Filed 11/30/18 In re Ian S. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
| In re IAN S., a Person Coming Under the Juvenile Court Law. |
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| THE PEOPLE, Plaintiff and Respondent, v. IAN S., Defendant and Appellant.
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A152573
(Napa County Super. Ct. No. JV18600)
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Appellant admitted misdemeanor injuring a wireless communication device, a cell phone. The juvenile court declared appellant to be a ward of the court and placed him on probation, imposing various conditions, including an electronics search condition.
On appeal, appellant challenges the electronics search condition, claiming it must be stricken or modified because it is not reasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), and is unconstitutionally vague and overbroad.[1]
We conclude the condition is valid under Lent but overbroad because it infringes on appellant’s rights to privacy and expression without being sufficiently tailored. We therefore modify the condition to limit the types of electronic information that may be searched. In all other respects, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because appellant admitted committing a misdemeanor, we take the facts from the dispositional report.
Deputy Elia of the Napa Police Department was sent to appellant’s residence on August 30, 2017, based on a report of a family disturbance. Appellant’s parents, Mr. and Ms. S., waived down the responding officer and asked her to contact appellant, whom they had just seen walking down the street, to determine if he was under the influence of drugs. When another officer in the area was unable to locate appellant, law enforcement went to appellant’s residence and contacted appellant’s parents again. The parents explained they had been having problems with appellant for a couple of years, and he had undiagnosed mental health issues and a history of methamphetamine use.
Appellant’s parents also stated the previous night, appellant woke up at midnight and began banging on things in the kitchen. According to Ms. S., appellant seemed irritated and in the morning when Ms. S. attempted to wake him up for a job interview, he became belligerent and called Ms. S. a “ ‘fucking cunt.’ ” Ms. S. noted appellant only called her that in the past when he was under the influence of methamphetamine. She also observed appellant appeared thinner than normal and his face was “ ‘sunken in.’ ” Ms. S. did not argue with him because she suspected he was under the influence.
That night, Mr. and Ms. S. woke up appellant, and he became agitated and yelled at them. When Mr. S. confronted his son about his drug use, appellant denied using drugs and uttered profanities. Appellant then told his parents he had a number on speed dial, and all he had to do was call to have Ms. S.’s house burned down to the ground.
Becoming concerned for her safety because she knew appellant associated with some “ ‘unsavory’ ” characters when he was using drugs, Ms. S. told him she did not want him there. Appellant became enraged and jumped out of bed. As Ms. S. started walking downstairs, appellant grabbed a large ceramic vase and raised it towards her as if he was going to hit her with it. When Ms. S. yelled for Mr. S. to help her, appellant began screaming and acting very erratically. After Ms. S. told appellant she was going to call the police and grabbed her cell phone, appellant seized it from her hand and smashed the cell phone on the ground. Appellant then pushed Ms. S. in the upper chest area, almost knocking her to the ground.
Due to appellant’s behavior, his parents decided to leave the house, and while they were entering their vehicle, appellant went upstairs to his room, grabbed his backpack, walked out of the house, and took off running.
A day later, an officer received information appellant had returned to the residence. The officer went to the residence, finding appellant sitting in a chair in the garage. She spoke with appellant who initially denied anything had happened between him and his parents. According to appellant, he was asleep in his bedroom that evening when Ms. S. entered the room and threw his laptop on the floor. Appellant stated his mother yelled at him to “ ‘get the fuck up.’ ” He indicated Ms. S. then opened the blinds and continued to yell and use profanities towards him. Because he did not want to listen to his mother, appellant walked out of the room. At this point appellant claimed he did not remember anything else that happened other than he ran upstairs to get his backpack and left the residence. Appellant told the officer he remembered having a cell phone in his hand “ ‘at some point’ ” but could not remember if it was his or his mother’s cell phone. He denied pushing his mother. When questioned about making threats to have the residence burned down, appellant stated, “ ‘Yeah, like arson is such a big thing these days.’ ”
As the officer spoke with appellant, she did not believe he was under the influence of a drug.
When Mr. and Ms. S. met with a district attorney investigator, they requested correction of “inaccuracies” in the police report about appellant’s threats and violent conduct. Ms. S. said appellant picked up the vase as if he were going to throw it down, and not at her. He then put the vase down. Mr. S. informed the district attorney investigator that appellant never threatened to burn down the house. Rather, while Mr. and Ms. S. and appellant were having an argument, appellant said he “ ‘knew someone’ ” and all he had to do was make a phone call. Appellant pushed a button on his cell phone and spoke into the phone, but Mr. S. believed appellant did not actually place a call to anyone and was only acting. Ms. S. also related that appellant never actually pushed her as indicated in the police report. Though appellant was angry and acting erratically, she believed he was upset about an upcoming job interview and was stressed out.
The Napa County District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a) alleging felony dissuading a witness by force or threat (Pen. Code,[2] § 136.1, subd. (c)(1)), felony criminal threats (§ 422), misdemeanor battery (§ 242), and misdemeanor injuring a wireless communication device (§ 591.5).
Appellant admitted the misdemeanor charge of injuring a wireless communication device, a cell phone, and the prosecutor dismissed the three remaining charges for insufficient evidence. One week later, the court dismissed a supplemental wardship petition alleging one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), finding the petition was “untrue.”
The court at the dispositional hearing declared appellant to be a ward of the court and imposed various probation conditions, including an electronics search condition, the subject of this appeal.
II. DISCUSSION
A. Background
The dispositional report under the heading “SUBSTANCE ABUSE,” listed the frequency of appellant’s drug use and the last time he used various drugs. Up until appellant’s arrest, it is noteworthy that he was smoking marijuana weekly and methamphetamine biweekly. The report commented: “The minor stated he does not consider himself an addict and was experimenting with the majority of the drugs he has used. The minor previously reported he has been using methamphetamine ‘two to three times’ a week, and has been tired and sick. However, the minor said he is not going through ‘withdrawal.’ The minor reported he has been ‘sober’ from methamphetamine for ‘two weeks.’ In addition to methamphetamine, the minor reported he used acid three times in 2017, and smoked marijuana as recent as the day prior to his arrest” in August 2017. The probation officer also expressed concern in the report that appellant has a “history of residential placements along with his escalating behavior.”[3]
The probation officer also noted in May 2017, according to a Contra Costa County Sheriff’s Department report, appellant had a firearm in his waistband and threatened to shoot his mother. He then reportedly put the firearm to his temple and threatened to shoot himself in the head. When law enforcement arrived, officers contacted appellant who was dehydrated, on methamphetamine, violent, and allegedly carrying a gun.
In the “CASE SUMMARY, ASSESSMENT AND PLAN,” the probation officer again expressed concerns about appellant’s lengthy substance abuse history, which had not been addressed in the past, and appellant’s self-reported use of methamphetamine, marijuana, acid, alcohol, and experimentation with crack cocaine.
The report recommended the court impose a condition authorizing warrantless searches of all electronic devices: “The minor submit all electronic devices under their control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer. . . .” Over appellant’s objection, the court imposed this condition reasoning, “Search and seizure also indicated on account of drug issues. And electronic search condition also included on account of persons who want to obtain drugs using electronic communication means to do so.”
B. Analysis
A juvenile court placing a ward on probation “may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b); In re Sheena K. (2007) 40 Cal.4th 875, 889.) The scope of the juvenile court’s discretion in formulating terms of a minor’s probation is greater than that allowed for adult probations “ecause wards are thought to be more in need of guidance and supervision than adults and have more circumscribed constitutional rights, and because the juvenile court stands in the shoes of a parent when it asserts jurisdiction over a minor.” (In re D.G. (2010) 187 Cal.App.4th 47, 52.) The juvenile court’s discretion, however, is not absolute. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.)
A probation condition is invalid under Lent if 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 . . . .” ’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379–380 (Olguin), quoting 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 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.” (Olguin, at pp. 379–380.)
Defendant maintains the electronic search condition must be stricken because it is invalid under all three Lent prongs.
The Attorney General asserts appellant’s electronics search condition is permissible as it is reasonably related to appellant’s present crime and his future criminality. Inasmuch as this search condition is reasonably related to preventing future criminality under Lent, we need not address whether it is also reasonably related to the current crime. (Olguin, supra, 45 Cal.4th at pp. 380–381 [a probation condition “that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality’ ” and does not satisfy the third prong to invalidate a condition under Lent “even if [the] condition . . . has no relationship to the crime of which a defendant was convicted”].)
Here, appellant has a history of drug abuse. As noted in the disposition report, appellant admitted having a substance abuse problem, including regular and recent use of methamphetamines. Appellant’s mother told an officer that appellant had a history of methamphetamine use, and the only time he called her a “ ‘fucking cunt’ ” in the past was when he was under the influence of methamphetamine. During an earlier incident, appellant put a “firearm” to his temple and threatened to shoot himself. When law enforcement arrived and contacted him, the officers observed appellant was dehydrated, on methamphetamine, and violent. Two days after appellant admitted his offense in this case, appellant went to a residence to retrieve his property, Ms. S. called law enforcement for assistance because she knew the residence was a “ ‘bad house’ ” and told the deputies she had seen videos of people there “ ‘doing crank on Snapchat.’ ” When Ms. McIntosh of the Napa Police Department spoke with appellant, he described what was occurring inside this residence, including methamphetamine use among the adults who lived there. Appellant also stated he could not go longer than three days without methamphetamine because “ ‘the withdrawals get so bad,’ ” and significantly, he told Ms. McIntosh his cell phone had “ ‘videos of him on meth’ ” showing how he appeared while on the drug. Moreover, appellant revealed to Ms. McIntosh he had to wait to use methamphetamine again until October 11, because he “ ‘has to drug test with probation.’ ”
Considering the evidence of appellant’s past and present use of methamphetamine and other drugs, we conclude the third prong required under Lent to invalidate a probation condition is not met because the electronics search condition is reasonably related to future criminality. Specifically, the condition enables peace officers and appellant’s probation officer to review his electronic activity for indications he has drugs or is otherwise involved in drug-related activities in violation of his probation. In sum, we cannot say that the court’s given reason for imposing the condition—that a person who wants to obtain drugs can use electronic communication to do so—was speculative or constituted an abuse of discretion. (See In re P.O. (2016) 246 Cal.App.4th 288, 295 [the condition enables peace officers to review minor’s drug activity for indications minor has drugs or is otherwise engaged in activity in violation of his probation].)
Appellant next contends the electronic search condition should be stricken because it is unconstitutionally vague and overbroad, violating his privacy rights, and at a minimum should be modified by limiting searches to text messages and phone numbers. We agree this search condition is overbroad, and thus, must be modified so it does not unduly infringe on appellant’s privacy rights.
We review appellant’s constitutional challenges to this probation condition de novo. (In re P.O., supra, 246 Cal.App.4th at p. 297.)
When a probation condition imposes limitations on 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.’ ” (Olguin, supra, 45 Cal.4th at p. 384; In re Victor L., supra, 182 Cal.App.4th at p. 910.) “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.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “ ‘ “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.” ’ ” (In re Tyrell J. (1994) 8 Cal.4th 68, 82,[b] disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.)
Like other courts, we agree the electronics search condition can implicate constitutional privacy rights. However, we do not find a constitutional impediment to allowing officers to search data likely to reveal drug use or other criminal activities by a minor so long as the electronic search condition is narrowly tailored to promote the minor’s rehabilitation. (In re P.O., supra, 246 Cal.App.4th at p. 298; People v. Appleton (2016) 245 Cal.App.4th 717, 719.) As other courts have observed, many types of data available on a cell phone or electronic device would not fall into the category of revealing drug use or other crimes. (See, e.g., In re P.O., at p. 298; Appleton, at pp. 719, 725 [noting cell phones may hold “a large volume of documents or data, much of which may have nothing to do with illegal activity,” including, for example, “medical records, financial records, personal diaries, and intimate correspondence with family and friends”].)
Here, the juvenile court did not tailor the electronics search condition by limiting the types of data (whether on an electronic device or accessible through an electronic device) that may be searched. Instead, the condition “permits review of all sorts of private information that is highly unlikely to shed any light on whether [appellant] is complying with the other conditions of his probation.” (In re P.O., supra, 246 Cal.App.4th at p. 298.) Appellant’s privacy interests may be infringed, but only to the extent the information searched is reasonably likely to yield evidence of drug use or drug activity, or other criminal activity and noncompliance with probation conditions.
Accordingly, in the interest of expediency, we modify the condition ourselves to permit search of “ ‘text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.’ ” (In re P.O., supra, 246 Cal.App.4th at p. 300.)
III. DISPOSITION
The electronic search condition in the dispositional order dated October 2, 2017, which currently reads: “The minor submit all electronic devices under their control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer. Contraband seized by the probation officer shall be disposed of, stored or returned at the discretion of the probation officer,” is modified to read: “The minor shall submit all electronic devices under their control to a search by the probation officer or a peace officer of any text messages, voicemail messages, photographs, e-mail accounts, and social media accounts (including direct messaging), with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified. Contraband seized by the probation officer shall be disposed of, stored or returned at the discretion of the probation officer.” As so modified, the judgment is affirmed.[4]
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Margulies, J.
We concur:
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Humes, P. J.
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Kelly, J.*
A152573
In re Ian S./People v. Ian S.
[1] The California Supreme Court is currently considering the validity of similar electronic search conditions in a number of cases. (See e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428.)
[2] All statutory references are to the Penal Code unless otherwise indicated.
[3] Program staff had recommended that appellant “continue to be placed in a residential of [sic] therapeutic boarding school . . . .”
[4] Appellant claims the electronic search condition imposed by the court was “vague because it fails to define (i) which electronic devices under [his] control, (ii) what type of data within each electronic device, and (iii) which passwords for particular programs and applications within each device are subject to search.” We conclude the condition, as modified, is sufficiently explicit to overcome any vagueness challenge.
