Opinion
H043507
04-24-2017
THE PEOPLE, Plaintiff and Respondent, v. SOCORRITO GUROLLA FRANCO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1518794)
Defendant Socorrito Gurolla Franco pleaded no contest to possession of methamphetamine for sale and driving with a suspended license. (Health & Saf. Code, § 11378; Veh. Code, § 14601.1, subd. (a).) The trial court suspended imposition of sentence and granted a three-year term of probation with eight months in county jail. Among other probation conditions, the court imposed conditions making Franco's cellular phones subject to warrantless searches and requiring her to provide any passwords or access codes to facilitate such searches.
Franco challenges these conditions as overbroad in violation of her Fourth Amendment rights. She contends a more narrowly tailored condition would serve the state's purposes while still protecting valid privacy interests. We find this argument persuasive. Accordingly, we will narrow the probation condition to allow for a warrantless search of Franco's cell phone limited to text messages, e-mails, voicemails, social media accounts, or any other communication application reasonably likely to be used for the buying or selling of controlled substances. We will affirm the judgment as modified.
I. PROCEDURAL BACKGROUND
The record contains no statement of the facts of the offense. In 2015, the prosecution charged Franco by complaint with four counts: Count 1—transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)); Count 2—possession of methamphetamine for sale (Health & Saf. Code, § 11378); Count 3—bringing a controlled substance or paraphernalia into a prison or jail (Pen. Code, § 4573); and Count 4—driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a).) Franco pleaded no contest to Counts 2 and 4.
The trial court suspended imposition of sentence and granted a three-year term of probation with eight months in county jail. The probation report recommended six probation conditions relating to the use of computers, cellular phones, electronic devices, and the Internet. Franco objected to these conditions as overbroad and unrelated to the offense. The court noted that the probation report recommended these conditions based on Franco's "use of cellular [tele]phones to conduct illegal activities, selling drugs . . . ." Based on the police reports, the prosecutor stated Franco had two cellular phones with text messages showing she was selling methamphetamine and other controlled substances. Counsel for Franco did not dispute those facts, but she argued that the conditions were still overbroad.
Over Franco's objections, the trial court ordered Franco to submit her cellular phones to search by a peace officer without a warrant whenever requested to do so. The court also ordered Franco to provide any password or access code to facilitate the search.
II. DISCUSSION
Franco contends the probation condition allowing for warrantless searches of her phones is overbroad in violation of her Fourth Amendment rights. The Attorney General contends there is no way to narrow the condition while still serving its purpose.
A. Legal Principles
The warrant requirement of the Fourth Amendment extends to the contents of cell phones. (Riley v. California (2014) ___U.S.___ .) Accordingly, a probation condition allowing for the warrantless search of a cell phone implicates the probationer's constitutional rights. (People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton).) "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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "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. (2010) 188 Cal.App.4th 1149, 1153.) We review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
B. Overbreadth of the Probation Condition
Franco does not dispute that her phones contained text messages indicating she was selling methamphetamine and other controlled substances. She acknowledges that the probation condition permitting cell phone searches is related to her offense, and that the state has a legitimate interest in monitoring her cell phone communications to prevent the illegal use of her phones in the future. But she argues that the condition must be more narrowly tailored, limiting searches to information likely to reveal illegal conduct. She proposes the condition be modified to permit only searches of sources of electronic information that are reasonably likely to reveal illegal conduct. She argues that such a narrowing would allow the state to serve its law enforcement purposes without infringing on her right to use her phones for lawful purposes, such as personal finance, political association, religious affiliation, mental health treatment, or medical care. She further contends the condition concerning the provision of passwords should be limited to passwords needed to conduct the permissible searches. She proposes the following condition: "[A]s to any cellular telephone in your possession, a peace officer may review any text or voicemail messages, photographs, e-mails, social-media accounts, or any source of electronic information that are reasonably likely to reveal whether you buy, sell, or possess illicit drugs, and, upon demand of a peace officer, you must reveal any password or access code that permits such an intrusion."
The Attorney General rejects the proposed condition as insufficiently precise. He also points out that "the lawful topics that appellant aims to spare from searches are most likely to be found in the sources that appellant explicitly lists as valid places to be searched." He insists there is no alternative condition that could be more narrowly tailored while still providing direction and clarity.
In Appleton, we rejected the notion that an unlimited, blanket search of a probationer's cell phone is necessarily justified by any slight connection between the cell phone and the offense. (Appleton, supra, 245 Cal.App.4th at p. 725.) We suggested instead that trial courts may be able to specify more narrowly tailored, individualized conditions that allow for searches of those parts of an electronic device related to the nature of the offense. (Id. at p. 727.) We have also recognized, however, that certain offenses may not be amenable to such narrowing. In In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222, for example, the minor held child pornography on his phone, which he used to blackmail the victim. Recognizing that there is no practical way to limit a cell phone search for illicit photographs or videos, we approved of a blanket search probation condition covering all the minor's electronic devices. We also recognized that courts are allowed broader latitude in fashioning probation conditions for juveniles.
According to the parties' statements on the record, Franco's illegal use of her cell phones to sell drugs consisted of communicating with others to facilitate those sales. This particular usage of cell phones is amenable to a more narrowly tailored search condition. Specifically, the search can be limited to cell phone applications that could be used to communicate about buying or selling drugs. (See, e.g., In re P.O. (2016) 246 Cal.App.4th 288, 298 [condition must be modified to limit authorization of warrantless searches of cell phone data and electronic accounts to media of communication reasonably likely to reveal whether minor is boasting about drug use or otherwise involved with drugs].) Accordingly, we will modify the search conditions as follows: "Franco shall make any cell phone under her custody or control available to any peace officer for searching upon request. Any such warrantless search shall be limited to text messages, emails, voicemails, social media accounts, or any other communication application reasonably likely to be used for the buying or selling of controlled substances. Franco shall provide any passwords or access codes necessary to facilitate such a search."
This condition allows the state to search Franco's cell phone for evidence of illegal activity related to the offense for which she was convicted.
We will affirm the judgment as modified.
III. DISPOSITION
The challenged probation conditions are modified as follows: Franco shall make any cell phone under her custody or control available to any peace officer for searching upon request. Any such warrantless search shall be limited to text messages, e-mails, voicemails, social media accounts, or any other communication application reasonably likely to be used for the buying or selling of controlled substances. Franco shall provide any passwords or access codes necessary to facilitate such a search. As modified, the judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
GROVER, J.