This post examines a recent opinion from the California Court of Appeal – Fourth District: People v. Lewis, 2017 WL 2591284
(2017). The court begins the opinion by
explaining that
Randall Lewis pleaded guilty to one count of grand
theft of property with a value exceeding $950 (Pen. Code § 487, subd. (a);
count 1). The court placed Lewis on three years of formal probation and imposed
certain probation terms and conditions. The court committed Lewis to 90 days in
county jail with 85 days of credit for time served.
On appeal, Lewis challenges two of the
probation conditions. First, he contends the condition requiring him to obtain
approval from the probation officer regarding his residence is
unconstitutionally overbroad. Second, he contends the portion of the Fourth Amendment waiver condition permitting warrantless searches of `computers, and recordable media’ is
unreasonable and constitutionally overbroad. We conclude Lewis forfeited his
challenge to the residence approval condition and, even if he did not, the condition
is not unconstitutional. We conclude the warrantless electronic search
condition is valid under People v. Lent (1975) 15 Cal.3d 481,
486 (Lent ) and is not unconstitutionally overbroad.
People v. Lewis, supra.
The Court of Appeal goes on to outline the “factual and
procedural background” of this case, explaining that
Lewis took a bicycle, which a police
officer had placed against a tree. Police officers observed Lewis take the
bicycle, walk it around a building, and then ride the bicycle down the block.
The officers stopped and arrested Lewis for theft. The bicycle was appraised at
$4,300 based upon global positioning and radio frequency equipment integrated
in the bicycle.
People v. Lewis, supra.
The opinion then takes up the issues of Lewis’ “criminal
history”, which the Court of Appeal says
spanned nearly 30 years with numerous
misdemeanor and felony convictions, most of which involved crimes related to
drugs and alcohol. Although he was granted summary probation on more than 20
occasions over the years, he was unable to remain law abiding.
Based upon the stipulated guilty plea, the court granted
formal probation in this case, but imposed various conditions. These conditions
included completion of treatment, therapy, and counseling programs, including
substance abuse and anti-theft programs. The conditions also prohibited use of
controlled substances and alcohol when required by the probation officer and
submission to drug and alcohol testing.
Pertinent to this appeal, one probation
condition required Lewis to obtain prior approval of his residence. The
general Fourth Amendment waiver condition
required Lewis to `[s]ubmit [his] person, vehicle, residence, property,
personal effects, computers,
and recordable media to search at any time with or without a warrant,
and with or without reasonable cause. . . .’ (Italics added.)
Lewis's counsel objected to probation
condition 6.n. regarding warrantless searches in its entirety, and specifically
objected to the part of the search condition regarding Lewis's computers and
recordable media based on People v. Lent, supra, 15 Cal.3d at page
481 and In re J.B. (2015) 242 Cal.App.4th 749, 758 (J.B.).
The court rejected Lewis's objection stating, `I'm imposing 6[.n.], all of it.
Full fourth waiver, you, your personal property, your residence can be searched
at any time by law enforcement no questions asked. It's a theft case. Again,
like guns, like alcohol, unfortunately—that's not my determination, but
pictures can be taken of evidence. I think it's appropriate.’
People v. Lewis, supra.
The court goes on to outline the “general principles and
standard of review” it needed to apply to the issues in this case. People
v. Lewis, supra. It began by
explaining that trial courts
enjoy wide discretion when determining
the conditions and scope of probation. (§ 1203.1 et seq.) A trial court may
impose any `reasonable conditions, as it may determine are fitting and proper
to the end that justice may be done, . . ., and generally and specifically for
the reformation and rehabilitation of the probationer . . . .’ (§ 1203.1, subd.
(j).) Accordingly, a condition will only be invalid if it is: (1) not
reasonably related to the defendant's crime, (2) conduct that is otherwise
legal, and (3) not reasonably related to preventing future criminality. (Lent,
supra, 15 Cal.3d at p. 486.) A party seeking to invalidate a condition must
show each of the three prongs is satisfied. (People v. Olguin (2008) 45
Cal.4th 375, 379 (Olguin ).)
When a probation condition imposes
limitations on a constitutional right, the limitations must be closely tailored
to the purpose of the condition so as to avoid being unconstitutionally
overbroad. (Olguin, supra, 45 Cal.4th at p. 384.) `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. Lewis, supra.
The opinion goes on to explain that
[p]robation is not an inherent right;
it is an act of leniency. (People v. Wardlow (1991) 227 Cal.App.3d
360, 365.) The purpose of probation is to serve as a `period of genuine
rehabilitation.' (Griffin v. Wisconsin (1987) 483 U.S. 868, 875.)
In California, probationers may consent to limiting their constitutional rights
in preference to incarceration. (Olguin, supra, 45 Cal.4th at p. 384.)
In other words, a defendant may choose to serve the prison sentence and reject
probation if a condition appears too onerous. (Id. at p. 379.)
Generally, we review conditions of
probation for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.)
However, when a probation condition is challenged on constitutional grounds, we
review the condition de novo. (In
re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
People v. Lewis, supra.
The Court of Appeal then took up Lewis’ challenges to two of
the probation conditions imposed on him, beginning with the one that his
probation officer approve where he was living. People v. Lewis, supra.
The court began its analysis of this condition by explaining that
Lewis contends the probation condition
requiring approval of his residence violates his right to travel and freedom of
association under the First Amendment. The People contend Lewis forfeited this
challenge by failing to object to the condition at the sentencing hearing
because the challenge does not present a pure question of law, easily
remediable on appeal without reference to the factual record. (In re Sheena
K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)
`[A]bsent an objection, a defendant
may, on appeal, argue a condition is unconstitutional if the claim presents a “‘pure
question[ ] of law that can be resolved without reference to the particular
sentencing record developed in the trial court.’” ([Sheena K., supra,]
40 Cal.4th [at p.] 889, quoting People v. Welch (1993) 5
Cal.4th 228, 235.) In the usual case, however, probationers are well advised to
object at sentencing to conditions they find improper or unjustified, thereby
ensuring they have preserved the issue for appeal.’ (People v. Moran(2016)
1 Cal.5th 398, 403, fn. 5.)
Lewis admitted, `whether the residence
approval condition impedes appellant's constitutional right to travel cannot be
assessed without at least a glance at the record, given that the condition is
not necessarily overbroad in the abstract.’ Lewis did not object to the residence
approval requirement at the sentencing hearing and did not develop a factual
record to show an unreasonable impingement of his constitutional rights. As
such, he forfeited the challenge to this condition.
People v. Lewis, supra.
The court continued its analysis of Lewis’ challenge to this
condition, explaining that
[e]ven if we were to exercise our
discretion to consider the challenge, the condition is not unconstitutionally
overbroad. Although conditions requiring prior approval of a probationer's
residence may affect the constitutional rights to travel and freedom of
association (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer )),
courts have the authority to do so if there is an indication the probationer's
living situation contributed to the crime or would contribute to future
criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1228.)
Similarly, the right to free
association may be limited if it is reasonably necessary to meet the essential
needs of rehabilitation and public order. (People v. O'Neil (2008)
165 Cal.App.4th 1351, 1356.) A probation condition limiting the right to
association `”is permissible if it is `(1) primarily designed to meet the ends
of rehabilitation and protection of the public and (2) reasonably related to
such ends.’”’(Ibid.)
Lewis's history of substance abuse and
criminal activity spans nearly three decades and appears to impact his living
situation. He has repeatedly been found sleeping on sidewalks or under trees.
He also was involved in disturbances at his prior residences. Unlike in Bauer,
supra, 211 Cal.App.3d 937, where the condition appeared designed to
prohibit the defendant from living with his overprotective parents, the
condition here is reasonably related to Lewis's rehabilitation and protection
of the public. Requiring approval of Lewis's residence will allow probation
officers to supervise Lewis and limit his exposure to sources of temptation for
future criminality. Probation officers cannot withhold residential approval for
irrational or capricious reasons. Therefore, the requirement is not unduly
burdensome. (Olguin, supra, 45 Cal.4th at p. 383.)
People v. Lewis, supra.
The Court of Appeal then took up Lewis’ challenge to the
probation condition that required “warrantless electronic searches”. People v. Lewis, supra. The court began the analysis by explaining that
Lewis does not challenge on appeal the
general waiver of Fourth Amendment protections against warrantless searches.
However, he contends the portion of the condition authorizing warrantless
searches of computers and
recordable media does not satisfy the applicable three-prong test under Lent and
is unconstitutionally overbroad. The People concede the electronic search
condition is not reasonably related to Lewis's current theft crime and
owning computers or
recordable media is not itself illegal. Thus, Lewis's condition is only valid
if it is reasonably related to preventing future criminality.
Generally, probation conditions
allowing probation officers to effect supervision or enforce other probation
requirements are conditions that prevent future criminality. (Olguin, supra,
45 Cal.4th at p. 381.) 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 (2012)
210 Cal.App.4th 568, 574.)
People v. Lewis, supra.
The opinion goes on to explain that
[w]e conclude the electronic search
condition is reasonable in this case. The trial court approved the electronic
search condition as part of the full Fourth Amendment waiver stating it is `a
theft case’ and `pictures can be taken of evidence.’ In the same sentence, the
court referenced gun and alcohol conditions. We interpret the trial court's scant
statement justifying the condition to mean the electronic search condition,
along with gun and alcohol restrictions, would aid in Lewis's probation
supervision and is reasonably related to deterring future criminality. There
was no abuse of discretion in this determination because Lewis's long criminal
history and poor performance on probation, largely related to Lewis's chronic
drug and alcohol use, shows the need for intensive supervision of Lewis.
(See In re J.E. (2016) 1 Cal.App.5th 795, 801, review granted
Oct. 12, 2016, S2366283 [electronic
search condition is appropriate as `means of effectively supervising’ minor
with `constellation of issues requiring intensive supervision’], In re
P.O.(2016) 246 Cal.App.4th 288, 295 [electronic search condition is
reasonably related to future criminality because it enables peace officers to
review electronic activity for drugs or probation violations, but condition
modified to address overbreadth].)
We are not persuaded the cases of In
re Erica R. (2015) 240 Cal.App.4th 907, 914 (Erica R.)
and J.B., supra, 242 Cal.App.4th at pages 752, 756 should
govern this case. The court in both cases struck electronic search conditions
for juvenile probationers because there was no showing of a connection between
electronic devices and the crimes committed by the juveniles or for preventing
potential future criminal activity. (Erica R., supra, at p. 914; J.B., at
p. 756.) Both cases pointed out the difference between adult and juvenile
probation.
`”’[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.”’’
[Citation.] A juvenile `cannot refuse probation [citations] and therefore is in
no position to refuse a particular condition of probation.’ [Citation.] 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.' (J.B. at p. 756, quoting Erica R. at
p. 914.)
People v. Lewis, supra.
The court goes on to explain that,
[a]lthough not every condition that may
aid in supervision of an adult probationer necessarily will be
reasonable, Olguin does not require that the supervision
method relate to the defendant's past criminal conduct. As the court in Olguin observed,
`probation is a privilege and not a right, and that adult probationers, in
preference to incarceration, validly may consent to limitations upon their
constitutional rights—as, for example, when they agree to warrantless search
conditions.’ (Olguin, supra, 45 Cal.4th at p. 384.)
In this case, Lewis's history as a
repeat offender with significant probation noncompliance justifies intensive
supervision, including warrantless searches of electronic devices to ensure
compliance with the probation conditions. After the court overruled objections
to the search condition, Lewis confirmed he agreed with the terms and
conditions of probation.
We also conclude Lewis has not
established the electronic search condition is unconstitutionally overbroad.
Lewis does not identify any specific privacy interests that would be infringed
or any harm stemming from imposition of an electronic search
condition. (See In re J.E., supra, 1 Cal.App.5th at p. 806 [`Nothing
in the record shows Minor even has a cell phone or any electronic devices, and
Minor does not point us to anything in the record showing any actual harms
stemming from their inspection’].)
People v. Lewis, supra.
The Court of Appeal went on to conclude the opinion with
these comments:
Lewis cites to Riley v. California (2014) 573 U.S. –––– [134 S.Ct. 2473], to support his
general contention that digital devices contain private information and
searches of such devices are intrusive. The United States Supreme Court
recognized electronic devices contain personal data, but Riley only
held that the information on a cell phone is subject to the Fourth Amendment's
protection, `not that the information on a cell phone is immune from search.’ (Id. at
p. 2493.) Further, the Supreme Court in Riley was analyzing
the privacy interests of arrestees who are afforded the assumption of innocence
until proven guilty. (Id. at
pp. 2488–2489.) Here, Lewis pleaded guilty to grand theft. As a probationer, Lewis does not enjoy
the same absolute liberty afforded to every citizen. (See United States
v. Knights (2001) 534 U.S. 112, 119.) Given the legitimate purpose of
an electronic search condition and Lewis's diminished privacy expectations as
an adult probationer, we conclude the condition is not overbroad. (In re
J.E., supra, 1 Cal.App.5th at pp. 799, 804.)
DISPOSITION
The judgment is affirmed.
People v. Lewis, supra.
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