Opinion
H045587
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. DANE LARS DESILVEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1760394 & C1768075)
Appellant Dane Lars Desilvey pleaded no contest to possession of methamphetamine for sale in two cases that were resolved together. In one of the cases, the trial court denied Desilvey's motion to suppress evidence. In both cases, at sentencing the trial court placed Desilvey on probation for three years with conditions.
On appeal, Desilvey claims the trial court erred when it denied his motion to suppress evidence found in his backpack. He contends that he did not abandon the backpack before he was detained, and the search of it was not incident to his arrest. In addition, Desilvey claims the trial court erred by imposing an unconstitutionally overbroad condition of probation that required him to consent to searches of his electronic devices.
For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
On August 24, 2017, the Santa Clara County District Attorney filed two informations alleging crimes committed on or about March 26, 2017, and July 9, 2017. The information regarding the March 26, 2017 incident charged Desilvey with felony possession of methamphetamine for sale (Health & Saf. Code, § 11378 ; count 1), felony transportation, sale, or distribution of methamphetamine (§ 11379, subd. (a); count 2), felony possession of metal knuckles (Pen. Code, § 21810; count 3), misdemeanor possession of marijuana for sale (§ 11359, subd. (b); count 4), and misdemeanor sale, transportation, or distribution of marijuana (§ 11360, subd. (a)(2); count 5). (Case No. C1760394.)
Unspecified statutory references are to the Health and Safety Code.
The information regarding the July 9, 2017 incident charged Desilvey with felony possession of methamphetamine for sale (§ 11378; count 1), felony transportation, sale, or distribution of methamphetamine (§ 11379, subd. (a); count 2), misdemeanor resisting, delaying, or obstructing an officer (Pen. Code, § 148, subd. (a)(1); count 3), misdemeanor possession for sale of marijuana (§ 11359, subd. (b); count 4), and misdemeanor sale, transport, or distribution of marijuana (§ 11360, subd. (a)(2); count 5). (Case No. C1768075.)
On September 8, 2017, Desilvey moved pursuant to Penal Code section 1538.5 to suppress all evidence seized in relation to the July 9, 2017 charged crimes. On September 26, 2017, the trial court held a hearing on Desilvey's motion to suppress. The trial court denied the motion.
On October 16, 2017, pursuant to a plea agreement, Desilvey pleaded no contest to two counts of felony possession of methamphetamine for sale, the first count of each information. The terms of the plea agreement included three years of formal probation with conditions, including "search and seizure, electronic search, and substance abuse terms."
As part of the plea agreement, Desilvey also pleaded no contest to various charges (including drug possession) in three unrelated misdemeanor cases.
On January 18, 2018, Desilvey filed an objection to the scope of the electronic search conditions proposed by the probation department.
On February 16, 2018, the trial court denied Desilvey's challenge to the scope of the electronic search conditions and sentenced him. The trial court suspended imposition of sentence in the two felony cases and placed Desilvey on probation for three years with conditions, including an electronic search condition. On the People's motion, the trial court dismissed the remaining charges in the two informations.
Desilvey filed a timely notice of appeal in each of the felony cases.
B. Factual Background
These facts are drawn from the testimony presented to the trial court at Desilvey's preliminary hearing and statements made by the prosecutor in a written opposition to Desilvey's objection to the electronic search conditions and at Desilvey's sentencing hearing.
On March 26, 2017, San Jose Police Officer Patrick Baldassari arrested Desilvey. Officer Baldassari searched Desilvey and found marijuana, slightly more than five grams of methamphetamine, five small empty baggies, a digital scale, a pipe containing methamphetamine, a brass-knuckle knife, and four cell phones. The cell phones and brass-knuckle knife were in a backpack Desilvey was wearing. A subsequent search of one of Desilvey's cell phones revealed text messages indicative of sales of controlled substances. A search of Desilvey's Facebook account also revealed messages that indicated Desilvey was selling controlled substances and photographs of a bundle of cash and marijuana paraphernalia.
These facts are drawn from the testimony presented to the trial court at the suppression hearing held on September 26, 2017. Officer Baldassari was the only witness called by the prosecutor. Desilvey did not testify or present any witnesses at the hearing on the motion to suppress.
On July 8, 2017, at around 11:38 p.m., Officer Baldassari saw someone riding a motorized scooter without a rear license plate. Baldassari and his partner—who was driving their patrol car—tried to pull the person over. The person looked back at the patrol car and rode away. Baldassari recognized the rider as Desilvey. Baldassari knew Desilvey had outstanding arrest warrants. Desilvey was wearing a backpack.
As the officers pursued Desilvey, he rode his scooter into a parking lot, hit a curb, dropped the scooter, and ran off into an open field. Officer Baldassari got out of his patrol car and chased after Desilvey. As Desilvey fled, he reached into his pockets and threw baggies out onto the ground. Desilvey also briefly stopped at certain points while fleeing and threw items out of his pockets. When Officer Baldassari got within about 25 feet of Desilvey, Desilvey became tired, and Officer Baldassari continued to demand that Desilvey stop. By that point, Desilvey had run about 1,000 feet, and it appeared he had emptied everything from his pockets. Officer Baldassari testified that Desilvey "decided to get on the ground." Baldassari also said he commanded Desilvey to lay on the ground and Desilvey complied, putting his hands by his back. Officer Baldassari took Desilvey into custody and arrested him for resisting arrest.
Officers found a cell phone under Desilvey when they lifted him up from the ground and several empty baggies were scattered around him. Desilvey was eventually placed into a patrol car. Officers used a police dog to search the route Desilvey had run. They found two baggies of marijuana (one containing about one gram and the other about ten grams), a $20 bill, and a baggie containing about one gram of methamphetamine. It took over 20 minutes for the police dog to arrive on scene and about 15 minutes to search the field.
Officer Baldassari searched Desilvey's backpack on the hood of a patrol car, after he had found the marijuana in the field and while Desilvey was detained in a patrol car. Inside the backpack, Baldassari discovered a baggie containing about 14 grams of methamphetamine, a baggie containing about 19 grams of marijuana, empty baggies, a small utility knife, a digital scale, and a pipe with methamphetamine inside it.
More specifically about Desilvey's backpack, on direct examination, Officer Baldassari said Desilvey was carrying a backpack but "dropped that as soon as he started running," leaving it "[w]ithin a couple of feet" of his scooter. On cross-examination, Officer Baldassari initially said that Desilvey dropped the backpack "prior to running." Officer Baldassari also reiterated that Desilvey "took off his backpack and started running" and "dropped it on the street and began running on the sidewalk" before entering the field. Defense counsel then showed Officer Baldassari three images from a police body-camera video that depicted Desilvey lying on the ground in the field with his backpack beside him. Defense counsel also asked Officer Baldassari to review a video of the incident to refresh his recollection. Officer Baldassari confirmed that the images showed the backpack was on the ground beside Desilvey when he detained him. Officer Baldassari said that, during the chase, he did not pick up any items Desilvey had discarded. In addition, Officer Baldassari testified that his partner did not pick up any of the items Desilvey had discarded before joining Officer Baldassari near where Desilvey was lying on the ground in the field. After Desilvey stopped running and surrendered to Officer Baldassari, it took Officer Baldassari's partner about 20 to 40 seconds to arrive at their location.
On re-direct examination, the prosecutor noted the seeming discrepancy in Officer Baldassari's testimony about the location of the backpack and asked Baldassari if he "[could] explain exactly in a little bit more detail where the backpack was in relationship to [Desilvey]?" Officer Baldassari responded, "I believe the backpack was actually initially located within a couple of feet of [Desilvey] when he was out in the field." Officer Baldassari confirmed that he had seen the backpack when it was next to Desilvey. Baldassari "believe[d] somebody might have moved [the backpack] towards the scooter, because as part of standard procedure, we'll gather things and we'll consolidate items." Officer Baldassari also said he had seen the backpack near the scooter "at some point that night."
II. DISCUSSION
Desilvey raises two claims on appeal. He argues the trial court erred when it denied his motion to suppress evidence after finding that he had abandoned his backpack prior to detention by police. He contends further that the search of his backpack was not incident to his arrest. In addition, Desilvey claims the trial court erred when it imposed an unconstitutionally overbroad electronic search condition that required him to consent to searches of his electronic devices.
A. The Search and Seizure of Desilvey's Backpack
1. Background
After he was held to answer, Desilvey moved to suppress the evidence seized at the time of his arrest on July 8, 2017. (Pen. Code, § 1538.5.) The prosecutor opposed the motion. The prosecutor argued that Desilvey had abandoned his backpack and the baggies he discarded before he got down on the ground and was seized by Officer Baldassari. The prosecutor also maintained that police had reasonable suspicion to stop and detain Desilvey and probable cause to arrest him because he had outstanding arrest warrants. Finally, the prosecutor argued that the search of Desilvey's backpack was a proper search incident to his arrest, even though the "backpack was no longer on [Desilvey's] person" when he was seized.
After Officer Baldassari testified at the suppression hearing, defense counsel argued that Desilvey had not abandoned his backpack because the evidence showed the backpack was beside Desilvey during the detention. In addition, defense counsel maintained that, because Desilvey was inside a patrol car when his backpack was searched, there was no issue of officer safety or potential for destruction of evidence at the time of the search.
The prosecutor argued that Desilvey abandoned the items he took out of his pockets and dropped them as he ran away from Officer Baldassari. As for the backpack, the prosecutor maintained that "[j]ust because the backpack is a little bit closer to [Desilvey] than previously thought," Desilvey abandoned it by taking it off prior to getting on the ground and being detained by Officer Baldassari. The prosecutor argued further that the proximity of the backpack to Desilvey made it "more plausible that Officer Baldassari's search was a search incident to an arrest." The prosecutor noted that Officer Baldassari had reason to believe that Desilvey possessed contraband based on their prior interactions and because Desilvey discarded items as he ran away.
The trial court concluded that Desilvey was not detained while running from the officers, so anything he discarded as he fled was abandoned for purposes of the Fourth Amendment analysis. The trial court found that Officer Baldassari's testimony "indicated that the backpack was dropped by Mr. Desilvey while he was running." The trial court said that "[i]t was somewhat unclear as to exactly how far away [Desilvey] was from the scooter when he dropped [the backpack]. But [Officer Baldassari] also testified that [police] will generally gather items, consolidate them near an area, while they're dealing with the situation." The trial court said further, "the fact that the backpack was at some point sitting next to [Desilvey] isn't indicative that that's the only place it could have been. The officer did testify that it was abandoned." The trial court explained that it "seems illogical" that Desilvey would hold onto a backpack containing a substantial amount of contraband, given that he discarded "lesser contraband as he was running." The trial court concluded, "So I think the weight of the evidence is that the backpack was discarded prior to the detention. For that reason I'm going to deny the motion to suppress." The trial court did not address the prosecutor's alternative argument that the search of the backpack was incident to Desilvey's arrest.
2. Standard of Review
" 'In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.' " (People v. Macabeo (2016) 1 Cal.5th 1206, 1212; Cal. Const., art. I, § 24.) "In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120.) "If there is conflicting testimony, we must accept the trial court's resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them." (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
3. Governing Law and Analysis
The Fourth Amendment guarantees individuals the "right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (U.S. Const., 4th Amend.) "A defendant has the burden . . . of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] The prosecution has the burden of establishing the reasonableness of a warrantless search." (People v. Jenkins (2000) 22 Cal.4th 900, 972.) "It has long been settled [] that a warrantless search and seizure involving abandoned property is not unlawful, because a person has no reasonable expectation of privacy in such property." (People v. Parson (2008) 44 Cal.4th 332, 345 (Parson).)
"[P]roperty is abandoned when a defendant voluntarily discards it in the face of police observation, or imminent lawful detention or arrest, to avoid incrimination." (People v. Daggs (2005) 133 Cal.App.4th 361, 365 (Daggs).) " '[T]he intent to abandon is determined by objective factors, not the defendant's subjective intent. " 'Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.' " [Citations.]' [Citation.] 'The question whether property is abandoned is an issue of fact, and the [trial] court's finding must be upheld if supported by substantial evidence.' " (Parson, supra, 44 Cal.4th at p. 346.)
Desilvey contends the trial court's conclusion that he abandoned his backpack prior to detention is not supported by substantial evidence and is inconsistent with applicable precedent. Desilvey specifically faults the trial court for relying on Officer Baldassari's initial, admittedly mistaken testimony regarding the location of the backpack. He maintains that "the State offered no evidence at all that [he] dropped his backpack at any point prior to his arrest: the sole testifying witness stated otherwise, as did the only documentary evidence offered." Desilvey contends the "only logical inference one can draw fairly from the facts" is that he did not drop the backpack before deciding to surrender and instead only put the bag down as he was surrendering to the police.
Based on our review of the evidence, we are not persuaded by Desilvey's arguments because the trial court's ultimate conclusion regarding abandonment is supported by substantial evidence, and we must defer to such a finding. The evidence presented at the suppression hearing demonstrated that Desilvey discarded many items as he fled from Officer Baldassari. Desilvey dropped some items in the field as he ran. He also stopped briefly at certain points to discard items from his pockets. Desilvey then dropped some more items in the area where he eventually stopped fleeing and lay down. The items discarded there included several baggies and, in our view of the evidence, the backpack.
Although Officer Baldassari initially testified that Desilvey dropped his backpack near the scooter, Officer Baldassari altered his testimony on this point after reviewing the body-camera images and video. Ultimately, Officer Baldassari testified that he "believe[d] the backpack was actually initially located within a couple of feet" of Desilvey out in the field. (Italics added.) Officer Baldassari also discounted the possibility that Desilvey had dropped the backpack near the scooter and his partner then carried the backpack into the field and placed it near Desilvey as he lay on the ground.
Instead of testifying that someone may have moved the backpack into the field, Officer Baldassari testified that another police officer may have moved the backpack from the field to the area near the scooter, in accord with standard procedure used when gathering evidence at a crime scene.
We do not view Officer Baldassari's complete testimony as establishing the possibility that Desilvey dropped his backpack at the beginning of the chase near the scooter and the police subsequently moved and placed it beside him. Accordingly, we reject, as unsupported by substantial evidence, the trial court's finding that it was possible the backpack was placed by the police near where Desilvey lay in the field. Nevertheless, viewing the evidence presented at the suppression hearing in the light most favorable to the People, we conclude there is substantial evidence to support the trial court's ultimate finding that Desilvey voluntarily abandoned his backpack prior to being seized by the police.
The trial court reasonably concluded from the evidence that Desilvey dropped his backpack before he submitted to Officer Baldassari's repeated commands to stop. Desilvey discarded several items as he ran away from Officer Baldassari, stopping at times to throw things out of his pocket before running off again. Officer Baldassari testified that Desilvey apparently had emptied his pockets by the time he decided to get down on the ground. It is reasonable to infer from this evidence that, just as Desilvey had decided to discard items as he ran and continued to discard his last remaining baggies around where he finally stopped fleeing, he also decided to discard his backpack there before giving himself up to police. That Desilvey dropped his last items in close proximity to where he lay down in compliance with Officer Baldassari's repeated commands does not preclude a finding, based on the evidence, that Desilvey intentionally relinquished his interest in those items. (See Daggs, supra, 133 Cal.App.4th at p. 365 [voluntarily discarding property in the face of imminent detention amounts to abandonment].) Desilvey consistently evinced an intent to relinquish his interest in his property as he fled. It is reasonable to infer from the evidence that he intended to jettison everything he possessed before being taken into custody.
We also find it significant that there is no evidence supporting Desilvey's position that he retained his backpack until his surrender to the police. Desilvey did not testify, and Officer Baldassari (the only testifying witness) did not state that Desilvey had his backpack when he stopped running and surrendered. (See California v. Hodari D. (1991) 499 U.S. 621, 626 ["An arrest requires either physical . . . or, where that is absent, submission to the assertion of authority."].) (Italics omitted.) In short, there is no evidence demonstrating that Desilvey actually gave himself up to Baldassari before he dropped his remaining property near where he got down on the ground.
The evidence here supports the trial court's implicit factual conclusion that Desilvey intended to relinquish his interest in all the contraband he possessed, including his backpack, before he submitted to Officer Baldassari's authority. For this reason, we conclude that the trial court's finding that Desilvey abandoned his backpack prior to the detention by police must be upheld.
Given our conclusion regarding abandonment, we do not address whether the search of Desilvey's backpack is excepted from the warrant requirement as a search incident to a lawful arrest.
B. The Electronic Search Condition
Desilvey claims the trial court erred when it imposed an electronic search condition that is not "closely tailored" and "sweeps far more broadly than necessary to achieve the State's purpose" of preventing Desilvey from using electronic devices to sell drugs. Desilvey contends the electronic search condition "contains no substantive limitation actually restricting its use to monitoring for drug-related electronic communications." He also maintains the condition "covers far more than the voice and messaging services [he] allegedly used before to sell drugs" and "sweeps in a vast swath of electronic media having no demonstrated or reasonably foreseeable use in the facilitation of drug sales."
For clarity, we note that Desilvey apparently challenges only the condition that he consent to the seizure and search of electronic devices in his possession or control, not the further, related condition requiring him to provide all passwords necessary to access or search such electronic devices.
The Attorney General counters that Desilvey waived his claim of error "when he agreed to the searches as a condition of his probation." In addition, the Attorney General contends Desilvey's claim fails on the merits because the electronic search condition was tailored to the facts of this case and is reasonably related to the compelling state interest in reformation and rehabilitation.
1. Background
Desilvey entered into a written plea agreement in which he accepted probation with search and seizure, electronic search, and substance abuse terms, although the precise terms of those conditions were not spelled out in it. Before his sentencing hearing, the probation department wrote a report recommending a number of probation conditions, and Desilvey filed an objection to the scope of the electronic search conditions recommended therein. Desilvey argued, among other things, that the proposed electronic search conditions were unconstitutionally overbroad and "should be limited to searches of mobile phones . . . [and] searches for drug-related content."
As described in Desilvey's motion, the recommended conditions required Desilvey "to give specific consent (as defined under Penal Code Section 1546) to seize and search all electronic devices in his possession or under his control and the search of any text messages, voicemail messages, call logs, photographs, e-mail accounts, social media accounts, and/or applications ('apps') pertaining to said accounts at any time with or without a warrant. . . . [and] to give all passwords to allow peace officers to conduct said searches." (Italics omitted.)
The prosecutor filed an opposition to Desilvey's objection. The prosecutor recounted Desilvey's possession of drugs in the felony and misdemeanor cases on which he was to be sentenced. In addition, the prosecutor noted that a search of Desilvey's cell phones revealed text messages indicating drug sales, and a search of Desilvey's Facebook account revealed photographs of a bundle of cash and marijuana paraphernalia. At Desilvey's subsequent sentencing hearing, the prosecutor added that Desilvey's Facebook account also contained messages indicating Desilvey was communicating on Facebook about selling drugs. Desilvey did not object to the prosecutor's assertion.
The prosecutor argued that the electronic search conditions were not overbroad because Desilvey "used his cell phone to sell drugs, and could easily use other electronic devices to continue this illegal activity." The prosecutor added that "the content on [Desilvey's] electronic devices subject to search is not overbroad given that [Desilvey] repeatedly used his cell phone to arrange for the sale of drugs," and Desilvey could circumvent any search condition limited to particular applications by using other available applications.
At Desilvey's sentencing hearing, the prosecutor argued further that it was not necessary for the trial court to rule on Desilvey's objection to the scope of the electronic search conditions, because Desilvey understood when he entered his no-contest pleas that the probation conditions would include search and seizure terms regarding electronic devices. Defense counsel responded that no language for the electronic search conditions was agreed to in advance of the pleas and, thus, Desilvey had not waived his challenge to the scope of the specified conditions as unconstitutionally overbroad.
Without mentioning the prosecutor's argument about the effect of the plea agreement, the trial court addressed the merits of Desilvey's objection to the scope of the electronic search conditions. The trial court observed that text messages and e-mails can be sent and received on multiple electronic devices, "[s]o to the extent that there is a nexus to allow for the search of text messages, call logs, and email, then a search of that on all devices would be appropriate." The trial court said that a nexus to the offenses existed in this case. Further, the trial court found that, because Desilvey used social media to commit crimes in this case, there was a nexus upon which to impose the conditions related to social media accounts. After these rulings, defense counsel reiterated his request for language limiting any searches to content "reasonably likely to reveal drug-related issues," based on In re P.O. (2016) 246 Cal.App.4th 288 (P.O.). The trial court questioned how law enforcement could search electronic devices for that content alone. Defense counsel responded by again referencing P.O. as the basis for his request.
The trial court placed Desilvey on probation with the following electronic search conditions: "You shall, as a condition of probation, give specific consent, as that term is understood in Penal Code Section 1546, to any peace officer or law enforcement agency to seize and search all electronic devices in your possession or under your control, to a search of any text messages, voicemail messages, call logs, photographs, email accounts, social media accounts, and/or applications pertaining to said accounts, without the benefit of a warrant; [¶] You shall further agree and specifically consent to provide all passwords necessary to access or search such electronic devices and understand that refusal to provide the password will constitute a violation of the terms of your probation or mandatory supervision."
The trial court also imposed a condition that Desilvey "submit [his] person, place of residence, vehicle, and any property under [his] control to search at any time, with or without a warrant, by any peace officer or law enforcement agency."
After the trial court read aloud the various probation conditions and imposed multiple fines and fees, it asked Desilvey if he understood and accepted probation on those terms. Desilvey answered, "Yes, sir."
2. Analysis
a. Waiver of Desilvey's Claim of Error
We begin by addressing the Attorney General's contention that Desilvey waived any challenge to the electronic search condition. The Attorney General argues that Desilvey's "agreement to the probation search condition was a complete waiver of his Fourth Amendment privacy rights, regardless of whether it subjected his person, home, or property to search." That is, because Desilvey consented and did not object to the general search condition that covered his person, home, and property under his control, "his electronic devices and social media accounts are properly subject to search." The Attorney General describes a person's home as "the bastion of the Fourth Amendment" and asserts that "[n]o decisional authority suggests that cell phones or social media accounts have usurped the primacy of the home in Fourth Amendment jurisprudence."
In reply, Desilvey argues that he adequately preserved his claim of error for appellate review because he objected in the trial court to the electronic search condition on the same grounds he now asserts on appeal. Desilvey also contends the information that can be found on a person's electronic devices "differs considerably from the information that might be stored in physical form at his home, both quantitatively and qualitatively." Desilvey cites to In re Ricardo P. (2019) 7 Cal.5th 1113, 1127 (Ricardo P.) and Riley v. California (2014) 573 U.S. 373, 393-397 as support for his argument that the Attorney General's "analogy to home searches is [] of limited—if any—utility here."
We do not agree with the Attorney General that Desilvey is precluded from obtaining appellate review of his challenge to the electronic search condition because he accepted the separate warrantless search condition relating to his person, home, vehicle, and property without objection. In essence, the Attorney General argues that any search of Desilvey's electronic devices or social media accounts that may occur while Desilvey is on probation would be authorized under the more general warrantless search condition. And because Desilvey acceded to the general search condition in the trial court, his complaint about the terms of the more specific electronic search condition is precluded on appeal—regardless of the fact that it was raised and rejected in the trial court. Stated differently, the Attorney General maintains that the electronic search condition is, in substantive effect, irrelevant and mere surplusage in light of the general search condition and, thus, we should reject Desilvey's attempt to challenge the overbreadth of the electronic search condition.
In our view, the question whether Desilvey properly preserved his overbreadth claim for appellate review is distinct from the question whether Desilvey's acceptance of the general search condition amounts to a knowing and intelligent waiver of his Fourth Amendment rights, such that law enforcement could properly search Desilvey's electronic devices and social media during his probation regardless of the electronic search condition. The trial court here imposed—over Desilvey's objection—the electronic search condition that Desilvey challenges on appeal. The California Supreme Court has made clear that a defendant adequately preserves a claim that a probation condition is improper or unjustified if he or she objects to the condition at sentencing. (People v. Moran (2016) 1 Cal.5th 398, 403, fn. 5.) Moreover, "[i]rrespective of whether a defendant accepts or declines the terms of probation, he or she may, on appeal following an objection in the trial court, challenge a condition as unreasonable or unconstitutional." (Ibid.) Because even the ultimate acceptance of a particular search condition does not preclude a subsequent challenge on appeal to that condition, we are not persuaded that acceptance of a different, general search condition should preclude appellate review here.
Furthermore, we can address Desilvey's challenge to the electronic search condition without opining on the boundaries of the general search condition and Desilvey's consent to it—an issue that was not addressed in the trial court. Trial courts often impose an electronic search condition in addition to a general search condition, thus treating electronic devices and their data as a distinctive class of property. And appellate courts have decided challenges made only to the electronic search condition in such cases. (See, e.g., People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173-1174 (Ebertowski); People v. Guzman (2018) 23 Cal.App.5th 53, 57-58.)
The record demonstrates that the parties viewed the search conditions imposed on Desilvey as discrete terms designed to apply to different types of property. The electronic search condition was directed specifically to Desilvey's electronic devices and his use of those devices to access information stored electronically. Neither party at trial questioned whether this probation condition was superfluous in light of any other condition. At the sentencing hearing, the prosecutor argued only that the trial court could disregard Desilvey's objection to the electronic search condition based on his plea agreement, which specifically allowed for probation conditions including "search and seizure terms with regard to electronic devices." The prosecutor did not refer to the general search condition. Moreover, the written plea agreement listed the "search + seizure" condition separately from the "electronic search" condition. We therefore decline to accept the Attorney General's argument of waiver.
We note that several cases cited by the Attorney General in support of its waiver argument concern post-search objections by probationers to warrantless searches. (See, e.g., People v. Bravo (1987) 43 Cal.3d 600, 611; People v. Mason (1971) 5 Cal.3d 759, 762-763, disapproved on another ground in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1 (Lent); People v. Medina (2007) 158 Cal.App.4th 1571, 1580; see also People v. Woods (1999) 21 Cal.4th 668, 681-682 [upholding a search related to a non-probationer who shared a residence with a probationer]; People v. Schmitz (2012) 55 Cal.4th 909, 913 [permitting a search of areas in a passenger compartment where the officer reasonably expects that a parolee could have stowed personal belongings or discarded items].) We conclude these are inapposite, as here Desilvey only challenges the terms of the electronic search condition imposed on him as overbroad. He is not challenging an actual, warrantless search of his electronic devices or accounts that the People have sought to justify as reasonable under the general search condition of his probation.
b. Merits of Desilvey's Claim of Error
Although we deem it appropriate to address the merits of Desilvey's challenge to the electronic search condition, we are not persuaded the trial court erred by imposing it. "The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; Pen. Code, § 1203.1, subd. (j).) Moreover, "[d]efendant, as a probationer, has a diminished expectation of liberty and privacy as compared to an ordinary citizen." (People v. Garcia (2017) 2 Cal.5th 792, 810; see also United States v. Knights (2001) 534 U.S. 112, 119.) Nonetheless, 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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "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.) We review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
As mentioned above, Desilvey argues that the electronic search condition is unconstitutionally overbroad because it does not limit any search of his electronic devices to inspection for drug-related communications, "the condition's ostensible purpose." In addition, he contends the condition permits examination of a "vast swath of electronic media" on his electronic devices that has no demonstrated or reasonably foreseeable use in the facilitation of drug sales.
We are not persuaded that the electronic search condition imposed on Desilvey is overbroad. Desilvey pleaded no contest to two counts of possession of methamphetamine for sale. The uncontested information presented to the trial court established that Desilvey possessed cell phones when he was arrested for his crimes. A search of Desilvey's cell phone and Facebook account revealed text and Facebook messages indicating that he was selling drugs. In addition, Desilvey's Facebook account included photographs of cash and marijuana paraphernalia.
The state has a compelling interest in ensuring that Desilvey does not continue selling drugs and using a cell phone or other electronic device to effect drug transactions. Although Desilvey had possessed only cell phones (and not other electronic devices) when he was arrested, as the trial court rightly pointed out, a wide array of electronic devices can now be used for the same purposes as a cell phone. If the electronic search condition were limited to Desilvey's cell phones, he could continue to exchange electronic messages regarding drug sales via various applications and social media platforms accessible on other electronic devices, such as a computer or tablet. Thus, directing the probation condition to all electronic devices possessed or controlled by Desilvey practically aligns with the purpose of preventing him from selling drugs by means he had used in the past. In addition, the burden imposed on Desilvey by such a condition is not significantly different than one that is directed only to his cell phones.
Regarding the content that can be reviewed during a search of Desilvey's electronic devices, the electronic search condition is limited to text messages, voicemail messages, call logs, photographs, e-mails, and social media. These types of messages and media are akin to and closely associated with Desilvey's known drug-dealing activity and relate to his prior use of electronic messaging, social media, and digital photography. The need to monitor Desilvey's use of electronic devices to ensure he would reform his behavior and be rehabilitated while on probation was great in light of his prior criminal activity and its direct relationship to his electronic devices. The electronic search condition here is appropriately narrow as to the content that can be examined by law enforcement.
This case is like Ebertowski, supra, 228 Cal.App.4th 1170. There, a different panel of this court upheld two probation conditions requiring the defendant to provide the passwords for his electronic devices and social media accounts and submit those devices and accounts to search. (Id. at pp. 1173, 1175-1176.) The defendant was a criminal street gang member who promoted his gang on social media. (Id. at p. 1175.) As in Ebertowski, the electronic search condition imposed on Desilvey here is grounded in his prior conduct, appropriately and closely tailored to a compelling purpose, and does not place unnecessary burdens on his constitutional rights. (See id. at pp. 1175-1176.)
Desilvey's attempt to distinguish Ebertowski as having addressed only "password conditions" and not "a search condition" is misplaced. The conditions upheld in Ebertowski, though referred to in the opinion as "password conditions" (Ebertowski, supra, 228 Cal.App.4th at p. 1174), actually included directives that the defendant "shall submit [his electronic] devices to search at anytime [sic]" and "shall submit [his social media] sites to search at anytime [sic]." (Id. at p. 1173, italics added.) Moreover, the fact that the defendant in Ebertowski did not contest the additional general property search condition imposed on him was not, as Desilvey claims, "dispositive" to the holding. The court in Ebertowski considered the totality of the two conditions when it upheld them against defendant's overbreadth challenge. (Id. at p. 1172.) The court weighed, as we do here, the "minimal invasion of [defendant's] privacy that is involved in the probation officer monitoring defendant's use of his devices and his social media accounts while defendant is on probation" against "the state's interest in protecting the public from a dangerous criminal who has been granted the privilege of probation." (Id. at p. 1176.)
Desilvey's prior behavior evinced a clear proclivity to use an electronic device and social media in connection with his sales of illegal drugs, and the state has an interest in curtailing this criminal behavior and the mechanisms that facilitate it. Desilvey's reliance on P.O., supra, 246 Cal.App.4th 288, to bolster his overbreadth challenge is unavailing for similar reasons. The court in P.O. found an electronic search condition to be overbroad because its stated "purpose [was] to allow monitoring of [the juvenile's] involvement with drugs, but the condition [did] not limit the types of data that may be searched in light of this purpose." (Id. at p. 298.) Here, by contrast, the content limits in the electronic search condition are sufficiently tailored to Desilvey's electronic messaging and social media accounts, both of which he used previously for drug dealing.
We note that the California Supreme Court's recent decision Ricardo P.—which addressed a challenge to an electronics search condition under Lent—also is factually distinguishable from Desilvey's case. In Ricardo P., there was "no suggestion in the record . . . that Ricardo has ever used electronic devices to commit, plan, discuss, or even consider unlawful use or possession of drugs or any other criminal activity." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Given the circumstances in this case, the state has a compelling interest in monitoring Desilvey's probation so as to promote his reformation and rehabilitation while protecting the public from any further drug dealing. The challenged electronic search condition serves that purpose. We conclude the electronic search condition is not unconstitutionally overbroad as applied to Desilvey.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Danner, J. WE CONCUR: /s/_________
Premo, Acting P.J. /s/_________
Elia, J.