Filed 1/10/20 P. v. Dorris 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

KEITH EDWARD DORRIS,

Defendant and Appellant.

C083349

(Super. Ct. No. 16FE020327)

Defendant Keith Edward Dorris was charged with criminal threats (Pen. Code, § 422) involving Janelle and Kyle Doe and misdemeanor child endangerment (§ 273a, subd. (b)) committed against Blake Doe. In a negotiated disposition, he pleaded no contest to the related charge of false imprisonment (§ 236). The other charges were dismissed with a Harvey waiver. The trial court imposed the stipulated disposition of five years’ formal probation.

On appeal, defendant contends an electronics search condition of probation is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), a violation of the Electronic Communications Privacy Act (ECPA) and the wiretap statute, violates his Fourth and Fifth Amendment rights, and is unconstitutionally overbroad. We find the condition is valid under Lent because it is reasonably related to monitoring whether he is in compliance with no contact orders imposed as a condition of probation. While the condition does not violate the ECPA, the wiretap statute, or the Fourth or Fifth Amendments, it is unconstitutionally overbroad. We shall strike the condition and remand for the trial court to fashion a narrower condition.

BACKGROUND

We take the facts of defendant’s crime from the factual basis of his plea.

Around October 23, 2016, defendant willfully, unlawfully, and intentionally restrained and confined Janelle Doe against her will, causing her to be unable to leave her home.

Defendant waived the probation report and was sentenced on the day of his plea.

The defense objected to proposed probation condition No. 10, which reads as follows:

“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 phones 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 asserted the condition was invalid under Lent, a violation of the ECPA and the wiretap statute, was unconstitutionally overbroad, and violated the Fifth Amendment self-incrimination privilege.

The prosecution filed a brief supporting the condition. Attached to it was a declaration from Sean E. Smith, a detective with the Sacramento County Sheriff’s Department. The declaration provided Smith’s training and experience, which included training in and experience investigating cyber crimes and conducting forensic examinations of computers and other electronic devices. The declaration also contained assertions regarding examples of electronic evidence found in investigations of various types of crimes and the need to examine electronic devices. Detective Smith asserted those who commit domestic violence offenses often violate restraining, protective, or no-contact orders, and evidence of violations can often be found on electronic devices. The offender may also try to communicate with the victim through electronic devices and may use various programs to avoid detection.

When the trial court asked at sentencing if any electronic device was used in connection with the crime, the prosecutor replied, “The defendant used a telephone to make threatening statements that were the basis of [section] 236 for both victims, against both victims.” Defense counsel objected to the condition and asserted it was unconstitutionally overbroad, stating: “While a telephone was used in this case, this was the only use of the telephone. There [were] no other threats made. That was done once.” Counsel further asserted that defendant had no other history of using electronic devices for criminal activity, with his last conviction happening in 1998.

The trial court found a sufficient factual nexus and imposed the electronics search condition without modification.

DISCUSSION

I

Lent

Defendant asserts the electronics search condition is invalid under Lent, supra, 15 Cal.3d 481. We disagree.

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.]” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “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 . . . .’ [Citation.]” (Lent, supra, at p. 486.) The Lent “test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (Olguin, supra, at pp. 379-380.)

The California Supreme Court recently addressed electronics search conditions under Lent. In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) involved a minor who was placed on probation after admitting to two counts of burglary; one condition of probation was that he “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Id. at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court “imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.) The Court of Appeal found the condition permissible under Lent because it was reasonably related to enhancing the minor’s supervision while on probation, but also found it was unconstitutionally overbroad. (Id. at p. 1116.) The Supreme Court found the condition invalid under Lent. (Ibid.)

The Supreme Court agreed with the Court of Appeal that the first two parts of the Lent test were met here; review was granted to determine “whether the electronics search condition satisfies Lent’s third prong—that is, whether it ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ [Citation.]” (Ricardo P., supra, 7 Cal.5th at p. 1119.) The Supreme Court found the condition satisfied Lent’s third prong and was 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 of furthering his rehabilitation and protecting society.” (Ibid.)

According to the Supreme Court, by requiring a reasonable relationship between the condition and future criminality, Lent “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The condition significantly burdened the minor’s privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at p. 1123.) The record did not support such a significant burden on the minor’s privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.” (Id. at p. 1123.)

The Court of Appeal’s rationale fared no better. It relied on Olguin, which upheld a requirement that the probationer notify the probation officer about pets at his residence as enabling the officer to supervise the defendant, which was reasonably related to the probationer’s future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1124; see Olguin, supra, 45 Cal.4th at pp. 380-382.) “Compared to the minimally invasive pet notification requirement in Olguin, requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Ricardo P., supra, at p. 1125.)

Such was not present in the case before the Supreme Court. “In sum, we hold that the electronics search condition here is not reasonably related to future criminality and is therefore invalid under Lent. Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality. [Citations.]” (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)

This case differs from Ricardo P. in two ways. When asked whether an electronic device was involved with the crime, the prosecutor and defendant’s trial counsel agreed that defendant used a telephone to communicate threats, a reference to the criminal threats count that was dismissed with a Harvey waiver. Defendant asserts this does not tie his criminal activity to electronic devices because a telephone is not an electronic device, as it does not store, generate, or transmit information in electronic form. (See § 1546, subd. (f) [“ ‘Electronic device’ means a device that stores, generates, or transmits information in electronic form”].) We disagree. Although it is unclear whether the parties below were referring to either a cellular phone or a landline phone, even a landline phone transmits information in electronic form by transmitting information (the words spoken into the receiver) via electronic means (through phone lines) to the recipient. (See Noll, Principles of Modern Communications Technology (2001) pp. 154-157.) More importantly, defendant showed a willingness to render threats to others remotely via electronic means. Even if defendant used a landline telephone to threaten in this case, other types of electronic devices can be used to render threats in this manner, such as cell phones and personal computers, through means like calls, texts, instant messages, or e-mails. Electronic devices are thus tied to defendant’s criminal activity in a way that distinguishes Ricardo P.

The ability to render threats through other electronic devices is tied to the second factor distinguishing Ricardo P. As part of the stipulated disposition, the trial court issued a five-year criminal protective order under section 136.2 prohibiting defendant from, among other things, harassing, threatening, or stalking Janelle Doe, Kyle Doe, and Blake Doe, and also imposed without objection a probation condition forbidding contact with Janelle Doe and Kyle Doe and having only peaceful contact with Blake Doe. The electronics search condition enables the probation officer to monitor defendant’s compliance with the protective order and his probation conditions, once again distinguishing Ricardo P. Accordingly, the electronics search condition was reasonable under the circumstances, and the trial court did not abuse its discretion in imposing it. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177 [finding a similar electronics search condition reasonably related to future criminality because it enabled probation officer to monitor the defendant’s gang associations and activities].)

II

ECPA and Wiretap Law

Defendant next agues the condition violates the ECPA and the wiretap law.

Section 1546.1, part of the ECPA, provides in pertinent part that a government entity shall not: “Access electronic device information by means of physical interaction or electronic communication with the electronic device.” (§ 1546.1, subd. (a)(3).)

However, a government entity may access such information, “[e]xcept where prohibited by state or federal law, 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 . . . .” (§ 1546.1, subd. (c)(10).)

Defendant contends this provision does not authorize the condition because it is invalid under Lent and the federal Constitution. While we find the condition overbroad under the federal Constitution, analysis under the ECPA is unnecessary as any remedy can be effected through application of the overbreadth doctrine rather than the ECPA.

The wiretap statute, section 631, subdivision (a), prohibits any person from making “any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, . . . willfully and without the consent of all parties to the communication, or in any unauthorized manner” to try to read, obtain, or use, any information so obtained. It “applies to the interceptions of wire and electronic communications. It does not apply to stored communications or stored content.” (§ 629.51, subd. (b).)

Defendant contends the condition violates the wiretap law because it does not limit the form a search can take. A search of information stored on electronic devices is not covered by the wiretap law and therefore does not violate it. The very broad electronics search condition here could be read to violate the wiretap law by authorizing real time searches of communications. However, since we are remanding the condition to be rewritten by the trial court, any possible conflict with the wiretap statute can be addressed at that time.

III

Fourth Amendment

Defendant contends the condition violates his Fourth Amendment right against unreasonable searches and seizures.

We review constitutional challenges to a probation condition de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.) “The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order ‘ “to safeguard the privacy and security of individuals against arbitrary invasions. . . .” ’ [Citation.] Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” (Delaware v. Prouse (1979) 440 U.S. 648, 653-654 [59 L.Ed.2d 660, 667-668], fns. omitted.) Defendant argues that the intrusion on his Fourth Amendment interests, composed of the substantial scope of his interest and the extraordinary extent of the intrusion, along with the intrusion upon the privacy interests of third parties, outweighs the admittedly “important” government interest in preventing recidivism and integrating probationers back into the community. Citing U.S. v. Lara (9th Cir. 2016) 815 F.3d 605, 610, defendant argues that even though his privacy interest is limited by his probation status, it is still substantial. However, Lara decided the reasonableness of a probation search of the probationer’s cell phone data pursuant to a condition that he “ ‘submit [his] person and property, including any residence, premises, container or vehicle under [his] control, to search and seizure . . . .’ ” (Id. at p. 607.) Thus, Lara involved a search condition that did not clearly apply to the search that was conducted. (Id. at p. 610.) Lara recognized the United States Supreme Court held in United States v. Knights (2001) 534 U.S. 112, 119-120, [151 L.Ed.2d 497, 505], that “a probationer’s reasonable expectation of privacy is ‘significantly diminished’ when the defendant’s probation order ‘clearly expressed the search condition’ of which the probationer ‘was unambiguously informed.’ [Citation.]” (Lara, supra, at p. 610.) As the issue is presented here, before an actual search and after defendant has accepted the conditions of probation, defendant’s expectation of privacy as to the Fourth Amendment protections he has waived, are not substantial, as he claims.

Defendant’s other claim regarding the intrusion into his Fourth Amendment interests is that the intrusion set forth in the probation condition is “immense.” For this proposition, he cites Riley v. California (2014) 573 U.S. 373, 393 [189 L.Ed.2d 430, 446]. However, Riley also involved a preconviction expectation of privacy, because the issue was whether cell phone data could be searched incident to arrest. (Id. at pp. 378-379.) A probationer who has been granted probation on the condition he or she submit to a warrantless search has no reasonable expectation of traditional Fourth Amendment protection. (People v. Ramos (1994) 34 Cal.4th 494, 506 [“by accepting probation, a probationer consents to the waiver of Fourth Amendment rights in order to avoid incarceration”].) The state’s interests, on the other hand, are substantial. “[A] State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. [Citations.]” (Samson v. California (2006) 547 U.S. 843, 853 [165 L.Ed.2d 250, 260].) Thus, probation searches are one of the exceptions to the warrant requirement. (People v. Douglas (2015) 240 Cal.App.4th 855, 860, 865.) On balance, and for the additional reasons that the search condition is valid under Lent, we conclude the electronics device search condition is not an unreasonable search condition, even though we also conclude the condition is overbroad under the circumstances presented here.

IV

Fifth Amendment

Defendant contends the condition violates his Fifth Amendment privilege against self-incrimination by requiring him to essentially testify to the existence of information, data, passwords and accounts, and to testify regarding his knowledge of, access to, possession of, or control of data about which the government otherwise would not know. Finding this “compelled production and acknowledgment of massive quantities of data/evidence, could easily include incriminating material,” he concludes it is forbidden by the Fifth Amendment privilege.

“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.] At its core, the privilege protects against the ‘cruel trilemma of self-accusation, perjury or contempt.’ [Citation.] Accordingly, the 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. [Citations.]” (People v. Low (2010) 49 Cal.4th 372, 389-390.)

The condition does not implicate defendant’s 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 [147 L.Ed.2d 24, 35-36].) Even assuming arguendo that the search condition, by requiring the disclosure of defendant’s passwords, amounts to “compelled testimonial communications” (Fisher v. United States (1976) 425 U.S. 391, 409 [48 L.Ed.2d 39, 55]), the condition does not violate defendant’s Fifth Amendment right against self-incrimination because it does not authorize the use of any compelled statements in a criminal proceeding. As our Supreme Court has explained, “the Fifth Amendment does not provide a privilege against the compelled ‘disclosure’ of self-incriminating materials or information, but only precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.” (Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1134.) There is no such use contemplated here. Because the condition does not purport to authorize the use of any compelled testimonial communication against defendant in a criminal proceeding, it does not violate the Fifth Amendment.

V

Overbreadth

We agree with defendant that the condition here is unconstitutionally overbroad.

“ ‘[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.’ [Citations.]” (Olguin, supra, 45 Cal.4th at p. 384.) “A restriction is unconstitutionally overbroad . . . if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ [Citations.]” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “ ‘A statute or regulation is overbroad if it “does not aim specifically at evils within the allowable area of [governmental] control, but . . . sweeps within its ambit other activities that in the ordinary circumstances constitute an exercise” of protected expression and conduct.’ [Citation.]” (People v. Leon (2010) 181 Cal.App.4th 943, 951.) “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., supra, at p. 1153.)

The electronics search condition can be applied to defendant only because he remotely communicated threats to victims through electronic means. Detective Smith’s declaration does not provide a broader justification for the condition, as that type of generic evidence can no longer support an electronics search condition after Ricardo P. Just as the Supreme Court found the juvenile court’s general observations about minor’s posting drug use online could not support an electronics search condition (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123), we likewise find Detective Smith’s declaration provides no support for the search condition before us. The condition is valid only to the extent it allows law enforcement to determine whether defendant is rendering threats electronically or by using such means to violate the protective orders.

The electronics search condition here is extremely broad, allowing searches of any type of electronic storage device and all data therein. While defendant’s electronic devices can be searched to determine if he is making improper communications to others, there is considerable data that is not the proper subject of a warrantless search. “Mobile application software on a cell phone, or ‘apps,’ offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life.” (Riley v. California, supra, 573 U.S. at p. 396.) Likewise, a person’s Internet search history could reveal health concerns, and a cell phone can also provide a person’s location over time. (Id. at pp. 395-396.) Personal computers and tablets have similar capabilities and raise the same privacy issues when subject to the comprehensive search condition is the present case. The condition thus exposes defendant to the discovery of much information not related to the justification for the condition.

We find the electronics search condition impinges on defendant’s Fourth Amendment rights and is unconstitutionally overbroad. (People v. Appleton, supra, 245 Cal.App.4th at p. 724.) As currently stated, the condition “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.” (Id. at p. 725.) We therefore conclude that the condition is not sufficiently tailored to its purpose and must be modified to limit authorization of searches to e-mail and Internet accounts that are reasonably likely to reveal whether defendant has engaged in rendering threats or violating the protective orders.

DISPOSITION

The electronics search condition (condition No. 10) is stricken. The matter is remanded to the trial court with directions to tailor the electronics search condition more narrowly in accordance with this opinion. In all other respects, the judgment is affirmed.

/s/

RAYE, P. J.

We concur:

/s/

BLEASE, J.

/s/

KRAUSE, J.