Filed 1/31/18 P. v. Amey CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Following a no contest plea, defendant Paul Amey, Jr. was convicted of first degree residential burglary and possession of burglar’s tools. Defendant’s sole contention on appeal is that one of the conditions of his probation, which required him to provide passwords for electronic devices, is both unreasonable under governing case law and unconstitutionally overbroad. We agree that the condition is overbroad and order it modified to conform to constitutional requirements.

FACTUAL AND PROCEDURAL BACKGROUND

As recounted at the preliminary hearing, on October 28, 2015, Officer Matthew Parnow of the Petaluma Police Department was dispatched to the residence of Tricia Lyons. When Parnow arrived, Lyons reported that her purse had been stolen from a vehicle parked in the garage attached to the residence. Lyons explained that she had gone out to the garage, opened the garage door, started her vehicle, and placed her purse on the passenger seat. She then went back into the residence and returned about 30 seconds later to discover her purse missing from the vehicle.

The purse was recovered shortly thereafter, but Lyons’s iPhone was missing from the purse. Defendant was apprehended and eventually admitted his involvement in the incident. The investigating officer advised defendant that the victim’s iPhone was missing and that she wanted to get it back. Defendant told the officer that an acquaintance named Delia had it, and defendant proceeded to call her to try to get it back. The iPhone was returned to Lyons two days later. According to the probation report, the iPhone was left at the victim’s residence in a brown paper bag, along with a note reading, “He didn’t do it. We all make mistakes.”

Defendant was charged with and subsequently pled no contest to first degree residential burglary and possession of burglar’s tools. At sentencing, the prosecution requested that defendant, as a condition of probation, be required to provide passwords for any electronic devices. Defense counsel objected on the ground that there was not “a nexus between the circumstances in this case that would justify that term.” The trial court disagreed, noting that “[t]his was a theft in which Mr. Amey explained that he was in the area at the casino gambling. He does have a history of drugs and thefts in his background, which I believe provides sufficient nexus for that.” Accordingly, the trial court ordered defendant “to provide passwords to allow search of all electronic devices.” Defendant timely appeals, renewing his claim that this probation condition is invalid.

DISCUSSION

“Generally, ‘[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.]’ [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.) In addition, a trial court “may not adopt probation conditions that are constitutionally vague or overbroad.” (In re Malik J. (2015) 240 Cal.App.4th 896, 901 (Malik J.).)

“While we generally review the court’s imposition of a probation condition for abuse of discretion, we review constitutional challenges to probation conditions de novo. [Citation.] In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified.” (Malik J., supra, 240 Cal.App.4th at p. 901.) With these principles in mind, we turn to the probation condition at issue here.

Defendant correctly notes that “there is no evidence that [he] has used an electronic device to engage in misconduct.” It does not follow, however, that the probation condition has no relationship to the crime of which he was convicted. Rather, as the trial court observed, defendant was “a career thief.” Moreover, the stolen property in the present matter included an iPhone that, after the theft, somehow made its way out of the victim’s purse and into the hands of one of defendant’s acquaintances. Unlike the purse, which was recovered almost immediately, the iPhone was not returned to the victim until two days later. As we explained in Malik J., supra, 240 Cal.App.4th at pages 903–904, it was thus entirely reasonable for the trial court to require defendant to provide passwords to enable law enforcement officers to determine ownership of any electronic devices in his custody or control.[1]

While we conclude that the probation search condition is valid for the limited purpose of searching electronic devices to determine their legal owners, we agree that the search condition is overbroad to the extent it permits unfettered searches of communications on such devices. (Malik J., supra, 240 Cal.App.4th at p. 902.) “[O]fficers must show due regard for information that may be beyond a probationer’s custody or control or implicate the privacy rights of the probationer or third parties. Officers should not be allowed to conduct a forensic examination of the device utilizing specialized equipment that would allow them to retrieve deleted information that is not readily accessible to users of the device without such equipment. They should also first disable the device from any Internet or cellular connection. These measures will limit a search to information that is stored on the device and accessible to the probationer, and thus in the probationer’s possession and subject to his or her control.” (Id. at pp. 903–904.)

DISPOSITION

The electronic search condition is ordered modified to authorize warrantless searches of electronic devices in defendant’s custody and control only after the devices have been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the devices. (Malik J., supra, 240 Cal.App.4th at p. 906.) As so modified, the judgment is affirmed.

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McGuiness, Acting P.J.*

We concur:

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Siggins, J.

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Jenkins, J.

A148994