This post examines a recent opinion from the Court of Appeals – Sixth District, California: People
v. Ermin, 2017 WL 2929356 (2017). The court begins the opinion by
explaining that
Defendant Vladimir Ermin pleaded no
contest to being an accessory. (Penal Code, § 32.) He was placed on probation
for three years with conditions that included the following: `Your computer and all other electronic
devices, including but not limited to cellular telephones, laptops, computers, or notepads, shall be subject to forensic analysis
search for information reasonably related to criminal activity.’ Defendant was
also required to `consent to and provide all passwords necessary to access and
search said electronic devices to Probation and law enforcement.’
On appeal, defendant challenges the
electronic devices search condition, claiming it is unconstitutionally overbroad, unconstitutionally vague, and invalid under People v. Lent (1975)
15 Cal.3d 481 (Lent ). Defendant also contends the trial court
improperly imposed a criminal justice administration fee of $259.50 (see Gov.
Code, §§ 29950, 29550.1, & 29550.2), because the trial court did not
determine whether that amount exceeded the actual administrative costs of his booking process. For reasons that we will explain, we will affirm the order of
probation.
People v. Ermin,
supra.
The Court of Appeals then explained why, and how, this
prosecution arose:
On December 7, 2015, defendant was
arrested. He was found to be in possession of marijuana, and he consented to a
search of his cell phone. During the search of defendant's cell phone, a deputy
found photographs and videos of `packaged plastic bags and plastic containers,’
similar to those found on defendant's person, along with several text messages
indicating defendant was connected to sales of marijuana.
Defendant was charged with possession
for sale of marijuana (Health & Saf. Code, § 11359; count 1) and
transportation and distribution of marijuana (Health & Saf. Code, § 11360,subd. (a); count 2). Pursuant to a plea agreement, the prosecution amended the
complaint, adding a charge of being an accessory (Penal Code, § 32; count 3),
and the trial court dismissed counts 1 and 2 after defendant pleaded no contest
to count 3.
Prior to sentencing, the probation
officer's report recommended the following probation condition: `The
defendant's computer and
all other electronic devices (including but not limited to cellular
telephones, laptop computers or notepads) shall be subject
to Forensic Analysis search.’ The probation officer's report also recommended
defendant be ordered to pay a $259.50 criminal justice administration fee,
payable to the County of Santa Clara. The probation report cited Government
Code sections 29550, 29550.1, and 29550.2 as the basis for that
fee.
People v. Ermin,
supra.
The Court of Appeal goes on to explain that, at Ermin’s
sentencing hearing, his
trial counsel argued that the condition
regarding electronic searches was `too broad' under Lent and
would violate defendant's right to privacy. Defendant's trial counsel
noted that `people's bank records, health records, personal information, and
journal entries are now all being stored on cell phones as well as laptops and notepads.’
The trial court agreed that the
proposed condition `does read rather broadly’ and suggested the condition could
be modified to add the following clause: `for the purpose of discovering
information reasonably related to criminal activity.’
Defendant's trial counsel asked the
trial court to further limit the scope of the condition to permit searches of
defendant's cell phone only. In addition, defendant's trial counsel argued that
permitting a `forensic analysis search’ would give an officer access to the
`entire device,’ including hard drives and personal information.
People v. Ermin,
supra.
The opinion goes on to explain that the
prosecutor argued that the condition
should not be restricted to cell phones only, noting that electronic
communication is `easily transferable’ between devices. The prosecutor also
argued that forensic analysis was often the `only . . . way’ for officers to
get the information they need from an electronic device.
The trial court overruled the defense
objection to the `forensic analysis’ language and indicated the condition would
read as follows: `The defendant's computer and
all other electronic devices, including but not limited to cellular telephones, laptops, computers, or notepads, shall be
subject to forensic analysis search for information reasonably related to
criminal activity.’
People v. Ermin,
supra.
The Court goes on to explain that the
probation officer requested that the
trial court add an order that defendant provide all passwords necessary to
access or search his electronic devices. Defendant's trial counsel objected
`under the same reasoning.’ The trial court found the proposed additional
condition `reasonable’ and ordered defendant to `provide all passwords
necessary to access or search said electronic devices.’
The trial court then suspended
imposition of sentence, placed defendant on formal probation for three years,
and imposed various additional probation conditions. Finally, the trial court
ordered defendant to pay various fees and fines, including a $259.50 criminal
justice administration fee payable to the County of Santa Clara `under the
Government Code.’
People v. Ermin,
supra.
Having outlined what had happened to this point in the
litigation, the Court of Appeals began its analysis of the legal issues in the
case, beginning with Ermin’s “overbreadth” argument. People v. Ermin, supra. As the opinion explains, Ermin argued that
the electronic devices search condition
is unconstitutionally overbroad because it infringes on his privacy interests
and violates his Fourth Amendment rights. He contends that the trial court
could have imposed a more narrowly tailored condition, i.e., one that permits
searches only of his cell phone, and permits searches for only information `likely
to yield evidence of drug use, other criminal activity or noncompliance with
probation conditions.’
We review the constitutionality of a
probation condition de novo. (In
re Sheena K. (2007) 40 Cal.4th 875, 888–889 (Sheena K.).)
`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. [Citation.]’ (Id. at
p. 890.)
Defendant asserts that his overbreadth
claim is supported by the reasoning of Riley v. California (2014)[134 S.Ct. 2473] (Riley), in which the United States Supreme Court
held that the warrantless search of a suspect's cell phone implicated and
violated the suspect's Fourth Amendment rights. (Id., 134 S.Ct. at
p. 2493.) In so holding, the court explained that modern cell phones, which may
have the capacity to be used as mini-computers,
can potentially contain sensitive information about a number of areas of a
person's life. (Id. at pp. 2488–2489.) The court emphasized,
however, that its holding was only that cell phone data is subject to Fourth
Amendment protection, `not that the information on a cell phone is immune from
search.’ (Id. at p. 2493.)
People v. Ermin,
supra.
The Court of Appeals went on to explain that, since
Riley did not involve
probation conditions, it is inapposite. Unlike the defendant in Riley,
who at the time of the search had not been convicted of a crime and was still protected by the
presumption of innocence, defendant is a probationer. `Inherent in the very
nature of probation is that probationers `do not enjoy `the absolute liberty to
which every citizen is entitled. [Citations.] Just as other punishments for
criminal convictions curtail an offender's freedoms, a court granting probation
may impose reasonable conditions that deprive the offender of some freedoms enjoyed
by law-abiding citizens.’ (United States v. Knights (2001) 534 U.S.
112, 119.)
This court rejected an overbreadth
argument in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski ),
where the challenged probation condition required the defendant to “`provide
all passwords to any social media sites, including Facebook, Instagram and Mocospace and to submit those sites to
search at any time without a warrant by any peace officer.”’ (Id. at
p. 1172.) The Ebertwoski defendant was a member of a criminal
street gang who had promoted his gang on social media. This court rejected the
defendant's claim that the probation condition was `not narrowly tailored to
[its] purpose so as to limit [its] impact on his constitutional rights to privacy,
speech, and association.’ (Id. at p. 1175.) This court explained
that the state's interest in preventing the defendant from continuing to
associate with gangs and participate in gang activities, which was served by
the probation condition, outweighed the minimal invasion of his privacy. (Ibid.)
In People v. Appleton (2016)
245 Cal.App.4th 717 (Appleton ), a different panel of this
court distinguished Ebertowski and found unconstitutionally
overbroad a probation condition requiring the defendant's electronic devices to
be `”subject to forensic analysis search for material prohibited by law.”’ (Appleton,
supra, at p. 721.) In Appleton, the defendant was convicted of false imprisonment
based on an incident that occurred about a year after he used a social media
website to meet the minor victim. (Id. at p. 719–720.) The Appleton
panel held that the electronic devices 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.) The Appleton panel
concluded that `the state's interest here—monitoring whether defendant uses
social media to contact minors for unlawful purposes—could be served through
narrower means,’ such as by imposing `the narrower condition approved in Ebertowski,
whereby defendant must provide his social media accounts and passwords to his
probation officer for monitoring.’ (Ibid., fn. omitted.)
People v. Ermin, supra
The Court of Appeals goes on to explain that,
[h]ere, the search condition regarding
defendant's electronic devices properly serves the state's interest in
preventing defendant from using electronic devices to engage in criminal
activity such as the sale of narcotics. Indeed, defendant recognizes that some
intrusion on his privacy rights would be justified, but he asserts that a more
narrowly tailored condition should have been imposed.
As noted above, defendant claims that
the condition is overbroad because it permits searches of all his electronic
devices and not just his cell phone. As the prosecutor noted below, electronic
information is `easily transferable’ between devices. By allowing the search of
other electronic devices, the condition ensures that defendant is not engaging
in narcotics sales by the use of any electronic device. If the condition were
limited to cell phones, defendant could simply use another electronic device,
such as a laptop or
tablet, to engage in criminal activity, and the probation officer would not be
able to effectively monitor defendant's probation.
Defendant also claims that the
condition is overbroad because it permits searches for more than just
information `likely to yield evidence of drug use, other criminal activity or
noncompliance with probation conditions.’ However, the trial court did limit
the scope of the condition to provide that defendant's electronic devices could
only be searched for `information reasonably related to criminal activity.’
Thus, the condition is narrowly tailored to further the state's interest of
preventing the defendant from using his electronic devices to conduct future
criminal activity and it does not `allow for searches of vast amounts of
personal information unrelated to defendant's criminal conduct or his potential
for future criminality.’ (Cf. Appleton, supra, 245 Cal.App.4th
at p. 727.)
We conclude that the challenged
probation condition is not overbroad.
People v. Ermin,
supra.
Ermin also argued that the probation condition at issue in
this case was “unconstitutionally vague, because it does not clearly provide
notice of what he is forbidden from doing and is not specific enough to inform
a probation officer what to search for or how to conduct a search.” People v. Ermin, supra. You can read
more about the vagueness doctrine, which is what Ermin was relying on, in this
Wikipedia entry.
The Court of Appeals began its analysis of this argument by
explaining that
[t]he underpinning of a vagueness challenge
is the due process concept of ‘fair warning.’ [Citation.] The rule of fair
warning consists of ‘the due process concepts of preventing arbitrary law
enforcement and providing adequate notice to potential offenders' [citation],
protections that are ‘embodied in the due process clauses of the federal and
California Constitutions.’ (Sheena K., supra, 40 Cal.4th at p. 890.)
Our examination of the challenged condition is `guided by the principles that
‘abstract legal commands must be applied in a specific context,’
and that, although not admitting of ‘mathematical certainty,’ the language used
must have reasonable specificity.' (Ibid.) In sum, the
probation condition must be ‘sufficiently precise for the probationer to know
what is required of him [or her], and for the court to determine whether the condition
has been violated.’ (Ibid.)
In In re Malik J. (2015)
240 Cal.App.4th 896, the appellate court considered whether a probation condition
requiring the minor to `provide all passwords to any electronic devices,
including cell phones, computers or
[notepads], within [the probationer's] custody or control’ was
unconstitutionally vague or overbroad. (Id. at p. 900.) The minor
argued that the phrase `any electronic devices' could be interpreted to include Kindles,
Playstations, iPods, the codes to his car, home security system, or even his
ATM card. (Id.at p. 904.) However, the appellate court concluded that
the imposed search condition was in response to the trial court's concern that
the minor would use items such as his cell phone to coordinate with other
offenders. Additionally, the minor had previously robbed people of their
iPhones. (Id. at pp. 904–905.) Therefore, the appellate court
concluded that it was reasonably clear that the condition was meant to
encompass `similar electronic devices within [minor's] custody and control that
might be stolen property, and not, as [minor] conjectures, to authorize a
search of his Kindle to see what books he is reading or require him to turn
over his ATM password.’ (Id. at p. 905.)
People v. Ermin,
supra.
The Court of Appeals went on to explain that
[h]ere, defendant appears to be arguing
that the condition should have been more specific as to what type of
information could be `reasonably related to criminal activity.’ However, as
noted above, the language used in a probation condition must only have `”“reasonable specificity,”’ not “‘mathematical certainty.’” (Sheena
K., supra, 40 Cal.4th at p. 890.) A probation condition is sufficiently
specific “`if any reasonable and practical construction can be given its
language or if its terms may be made reasonably certain by reference to other
definable sources.”’ (People v. Lopez (1998) 66 Cal.App.4th 615,
630.) The condition here explicitly permits a search of defendant's electronic
devices for evidence that he is conducting narcotics sales or engaging in other
criminal activity and thus implicitly does not permit a search for other
purposes. The condition thus provides defendant with fair warning and prevents
arbitrary searches of his electronic devices for information not reasonably
related to criminal activity. In sum, the challenged condition is not
unconstitutionally vague.
People v. Ermin,
supra.
For these and other reasons, the Court of Appeal “affirmed”
the order of probation. People v. Ermin,
supra.
No comments:
Post a Comment