Opinion
A152568
08-10-2018
In re S.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. JV18563)
I.
INTRODUCTION
S.R. appeals from an order declaring her a ward of the court and imposing an electronic search condition as an element of her probation. (Welf. & Inst. Code, § 602.) S.R. argues that the condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad. We conclude the probation condition satisfies Lent but is overbroad and must be modified to limit the search of S.R.'s electronics to messages and media reasonably likely to demonstrate drug-related activity. As modified, the juvenile court order is affirmed.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
On July 7, 2017, the Napa County District Attorney filed a wardship petition charging then 16-year-old S.R. with one count of vandalism. On September 14, 2017, S.R. admitted the allegation in the petition. The court declared S.R. a ward of the court and placed her on probation.
We take the facts from the probation officer's dispositional report.
On July 6, 2017, S.R.'s mother contacted the Napa Police Department because her daughter was "out of control." She presented the police with the following items found in S.R.'s bedroom: several bottles of alcohol, a knife, a mental knuckle-knife combo, a plastic pill bottle with a smoking pipe inside, a sack of tobacco with "shrooms," four rolled cigars, and a large glass bong. S.R.'s mother reported that S.R. had punched the walls in her bedroom, the bedroom door, and the light switch, causing damage.
S.R. had run away from home the previous day and her mother did not know where she was. Prior to her departure, S.R.'s friend and the friend's mother had come to S.R.'s house to confront S.R. about a video of her with the friend's boyfriend. S.R. got angry at being falsely accused and she attempted to fight the friend. S.R.'s mother sent her to her room where she punched holes in the door.
Police officers located S.R. and she admitted causing damage to the door and light switch. She admitted to smoking marijuana and drinking alcohol, as well as using Oxycodone. She had marijuana and a bowl to smoke it next to her and she admitted they were hers.
S.R. suffers from Attention Deficit Hyperactivity Disorder and her mother stated she uses marijuana and likely alcohol. S.R. had been suspended from school for being under the influence and she admitted to smoking marijuana up to four times per day. While on home detention from July to September 2017, S.R. tested positive for marijuana, ran away from home again, and continued to be truant from school. She used cleaning solution to mask positive drug tests. S.R. had a grade point average of 0.43 and still needed 145 of the 180 credits necessary to graduate high school.
At the disposition hearing, J.R. objected to the electronic search condition, stating "the normal objections under Lent, overly broad." The prosecution stated that the condition was appropriate because S.R. had run away from home the day prior to the incident in this case and was at risk of running away again. The court stated: "Generally, I had found that a minor who is encountering problems with drugs and alcohol ought to have her phone available for probation inspection, because you have to obtain these things from somewhere, and the way you do is by communicating with people to find out where you can get them." The court stated the condition was appropriate.
In its written order, the court set the following probation condition: "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."
III.
DISCUSSION
S.R. contends the electronic search condition is invalid under Lent and unconstitutionally overbroad because it restricts her right to free speech and exposes her to unreasonable searches under the Fourth Amendment.
" '[T]he divisions of this appellate district have reached different conclusions regarding electronic search conditions. (See, e.g., In re J.E. (2016) 1 Cal.App.5th 795 [Division Four upholding condition as reasonable and not unconstitutionally overbroad], review granted Oct. 12, 2016, S236628; In re P.O. (2016) 246 Cal.App.4th 288 (P.O.) [Division One holding condition reasonable but overbroad]; In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) [Division Three striking condition as unreasonable]; In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) [Division Two striking condition as unreasonable]; In re Malik J. (2015) 240 Cal.App.4th 896 [Division Three holding condition reasonable but overbroad].)" (In re Juan R. (2018) 22 Cal.App.5th 1083, 1089 (Juan R.).)
Numerous other cases raising this issue are pending before our Supreme Court: In re Ricardo P. (2015) 241 Cal.App.4th 676, 679-680, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, 107, review granted February 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, 560, review granted March 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, 529, review granted April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, 761-762, review granted May 25, 2016, S233932 (A.S.); In re R.F. (July 28, 2016, A145723) (nonpub. opn.), review granted October 12, 2016, S237070; In re J.R. (Dec. 28, 2015, A143163) (nonpub. opn.), review granted March 16, 2016, S232287; In re R.F. (Dec. 29, 2016, A146082) (nonpub. opn.), review granted March 15, 2017, S239950; In re Q.R. (2017) 7 Cal.App.5th 1231, 1233, review granted April 12, 2017, S240222.
A. Validity under Lent
" 'A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.' [Citation.]" (J.B., supra, 242 Cal.App.4th at pp. 753-754.) "The reasonableness and propriety of the imposed condition is measured not just by the circumstances of the current offense, but by the minor's entire social history. [Citation.]" (Id. at p. 754.)
A probation condition is invalid 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 . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs must be found to invalidate a probation condition. (P.O., supra, 246 Cal.App.4th at p. 294.) We review the juvenile court's probation conditions for abuse of discretion, and such discretion will not be disturbed in the absence of manifest abuse. (J.B., supra, 242 Cal.App.4th at p. 754.)
Here, the challenged electronic search condition fails the first two Lent factors: it has no relationship to the crime of vandalism and the condition relates to conduct that is not itself criminal because there is nothing inherently illegal about using electronic devices. (See P.O., supra, 246 Cal.App.4th at p. 294.) The issue is whether it is reasonably related to S.R.'s future criminality.
In P.O., Division One found an electronic search condition valid under Lent despite the fact the minor's offense was a public intoxication not involving the use of electronics. (P.O., supra, 246 Cal.App.4th at p. 291.) The "condition reasonably relates to enabling the effective supervision of P.O.'s compliance with other probation conditions. Specifically, the condition enables peace officers to review P.O.'s electronic activity for indications that P.O. has drugs or is otherwise engaged in activity in violation of his probation. We cannot say that the juvenile court's given reason for imposing the condition—that minors are apt to use electronic devices to show off their drug use or ability to procure drugs—was speculative or otherwise constituted an abuse of discretion." (Id. at p. 295.) Division Five recently reached a similar conclusion in Juan R. (Juan R., supra, 22 Cal.App.5th 1083.) Juan committed robbery and assault. (Id. at p. 1086.) Juan had a history of truancy, poor grades, alcohol and drug use, and associated with gang members. (Ibid.) Division Five concluded the condition reasonably related " ' to enabling the effective supervision of [Juan's] compliance with other probation conditions.' [Citation to P.O.] Most importantly, it will deter Juan from planning future crimes with the other minors who participated in the instant offense. Because other conditions of Juan's probation prohibit drug and alcohol use, and forbid association with coparticipants or gang members, the electronic search condition will also serve to enforce such prohibitions. (Id. at p. 1091.) "Given Juan's social history and the circumstances that led to his wardship, the juvenile court could reasonably believe monitoring his use of electronic communication and social media would deter future criminal behavior." (Id. at p. 1092)
Other divisions of this court have concluded such conditions are invalid under Lent. (See In re Erica R. (2015) 240 Cal.App.4th 907, 912-913 [justification that "cell phone and electronic devices 'could have been used to negotiate the sales of the illegal substance' " is insufficient to justify electronic search condition where there was nothing in the record regarding the current offense for drug possession or the minor's social history that "connects her use of electronic devices or social media to illegal drugs."]; J.B., supra, 242 Cal.App.4th 749, 757-758 [J.B.'s use of marijuana was not a justification for an electronic search condition because there was "no showing of any connection between the minor's use of electronic devices and his past or potential future criminal activity."].)
We conclude the case before us is more like P.O. and Juan R. and our division's decision in A.S., supra, 245 Cal.App.4th 758. Seventeen-year-old A.S. was declared a ward of the court after striking her mother. (Id. at p. 762.) A.S. had bipolar disorder, had not attended school in over a year, smoked marijuana, and was subject to violence in the home. (Ibid.) The juvenile court identified A.S.'s " 'fairly substantial psychological issues,' " drug use, safety issues, and lack of family supervision as reasons she must be closely monitored. (Id. at p. 766.) The court cited the need to monitor her electronics in order to prevent drug use, keep her safe, and allow her to be successful on probation. (Id. at p. 770.) We concluded A.S.'s "history and circumstances mandate a degree of supervision which reasonably connects the electronic search condition to the prevention of future criminality." (Ibid.)
S.R. is a troubled teen in need of active supervision and monitoring to prevent future criminality. She admitted to drug use and the juvenile court identified drug use as a reason for the electronic search condition. We cannot conclude the juvenile court's reasoning—that a minor would use her electronics to discuss or acquire drugs—is "speculative or otherwise constituted an abuse of discretion." (See P.O., supra, 246 Cal.App.4th at p. 295.) Given S.R.'s admitted drug and alcohol use, the juvenile court could reasonably believe the electronic search condition would help deter future criminality. (See Juan R., supra, 22 Cal.App.5th at p. 1092.)
B. The Electronic Search Condition as Written Is Overbroad
S.R. argues that the electronic search condition infringes on her right to privacy requiring her to provide unrestricted access to all her electronic devices. She argues the condition is not reasonably related to her rehabilitation or to protecting the public.
" '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.' [Citation.] ' " '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.' " ' [Citations.]" (P.O., supra, 246 Cal.App.4th at p. 297.) "Whether a probation condition is unconstitutionally overbroad presents a question of law reviewed de novo. [Citation.]" (Ibid.)
In P.O., even though Division One found the condition valid under Lent, it concluded it was overbroad. "According to the juvenile court, the condition's purpose is to allow monitoring of P.O.'s involvement with drugs, but the condition does not limit the types of data that may be searched in light of this purpose. Instead, it permits review of all sorts of private information that is highly unlikely to shed any light on whether P.O. is complying with the other conditions of his probation, drug-related or otherwise. [Citation.]" (P.O., supra, 246 Cal.App.4th at p. 298.) Division One ordered the juvenile court to modify the condition "to limit authorization of warrantless searches of P.O.'s cell phone data and electronic accounts to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs." (Ibid.) Like Division One in P.O., we can distinguish our decision in A.S., supra, 245 Cal.App.4th at pages 761-762 where we concluded a similar condition was not overbroad based upon the case's " 'rather unique constellation of facts.' " (P.O., at p. 298, citing A.S., at p. 774.)
We distinguish this from the electronic search condition found not to be overbroad in Juan R. The condition was more limited and required Juan to submit his electronic devices to search " 'for electronic communication content information likely to reveal evidence that the minor is continuing his criminal activities and is continuing his association via text or social media with co-companions. This search should be confined to areas of the electronic devices including social media accounts, applications, websites where such evidence of criminality [or] probation violation may be found.' " (Juan R., supra, 22 Cal.App.5th at p. 1094, italics omitted.)
In A.S., we found the condition was not overbroad because "[a]ppellant does not need her electronic devices monitored simply because she is a drug and alcohol user, or a chronic truant, or a person suffering from significant mental health issues, or someone who is trying to adjust to a new home life with her young sister, or because she is a potential danger to mother and the public. The clause is justified here because appellant has all of these challenges and issues." (A.S., supra, 245 Cal.App.4th at p. 774, italics omitted.)
The facts in the present case are not as severe as A.S. and are more similar to P.O. S.R. is a troubled teen but she has no criminal history, lives with her parents, and her problems seem to stem from drug and alcohol use. The probation condition here is not narrowly tailored to achieve the purpose of preventing S.R.'s acquisition and use of drugs and alcohol or promoting her rehabilitation. According to the juvenile court, "a minor who is encountering problems with drugs and alcohol ought to have her phone available for probation inspection, because you have to obtain these things from somewhere, and the way you do is by communicating with people to find out where you can get them." The condition, as written, does not target this goal, but permits law enforcement to review all kinds of private information stored on S.R.'s phone, tablet, or computer. (See People v. Appleton (2016) 245 Cal.App.4th 717, 725 [probation condition overbroad where it authorized "search[es] of [the] defendant's mobile electronic devices [that] could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity," including "medical records, financial records, personal diaries, and intimate correspondence"].)
While we believe an electronic search condition is warranted, here, we hold that the condition must be modified to limit warrantless searches of S.R.'s electronics to messages and media reasonably likely to demonstrate drug-related activity.
IV.
DISPOSITION
The electronic search condition is modified to read: "The minor submit all electronic devices under her control to search and seizure by any law enforcement or probation officer of any text messages, voicemail messages, call logs, photographs, e-mail accounts, and social media accounts which are likely to reveal the purchase or use of drugs or alcohol 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." As modified, the juvenile court's order is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------