Opinion
D072043
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCUS LEON HOWARD, Defendant and Appellant.
Raquel Cohen, 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, Arlene A. Sevidal and Elizabeth Renner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD269111) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Raquel Cohen, 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, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
We again address the circumstances under which a sentencing court may properly require a convicted defendant to submit to warrantless searches of electronic devices as a condition of probation, understanding that a similar issue is currently pending before the California Supreme Court in In re Ricardo P., S230923, and numerous other cases. Applying the principles of People v. Olguin (2008) 45 Cal.4th 375 (Olguin), we conclude the search condition was properly imposed in this case because it is reasonably related to the crimes of which defendant Marcus Leon Howard was convicted (burglary; unlawful taking of a vehicle) as well as to preventing future criminal behavior and assuring compliance with the terms and conditions of probation. We also approve as reasonable an additional condition requiring that the probation department ratify Howard's choice of residence. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Howard was charged with multiple counts arising out of break-ins at a car rental business and liquor store. The liquor store incident, captured on video, involved two confederates. Howard ultimately pleaded guilty to one count of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and one count of burglary (Pen. Code, § 459) with a Harvey waiver. A van taken from a rental car business was used in the burglary at the liquor store. Items taken in the two burglaries included a cash register, alcohol, and several cell phones.
See generally People v. Harvey (1979) 25 Cal.3d 754. As part of his plea bargain, Howard agreed the sentencing judge could consider "the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation . . . ."
The court imposed formal probation, conditioned on Howard's willingness to comply with specified terms and conditions. Included among those conditions, over his counsel's objection, was a requirement that Howard submit to a warrantless search of his property, including computers and recordable media, at the request of law enforcement with or without reasonable cause. He was also directed to obtain approval (but not pre-approval) from his probation officer as to his residence.
In his probation interview, Howard admitted to marijuana use over a 20-year period. The court imposed "standard" drug and alcohol conditions. Howard should not knowingly use or possess controlled substances without a valid prescription, and he is not to possess marijuana even with a prescription. He is to avoid being in places where alcohol was the main item for sale. If directed by his probation officer, Howard is to refrain from drinking alcohol, attend self-help meetings, and participate in drug treatment.
DISCUSSION
A sentencing court has "broad discretion" to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "We review conditions of probation for abuse of discretion. [Citations.] Generally, '[a] condition of probation will not be held invalid unless 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 . . . ." [Citation.]' [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, supra, 45 Cal.4th at p. 379, quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)
The Supreme Court's opinion in Olguin considered a probation condition requiring the probationer to notify his probation officer of any pets in his residence and give 24 hours' notice prior to any changes. (Olguin, supra, 45 Cal.4th at p. 380.) The court explained that "conditions of probation 'are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.' " (Ibid.) As a general rule, "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' " (Id. at pp. 380-381.)
1. The Electronic Search Condition
Howard challenges the condition of probation that requires him to submit his electronic devices, including cell phones and computers, to warrantless search with or without reasonable cause. Citing Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley), he contends electronic devices are different than residences, vehicles, or traditional physical containers because of "their immense storage capacity." (Riley, supra, 573 U.S. ___ .) Howard argues that as a result, an electronic search condition is only proper where it is narrowly tailored to the specific facts of the crime or a particularized need for heightened supervision of electronic media and communications.
Addressing the three prongs of the Lent test, we can agree with Howard that the second prong is not at issue; use of an electronic device is not itself criminal. Instead we focus on the first and third prongs.
Howard initially asserts that the electronic search condition has no relationship to the crimes he committed. As noted by the trial court, however, there are several ways in which electronic communications and communication devices are reasonably related to Howard's offenses. First, the evidence showed that Howard was one of three individuals who burglarized a liquor store. The video surveillance evidence indicated the participants arrived in two vehicles. Joint criminal activity, like other forms of human endeavor involving multiple parties, requires coordination and communication. And it is a fact of 21st century life that the majority of our communications are electronic. Even if there is no direct evidence that the confederates in this case communicated by cell phone, it is hardly a stretch to say that the ability to monitor Howard's stored electronic communications (e.g., text messages and emails) would discourage joint criminal activity of the sort he previously engaged in. Second, the value of stolen property often lies in the thief's ability to dispose of it in exchange for cash or other items. Again, it is a fact of 21st century life that the Internet is the most common means of buying and selling items of personal property, even if the item is legal and certainly when it is not. Finally, and even more specifically, there was evidence that the property stolen in this case included cell phones. The ability to search a cell phone or other electronic device found in Howard's possession during the probationary period would materially assist in determining whether it belonged to Howard. (See In re Malik J. (2015) 240 Cal.App.4th 896, 902.)
The court in Malik J. went on to conclude that the search condition in that case was overbroad because it permitted "unfettered" access to all of the juvenile's social media accounts. (240 Cal.App.4th at p. 902.) The condition in this case says nothing about passwords or social media accounts. --------
Apart from the circumstances of Howard's crimes (the offense), Howard's personal circumstances (the offender) provide reason to believe that the electronic search condition imposed in this case would significantly assist in deterring future criminality. Items stolen included liquor, and Howard admitted to using marijuana over a 20-year period. Although the extent of his use of intoxicating substances and their connection to his criminal behavior was unclear at the time of sentencing, the trial court was sufficiently concerned that it included several probation conditions (not challenged by Howard) directing the probation department to investigate this issue. Standard drug and alcohol conditions prohibited or restricted his use of these substances and his ability to be present in places where they are sold. He is specifically forbidden from using marijuana. He is also required to engage in substance abuse treatment if directed by his probation officer. The electronic search condition materially aids in assuring Howard's compliance with these probationary terms by, for instance, allowing law enforcement to monitor his cell phone for evidence of marijuana purchases.
Howard suggests the electronic search condition is not narrowly tailored to its purpose and, therefore, should be struck as unconstitutionally overbroad. 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 constitutionally 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.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We review "constitutional challenges to probation conditions de novo." (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
Citing Appleton, In re P.O. (2016) 246 Cal.App.4th 288 and In re Malik J., supra, 240 Cal.App.4th 896, Howard contends the challenged search condition would permit "limitless" electronic searches in violation of his Constitutional right of privacy. Certainly, the privacy concerns he points to, as recognized by the United States Supreme Court in Riley, supra, 573 U.S. ___ are not insignificant. The Riley court concluded that those privacy interests were sufficiently weighty to generally require a warrant before law enforcement searches an arrestee's cell phone. (Riley, supra, 573 at p. ___ [189 L.Ed.2d at pp. 450-451].) But the competing considerations they must be balanced against yield a different result in the specific context of a probation condition. Unlike the defendant in Riley, who had not been convicted of a crime at the time his cell phone was searched and was still protected by the presumption of innocence, a probationer like Howard does not " 'enjoy "the absolute liberty to which every citizen is entitled." ' " (United States v. Knights (2001) 534 U.S. 112, 119.) Indeed, "[j]ust as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (Ibid.)
Riley itself made clear that although cell phone data is subject to Fourth Amendment protection, it is not "immune from search." (Riley, supra, 573 U.S. ___ .) Moreover, although electronic devices store a wealth of personal information, they are not alone in this character. A home also contains large amounts of very private personal information. (See People v. Michael E. (2014) 230 Cal.App.4th 261, 277, quoting United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1352 ["the hard drive of a computer . . . 'is the digital equivalent of its owner's home' "].) Yet courts have historically granted probation officers significant authority to search a probationer's residence without a warrant. (See People v. Balestra (1999) 76 Cal.App.4th 57, 62, 65-68 [upholding probationer's broad home search condition]; In re Binh L. (1992) 5 Cal.App.4th 194, 198, 203-205 [upholding search conducted pursuant to juvenile probationer's broad search condition]; People v. Medina (2007) 158 Cal.App.4th 1571, 1575-1580 [upholding search conducted pursuant to probationer's broad home search condition]; People v. Reyes (1998) 19 Cal.4th 743, 746, 754 [upholding search conducted pursuant to parole condition requiring defendant to submit his residence and property under his control to search by law enforcement].)
Moreover, the need to effectively and efficiently monitor compliance with probation conditions is all the more critical in a criminal justice system focused on recovery, restoration and rehabilitation rather than retribution. Probation violations quickly detected can result in prompt but often relatively minor corrective action that helps ensure the successful completion of probation. Undetected violations can quickly spin out of control, resulting in new and serious law violations that lead to significant incarceration.
Although the electronic search condition plainly implicates Howard's privacy rights, by choosing probation in lieu of additional punishment, his expectation of privacy is diminished. With this principle in mind, the search condition here is appropriately tailored to the state's legitimate supervisory interest. The condition allows probation officers to detect criminal behavior and supervise Howard's compliance with the other unchallenged probation terms imposed by the court, a function of critical importance to community safety and the probationer's ultimate success. Given Howard's limited expectation of privacy, we conclude that the circumstances of the crime and the offender justify the imposition of the electronic search condition in this case.
2. Approval of Residence
Howard is required as a condition of his probation to advise the probation department of the location of his residence and obtain his probation officer's approval. The trial court made clear that this was not a "pre-approval" requirement, but merely an after-the-fact advisement. It was implied that the probation officer would not unreasonably withhold approval.
In Olguin, the Supreme Court upheld the probation condition mandating notification regarding the presence of pets as reasonably related to "future criminality because it serves to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation." (Olguin, supra, 45 Cal.4th at p. 381.) The court reasoned that the probation condition ensured the probation officer's safety when making unannounced visits to the probationer's residence. (Id. at pp. 381-382.) It concluded that "[r]eporting the presence of pets to a probation officer is a simple task, imposes no undue hardship or burden, and is a requirement that clearly falls within the bounds of reason." (Id. at p. 382.)
In a similar fashion, the requirement that Howard obtain the probation department's approval as to the location of his residence reasonably ensures the safety of his probation officer and other law enforcement officers who might have occasion to check on Howard. Like the presence of dangerous pets, the physical configuration of a residence and its surrounding environs could create risks for a probation officer when making "unannounced" visits to "the probationer's residence." (Olguin, supra, 45 Cal.4th at p. 381.) The condition would also permit the probation department to guard against risks to Howard and his successful completion of probation.
The fact that some other courts have taken a more restrictive view of Olguin on different facts does not change our conclusion. In People v. Soto (2016) 245 Cal.App.4th 1219, 1224, a defendant convicted of driving while intoxicated challenged a probation condition requiring that he obtain permission from his probation officer before changing his residence to a different state or county. Applying a Lent analysis, the Soto court decided that the challenged condition was not reasonably related to preventing future criminality. Olguin was distinguished because the condition in that case required notification and not approval. (Id. at p. 1227.)
As a threshold matter, the level of supervision appropriate for an intoxicated driver—driving with an excessive blood alcohol level was the underlying offense in both Soto and Olguin—is significantly different than what is required for someone like Howard convicted of burglary and theft. Moreover, the distinction between notification and after-the-fact approval is entirely procedural. Were the probation officer to disapprove his choice of a residence, Howard would have the choice of relocating or bringing the issue to the attention of the sentencing court if he believed approval was being unreasonably withheld. Were the condition phrased as a notification requirement, the only functional difference would be placing the burden on the probation department to bring the matter to the court's attention if it believed the location was not conducive to Howard's rehabilitation. In our view, the substantive validity of a probation condition under the Lent/Olguin analysis should not turn on where we place the burden of seeking court intervention.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. IRION, J.