Opinion
C082779
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSIE MARSHA FRIES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03962)
After defendant Josie Marsha Fries pleaded no contest to one count of stalking (Pen. Code, § 646.9, subd. (b)), the trial court placed her on five years' probation and imposed an electronic device search condition. On appeal, defendant challenges the validity of the search condition imposed, contending the condition is facially overbroad. We conclude the condition is not invalid in all possible cases. Accordingly, we affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
According to the police report attached to the criminal complaint, the victim was defendant's community college professor. Though they never had a romantic relationship, defendant began sending the victim dozens of unsolicited emails, many of which were sexual in nature. After failing to adhere to a warning from the college to cease communications with the victim, defendant was suspended from the college and the victim obtained a restraining order against her. Nevertheless, defendant continued to email, threaten, and harass the victim through text messages. In two messages, defendant threatened the victim with an ice pick.
Pursuant to a negotiated agreement, defendant pleaded no contest to stalking (§ 646.9, subd. (b)). The trial court suspended imposition of sentence and placed defendant on five years' formal probation on various terms and conditions. The prosecutor requested an electronic device search condition pursuant to section 1546 due to the frequent electronic contact defendant made with the victim. Defendant objected, contending the condition was overbroad. The court reasoned that there was a nexus between defendant's conduct and the condition. Accordingly, the court imposed the condition as follows: "The defendant shall submit her person, place, property, automobile, electronic storage devices or any objects under her control, including but not limited to cell phones and computers, [to] search and seizure by any law enforcement officer or probation officer at any time, day or night with or without a warrant, in and out of her presence or further consent. And she shall provide access to any electronic storage device[']s data contained therein, including disclosing and providing any and all information necessary they're allowed to search."
DISCUSSION
Defendant acknowledges that her offense involved the use of electronics and thus the imposition of an electronic search condition could not be challenged under People v. Lent (1975) 15 Cal.3d 481 for lack of a factual nexus between the condition and her crime. However, she contends the electronics search condition by its terms is facially overbroad because of the immense storage capacity of modern cell phones and the large volume of personal data contained on such devices, " 'much of which may have nothing to do with illegal activity.' " She argues there were narrower means to ensure she did not violate the terms of her probation while protecting her privacy interests. While she concedes that "an electronic search condition of some kind is frequently warranted," she argues that the court should impose restrictions to prevent unfettered access. We do not agree with defendant that the condition is facially overbroad.
Certainly, "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 (Sheena K.).) "Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." (People v. Mason (1971) 5 Cal.3d 759, 768, disapproved of on unrelated grounds by People v. Lent, supra, 15 Cal.3d at p. 486, fn. 1.) "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 . . . ." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We independently review defendant's constitutional challenge to the electronics search condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
In a facial overbreadth challenge to an electronics search condition, the question is whether the search condition, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (Sheena K., supra, 40 Cal.4th at p. 885.) The answer here is "no." While the Supreme Court has not directly reached this issue, its recent decision in In re Ricardo P. provides some insight. There, our high court noted: "Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the [] court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128-1129 (Ricardo P.).) In reaching this conclusion, Ricardo P. relied on In re Malik J. (2015) 240 Cal.App.4th 896 and People v. Ebertowski (2014) 228 Cal.App.4th 1170, cases in which similar search conditions were upheld. (Ricardo P., at p. 1129.) In In re Malik J., the court concluded that an electronics search condition was reasonable in light of the defendant's criminal history. (Malik J., at p. 902.) Similarly, in People v. Ebertowski, the court reasoned that an electronics search condition was valid under the circumstances of the case. (Ebertowski, at pp. 1173, 1176-1177; see also People v. Patton (2019) 41 Cal.App.5th 934, 946-947 [reasoning that because electronics search conditions may be constitutionally imposed under some circumstances, they are not facially invalid].) Accordingly, we cannot conclude that electronics search conditions such as the one imposed in this case are facially overbroad in all possible cases.
Defendant relies on the United States Supreme Court's decision in Riley v. California (2014) 573 U.S. 373 (Riley) to contend that the electronics search condition is unconstitutionally overbroad on its face. In Riley, the Supreme Court held that a warrant is generally required prior to the search of a cell phone incident to arrest. (Id. at p. 403.) However, the Riley case did not address any issues regarding probation search conditions. The privacy expectation of an arrestee is significantly different than that of a probationer. (See United States v. Knights (2001) 534 U.S. 112, 119 ["Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled" ' "].) Defendant also relies extensively on People v. Appleton (2016) 245 Cal.App.4th 717 to support her argument that this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronic device search condition and therefore does not assist defendant. (Id. at pp. 721, 727.) Accordingly, both of these authorities are distinguishable.
Cast as a facial challenge, defendant seems to assert that because electronic devices hold so much personal information, much of which will be unrelated to criminal conduct, an electronic device search condition must be narrowly tailored, no matter the probationer's background, to only permit the disclosure of incriminating evidence. Assuming such purity of purpose is required, defendant offers no suggestion as to how such a condition could be crafted, without a case-by-case review which takes into account the probationer's offense or personal history, as the Supreme Court held in Ricardo P. There is no guarantee with any search condition that personal information unconnected with criminal conduct will not be discovered. It is also important to note that probation conditions serve a prophylactic purpose of "deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)
We conclude that although application of this search condition could be constitutionally overbroad as applied to certain probationers, in other circumstances it may be entirely appropriate and constitutional. The criminal offense or the defendant's personal history may provide a sufficient basis on which to conclude the condition is a proportional means of deterring future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) In those cases, the imposition of such probation conditions would be constitutional. Because there could be circumstances in which such a condition was appropriate, we reject defendant's claim that the electronics search condition is facially overbroad.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
KRAUSE, J.