Opinion
C082741
09-12-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMES CUNNINGHAM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE014364)
In this drug possession case, defendant James Cunningham challenges a condition of his probation authorizing the warrantless search of electronic storage devices, including but not limited to cell phones and computers, under his control. He contends the condition is "constitutionally overbroad on its face" and urges us to "remand the matter to the Superior Court so it can narrowly tailor the condition to meet the specific requirements of this case." We agree that on the facts of this case the electronic storage device search condition is unconstitutionally overbroad because its potential impact on defendant's Fourth Amendment rights exceeds what is reasonably necessary to serve the government's legitimate interest in ensuring that he complies with the terms of his probation. Accordingly, we will strike the electronic storage device search condition and will remand the case to the trial court to consider whether the condition can be narrowed in a manner that will allow it to pass constitutional muster.
For ease of reference, we will refer to this as the electronic storage device search condition.
Defendant does not challenge the condition as failing under People v. Lent (1975) 15 Cal.3d 481 because the record is inadequate for review in this regard. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [a defendant who challenges the terms and conditions of his probation bears the burden of showing that the court's sentencing decision was irrational or arbitrary].) Accordingly, we need not employ the analysis recently set forth by the majority in In re Ricardo P. (2019) ___ Cal.5th ___, 2019 Cal. LEXIS 5949, which addressed the question of whether an electronic storage device condition satisfied the third prong of the Lent test. However, the trial court will need to consider Ricardo P. as well as constitutional overbreadth on remand.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this case are uncertain because defendant pled no contest prior to a preliminary hearing, the parties stipulated to a factual basis for the plea without actually stating any facts, and no probation report was prepared. Suffice it to say that it appears there was a vehicle stop, an ensuing search, and the discovery of some methamphetamine. Thereafter, in July 2016, a felony complaint charged defendant with possessing methamphetamine for sale and transporting methamphetamine. Pursuant to a plea agreement, however, defendant pled no contest to a misdemeanor charge of simple possession in exchange for three years of informal probation with 240 days in custody and various other conditions.
On the day of the hearing when defendant changed his plea, the prosecution filed a 24-page form memorandum of points and authorities, accompanied by a 12-page declaration from a Sacramento County Sheriff's deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force, in support of the imposition of a probation condition requiring defendant to submit his electronic storage devices, including but not limited to cell phones and computers, to warrantless search and seizure. The form memorandum explained that the superior court had "developed new language describing search and seizure terms and conditions accompanying grants of probation for certain cases." Essentially, the new language added "electronic storage devices" to the standard condition permitting warrantless probation searches, which already permitted searches of a probationer's "person, place, property, automobile, . . . and any object under [the probationer's] control." According to the memorandum, the probation department was "recommending the imposition of this new language in cases, such as this, where there is a nexus between the grant of probation and the defendant's use of an electronic device." Being a form document, however, the memorandum did not provide any details relating to this specific case. Instead, the memorandum asserted in a footnote that the new search condition "should be imposed in cases where there has been a demonstrated connection between the type of criminal conduct involved and the use of electronic devices and/or [where the condition] bears a reasonable relation to determining future criminality, such as the following: drug sales/transportation; fraud, identity theft, financial crimes; sex offenses; human trafficking, pimping and pandering; domestic violence; weapons-related offenses; gang enhancements and gang membership; and any other case where a defendant used an electronic device during the current offense or in a previous crime." (Italics added.)
For ease of reference, we will refer to the search condition as a whole as the search condition and will refer to the provision referencing electronic storage devices as the electronic storage device search condition, even though the former is simply a part of the latter.
The accompanying declaration explained how evidence of additional criminal activity (in the officer's training and experience) tended to be found on the electronic devices of those who had engaged in the various types of criminal conduct identified above. Also, in a section applicable generally to all of the previously identified categories of crimes, the officer also purported to explain the need to examine the "[e]ntire [c]ontents of [e]lectronic devices." (Bold text omitted.) According to the officer, "it is necessary to search all the content contained on the device in some shape or form in order to identify ownership, possession, and activity related to the specific offense."
The same day the prosecution filed the form memorandum and accompanying declaration supporting imposition of the electronic storage device search condition, defense counsel filed a form memorandum objecting to the imposition of that condition. As relevant here, defense counsel's memorandum asserted that a condition allowing the search of electronic storage devices was constitutionally overbroad.
At the hearing, the court recited the terms and conditions of defendant's informal probation, including the electronic storage device search condition, as follows: "You shall submit your person, place, property, automobile, electronic storage devices, and any object under your control, including but not limited to cell phones and computers to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without your presence or further consent." The court also ordered defendant, as a condition of probation, "to obey all laws."
Defense counsel objected to the electronic storage device search condition, asserting (as relevant here) that "[t]his condition is constitutionally overbroad. . . . There is no nexus whatsoever between this case and any future criminality related to cell phones." The prosecutor responded, "Our position is there is a nexus. It's not required to be a specific fact of this case, only that it is designed to det[e]r future criminality. Drug cases commonly involve the use of cell phones. Either through possession or for drug sales. That's our position." The court replied, "it's ordered."
Defendant timely appealed from the order granting probation.
DISCUSSION
On appeal, defendant contends the electronic storage device search condition is constitutionally overbroad. We agree.
" 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citation.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure "[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation." [Citation.]' [Citation.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any '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, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. . . .' [Citation.] Although the trial court's discretion is broad in this regard, we have held that a condition of probation must serve a purpose specified in Penal Code section 1203.1. [Citations.] If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence." (People v. Olguin (2008) 45 Cal.4th 375, 379.)
"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.) "Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands." (In re White (1979) 97 Cal.App.3d 141, 149-150.) A probation condition "is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153, quoting In re Victor L. (2010) 182 Cal.App.4th 902, 910.)
There is no doubt that the electronic storage device search condition imposed on defendant here impinges on his constitutional rights under the Fourth Amendment. Recently, in Riley v. California (2014) 573 U.S. 373 , the United States Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone (one type of electronic storage device) incident to an arrest. In reaching that conclusion, the Supreme Court explained how "[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of" "other objects that might be kept on an arrestee's person," such as "a cigarette pack, a wallet, or a purse." (Id. at p. 393 .) Detailing how the search of a cell phone can impact a person's privacy interests, the Supreme Court wrote as follows: "The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
"One of the most notable distinguishing features of modern cell phones is their immense storage capacity. . . .
"[T]he current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. [Citations.] Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. [Citations.] We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.
"The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information -- an address, a note, a prescription, a bank statement, a video -- that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.
"Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. [Citation.] A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. [Citation.] But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives -- from the mundane to the intimate. . . .
"Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns -- perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute, not only around town but also within a particular building. [Citation.]
"Mobile application software on a cell phone, or 'apps,' offer a range of tools for managing detailed information about all aspects of a person's life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase 'there's an app for that' is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user's life. [Citation.]
"In 1926, Learned Hand observed . . . that it is 'a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.' [Citation.] If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form -- unless the phone is.
"To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. [Citation.] But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of 'cloud computing.' Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. [Citation.] Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another." (Riley v. California, supra, 573 U.S. at pp. 393-397 [189 L.Ed.2d at pp. 446-449, fn. omitted.)
From the United States Supreme Court's observations in Riley, it is abundantly clear that a probation condition that authorizes the warrantless search of an electronic storage device like a cell phone carries the potential for a significant intrusion into defendant's private affairs -- even more so than the standard condition authorizing the search of defendant's "person, place, property, automobile, . . . and any object under [defendant's] control." As the appellate court observed in People v. Appleton (2016) 245 Cal.App.4th 717, "the computer search condition at issue here arguably sweeps more broadly than the standard three-way search condition allowing for searches of probationers' persons, vehicles, and homes. First, by allowing warrantless searches of all of defendant's computers and electronic devices, the condition allows for searches of items outside his home or vehicle, or devices not in his custody -- e.g., computers or devices he may leave at work or with a friend or relative. Second, the scope of a digital search is extremely wide. . . . Thus, a search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends." (Id. at p. 725.)
Given the potential for an essentially unprecedented intrusion into private affairs that may -- and likely will -- have nothing to do with illegal activity, the question is whether such an intrusion is nonetheless constitutionally permissible because it is tailored carefully to the government's legitimate interest in defendant's reformation and rehabilitation. We conclude it is not.
It goes without saying that the state has a legitimate and significant interest in ensuring that the purpose of probation -- defendant's rehabilitation -- is achieved here. (See People v. Wardlow (1991) 227 Cal.App.3d 360, 365 ["The purpose of probation is rehabilitation"].) Moreover, a search condition that permits warrantless searches of electronic storage devices under defendant's control for evidence of criminal activity can be understood to serve that purpose by helping to ensure that defendant is obeying all laws, which another condition of his probation requires him to do. But at the same time the electronic storage device search condition serves the state's legitimate interest in monitoring 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 all of the applications in all of the devices the condition subjects to warrantless search.
As we have noted already, the underlying facts of this case are uncertain because defendant pled no contest prior to a preliminary hearing, the parties stipulated to a factual basis for the plea without actually stating any facts, and no probation report was prepared. The most that we can determine from the record is that it appears there was a vehicle stop, an ensuing search, and the discovery of some methamphetamine. While defendant was originally charged with possessing methamphetamine for sale and transporting methamphetamine, pursuant to a plea agreement he pled no contest to a misdemeanor charge of simple possession.
On this record, which does not show that electronic storage devices played any role in defendant's simple possession of methamphetamine, and which does not show that defendant had any prior record of criminal activity -- whether involving electronic storage devices or not -- there appears to be no substantial reason for believing that evidence of future criminal activity by defendant is likely to be found on electronic storage devices under his control. To the extent the People offered a justification for imposition of the electronic storage device search condition in the trial court -- in the form of the stock declaration from the sheriff's deputy -- that justification addressed drug sales and transportation: crimes defendant was originally charged with but did not admit and was not found to have committed. Nothing in the stock declaration attempted to show a nexus between simple drug possession and the use of electronic storage devices.
In attempting to justify the imposition of the condition nonetheless, the People contend that "[a]lthough his right to privacy is implicated by the electronics search condition, as a probationer, appellant is not entitled to 'the absolute liberty to which every citizen is entitled.' " This is undoubtedly true, but at the same time defendant did not entirely surrender his rights under the Fourth Amendment by pleading no contest and accepting probation. The fact that the overbreadth doctrine applies at all to probationers like defendant illustrates this point. A probation condition that infringes on the constitutional rights a probationer otherwise enjoys still must be closely tailored to achieve the legitimate purpose or purposes of that condition. The fact that a person convicted of a crime has agreed to subject himself to the supervision of probation does not, by itself, give the government the right to dig through every aspect of that person's private affairs in search of evidence of criminal activity without any explanation or justification from the government of why such a search has, at the very least, a reasonable possibility of actually uncovering such evidence.
For the foregoing reasons, we conclude that on the record in this case, the electronic storage device search condition is unconstitutionally overbroad because its potential impact on defendant's Fourth Amendment rights exceeds what is reasonably necessary to serve the government's legitimate interest in ensuring that he complies with the terms of his probation. Whether the condition can, as a practical matter, be narrowed in a manner that will allow it to pass constitutional muster is a matter we leave for the parties and the trial court to address in the first instance on remand. For now, it is sufficient for us to conclude that the imposition of the condition in its current form cannot be sustained based on the record presently before us.
DISPOSITION
The order granting probation is modified by striking the probation condition requiring defendant to submit his "electronic storage devices, . . . including but not limited to cell phones and computers to the search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent," and to "provide access to any electronic storage device and data contained therein, including disclosing and providing all and any information necessary to conduct a search." As modified, the order is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.