Below are three decisions on probation search conditions and juvenile cell phones. All three are from the First Appellate District, but three different divisions. I’m indebted to the legendary Al Menaster for help with the squibs.
- In re Patrick F., 242 CA4 104, 194 CR3 847 (15):
This is a case on juvenile probation conditions requiring the delinquent ward of the court to submit to searches of his electronic devices and social media sites, including passwords.
Patrick F. argued that the search condition imposed by the court was invalid under Lent, 15 C3 481 (75) because it had no relationship to the underlying offense, related to conduct that is not illegal, and was not reasonably related to deterring future criminal activity. He also claimed the condition was unconstitutionally overbroad and poses a risk of illegal eavesdropping.
The court summarized three previous cases, then reached its conclusion:
In In re Erica R. (2015) 240 Cal.App.4th 907, 910–911, 192 Cal.Rptr.3d 919 (Erica R.), Division Two of this court held the condition was invalid under Lent, because it had no relationship to the commitment offense of misdemeanor possession of Ecstasy. Having reached this conclusion, the court found it unnecessary to address the defendant’s constitutional challenge or her claim the probation condition would allow illegal eavesdropping.
In In re Malik J. (2015) 240 Cal.App.4th 896, 899–900, 193 Cal.Rptr.3d 370 (Malik J.), Division Three found the condition to be unconstitutionally overbroad in a case where the defendant’s juvenile probation had been violated based on his possession of marijuana and his commission of three robberies, one of which involved an iPhone. The court in Malik J. modified the search condition to eliminate the requirement that the defendant supply passwords to his social media sites, but allowed a search of the phone itself after it had been disabled from any Internet or cellular connection for the purpose of determining whether it had been stolen.
Most recently, in In re Ricardo P. (2015) 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883 (Ricardo P.) .. .[the] court concluded that although an electronics search condition was valid under Lent because it was reasonably related to monitoring the defendant’s future criminality, the condition was overbroad in allowing the probation officer access to data that was not reasonably likely to reveal whether the defendant was using drugs….
Having had the benefit of our colleagues’ intellectual legwork and thoughtful analyses, we are persuaded by the rationale of Ricardo P., the circumstances of which are the most similar to the case before us. We conclude the challenged electronics search condition, though reasonable under Lent, was overbroad as drafted, and order it modified accordingly. We reject appellant’s contention that the condition must be stricken in its entirety due to the risk of unlawful eavesdropping on third parties.
The minor committed this offense to get money for marijuana, and “access to a teen’s electronic communications and social media can be a useful tool in tracking and monitoring drug transactions, drug usage and communications with other individuals associated with drugs.”
- In re J.B., 242 CA4 749, 193 CR3 589 (15):
The Court of Appeal here strikes down the electronic devices and social media probation condition, since there was “no evidence connecting the juvenile’s electronic device or social media usage to his offense or to a risk of future criminal conduct.” It disagrees with Patrick F.:
In Patrick F. the court limited the search condition to “a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts.” Whether either of these limitations is any limitation at all seems highly doubtful. In Riley v. California, supra, 573 U.S. at p. ––––, 134 S.Ct. at p. 2492, the United States Supreme Court observed that an Arizona v. Gant (2009) 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 standard allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest “would prove no practical limit at all when it comes to cell phone searches.” The Supreme Court also opined that “a rule that would restrict the scope of a cell phone search to those areas of the phone where an officer reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety will be discovered … would again impose few meaningful constraints on officers. The proposed categories would sweep in a great deal of information, and officers would not always be able to discern in advance what information would be found where.” (Riley v. California, supra, at p. ––––, 134 S.Ct. at p. 2492.)
- In re Alexandro R., A144398
And now this panel comes along, agrees with Ricardo P. and disagrees with J.B.
We are unpersuaded by the analysis of J.B. for two reasons. First, in adopting a generic test of reasonableness, J.B. disregarded the actual holding of Olguin [45 C4 375 (08)]. In that case, the Supreme Court’s conclusion that the probation condition reasonably related to future criminal conduct was unrelated to any connection between the condition and the probationer’s past or future crimes. On the contrary, the probationer’s keeping of pets was entirely unrelated to any crime he did or likely would commit. Rather, Olguin concluded a probation condition is reasonably related to future criminal conduct if it permits more effective monitoring of the probationer’s compliance with other probation conditions.3 (Olguin, supra, 45 Cal.4th at pp. 380–381, 87 Cal.Rptr.3d 199, 198 P.3d 1.) Nothing more was required.
Second, contrary to the impression created by J.B., Olguin did not announce a generic test of reasonableness for probation conditions.
Another Pre-McNeely Blood Draw Case
- Jimenez, 242 CA4 1337, ___ CR3 ___ (15): #F067846
Def., driving a truck UI, plowed into a fire hydrant and then a yard, and into two people who died. He told responding officer that he was “coming down off of speed.” He also mentioned he had “blacked out” until he crashed into the hydrant.
Def. was transported to a local hospital, and a blood draw was ordered. Def. was not asked for, nor did he give, consent. The test proved positive for amphetamine and marijuana
Def. moved to suppress the blood evidence, citing McNeely, 569 U.S. ___ (13). When the blood draw was taken, however, McNeely had not been decided and the controlling authority was Schmerber, 384 US 757 (66). The motion was denied.
The Court of Appeal, per Detjen, J., affirmed:
Here, the record shows defendant, after having run over two pedestrians with his truck, informed a hospital nurse he “was withdrawing from methamphetamine.” Paglia, who was present, overheard this remark. In “objectively reasonable reliance” (Davis, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2423]) on Schmerber, then still authoritative, Paglia could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’” (Schmerber, supra, 384 U.S. at p. 770), i.e., the natural evanescence of methamphetamine in the bloodstream. His request for a blood draw to secure evidence of defendant’s drug intoxication fell “within the parameters of the ‘good faith’ exception to the exclusionary rule.” (Rossetti, supra, 230 Cal.App.4th at p. 1076.) Therefore, denial of the motion to suppress was proper.