Opinion
A151464
05-03-2018
In re R.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43803)
In this appeal, R.S. (Minor) challenges a dispositional order imposing a probation condition that allows warrantless searches of his electronic devices and requires him to provide his passwords. Minor contends that the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad, and that the juvenile court erred in imposing it. We agree that the condition is unconstitutionally overbroad, and will modify the judgment to strike this condition.
I. FACTUAL BACKGROUND
The facts recounted in this section are undisputed, and are taken from the probation officer's detention report.
On April 8, 2017, Fairfield police officers responded to a report that a large group of young people were yelling and chasing someone and might have stolen a bicycle. One 16-year old victim, N.B., later told police he and his 10-year old friend, J.L., had been riding their bikes when a large group of young people approached. One of the youths confronted N.B. The group yelled words to the effect, "snatch him, snatch it, tear it off." Someone grabbed the backpack N.B. was wearing, and threw him to the ground. Four or five youths then struck N.B. about nine times, hitting his chest, side, face, and throat. The beating caused N.B. considerable pain and one of the blows, landing on his throat, caused him difficulty breathing. Someone took N.B.'s cell phone, later discarding it 20 feet away. The group then ran off, but police detained several young people in the area. N.B. identified Minor as the youth who initially confronted him and threw him to the ground and, with three or four other youths, beat him up. J.L. told the police that a female member of the group attempted to take his bike, threatening to beat or rob him, but relented when J.L. said that he was only 10 years old.
The backpack was not taken.
Minor was arrested and detained.
II. PROCEDURAL BACKGROUND
On April 10, 2017, the Solano County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code, section 602, subdivision (a), alleging that Minor committed two counts of second degree robbery (Pen. Code, § 211) (counts one and three) and one count of attempted second degree robbery (id., §§ 211, 664) (count two).
On May 15, 2017, the district attorney orally amended the petition to add one count of felony accessory (to robbery) after the fact (Pen. Code, § 32) (count four) and one count of misdemeanor battery (id., § 242) (count five). The district attorney then dismissed counts one through three, and Minor admitted counts four and five.
On May 30, 2017, the juvenile court declared Minor, age 14, a ward of the court, placed him on probation, and released him to reside in his parents' home. At probation's recommendation, and over the objection of Minor's counsel, the juvenile court included an electronics search provision as a condition of probation. The juvenile court ordered Minor to submit "any electronic devices [he] own[ed]" to "search and seizure by any peace officer at any time of the day or night, with or without a warrant, with or without probable cause," and directed Minor "to provide passwords."
III. DISCUSSION
Minor contends that the electronics search condition imposed here is unreasonable and therefore invalid under Lent, supra, 15 Cal.3d 481. Additionally, he contends the condition is unconstitutionally overbroad, because it impermissibly impinges on his privacy right under the Fourth Amendment to the United States Constitution and is not narrowly tailored to further his rehabilitation. We agree the condition is unconstitutionally overbroad and we will strike the condition. We, therefore, do not address Minor's contention that the electronics search condition was invalid under Lent.
The California Supreme Court has granted review in several cases to determine whether an electronics search condition is reasonably related to a juvenile's future criminality and, therefore, valid under Lent, if the condition has no relationship to the crimes the juvenile committed but would facilitate the juvenile's supervision. (See, e.g., In re Ricardo P., review granted Feb. 17, 2016, S230923.)
A. Relevant Legal Principles
When a court imposes a probation condition that limits 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." ' [Citations.] '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 [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.] ' " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.' " ' [Citations.]" (In re. P.O. (2016) 246 Cal.App.4th 288, 297 (P.O.); see also, Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1181 [to survive constitutional scrutiny, a probation condition "must be narrowly drawn and specifically tailored to the individual probationer"].) " 'If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with purposes contemplated, those alternatives should be used.' [Citation.]" (In re Luis F. (2009) 177 Cal.App.4th 176, 189.)
"Whether a probation condition is unconstitutionally overbroad presents a question of law reviewed de novo. [Citation.]" (P.O., supra, 246 Cal.App.4th at p. 297.)
B. Analysis
Minor asserts that the electronics search condition impermissibly impinges on his constitutional right to privacy by requiring him to provide unfettered access to his electronic devices and information reflected there, for example, his Internet browsing history, items maintained through remote storage services, and social media accounts. (See P.O., supra, 246 Cal.App.4th at p. 298 [recognizing that a minor has a right to privacy in his cell phone and electronic accounts]; People v. Appleton (2016) 245 Cal.App.4th 717, 724 [discussing privacy interest in electronic devices].) The condition is not narrowly tailored to meet his needs, Minor contends, because it is not reasonably related to his rehabilitation from the adjudicated offenses (accessory after the fact and battery) or to protecting the public by reducing the risk that he will reoffend. (See, e.g., In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154 [" 'The purpose of the juvenile court law is "to provide for the protection and safety of the public and each minor" ' "].) Indeed, Minor asserts, the electronics search condition is not limited at all, or tailored to focus on monitoring his compliance with other probation conditions, but, rather, allows blanket searches of his electronic devices, and review of unrelated material, such as his medical and financial information. The resulting impingement on his right to privacy is significant, Minor submits. (See Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2491] (Riley) ["a cell phone search would typically expose to the government far more than the most exhaustive search of a house"]; id. at p. 2490 [cell phones contain "a digital record of nearly every aspect of [their owners'] lives—from the mundane to the intimate"]; People v. Appleton, supra, 245 Cal.App.4th at p. 725 [an electronics search condition may sweep "more broadly than the standard three-way search condition allowing for searches of probationers' persons, vehicles, and homes" because it may allow searches of items outside a probationer's home or vehicle, and of devices not in a probationer's custody].)
We agree with Minor that the electronics search condition imposed here is unconstitutional because it is not narrowly tailored to achieve the professed purpose of assisting Minor's rehabilitation or to otherwise meet his specific needs. " ' "[B]ecause there is nothing in [Minor's] past or current offenses or [his] 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 [new condition] will serve the rehabilitative function of precluding [Minor] from any future criminal acts." ' " (In re J.B. (2015) 242 Cal.App.4th 749, 755.) Any connection between Minor's offenses and his usage of electronic devices is speculative and, absent such evidence, the electronics search condition is not tailored to meet Minor's specific needs. In these circumstances, "[t]he requirement that [Minor] submit his electronic devices for search and provide his probation officer with his electronic passwords is constitutionally overbroad and must be stricken." (Id. at pp. 756-757; see also, P.O., supra, 246 Cal.App.4th at pp. 297-298 [electronics search condition was unconstitutionally overbroad].)
The Attorney General contends, to the contrary, that the electronics search condition here was limited because the juvenile court struck a provision that would have permitted probation searches of electronic devices that did not belong to Minor, but that he might access or possess (for example, his parents' cell phones). As so modified, the Attorney General asserts, the electronics search condition is appropriately tailored to Minor's rehabilitative goals, because it allows probation to monitor Minor's compliance with other probation conditions and the law, at a critical juncture in his life. Minor is at a critical juncture, the Attorney General submits, because he has had several prior police contacts—one for fighting in 2014, two for causing school disruptions on consecutive days in 2015, and one about a week before the instant offense for allegedly participating with others in stealing $100 from a student at school. Minor also has a poor school record, the Attorney General points out; he has only a 2.0 grade point average, is chronically tardy, and has been subject to frequent school discipline, including once in 2017 for refusing to put away his phone while in class. Finally, the Attorney General observes, although, in his probation interview, Minor denied any gang affiliation, the Fairfield Police Department reported that Minor self-identified as a member of the " 'Head Niggas in Charge (HNIC) gang' " when he was booked for the adjudicated offense and that he had been photographed with gang members "throwing up the gang's sign."
The juvenile court struck this provision after the district attorney expressed uncertainty about whether the broader condition was permissible and indicated she did not object to deleting it.
The district attorney included the most recent incident as count three in the current petition, but dismissed the charge in exchange for Minor's admission of counts four and five.
Minor denied, at the dispositional hearing, that he admitted he was a gang member during booking or that he had any gang association.
We are unpersuaded. The fact the juvenile court did not here countenance searches of electronic devices belonging to other individuals does not convince us the condition it did impose—allowing unlimited searches of all information accessible on Minor's own devices—was appropriately tailored to meet Minor's specific rehabilitative needs. Further, our review leads us to conclude the condition was not so tailored. Arguing for the electronic search condition at the dispositional hearing, the district attorney reasoned that "[m]ost . . . young persons['] lives today take place on line, on social media," and it was important, therefore, for "the probation officer to be able to monitor the kids' social media accounts in order to provide them the assistance they need to rehabilitate." As Minor correctly pointed out at the hearing, however, this rationale would apply equally to every young person adjudicated to be a ward of the court, as each unavoidably must confront critical choices at such a juncture.
"The fact that a search condition would facilitate general oversight of the individual's activities," however, "is insufficient to justify an open-ended search condition permitting review of all information contained or accessible on the minor's smart phone or other electronic devices." (In re J.B., supra, 242 Cal.App.4th at p. 758.) Minor's refusal to put away his cell phone on a single occasion while in class, unrelated to any criminal offense or police contact, does not provide the critical nexus, demonstrating that unlimited monitoring of his electronic devices is tailored to his specific rehabilitation needs or necessary to protect the public. (Welf. & Inst. Code, § 202, subd. (a).) Nor does the Attorney General's speculative assertion—that Minor would be "likel[y]" to use his phone to communicate with "suspected gang associates" (italics added)—fill that gap, absent any evidence Minor belonged to a gang, affiliated with gang members, or used his electronic devices to further a gang-related connection. In fact, although Minor had prior police contacts, the probation officer reported: there had been no previous wardship petitions filed against Minor; he did not abuse substances; he lived at home with both parents; his parents appeared to support his "living a prosocial lifestyle"; he and his mother both believed he would remain offense free; and he told the probation officer he thought being on probation would motivate him to avoid trouble in the future. These factors suggest Minor was better positioned then many in his circumstances to succeed while on probation, obviating the need for the broad electronics search condition. Other probation conditions the juvenile court imposed, which were tailored to Minor's rehabilitative needs—requiring him to attend counseling, including for anger management, and to observe a curfew—did so as well.
The Attorney General cites People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) as support for his contention that the electronics search condition was appropriately imposed here. In that case, after the defendant pled no contest to making criminal threats, and admitted a gang allegation, the court imposed an electronics search condition, including a requirement that he disclose his passwords to his electronic devices and social media sites. (Id. at p. 1172.) The defendant challenged the condition as constitutionally overbroad, contending it was not narrowly tailored. (Id. at pp. 1172, 1175.) The Court of Appeal disagreed, citing evidence the defendant was "a criminal street gang member who promote[d] his gang on [his] social media [account], ma[de] violent threats in person to armed police officers, and physically resist[ed] armed police officers." (Id. at p. 1175; see id. at pp. 1173-1174.) In upholding the electronics search condition, the Court of Appeal observed that the purpose was to allow probation to implement "search, association, and gang insignia conditions . . . designed to monitor and suppress [the] defendant's gang activity." (Id. at p. 1175.) "Access to all of defendant's devices and social media accounts [was] the only way," the court concluded, "to see if defendant [was] ridding himself of his gang associations and activities, as required by the terms of his probation, or [was] continuing those associations and activities, in violation of his probation." (Ibid., italics added.)
The defendant in Ebertowski also: repeatedly threatened a police officer's family, stating that he would sexually assault the officer's wife and daughter; repeatedly identified himself as a gang member; told the officer he was " ' "[f]ucking with the wrong gangster" ' "; made gang signs; and urinated on the floor several times during the arrest process. (Ebertowski, supra, 228 Cal.App.4th at p. 1173.)
In contrast, here, as discussed, there is no evidence of any connection between Minor's use of electronic devices or accounts, and either his adjudicated offense or conduct that is prohibited while Minor is on probation. (See Ebertowski, supra, 228 Cal.App.4th at pp. 1173-1174 [the prosecutor subpoenaed photographs and comments shown on the defendant's social media account, presenting the records to the court, as evidence the defendant used his account to promote his criminal street gang].) Nor is there any argument that access to all of Minor's devices and social media accounts is the only way to support his rehabilitation or to protect the public. The Court of Appeal observed in Ebertowski that the defendant posed "an extreme danger to public safety." (Id. at p. 1176 [the electronics search condition was necessary to protect the public "from a dangerous criminal who has been granted the privilege of probation"].) There is no suggestion here that Minor posed any comparable risk to public safety. Ebertowski, therefore, is distinguishable.
As the Attorney General notes, in evaluating whether a probation search condition infringes Fourth Amendment rights, a court must assess " 'on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' [Citation.]" (U.S. v. Knights (2001) 534 U.S. 112, 118-119.) In evaluating the degree to which the electronics search condition intrudes upon Minor's privacy, we consider Riley, supra, 134 S.Ct. 2473. Although, as the Attorney General correctly points out, the Court addressed a different issue in Riley (i.e., whether a warrantless search incident to arrest may extend to an individual's cell phone (id. at p. 2480)), its observations are nonetheless instructive here. In Riley, the Court recognized that "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an [individual's] person," because many "are in fact minicomputers" with "immense storage capability." (Id. at p. 2489.) This fact has "interrelated consequences for privacy," the Court observed (ibid.), because most cell phones contain "a digital record of nearly every aspect" of their owners' lives (id. at p. 2490), including "a broad array of private information never found in a home in any form—unless the phone is" (id. at p. 2491). Allowing probation unfettered access to Minor's cell phone, therefore, necessarily entails a significant intrusion on his privacy. The government has not demonstrated a need for the condition that suffices to justify the intrusion. We will therefore strike the condition.
IV. DISPOSITION
The disposition is modified to strike the probation condition requiring Minor to submit his electronic devices to search and to provide passwords.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------