This post examines an opinion from the California Court ofAppeals – First District: In re Erica R., 240 Cal.App.4th 907
(2015). As usual, the court begins by
explaining how, and why, the case arose:
On March 27, 2014, defendant Erica R.
attended a meeting with her school counselor. The counselor noted that Erica
was fidgety and her pupils were dilated, leading the counselor to believe Erica
had taken an illegal drug. Erica eventually left the meeting, but left her
purse behind. The counselor opened Erica's purse and found a sandwich bag
containing 30–45 orange pills. The counselor took one of the pills and put the
rest of the pills back in Erica's purse. When Erica returned, the counselor
accused Erica of selling drugs on campus. Erica grabbed her purse and left the
office. The school counselor called the police. The pill taken by the counselor
tested positive for amphetamine.
The district attorney filed a juvenile
wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that Erica had possessed ecstasy in violation
of Health and Safety Code section 11377, subdivision (a), a felony. The
wardship petition was later amended to allege misdemeanor possession of
ecstasy, a charge which Erica admitted.
At the disposition hearing, the
juvenile court adjudged Erica a ward of the court and placed her under the
supervision of the probation office, with various conditions. One of them was
this: `You must submit to a test of your blood, breath, or urine to detect the
presence of [drugs] in your system and a search of any containers you may have
or own, your vehicle, residence, or electronics day or night at the request of
a Probation Officer or peace officer [.]’ The court stated that `part of that
search will include giving your passwords to your [probation officer.]’
Erica's counsel objected that the
electronic search condition was overbroad, that there had not been any `issue
with social media,’ and that Erica did not have a cell phone. The court was not
persuaded: `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.’
In re Erica R., supra.
Erica appealed, and the Court of Appeals analyzes her
arguments on appeal in this opinion. In re Erica R., supra. On appeal, she argued that the probation
condition
requiring her to submit her electronic
devices to search and to provide her electronic passwords to her probation
officer. She contends that this condition is invalid under People v.
Lent, 15 Cal.3d 481, 541 P.2d 545 (California Supreme Court 1975); that it
is unconstitutionally overbroad; and that it creates a risk of illegal
eavesdropping under the Invasion of Privacy Act, Penal Code section 630, et seq. We agree that the condition is invalid under the Lent standard
and therefore do not reach Erica's constitutional or statutory arguments. See Sanchez
v. City of Modesto, 145 Cal.App.4th 660, 671, 51 Cal.Rptr.3d 821 (California
Court of Appeals 2006) [`Principles of judicial restraint . . . require us to
avoid deciding a case on constitutional grounds unless absolutely necessary[.]’]
In re Erica R., supra.
But before the Court of Appeals took up the issue as to whether
the condition violated the standard the California Supreme Court articulated in
People v. Lent, supra, it addressed
another, procedural issue. The court
explained that
[o]n March 9, 2015, Erica's attorney
informed us that the juvenile court had dismissed Erica's case following her
successful completion of probation. Erica's counsel acknowledged that this
development rendered the appeal moot, but requested that we nonetheless address
the merits of the appeal as this case raises issues of broad public interest
that are likely to recur. Counsel cited a number of appeals from judgments
of the same juvenile court that are pending in this District and which
challenge an electronic search condition identical to the one at issue here.
Because Erica is no longer subject to
the search condition, her challenge is moot. However, `”[i]f an action involves
a matter of continuing public interest and the issue is likely to recur, a
court may exercise an inherent discretion to resolve that issue, even though an
event occurring during its pendency would normally render the matter moot.”
[Citation.]’ (In re R.V., 171 Cal.App.4th 239, 245, 89 Cal.Rptr.3d 702 (California
Court of Appeals 2009). Here, it appears that the juvenile court has made the
challenged search condition a standard condition in drug-related cases.
Accordingly, this appeal presents issues that are likely to recur, and we exercise
our discretion to reach the merits of Erica's challenge to the electronic
search condition.
In re Erica R., supra.
The Court of Appeals therefore took up the substantive issue
as to whether the electronic search condition violated the standard articulated
in People v. Lent, supra. In re Erica R., supra. It began by explaining that California
Welfare and Institutions Code section 730, subdivision (b) empowers the
juvenile court to `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.’ In In re Victor
L., 182 Cal.App.4th 902, 106 Cal.Rptr.3d 584 (California Court of Appeals
2010), we discussed the principles underlying the imposition of probation
conditions on minors:
`”The state, when it asserts
jurisdiction over a minor, stands in the shoes of the parents' [citation], thereby
occupying a ‘unique role . . . in caring for the minor's well-being.’
[Citation.]. . . . The permissible scope of discretion in formulating terms of
juvenile probation is even greater than that allowed for adults. ‘[E]ven where
there is an invasion of protected freedoms “the power of the state to control
the conduct of children reaches beyond the scope of its authority over adults.”’
[Citation.] 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.’ [Citation.] Thus, ‘a condition of probation
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.
We review the juvenile court's
probation conditions for abuse of discretion, and such discretion will not be
disturbed in the absence of manifest abuse. In re P.A., 211 Cal. App.
4th 23, 149 Cal.Rptr.3d 300 (California Court of Appeals 2012); In re
Walter P., 170 Cal.App.4th 95, 87 Cal.Rptr.3d 668 (California Court of
Appeals 2009).
In re Erica R., supra.
The court also, though, went on to explain that
[w]hile the juvenile court's discretion
is broad, it is not unlimited. Our Supreme Court in Lent stated
the criteria for assessing the validity of a condition of probation as follows:
`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[.]”’ People v. Lent, supra. `Conversely, a
condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which
the defendant was convicted or to future criminality.’ People v. Lent, supra. The Lent test
is conjunctive—all three prongs must be satisfied before we will invalidate a
term of probation. (People v. Olguin, 45 Cal.4th 375, 87 Cal. Rptr.3d
199, 198 P.3d 1 (California Supreme Court 2008). Courts have `consistently held
that juvenile probation conditions must be judged by the same three-part
standard applied to adult probation conditions under Lent. In re D.G., 187 Cal.App.4th 47, 52, 113 Cal. Rptr.
3d (California Court of Appeals 2010); see
also In re Josh W.,55
Cal.App.4th 1, 63 Cal. Rptr.2d 701 (California Court of Appeals 1997).
In re Erica R., supra.
The court then began its analysis of whether the condition
imposed in this case violated the standards articulated in People v Lent, supra, explaining that the
challenged electronic search condition
has no relationship to the crime of misdemeanor possession of ecstasy. There is
nothing in the original or amended juvenile petitions or the record that
connects Erica's use of electronic devices or social media to her possession of
any illegal substance. The Attorney General argues that Erica's cell phone and
electronic devices `could have been used to negotiate the sales of the illegal
substance.’ The problem with this argument is that there is no evidence
suggesting that Erica—who was convicted of misdemeanor possession, not selling
any illegal substance—ever used an electronic device in this way.
Obviously, the typical use of
electronic devices and of social media is not itself criminal. `Modern cell
phones are not just another technological convenience. With all they contain
and all they may reveal, they hold for many Americans ‘the privacies of
life[.]’ Riley v. California, 134S.Ct. 2473 (2014). The Attorney General nonetheless argues that a `cell phone
can be the instrumentality of a crime.’
True enough, but the `second part of
the Lent test is not satisfied merely because a condition precludes
conduct that can occur in a manner
that is illegal. Rather, it is satisfied only by a condition that precludes
conduct that is “itself” criminal.’ In re
D.G., supra. Under
the Attorney General's theory, Erica could have been barred from possessing
power tools, opening a checking account, or driving a vehicle because all could
be used as an instrumentality of a crime. See
In re D.G., supra. We
reject such a broad application of the second prong of Lent to the
facts of this case.
In re Erica R., supra.
The court also found that the record in the case, i.e., the
summary of what had gone on before,
does not support a conclusion that the
electronic search condition is reasonably related to future criminal activity
by Erica. The juvenile court justified the electronic search condition solely
by reference to its experience that `many juveniles, many minors, who are
involved in drugs tend to post information about themselves and drug usage.”
However, “[n]ot every probation condition bearing a remote, attenuated,
tangential, or diaphanous connection to future criminal conduct can be
considered reasonable.’ People v. Brandao, 210 Cal.App.4th 568, 574, 148
Cal.Rptr.3d 426 (California Court of Appeals 2012).
There is nothing in this record
regarding either the current offense or Erica's social history that connects her
use of electronic devices or social media to illegal drugs. In fact, the record
is wholly silent about Erica's usage of electronic devices or social media.
Accordingly, `[b]ecause there is nothing in [Erica's] past or current offenses
or [her] personal history that demonstrates a predisposition’ to utilize
electronic devices or social media in connection with criminal activity, `there
is no reason to believe the current restriction will serve the rehabilitative
function of precluding [Erica] from any future criminal acts.’ In re D.G. supra.
In re Erica R., supra.
It then went on to address yet another, related issue:
Finally, we note that in her brief and
at oral argument, the Attorney General argued that Erica's electronic search
condition is valid under People v. Ramos, (2004) 34 Cal.4th
494, 21 Cal.Rptr.3d 575, 101 P.3d 478 (California Supreme Court 2004). The
defendant in Ramos was on probation for a prior DUI conviction
when police conducted a search of his home and truck pursuant to a probation
search condition. People v. Ramos, supra.
The search revealed incriminating
evidence—including a body, blood stained clothing, ammunition, and a
firearm—tying defendant to multiple murders. Prior to pleading guilty to three
counts of murder, Ramos moved to suppress evidence arguing, among other things,
that the search condition was overbroad and should not have been imposed. People v. Ramos, supra. In upholding the validity of the probation
search condition in the context of the motion to suppress, the court found it `reasonably
related to the DUI conviction’ . . . and stated that the `level of intrusion is
de minimis and the expectation of privacy greatly reduced when the subject of
the search is on notice his activities are being routinely and closely
monitored. Moreover, the purpose of the search condition is to deter the
commission of crimes and to protect the public, and the effectiveness of the
deterrent is enhanced by the potential for random searches.’ People v. Ramos, supra (quoting People
v. Reyes, 19 Cal.4th 743, 753, 80 Cal.Rptr.2d 734, 968 P.2d 445 (California
Court of Appeals 1998)).
In re Erica R., supra.
The Court of Appeals explained that the
observation in People v. Ramos,
supra, that a probationer's expectation of privacy is reduced and that
a search condition serves to deter the commission of crime could be cited in
support of any probation search condition. However, Ramos involved
an adult probationer, not a juvenile probationer, such as Erica. `[J]uvenile
probation is not, as with an adult, an act of leniency in lieu of statutory
punishment; it is an ingredient of a final order for the minor's reformation
and rehabilitation.’ In re Tyrell J., 8 Cal.4th 68, 81, 32 Cal.Rptr.2d
33, 876 P.2d 519 (California Supreme Court 1994), overruled on another ground
in In re Jaime P., 40 Cal.4th 128, 51 Cal.Rptr.3d 430, 146 P.3d 965
(California Supreme Court 2006).
A juvenile `cannot refuse probation
[citations] and therefore is in no position to refuse a particular condition of
probation.’ In re Binh L., 5 Cal.App.4th 194, 202, 6 Cal.Rptr.2d 678
(California Court of Appeals 1992). Courts have recognized that a `minor cannot
be made subject to an automatic search condition; instead, such condition must
be tailored to fit the circumstances of the case and the minor.’ See People
v. Rios, 193 Cal.App.4th 584, 122 Cal.Rptr.3d 96 (California Court of
Appeals 2011); see also In re Binh L., supra. For the reasons discussed above, Erica's
electronic search condition is not properly tailored to her circumstances
under Lent and is therefore
invalid.
In re Erica R., supra.
Finally, the court concluded by explaining the import of its
holding in this case:
Our holding is narrow. Of course, there
can be cases where, based on a defendant's history and circumstances, an
electronic search condition bears a reasonable connection to the risk of future
criminality. For example, in People v. Ebertowski, 228 Cal.App.4th
1170, 176 Cal.Rptr.3d 413 (California Court of Appeals 2014), a defendant was
convicted of making criminal threats to a police officer. The threats included
references to his status as a gang member, and at sentencing the prosecution
introduced copies of posts defendant made on his social media
account promoting his gang.
As a condition of defendant's
probation, the trial court required defendant to submit his electronic devices,
along with electronic and social media passwords, to his probation officer for
search at any time. People v. Ebertowski, supra. On appeal, the
court upheld this condition. After noting that defendant's underlying offense
was gang related, the court stated that defendant's `association with his gang
was also necessarily related to his future criminality. His association with
his gang gave him the bravado to threaten and resist armed police officers.’ (People
v. Ebertowski, supra. Thus, in Ebertowski, the record tied
the use of social media to the facts of the underlying offense, making the
connection between social media and future criminality reasonable. The record
in this case, by contrast, contains no such connection for the reasons stated
above.
In re Erica R., supra.
The Court of Appeals therefore held that the
requirement that Erica submit her
electronic devices for search and provide her probation officer with her
electronic passwords is invalid under Lent and the juvenile
court abused its discretion in imposing it in this case. . . .
The disposition is modified to strike
the probation condition requiring Erica to submit `any electronic[s] with
passwords under your control’ to search. In all other respects the disposition
is affirmed.
In re Erica R., supra.
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