Opinion
C083398
10-21-2019
In re J. G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J. G., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV138142)
After finding the minor J. G. committed second degree robbery and brandished a deadly weapon, the juvenile court sustained the delinquency petition, found the minor a ward of the juvenile court, and placed him on probation subject to several conditions, including a general search condition. The minor contends on appeal that the search condition should be void for vagueness because it could apply to searches of electronic devices, to the extent the condition applies to electronic devices, it is unreasonable and unconstitutionally overbroad, and failure to object to the condition was ineffective assistance of counsel.
Finding the search condition does not apply to searches of electronic devices, we affirm.
BACKGROUND
We dispense with the facts of the minor's crimes as they are unnecessary to resolve this appeal.
The juvenile court imposed the following probation condition on the minor: "Submit to search and seizure of your person, property, automobile, and any object under your control by any law enforcement officer or Probation Officer, in or out of your presence, at any time of the day or night, with or without consent, and with or without a Warrant." The minor did not object to the condition.
DISCUSSION
The minor contends the search condition is unconstitutionally vague because it is unclear whether the terms "property" and "any object" under his control require him to submit to a search of his cell phone or any other electronic device under his control. He further contends that requiring him to submit to searches of his electronic devices is invalid under People v. Lent (1975) 15 Cal.3d 481 and unconstitutionally overbroad.
The minor did not object to the condition which forfeits any fact-based claim but does not forfeit challenges to the condition resting on pure issues of law, such as a facial challenge. (People v. Welch (1993) 5 Cal.4th 228, 234-235; In re Sheena K. (2007) 40 Cal.4th 875, 889; People v. Turner (2007) 155 Cal.App.4th 1432, 1435.) We find the condition is not impermissibly vague because it is properly construed not to authorize electronic searches. This in turn moots the minor's Lent and overbreadth challenges. Since the condition does not authorize electronic searches, trial counsel was not ineffective in failing to object that the search condition could be used in this fashion.
In re I.V. (2017) 11 Cal.App.5th 249 involved essentially the same challenge as the one before us. The minor in I.V. challenged a "probation condition requiring him to submit his 'person, property, or vehicle, and any property under [his] immediate custody or control to search at any time, with or without probable cause, with or without a search warrant' " as unconstitutionally vague and overbroad because it might encompass searches of electronic devices and data. (Id. at pp. 259-260.) The Court of Appeal found the minor's failure to challenge the condition in the juvenile court forfeited the overbreadth challenge but did not forfeit the vagueness contention. (Id. at pp. 260-261.) It further found the condition was not vague when properly construed.
The I.V. court found probation conditions authorizing searches of a probationer's person and property "are 'routinely imposed.' " (In re I.V., supra, 11 Cal.App.5th at p. 261.) In many wardship proceedings, electronic search conditions were instead specifically imposed "in addition to the standard search condition where they intend to subject a minor's electronic data to search." (Ibid.) Since there was no indication the juvenile court intended to impose an electronic search condition, the Court of Appeal concluded, "[r]easonably construed, the search condition applies only to tangible physical property, and not to electronic data." (Id. at p. 262.) Accordingly, the I.V. court declined the minor's " 'invitation to modify [the search condition] simply to make explicit what the law already makes implicit.' " (Id. at p. 263.)
I.V. was distinguished in a case the minor relies on, People v. Sandee (2017) 15 Cal.App.5th 294. The defendant in Sandee was subject to a probation condition authorizing warrantless searches of her property and personal effects when police searched her cell phone without a warrant. (Id. at pp. 297-298.) The Court of Appeal found a reasonable person would find the condition included searches of cell phones because the "condition is worded very broadly and contains no language whatsoever that would limit the terms 'property' and 'personal effects' to exclude Sandee's cell phone or other electronic devices and the data stored on them." (Id. at p. 302.)
The timing of the search was essential to the result in Sandee. (See People v. Sandee, supra, 15 Cal.App.4th at p. 301 ["We conclude that the proper inquiry focuses on what a reasonable, objective person would understand the search condition to mean at the time of the search"].) The Legislature had enacted the Electronic Communications Privacy Act (Pen. Code, § 1546, et. seq.) (ECPA) which prevented a government entity from accessing "electronic device information by means of physical interaction or electronic communication with the electronic device" absent certain enumerated exceptions such as the specific consent of the owner or "[e]xcept where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release." (§ 1546.1, subds. (a)(3), (c)(4), (c)(10); Sandee, at p. 304.) The ECPA took effect on January 1, 2016, after the search in Sandee. (Sandee, at p. 304.) "As the ECPA was not in effect at the time of the search, a reasonable, objective person at the time of the search would not have understood the ECPA to restrict the scope of the search permitted by the probation orders." (Id. at p. 305.) This also allowed the Sandee court to distinguish I.V., as the search condition in that case was promulgated after the ECPA took effect. "In light of the fact that I.V. considered the scope of a search condition imposed after the ECPA became effective in January 2016, although I.V. used broad language in describing its holding, we do not find its analysis regarding the scope of the probation search condition to be applicable in this case, in which the search at issue took place before the ECPA." (Sandee, at p. 306.)
Undesignated statutory references are to the Penal Code.
A third case relevant to this appeal was decided after briefing was concluded. The California Supreme Court invalidated an electronic search condition under Lent in the recently decided case of In re Ricardo P. (2019) 7 Cal.5th 1113. The Supreme Court found the third part of the Lent test, whether a probation condition " 'requires or forbids conduct which is not reasonably related to future criminality . . . .' " (People v. Lent, supra, 15 Cal.3d at p. 486.) Ricardo P., at page 1119 mandates "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.) Since an electronic search condition significantly burdens the probationer's right to privacy, such a condition was not reasonable under Lent's third prong unless the court has "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." (Ricardo P., at pp. 1128-1129.)
"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 . . . .' " (People v. Lent, supra, 15 Cal.3d at p. 486.) --------
The ECPA was in effect when the juvenile court imposed the probation search condition on November 16, 2016. While Ricardo P. was decided after the search condition was imposed, it is clear that after Ricardo P., a probation search condition cannot authorize a warrantless search of electronic devices absent specific factual findings supporting such a condition under Lent's third prong. Such findings are absent here because the juvenile court, like the one in I.V., did not appear to contemplate electronic searches when it imposed the search condition. A probation search condition will support the search of an electronic device only if such a search is specifically authorized by the condition and it is supported by factual findings from the court imposing the condition. Since neither is present here, we construe the search condition to apply only to searches for tangible items and not to authorize searches of the minor's electronic devices. Since the minor's various challenges to the condition are premised entirely on it possibly authorizing electronic searches, they are without merit.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Duarte, J.