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.
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