Filed 12/10/19 P. v. Davis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY KENNETH DAVIS,

Defendant and Appellant.

C084393

(Super. Ct. No. 16FE015510)

After defendant Timothy Kenneth Davis pleaded no contest to unlawfully possessing methamphetamine for sale (Health & Saf. Code, § 11378), the trial court placed him on probation with various conditions, including a boilerplate condition broadly requiring that he submit to warrantless searches of any and all electronic storage devices in his possession.

On appeal, defendant challenges the electronics search condition, contending that it: (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it is not reasonably related to future criminal conduct; and (2) is unconstitutionally overbroad. He further contends the condition requiring him to provide passwords to access the electronic storage devices violates the Fifth Amendment.

We held this appeal pending resolution of the primary issue by the California Supreme Court. We have now received the awaited guidance.

In In re Ricardo P. (2019) 7 Cal.5th 1113 at page 1116 (Ricardo P.), our high court held that where there is no evidence defendant had used or will use electronic devices in connection with any illegal activity, the substantial burdens imposed by an electronics search condition are not justified. “The probation condition is not reasonably related to future criminality and is therefore invalid under Lent.” (Ibid.)

In this case, unlike in Ricardo P., the record does contain some evidence that defendant utilized his cell phone to sell drugs. Given defendant’s present offense (possession of drugs for sale) and his documented use of his telephone in connection with that same illegal activity, here the electronics search condition is reasonably related to future criminality, and is therefore valid under Lent.

The electronics search condition, however, sweeps too broadly because its potential impact on defendant’s Fourth Amendment rights exceeds what is reasonably necessary to serve the government’s legitimate interest in ensuring that he complies with the terms of his probation. Accordingly, we shall strike the electronics search condition and remand the case to the trial court to consider whether the condition can be narrowed in a manner that will allow it to pass constitutional muster.

BACKGROUND

Defendant was charged with one count of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) He agreed to plead no contest in exchange for 90 days in jail and five years of formal probation.

The factual basis for defendant’s plea was that on August 10, 2016, officers saw defendant in an area with others; when they tried to contact him, he fled. An officer saw defendant bend down behind a bush for a few seconds and then reappear before he walked back toward the officers. Officers later found a scale and two plastic pill bottles where they had seen defendant. One of the plastic pill bottles contained three wrapped baggies, which contained approximately one gram, three grams, and seven grams of methamphetamine for a total weight of 11.61 grams. During the incident, defendant had a cell phone from which officers recovered a text message indicative of sales.

Defendant requested immediate sentencing and waived referral to the probation department. The trial court placed defendant on five years of formal probation with various conditions, including a boilerplate electronics search condition which read in full as follows:

“P.C. 1546 searchable – Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phone and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent.

“Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices.

“Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search.”

The defense submitted a boilerplate brief on the electronics search condition’s validity and constitutionality. This brief provided no specific information relating to defendant or his current or past crimes, or whether he owned or used any electronic storage devices, and if so, what information was stored on such devices. The People did not respond in writing.

At sentencing, the People requested the electronics search condition be imposed “given the charge” and because there was a text message found on defendant’s cell phone indicative of drug sales. The prosecutor also argued the search term would help enforce the other probation conditions. Defense counsel objected without further comment and submitted the matter based on her brief.

The trial court imposed the contested condition, finding there was a nexus to defendant’s crime given the text message found on his phone and also opining that it was not uncommon for people who traffic in narcotics to use electronic devices for assistance in doing so.

DISCUSSION

I

Probation Search Conditions Generally

Upon granting probation, the court may impose any “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.” (Pen. Code, § 1203.1, subd. (j).)

“The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

The Lent court adopted the three-part test of People v. Dominguez (1967) 256 Cal.App.2d 623: “A condition of probation will not be held invalid unless 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, supra, 15 Cal.3d at p. 486.) “The Lent test is conjunctive–all three prongs must be satisfied before a reviewing court will invalidate a condition of probation.” (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)

II

Ricardo P.

In Ricardo P., supra, 7 Cal.5th 1113, the juvenile was declared a ward of the court after he committed two felony burglaries; he was placed on probation. The juvenile court imposed various probation conditions, including one which required the juvenile to “ ‘[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.’ ” (Id. at pp. 1116-1117.) Ricardo had told a probation officer he committed the crime because he was not thinking and that he had stopped smoking marijuana because it interfered with his ability to think clearly. The court justified the condition on the basis that it believed marijuana was involved in the offense and minors often bragged about marijuana usage on the internet, and it was important to monitor Ricardo’s drug usage. (Ibid.)

On appeal, Ricardo challenged the electronics search condition under Lent, supra, 15 Cal.3d 481. The Court of Appeal upheld the condition under Lent, but found it was unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) Our Supreme Court granted review on whether the electronics search condition satisfied the third prong of Lent, whether it “ ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Id. at p. 1119.)

The high court was skeptical about the juvenile court’s inference that Ricardo was using drugs during the burglaries and the generalization that teenagers tend to brag about drug use online. (Ricardo P., supra, 7 Cal.5th at pp. 1119-1120.) But even accepting these premises, the court noted that cases “upholding probation conditions under Lent’s third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history.” (Id. at p. 1120.) The third prong of Lent “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.) Our high court found the electronics search condition significantly burdens privacy interests due to type and quantity of information stored on electronic devices. (Id. at p. 1123.) Nothing suggested the juvenile had ever used an electronic device or social media in connection with illegal activity. (Ibid.) The court concluded the electronics search condition “imposes a very heavy burden on privacy with a very limited justification.” (Id. at p. 1124.)

Our high court held the electronics search condition “satisfies Lent’s third prong and is therefore invalid under the Lent test because, on the record before us, the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests in furthering his rehabilitation and protecting society.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)

III

Application of Ricardo P. to This Case

Although Ricardo P. involved a juvenile, it is applicable here because “the Lent test governs in juvenile and adult probation cases alike.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)

Here, as in Ricardo P., the issue is the third prong of the Lent test, whether the electronics search condition is reasonably related to future criminality. Unlike in Ricardo P., defendant here was found with a cell phone that included a text message indicative of drug sales. That fact, specific to both defendant and his offense, distinguishes this case from Ricardo P. Given the nature of defendant’s offense and evidence showing his historical use of his cell phone to sell drugs, the burden imposed by the electronics search condition is not substantially disproportionate to its interest in ensuring that defendant complies with the law and does not sell drugs or use an electronic device to do so. Under the particular facts of this case, the electronics search condition is reasonably related to future criminality and is valid under Lent.

IV

Overbreadth

Having determined that the electronics search condition imposed here is reasonable under Lent, we turn to defendant’s contention that the condition is unconstitutionally overbroad because it significantly infringes on his rights to privacy, expression, and association without being sufficiently tailored to the rehabilitative purpose of probation.

Where a condition of supervision impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. (People v. Bauer (1989) 211 Cal.App.3d 937, 942; People v. Olguin (2008) 45 Cal.4th 375, 384 [“ ‘[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’ ”].)

“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 . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands.” (In re White (1979) 97 Cal.App.3d 141, 149-150.) We independently review defendant’s constitutional challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

The United States Supreme Court instructed in Riley v. California (2014) 573 U.S. 373, 378, 396 that searches of electronic storage devices carry the potential for a significant intrusion into a defendant’s private affairs. Our Supreme Court echoed that concern. (Ricardo P., supra, 7 Cal.5th at p. 1123.) We are bound by these authorities. Our colleagues in the Sixth Appellate District observed in People v. Appleton (2016) 245 Cal.App.4th 717 at page 725 that “by allowing warrantless searches of all of defendant’s computers and electronic devices, the condition allows for searches of items outside his home or vehicle, or devices not in his custody—e.g., computers or devices he may leave at work or with a friend or relative.” The scope of a digital search, moreover, is extremely wide. “[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,” (ibid.) as well as information about defendant’s political and religious affiliations, health concerns, hobbies, and social life. (Riley v. California, supra, 573 U.S. at p. 396.)

It is true that the state undoubtedly has a legitimate and significant interest in ensuring that defendant is rehabilitated upon his release on probation (People v. Bauer, supra, 211 Cal.App.3d at p. 942), and the electronics search condition can be understood to serve that purpose by helping to ensure defendant does not violate other conditions of his probation. However, it also permits unlimited intrusion into his private affairs, and does so on a record that demonstrates little likelihood, or even possibility, that evidence of illegal activity will be found in the vast majority of the virtual areas (such as applications and files) that the condition subjects to warrantless search. That defendant’s cell phone contained a text message indicative of sales may support a narrower search condition aimed at this conduct, but it does not adequately support the broad sweep of the challenged electronics search condition.

Similarly, while it is true that defendant accepted probation, and that as a result, his constitutional rights are reduced while on supervision (People v. Robles (2000) 23 Cal.4th 789, 798 [person on probation or mandatory supervision has lessened expectation of privacy]), defendant did not entirely surrender his Fourth Amendment rights by pleading no contest to the present offenses.

The state’s interest in fostering defendant’s rehabilitation could be served through narrower means. We therefore conclude that the electronics search condition is not sufficiently tailored to its purpose and must be modified (if reimposed) to limit authorization of searches of devices, accounts, and applications that are reasonably likely to reveal whether defendant has engaged in drug sales or is otherwise associating with drug users or drug dealers in violation of the terms of his probation.

V

Fifth Amendment Right Against Self-Incrimination

Defendant contends the electronics search condition requiring him to provide any information necessary to access and conduct a search of any electronic storage device violates his privilege against self-incrimination protected by the Fifth Amendment. Because we invalidate the electronics search probation condition on overbreadth grounds, we need not address this contention.

DISPOSITION

The electronics search condition is stricken. As modified, the judgment is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.

/s/

Duarte, J.

We concur:

/s/

Murray, Acting P. J.

/s/

Krause, J.