• Salvador, 83 CA5 57, 299 CR3 266 (22) #H048162:
Salvador pleaded no contest to felony false imprisonment and misdemeanor sexual battery. The trial court granted a three-year term of probation and imposed, among others, conditions requiring Salvador to consent to searches of his electronic devices, and restricting his use of social media and the Internet.
Salvador challenged the probation conditions allowing for searches of his electronic devices and restricting his use of social media and the Internet. He argued the conditions were invalid under People v. Lent (1975) 15 Cal.3d 481, and are overbroad in violation of his rights under the First and Fourth Amendments.
The Court of Appeal, per Greenwood, PJ, held that all the conditions were valid except that restricting Internet use.
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. People v. Lent, (1975) 15 Cal.3d 481.
All three prongs of the Lent test must be found before a reviewing court will invalidate the condition. The third prong, relating to future criminality, “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” In re Ricardo P. (2019) 7 Cal.5th 1113. This prong “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)
The Attorney General argued that all the conditions were valid under People v. Pirali (2013) 217 Cal.App.4th 1341. But with respect to Internet access, the court stated:
Since [Pirali], the Internet has become even more central and commonplace in the lives of ordinary people; it is now practically unavoidable in daily life. Many more people today use the Internet to work from home, follow the news, or conduct business and commercial transactions such as banking and paying bills. No valid purpose is served by preventing Salvador from engaging in the kinds of Internet access that have become common and ubiquitous—e.g., performing work-related tasks, accessing or commenting on news sites, or conducting commercial or business transactions in ways that require engaging in protected speech. We conclude the limitation we relied on in Pirali—that the probationer could still use the Internet by obtaining prior approval from his probation officer—is not adequate here. Access to some part of the Internet is so necessary and frequent as a part of daily life that it may become unduly burdensome to obtain a probation officer’s approval for every use of it.
More on “Totality of Circumstances” for a Patdown
Back in may we summarized PANTOJA, 77 CA5 483, 299 CR3 85 (22). Recall that in a “high crime area” the officer stopped a silver Dodge for non-working brake and license plate lights. He recognized defendant and knew he “had a history of violence and firearm possession, and he was at the time an investigative lead in a homicide.” He saw no signs defendant was intoxicated. He asked if there was “weed” in the car, and defendant said he did not smoke weed. He asked defendant if he could take a look in the vehicle for contraband, and defendant said no.
The officer ordered defendant out. Defendant was wearing “baggy” clothes and a hoodie. The officer lifted the front of the hoodie and found a revolver.
Suppression affirmed. To justify a pat search for weapons an officer must have a “reasonable suspicion” the detainee may be armed and dangerous. Terry v. Ohio, 392 US 1 (68).
The officer was asked whether he believed defendant was armed or dangerous. He cited defendant’s baggy clothing that “naturally has bulges in it”; and “defendant’s history of weapons” as reasons to pat him down. But when he was asked, “Did you believe he was presently armed and dangerous?” the officer responded, “There’s a good possibility or chance, yes.”
The trial court found this response an indication that the officer’s belief was “all speculative, and he didn’t have any specific or articulable facts to believe that this individual was presently armed or dangerous.” The Court of Appeal affirmed.
Pantoja is distinguished in an unpublished opinion, which I discuss here to remind us that “totality of circumstances” is a grab-bag standard with variables all along the way. This portion of In re Juan A. (2022 WL 15117113, Oct. 27, 2022) is illustrative:
Pantoja is distinguishable from this case. Morales, unlike the officer in Pantoja, immediately conducted a patdown search of Gabriel upon approaching him. Gabriel, unlike the defendant in Pantoja, was not present at his apartment building that happened to be situated in a high crime area. Rather, he was purposefully visiting a memorial site that had particular significance to the Linda Vista 13 criminal street gang, a location known to draw acts of violence. Gabriel was paying respects to the deceased Linda Vista 13 gang member, an activity that increased the likelihood he would arm himself for protection. Unlike Pantoja, in which the defendant’s arrest history was stale, Morales testified to facts indicating there had been shootings at the memorial site within the preceding six months. Accordingly, Gabriel’s citation to Pantoja does not persuade us that his detention and patdown search were unreasonable.
Drones and the 4th Amendment
“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.”
So begins the decision in RaceDayQuads,LLC v. FAA, No. 21-1087 (D.C. Cir. Jul. 29, 2022). The case involved a newly adopted FAA rule requiring drones to carry a “Remote ID.”
Remote ID technology requires drones in flight to emit publicly readable radio signals reflecting certain identifying Information, including their serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smart phones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators. The FAA likens Remote ID to a “digital license plate.”
Tyler Brennan, CEO of RaceDayQuads (“a one-stop drone shop”) moved for review and vacatur of the rule. He argued that the location tracking required by the Remote ID Rule infringes a drone operator’s reasonable expectation of privacy, and thus constitutes a warrantless search in violation of the Fourth Amendment.
The court held:
His request for vacatur of the Rule, amounting to a facial challenge, must fail because drones are virtually always flown in public. Requiring a drone to show its location and that of its operator while the drone is aloft in the open air violates no reasonable expectation of privacy. Brennan hypothesizes that law enforcement authorities could use Remote ID to carry out continuous surveillance of drone pilots’ public locations amounting to a constitutionally cognizable search, or that the Rule could be applied in ways that would reveal an operator’s identity and location at a home or in an otherwise private place. But he has not shown that any such uses of Remote ID have either harmed him or imminently will do so, thus he presents no currently justiciable, as-applied challenge.