from different areas.’

The court redeclared wardship and placed Carlos on probation subject to numerous probation conditions including warrantless searches, a geographic stay-away order, no contact with crime associates, no weapons, no gang involvement or insignias, drug/alcohol testing, counseling, job training, and a curfew. Carlos timely filed a notice of appeal.

In re Carlos H., supra.

In his appeal, Carlos H. challenged two of the probation conditions, one of which required him “to submit to warrantless searches of his electronic devices and provide passwords to his devices and social media accounts”. In re Carlos H., supra. This post only examines that issue.

The Court of Appeal began its analysis of that issue, and Carlos’ challenge to it, by explaining that

[t]he electronic search condition provides: `Any electronic and/or digital devices in your possession or under your custody or under your control may be searched at any time of the day or night, by any peace or probation officer, with or without a warrant or with or without reasonable or probable cause. Electronic and/or digital devices include but are not limited to cell phones, smartphones, iPads, computers, laptops and tablets. You are also ordered to provide any and all passwords to the devices upon request to any peace or probation officer.’ In addition, Carlos was ordered to `disclose passwords . . . for his social media accounts to probation officer[s] and law enforcement officers, police officer without reasonable or probable cause upon request.’

Carlos claims the electronics search condition (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481; (2) is precluded by the California Electronic Communications Privacy Act(ECPA) (§ 1546 et seq.); (3) violates his Fifth Amendment rights; and (4) is unconstitutionally overbroad.

In re Carlos H., supra.

The Court of Appeal took up each of Carlos’ arguments, in the order set out above. As to the decision in People v. Lent, it explained that

[i]nitially, we reject the argument that the search condition violates People v. Lent, supra, 15 Cal.3d 481. Under Lent, a probation condition is `invalid [if] it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’  (Lent, p. 486; In re P.O. (2016) 246 Cal.App.4th 288, 294.) A condition is invalid only if all three prongs of Lent are met. (In re P.O., p. 294.)

We need not decide whether the condition meets the first and second prong of the Lent test, because the condition fails the third prong. The condition is reasonably related to preventing future criminality. The conditions of probation require that Carlos avoid known gang members and prohibit his display of gang insignia. Carlos is required to avoid contact with named participants in the crimes and prohibited from contacting them `by telephone, e-mail, voice mail, pager code, letter, any social media, Facebook, Twitter, Instagram or message through someone else.’ Accordingly, the electronics search condition reasonably relates to the effective monitoring of Carlos's compliance with the no contact and gang conditions. In addition, the disposition report contains descriptions of photographs of Carlos posing with weapons that were posted on his or others social media accounts. Because Carlos is properly prohibited as a condition of probation from possessing weapons, the condition also relates to the effective monitoring of Carlos's compliance with that condition.

In re Carlos H., supra.

The Court of Appeal also explained that

[n]or does the condition violate the ECPA. As relevant to the present case, the ECPA, effective January 1, 2016, prohibits a government entity from accessing device information through physical interaction or electronic communication with the device unless one of several statutory exceptions applies, including that the government entity has obtained a warrant or has obtained the consent of the possessor of the device. (§ 1546.1, subd. (a)(3), (c); Stats. 2015, ch. 651, § 1, eff. Jan. 1, 2016.)). Contrary to Carlos's argument, the plain language of section 1546.1 does not prohibit the court from requiring a probationer to allow a warrantless search of his or her electronic devices. As the Attorney General argues, `the statute nowhere provided that a law enforcement officer examining electronic device information by physical interaction or electronic communication with a device, pursuant to an otherwise valid probation or parole search condition would lack a possessor's `specific consent.’

In re Carlos H., supra.

The court then goes on to point out that

any ambiguity in that regard was conclusively resolved by the January 2017 amendment to section 1546.1, subdivision (c). The amendment, among other things, added additional exceptions to section 1546.1, subdivision (c), including subdivision (c)(10), which authorizes a government entity to 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, mandatory supervision, or pretrial release.’ (Stats. 2016, ch. 541, § 3.5, eff. Jan. 1, 2017).) The amendment also added subdivision (c)(9), which authorizes a government entity to 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 serving a term of parole under the supervision of the Department of Corrections and Rehabilitation or a term of postrelease community supervision under the supervision of county probation.’

Contrary to Carlos's argument, subdivision (c)(10) applies to juvenile probation. The categories of adult offenders enumerated in subdivision (c)(9) do not limit the types of `probation’ governed by subdivision (c)(10).

Carlos also argues that the condition is invalid because the recent amendment `does not authorize a requirement to disclose passwords.’ But neither does the amendment or the statute prohibit this requirement. In all events, the requirement undoubtedly is necessary to enforce the government's right to gain access to electronic device information in those situations in which access is authorized.

In re Carlos H., supra.

The opinion goes on to address another argument Carlos made in his appeal:

Finally, Carlos argues that insofar as the amendment changes the law, it cannot be applied retroactively to save a probation condition that was illegal when imposed. We disagree, however, with Carlos's premise that the amendment changed the law. As set forth above, because the statute was ambiguous regarding whether a valid probation condition qualified as `consent’ under the statute, the amendment clarified that access pursuant to a valid search condition is permissible. (See In re J.C. (2016) 246 Cal.App.4th 1462, 1477, quoting Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 [`‘‘An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute. . . . [¶] If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act—a formal change—rebutting the presumption of substantial change’’].)

In re Carlos H., supra.

The Court of Appeal then took up Carlos’ next argument, which was that

requiring him to produce his password and the contents of his email and social media accounts is compelling his testimony and therefore impermissible under the Fifth Amendment. We disagree. `”The Fifth Amendment to the United States Constitution states that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .’ The high court has made clear that the meaning of this language cannot be divorced from the historical practices at which it was aimed, namely, the brutal inquisitorial methods of ‘”putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.”’ [Citations.] . . . [T]he amendment prohibits the direct or derivative criminal use against an individual of ‘testimonial’ communications of an incriminatory nature, obtained from the person under official compulsion.’ (People v. Low (2010) 49 Cal.4th 372, 389–390.)

The search of Carlos's electronic devices, subject to a valid warrantless search condition, does not implicate his Fifth Amendment rights. It is a `settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege [against self-incrimination].’ (United States v. Hubbell (2000) 530 U.S. 27,35–36; accord Fisher v. United States (1976) 425 U.S. 391, 401 [`[T]he Fifth Amendment protects against “compelled self-incrimination, not the disclosure of private information”’.)

In re Carlos H., supra.

The court went on to explain that

[f]inally, Carlos argues that the electronics search condition is unconstitutionally overbroad `because it is not narrowly tailored to limit its impact on [his] privacy and free speech rights.’ 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.’” (People v. Olguin (2008) 45 Cal.4th 375, 384.) Like other courts, we agree the electronics search condition implicates Carlos's constitutional privacy rights and is not narrowly tailored to promote his rehabilitation and the public's protection. (In re P.O., supra, 246 Cal. App.4 th at p. 298.) Here, the court did not tailor the condition by limiting the types of data (whether on an electronic device or accessible through an electronic device) that may be searched. Instead, the condition `permits review of all sorts of private information that is highly unlikely to shed any light on whether [the minor] is complying with the other conditions of his probation.’ (Ibid., citing People v. Appleton (2016) 245 Cal.App.4th 717, 725 [`[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.’].)

The minor's privacy interests may be infringed, but only to the extent the information searched is reasonably likely to yield evidence of gang activity, or other criminal activity and noncompliance with probation conditions. Accordingly, the electronic search condition must be modified to authorize only searches of Carlos's text messages, e-mail, telephone call history, voice mail, or other communication programs like FaceTime or Skype, and social media accounts. The search condition will not permit access to other accounts or data stored or accessed by minor on his cell phone.

In re Carlos H., supra.

Ultimately, the Court of Appeal held that the

electronic search condition of probation shall be modified to read: `Any electronic and/or digital devices in your possession or under your custody or under your control may be searched for text messages, email, telephone call history, voice mail, or other communication programs like FaceTime or Skype, and social media accounts at any time of the day or night, by any peace or probation officer, with or without a warrant or with or without reasonable or probable cause. Electronic and/or digital devices include but are not limited to cell phones, smartphones, iPads, computers, laptops and tablets. You are also ordered to provide any and all passwords to the devices and social media accounts upon request to any peace or probation officer.’

As so modified, the order of probation is affirmed.

In re Carlos H., supra.