Opinion
C083246
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. SHANE KUMAR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE019513)
After defendant Shane Kumar pled no contest to making criminal threats, the trial court placed him on five years' probation and imposed an electronic search condition. On appeal, defendant contends: 1) the imposition of an electronic search condition as a condition of his probation is invalid under People v. Lent (1975) 15 Cal.3d 481; and 2) the condition is overbroad. We find defendant's claim under Lent is forfeited for failure to raise it in the trial court. We agree, however, that on the facts of this case, the electronics 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 electronics 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.
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 defendant waived preparation of a probation report. In sum, defendant made threats to commit a crime against S. Z. that would result in death or great bodily injury to her. He intended the statement to be a threat, and as a result of the threat, she felt reasonable and sustained fear. Defendant pled no contest to making criminal threats. The trial court placed defendant on five years' probation, conditioned on serving 120 days in jail, with 17 days of custody credit. The trial court also issued a domestic violence criminal protective no-contact order, which explicitly prohibited electronic contact with the victim.
At the plea hearing, defense counsel objected to the imposition of the electronic search condition as being overbroad. The prosecution countered that the threats, including the threat to kill the victim, were made repeatedly through text messages. The prosecution also filed boilerplate points and authorities in support of imposing the electronic search condition. Attached to the People's response was a declaration from Sacramento Sheriff's Deputy Sean Smith. The declaration generally indicated Smith's background and experience as a peace officer and delineated the type of evidence that may be found on electronic devices as to various categories of criminal offenses, including domestic violence offenses. As to domestic violence offenses, Smith declared those who commit domestic violence related offenses often violate protective or no-contact orders issued after the offense. Evidence of these violations can frequently be found on electronic devices, through communications on the device and geolocation data. The declaration also delineated in general terms the need of law enforcement to have complete access to electronic devices, including all passwords and contents. The argument in the prosecution's points and authorities and the statements in Smith's declaration do not contain any arguments or information specific to this defendant, his criminal background, or the particular offense he committed. The trial court found the electronic search condition was not overly onerous under the facts and circumstances of this case.
Nothing in the complaint, factual basis, or plea hearing indicates this was a domestic violence offense. However, without objection, the no-contact order was issued under Penal Code section 1203.097, which specifically delineates terms of probation in domestic violence cases. Accordingly, this appears to be the relevant portion of Smith's declaration.
The probation condition imposed states: "P.C. 1546 searchable -- Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phone[s] 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 his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices. [¶] Defendant shall provide acces[s] to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."
DISCUSSION
I
Validity Of Electronic Search Condition Under Lent
Defendant contends the electronic search condition imposed in this case is invalid under Lent because the condition is not related to the current offense, the conduct to which the condition relates is not, in itself, criminal, and the condition is not related to future criminal conduct.
Although the People do not raise the issue, we conclude defendant did not preserve this claim. In the trial court, defendant objected to the electronics search condition on the grounds the condition was overbroad but did not object that it was unreasonable under Lent. The challenge that a probation condition is invalid under Lent does not present a constitutional issue and is not correctable without referring to factual findings in the record. Thus, the failure to object that the challenged condition is unreasonable under Lent forfeits the contention on appeal. (In re Vincent G. (2008) 162 Cal.App.4th 238, 246; In re Sheena K. (2007) 40 Cal.4th 875, 883, 889; see also People v . Welch (1993) 5 Cal.4th 228, 235.)
II
Constitutional Overbreadth
Defendant also claims the electronics search condition is constitutionally overbroad, as it permits "unwarranted intrusions" into data related to a wide range of defendant's private information, such as medical, psychological, political, and financial data.
"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., supra, 40 Cal.4th at p. 890.) "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.) "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.) "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.' " (Ibid.) We independently review defendant's constitutional challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
The United States Supreme Court's observations in Riley v. California (2014) 573 U.S. 373, , make clear that a probation condition that authorizes the warrantless search of an electronic storage device, such as a cell phone, carries the potential for a significant intrusion into defendant's private affairs. The electronic 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." (People v. Appleton (2016) 245 Cal.App.4th 717, 725.) The mobile application software could also include information about defendant's political and religious affiliations, health concerns, medical and financial data, hobbies, and social life. (Riley, at p. 396 .)
The elimination of domestic violence and the protection of domestic violence victims are compelling state interests. (People v. Jungers (2005) 127 Cal.App.4th 698, 703-704.) So, too, is the state's interest in ensuring defendant is complying with the terms of his probation, including the specific condition he not have contact or communicate with the victim, promoting defendant's rehabilitation, and preventing recidivism. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Robles (2000) 23 Cal.4th 789, 795.)
Despite these important state interests, we agree with defendant that the electronics search condition impinges on his constitutional rights under the Fourth Amendment. (See People v. Appleton, supra, 245 Cal.App.4th at pp. 724-725.) As currently stated, the electronic search condition "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." (Appleton, at p. 725.) The state's interests in preventing communication with the victim and fostering defendant's rehabilitation, could be served through narrower means. We therefore conclude that the electronics search condition is not sufficiently tailored to its purpose, and must be modified to limit authorization of searches to devices, accounts, and applications that are reasonably likely to reveal whether defendant has engaged in prohibited communication with the victim or otherwise violated the terms of his probation.
Having determined this condition is unconstitutionally overbroad, we need not address defendant's additional claims challenging the condition.
Because defendant forfeited the claim under Lent, we need not employ the analysis recently set forth by the majority in In re Ricardo P. (2019) 7 Cal.5th 1113, which addressed the question of whether an electronic storage device condition satisfied the third prong of the Lent test. --------
DISPOSITION
The trial court is directed to issue an amended probation order striking the electronic search condition. As modified, the judgment is affirmed. Because the trial court may be able to impose a valid condition more narrowly tailored to the state's interests, the case is remanded to the trial court for further proceedings consistent with this opinion. In so doing, the trial court will need to consider Ricardo P., as well as constitutional overbreadth.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.