Opinion
E069203
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. NICOLE ARIELE SMITH, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Britton B. Lacy and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17002206) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Britton B. Lacy and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Nicole Ariele Smith smuggled three bindles of marijuana into a prison facility in a secret compartment fashioned into a feminine hygiene pad she wore. Subsequently, she pled no contest to possession of contraband in prison (Pen. Code, § 4573.5). In return, defendant was placed on formal probation for a period of three years on various terms and conditions of probation, including an electronic device search condition. On appeal, defendant argues (1) the electronic device search condition is unconstitutionally overbroad and violates her Fourth Amendment rights, and (2) the electronic device search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police reports.
On May 9, 2015, defendant attempted to bring 3.44 grams of marijuana into a prison where her fiancée was incarcerated. Based on a tip from a confidential informant, prison officials detained defendant and asked her permission to search her person. After defendant refused to consent to a search of her person, a search warrant was obtained and executed. Three white latex bindles of marijuana were found tucked into a pocket created inside a feminine sanitary napkin defendant was wearing. Prison officials also searched defendant's car and cell phone. There was no evidence of illegal activity either on the cell phone or in her car.
Following a preliminary hearing, on October 23, 2015, in San Luis Obispo County Superior Court, an information was filed charging defendant with one count of possession of contraband, to wit, marijuana, in prison (§ 4573.6, subd. (a)).
On April 3, 2017, defendant pled no contest to section 4573.5 as charged. In return, the San Luis Obispo County Superior Court placed defendant on formal probation for a period of three years on various terms and conditions of probation, including an electronic device search condition. Specifically, the term stated: "Submit to search of any mobile electronic device used to store or transmit digital information under your control, at any time, with or without probable cause, by a Probation Officer or other law enforcement officer."
The San Luis Obispo County Superior Court also imposed a search condition requiring defendant to "Submit to a search or seizure of your person, possessions, residence and any vehicle under your control, with or without probable cause, at any time of the day or night, by a Probation Officer or any law enforcement officer" pursuant to People v. Bravo (1987) 43 Cal.3d 600 (Bravo).
On May 31, 2017, the San Luis Obispo County Probation Department filed a notice and motion to transfer defendant's case to San Bernardino County.
On August 1, 2017, after the San Bernardino County Probation Department verified that defendant permanently resided in San Bernardino County, the San Luis Obispo County Superior Court granted the motion to transfer defendant's case to San Bernardino County.
On September 13, 2017, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County, including that defendant "Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to P[enal ]C[ode section ]1546.1 [subdivision] (c)(10)."
On September 26, 2017, the San Bernardino County Superior Court held a probation modification hearing. At that time, the trial court and the parties mistakenly believed that the terms and conditions of probation imposed by the San Luis Obispo Superior Court did not include the Bravo search condition or the electronic device search condition. Unaware that the conditions had previously been imposed, defense counsel argued that the San Bernardino County Superior Court could not add probationary terms, because a transfer between counties did not constitute a change in circumstances required to modify probationary terms. Defense counsel also objected to the imposition of the electronic device search condition as unconstitutionally overbroad and not reasonably related to defendant's offense of possession of marijuana in prison. The trial court disagreed with defense counsel's arguments and reimposed both of the preexisting search conditions that had been imposed by the San Luis Obispo Superior Court. The court noted that "people who deal in elicit substances tend to do that electronically, and that could be evidence of somebody not comporting with what we have of expectations of a successful probationer." As modified, the court thereafter continued defendant on probation under various terms and conditions of probation.
On September 27, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant contends the probation condition requiring her to submit her electronic devices to search or seizure by law enforcement officers is invalid under Lent, unconstitutionally overbroad, and in violation of her Fourth Amendment rights. For the reasons explained below, we disagree.
A. Applicable Principles
A grant of probation is an act of clemency in lieu of punishment. (People v. Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege, and not a right. A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil).)
A condition of probation will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); see Lent, supra, 15 Cal.3d at p. 486.) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) "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; accord, People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).)
We generally review the imposition of probation conditions for an abuse of discretion, and we independently review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).) Based on the foregoing, we address the merits of defendant's arguments below.
B. Analysis—Reasonableness
Defendant's electronic device search condition states: "Submit to a search and seizure (electronic device) by a government entity of any electronic device that you are an authorized possessor of pursuant to P[enal ]C[ode Section ]1546.1[, subdivision ](c)(10)." Defendant argues that the electronic device search condition has no relationship to the crime of which defendant was convicted, and it involves conduct that is not itself criminal. Defendant further contends that the electronic device search condition is not reasonably related to future criminality because there was no evidence connecting her use of an electronic device to her offense or to a risk of future criminal conduct.
We note that defendant did not object to the electronic device search condition at the time it was imposed by the San Luis Obispo Superior Court. However, since the San Bernardino County Superior Court allowed defendant to object to this condition when the case was transferred, defendant did not forfeit her claims. --------
The People do not address the first two Lent prongs—the electronic device search condition has no relationship to defendant's possession of marijuana in prison offense, and the use of electronic devices is not itself criminal. Rather, the parties agree that the validity of the electronic device search condition turns on the application of the third Lent factor—whether the electronic device search condition is reasonably related to preventing future criminality. (See Olguin, supra, 45 Cal.4th at p. 379.)
The issue of the validity of an electronic device search condition under Lent and its progeny is pending before our high court. (See, e.g., People v. Ermin (July 10, 2017, H043777) [nonpub. opn.], review granted Oct. 25, 2017, S243864; People v. Nachbar (2016) 3 Cal.App.5th 1122 (Nachbar), review granted Dec. 14, 2016, S238210; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re Ricardo P. (2015) 241 Cal.App.4th 676 (Ricardo P.), review granted Feb. 17, 2016, S230923.) We also note that currently there is a split of authority regarding the validity of broad electronic device search conditions of probation, and those cases are also pending before the California Supreme Court. (See People v. Trujillo (2017) 15 Cal.App.5th 574 (Trujillo), review granted Nov. 29, 2017, S244650; People v. Bryant (2017) 10 Cal.App.5th 396 (Bryant), review granted June 28, 2017, S241937; In re R.S. (2017) 11 Cal.App.5th 239, review granted July 26, 2017, S242387; In re Patrick F. (2015) 242 Cal.App.4th 104 (Patrick F.), review granted Feb. 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re J.E. (2016) 1 Cal.App.5th 795 (J.E.), review granted Oct. 12, 2016, S236628.) Until we receive further direction, we must undertake to resolve this case as best based on our construction of the applicable law.
Our colleagues in Division One of this court addressed a challenge by a defendant subjected to an electronics-search probation condition in Trujillo, supra, 15 Cal.App.5th 574, which we discuss in detail for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).) The defendant's crime had no relation to the probation condition, and the main issue, as here, is whether the condition was reasonably related to future criminality. The court explained that "a probation condition 'that enables a probation officer to supervise his or her charges effectively is . . . "reasonably related to future criminality." ' [Citations.] Because the probation officer is responsible for ensuring the probationer refrains from criminal activity and obeys all laws during the probationary period, the court may appropriately impose conditions intended to aid the probation officer in supervising the probationer and promoting his or her rehabilitation. [Citations.] 'This is true "even if [the] condition . . . has no relationship to the crime of which a defendant was convicted." ' " (Trujillo, at p. 583, italics omitted.)
In Trujillo, our colleagues held the trial court did not abuse its discretion: "If the court permits this young convicted felon to avoid prison through probation despite his violent offenses, the court has the authority to take steps to help ensure Trujillo will remain crime free and that public safety objectives are satisfied. As our high court has observed, the purpose of requiring Fourth Amendment search waivers as a probation condition is ' " 'to determine not only whether [the probationer] disobeys the law, but also whether he obeys the law. Information obtained [from an unexpected and unprovoked search] afford[s] a valuable measure of the effectiveness of the supervision given the defendant . . . .' " ' [Citations.] The trial court had a reasonable basis to conclude the most effective way to confirm Trujillo remains law abiding is to permit his electronic devices to be examined, rather than relying on a meeting or a telephone conversation. This required Fourth Amendment waiver is not open-ended, it applies only during the probation period. If Trujillo is successful at his probation, the Fourth Amendment waiver will terminate and his electronic devices will again be completely private. The court made the factual determination that the electronics-search condition is necessary to provide appropriate supervision for Trujillo while he is on probation. Under Lent and Olguin, the court did not err in reaching this conclusion." (Trujillo, supra, 15 Cal.App.5th at pp. 583-584.) The Trujillo court further rejected the notion, suggested in cases such as In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.), that the Trujillo defendant's failure to use an electronic device in committing his crimes or the lack of any connection between such a device and the crimes rendered the search condition unreasonable as a matter of law. (Trujillo, at p. 584.)
We are persuaded by Trujillo's reasoning and apply it in this case. Moreover, pending further guidance from the Supreme Court, we take the Olguin opinion at its word: "A condition of probation that enables a probation officer to supervise his or her charges more effectively is . . . 'reasonably related to future criminality.' " (Olguin, supra, 45 Cal.4th at pp. 380-381.) In this case, the trial court was aware that defendant had pleaded guilty to possession of marijuana in prison. The electronic device search condition at issue here allows law enforcement to supervise defendant more effectively. Her conditions of probation include violating no laws; cooperating and following all reasonable directives of the probation officer; not possessing dangerous or deadly weapons; not using or possessing controlled substances unless prescribed by a medical professional; not knowingly associating with convicted felons or anyone actively engaged in criminal activity or the codefendant; not possessing drug paraphernalia as defined in Health and Safety Code section 11364.5, subdivision (d); and participating in rehabilitative programs as directed by her probation officer. Searching defendant's electronic devices will assist law enforcement in determining whether she is complying with these conditions.
Indeed, given the current ubiquity of electronic communications and interactions, an electronic device search condition may well be the only way for a probation officer to discover the bulk of the information relevant to potential criminality and compliance with other conditions of probation. While there was no evidence of defendant's offense found on her cell phone in this case, a defendant engaged in illegal activities, for example, is much more likely to have digital photographs or communications relating to such activities stored on an electronic device than print photographs and written correspondence stored at home. The electronic device search condition is therefore reasonably related to future criminality. (See In re P.O. (2016) 246 Cal.App.4th 288, 295; see J.E., supra, 1 Cal.App.5th at p. 801; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177.) We conclude the court did not abuse its discretion in ordering the condition under Lent, supra, 15 Cal.3d 481.
Defendant cites Bryant, supra, 10 Cal.App.5th 396 to support her position. However, Bryant dealt with a search condition regarding a mandatory supervision case instead of probation. (Id. at p. 400.) Indeed, the court explained "Although mandatory supervision is comparable in some ways to probation, it is not identical. [Citation.] A defendant who is offered probation, for example, may refuse probation if he ' "finds the conditions of probation more onerous than the sentence he would otherwise face." ' [Citation.] In contrast to a defendant who is given probation, however, a defendant may not refuse mandatory supervision. [Citation.]" (Ibid.) Therefore, defendant's reliance on Bryant is unavailing.
Furthermore, we disagree with the reasoning of Bryant, supra, 10 Cal.App.5th at page 404, because it requires a showing that the defendant has used or is likely to use electronic devices for criminal acts. This requirement goes beyond the third Lent prong as interpreted by Olguin, supra, 45 Cal.4th 375. Although we agree that Olguin does not "compel[ ] a finding of reasonableness for every probation condition that may potentially assist a probation officer in supervising a probationer" (People v. Soto (2016) 245 Cal.App.4th 1219, 1227), Olguin does not require a showing that the method of supervision is likely to be particularly effective for the specific defendant at issue. Effectiveness in general is sufficient.
Olguin implies that a probation condition premised on effective supervision may be unreasonable if it imposes an undue hardship or burden. (Olguin, supra, 45 Cal.4th at p. 382.) Defendant emphasizes the broad intrusive nature of the electronic device search condition, the invasiveness of any such searches, and the consequent burden on her privacy interests. (See generally Riley v. California (2014) 573 U.S. ___ (Riley).) We disagree that such a burden makes the electronic device search condition unreasonable.
In our view, the electronic device search condition (and consequent burden) is akin to the standard three-way search condition—of a defendant's person, residence, and vehicles—routinely imposed as a condition of probation and required by regulation as a condition of parole. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 505-506; People v. Burgener (1986) 41 Cal.3d 505, 532, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753; In re Binh L. (1992) 5 Cal.App.4th 194, 202-203.) One appellate court recognized that a computer hard drive is the digital equivalent of its owner's home in terms of the breadth of private information involved. (People v. Michael E. (2014) 230 Cal.App.4th 261, 277, citing United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1351.) It follows that, just like a defendant's home, a computer hard drive is properly and reasonably the subject of a search condition. Defendant has not shown the trial court's imposition of the electronic device search condition encompassing such digital information was unreasonable or an abuse of discretion.
C. Analysis—Unconstitutionally Overbroad and Violation of Fourth Amendment
As noted, defendant also challenges the electronic device search condition as unconstitutionally overbroad and because it infringes on her Fourth Amendment constitutional rights. We disagree.
" '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.' [Citation.] '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.' " (Pirali, supra, 217 Cal.App.4th at p. 1346.) Here, the record reflects some evidence of the legitimate purpose of the restriction, as we have discussed above: preventing future criminality by promoting effective supervision. The condition may place a burden, in the abstract, on defendant's general right to privacy based on the possibility of a search of her electronic devices. But, as a defendant under probation supervision, her privacy rights are "diminished," i.e., they may more readily be burdened by restrictions that serve a legitimate purpose. (See Nachbar, supra, 3 Cal.App.5th at p. 1129; J.E., supra, 1 Cal.App.5th at p. 805.) On the current record, we conclude the burden on defendant's privacy right is insufficient to show overbreadth, given the legitimate penological purpose shown for searching defendant's electronic devices.
Additionally, as our colleagues did in Trujillo, we reject defendant's argument that the electronic device search condition is unconstitutionally overbroad as violating his fundamental privacy rights under Riley, supra, 573 U.S. ___ . In Riley, the Unites States Supreme Court held that the warrantless search of a suspect's cell phone implicated and violated the suspect's Fourth Amendment rights. (Riley, at p. ___ [134 S.Ct. at pp. 2482-2483].) The court explained that modern cell phones, which have the capacity to be used as mini-computers, can potentially contain sensitive information about a number of areas of a person's life. (Id. at p. ___ .) The court emphasized, however, that its holding was only that cell phone data is subject to Fourth Amendment protection, "not that the information on a cell phone is immune from search." (Riley, at p. ___ .)
In Trujillo, the appellate court distinguished Riley, and followed authority explaining that the overbreadth analysis is materially different from the warrant requirement at issue in that case. (Trujillo, supra, 15 Cal.App.5th at p. 587.) The court observed that probationers do not enjoy the absolute liberty to which law-abiding citizens are entitled, and that courts routinely uphold broad probation conditions permitting searches of a probationer's residence without a warrant or reasonable cause. (Id. at pp. 587-588.) Like the defendant in Trujillo (id. at pp. 588-589), defendant does not challenge the probation condition authorizing officers to conduct random and unlimited searches of her residence at any time and for no stated reason, and she made no showing that a search of her electronic devices would be any more invasive than an unannounced, without-cause, warrantless search of her residence. Here, as in Trujillo, the record supports a conclusion that the electronic device search condition is necessary to protect public safety and to ensure defendant's rehabilitation during her supervision period, and a routine search of defendant's electronic data "is strongly relevant to the probation department's supervisory function." (Id. at p. 588.) We adopt a similar conclusion as Trujillo: "Absent particularized facts showing the electronics-search condition will infringe on [defendant's] heightened privacy interests, there is no reasoned basis to conclude the condition is constitutionally overbroad or to remand for the court to consider a more narrowly drawn condition." (Id. at p. 589.)
Relying on People v. Valdivia (2017) 16 Cal.App.5th 1130 (Valdivia), review granted February 14, 2018, S245893, defendant argues that just because she might use her cell phone in the future for illegal activity is highly suspect. She also asserts that the trial court's reasoning imposing the electronic device search condition was invalid because there was no basis to believe she was a drug user or a drug dealer.
In Valdivia, supra, 16 Cal.App.5th 1130, the defendant pled no contest to inflicting corporal injury on his spouse and was sentenced to probation. One of the conditions of probation permitted warrantless searches of electronic storage devices under the defendant's control and required him to provide necessary passwords to facilitate any such search. The Valdivia court concluded that the condition was valid under Lent since it would permit the probation officer to ensure that the defendant was obeying all laws. However, relying on Riley, the court further concluded that the probation condition was unconstitutionally overbroad under the Fourth Amendment because its authorization of warrantless searches of electronic storage devices "carrie[d] the potential for a significant intrusion into [the] defendant's private affairs—even more so than the standard [search] condition" also imposed on the defendant. (Valdivia, at p. 1144.)
In reaching this conclusion, the court stated, "[A]t the same time the electronic storage device search condition serves the state's legitimate interest in monitoring [the] defendant's rehabilitation, it permits unprecedented intrusion into his private affairs—and it does so on a record that demonstrates little likelihood, or even possibility, that evidence of illegal activity will be found in the devices the condition subjects to a warrantless search." (Valdivia, supra, 16 Cal.App.5th at p. 1145.) The Valdivia court noted that the record did not show that electronic devices played any role in the underlying criminal conduct in the case before it, and that there was "nothing in the record to demonstrate that defendant 'use[d] electronic devices for wrongful purposes in the past.' " (Ibid.) The court concluded that under such circumstances, there was no substantial reason to believe that evidence of future criminal activity was likely to be found on electronic storage devices under the defendant's control. The Valdivia court struck the challenged condition and remanded, determining that the issue "[w]hether the condition [could], as a practical matter, be narrowed in a manner that will allow it to pass constitutional muster" was most appropriately addressed by the trial court in the first instance. (Id. at p. 1147.)
We find Valdivia inapplicable. In Valdivia, the court rejected the electronic device search condition as unduly overbroad based on the decisions in Riley, supra, 573 U.S. ___ and Appleton, supra, 245 Cal.App.4th 717. In Appleton, the court found a penological justification in preventing the defendant from "us[ing] social media to contact minors for unlawful purposes." (Id. at p. 727.) Given that limited justification, the court struck a general electronic device search condition and remanded the matter to the trial court to craft a narrower condition. (Ibid.) Moreover, in Appleton, the court rejected an electronic device search condition on the premise that Riley held that police could not ordinarily search a smartphone incident to arrest, and that, absent other exigent circumstances, a warrant was required to make such a search. However, the court in Trujillo, supra, 15 Cal.App.5th 574, and Nachbar, supra, 3 Cal.App.5th 1122 disagreed with Appleton. We recognize that our high court has granted review in Trujillo and Nachbar pending resolution of Ricardo P., supra, 241 Cal.App.4th 676. Pending further direction from our high court, we continue to adhere to the views expressed in Trujillo and Nachbar, namely, that the "privacy concerns voiced in Riley are inapposite in the context of evaluating the reasonableness of a probation condition." (Nachbar, at p. 1129.)
The Riley court did not hold that electronic devices are immune from search, but only that they cannot be searched incident to lawful arrest as an ordinary exception to the warrant requirement. (See Riley, supra, 573 U.S. ___ .) However, the instant case does not involve an exception to the warrant clause, as was the case in Riley. Rather, it involves a specific probation condition imposed by the trial court that restricts the exercise of the constitutional rights of defendant, who must be supervised for rehabilitation and prevention of crime. Riley is therefore inapposite since it arose in a different Fourth Amendment context. Riley also did not consider the constitutionality of conditions of probation, parole, or mandatory supervision. Persons on probation do not enjoy the absolute liberty to which every citizen is entitled and the court may impose reasonable conditions that deprive an offender of some freedoms enjoyed by law-abiding citizens. (United States v. Knights (2001) 534 U.S. 112, 119 [probationers]; see In re Q.R. (2017) 7 Cal.App.5th 1231, 1238, review granted Apr. 12, 2017, S240222 [Riley involved a person's "preconviction expectation of privacy"].)
As previously noted, defendant does not challenge the probation condition authorizing officers to conduct random and unlimited searches of her residence at any time and for no stated reason, and she made no showing that a search of her electronic devices would be any more invasive than an unannounced, without-cause, warrantless search of her residence. Here, as in Trujillo, the factual record supports a conclusion that the electronic device search condition is necessary to protect public safety and to ensure defendant's rehabilitation during her three-year supervision period, and a routine search of defendant's electronic data "is strongly relevant to the probation department's supervisory function." (Trujillo, supra, 15 Cal.App.5th at p. 588.) We adopt a similar conclusion as Trujillo: "Absent particularized facts showing the electronics-search condition will infringe on [defendant's] heightened privacy interests, there is no reasoned basis to conclude the condition is constitutionally overbroad or to remand for the court to consider a more narrowly drawn condition." (Id. at p. 589.)
While searches involving electronic devices may raise unique issues of privacy not found in searches of these more traditional categories, we see no need to depart from our well-established treatment of search conditions whenever the condition implicates electronic devices. As J.E. explained, "courts have historically allowed parole and probation officers significant access to other types of searches, including home searches, where a large amount of personal information—from medical prescriptions, banking information, and mortgage documents to love letters, photographs, or even a private note on the refrigerator—could presumably be found and read. [Citations.] In cases involving probation or parole house search conditions, we have found no instances in which courts have carved out exceptions for the same type of information [the minor] argues could potentially be on his electronics." (J.E., supra, 1 Cal.App.5th at p. 804, fn. 6.) As we have explained, nothing in the record here justifies narrowing the challenged electronic device search condition.
We decline to follow the cases cited by defendant. These cases declined to read Olguin as sanctioning imposition of electronic device search conditions without evidence the probationer is likely to use his or her electronic devices or social media for proscribed activities. Based on the foregoing reasons, we conclude the electronic device search condition is not unconstitutionally overbroad and does not substantially limit defendant's Fourth Amendment rights.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.