Opinion
H042440
05-10-2017
THE PEOPLE, Plaintiff and Respondent, v. WIL QUINTERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 213942)
Defendant Wil Quintero pleaded no contest to one count of possession of a short-barreled shotgun (Pen. Code, § 33210), and admitted a gang enhancement (§ 186.22, subd. (b)(1)(A)). As a condition of formal probation, the court ordered that defendant provide all passwords for any electronic devices and social media websites to the probation department.
All further statutory references are to the Penal Code.
On appeal, defendant argues that the electronic search conditions should be stricken because they are unconstitutionally vague and overbroad.
STATEMENT OF THE FACTS AND CASE
The probation report prepared in this case provides the following summary of the facts that gave rise to defendant's criminal charges: "On July 1, 2013 San Jose Police received a call stating there were two young men walking around Foxdale Loop Apartments with firearms.
"Officers arrived on the scene and spotted two suspects matching the witness's description. The officers made a contact, placed the suspects in handcuffs and conducted a search of their persons. The defendant admitted to being in possession of a shotgun.
"In the bushes near the area where the two suspects were observed walking, Officers located a shotgun. Near shotgun Officers recovered a .380 handgun wrapped inside of a white t-shirt. In addition to the firearms the defendant was wearing a red belt, black and red Raiders baseball hat, hooded sweatshirt with red lettering. The defendant stated 'all my family members are Nortenos.' He also identified himself as a Norteno. The defendant was placed under arrest and transported to County Jail."
On June 17, 2014, defendant was charged by indictment with one count of possession of a short-barreled shotgun (§ 33210; count 1) and one count of carrying a firearm while masked (§ 25300; count 2). Additionally, the prosecution alleged a gang enhancement (§ 186.22, subd. (b)(1)(A)) as to both counts. On February 17, 2015, pursuant to a negotiated disposition, appellant pleaded no contest to one count of possession of a short-barreled shotgun (§ 33210; count 1), and he admitted the gang enhancement (§ 186.22, subd. (b)(1)(A)). The remaining count of carrying a firearm while masked (§ 25300; count 2) was submitted for dismissal at the time of sentencing.
On May 11, 2015, defendant was placed on formal probation for a period of three years and ordered to serve one year in county jail. The conditions of defendant's probation required various "gang terms," including the following regarding electronic information: "16. The defendant shall provide all passwords for any electronic devices (including but not limited to cellular telephones, computers or notepads) within his custody or control and shall submit said devices to search at anytime [sic] without a warrant by any peace officer. [¶] 17. The defendant shall provide all passwords to any social media sites (including but not limited to Facebook, Instagram and MocoSpace) and shall submit said sites to search at anytime [sic] without a warrant by any peace officer.".
DISCUSSION
Defendant asserts that the probation conditions that require him to reveal his passwords to his electronic devices and to his social media accounts are vague and overbroad should be stricken.
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation] 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. [Citation]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "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." (Ibid.) We review de novo the constitutional challenge to the probation conditions. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Vagueness
Defendant argues that the search conditions are vague because they do not adequately define "password," "social media site," or "electronic device." With regard to "electronic devices," defendant asserts that "it is unknown which of the multitude of modern electronic devices that are now such a pervasive and insistent part of daily life are subject to search."
The First District Court of Appeal rejected an identical claim challenging an essentially identical probation condition in In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.). Like defendant, the minor in Malik J. argued that the phrase "any electronic devices" could be interpreted to include Kindles, Sony Playstations, iPods, or the codes to his car, home security system, or ATM card. The court in Malik J. rejected this argument, stating: "We think it was reasonably clear that the condition applies to similar electronic devices [to cell phones, computers and notepads] within Malik's custody and control . . . and not, as Malik conjectures, to authorize a search of his Kindle to see what books he is reading or require him to turn over his ATM password. '[C]onditions [of probation] need not be spelled out in great detail in court as long as defendant knows what they are[.]' [Citation]" (Id. at p. 905.) We agree with the court in Malik J., and similarly find that the term "electronic devices" is not vague.
Defendant also argues that the terms "password," and "social media" are unclear. He asserts that fingerprint and retinal scan technology have expanded the concept of "password," such that the term is now vague. He also argues the term "social media" is "so far from the common understanding that dictionary definitions do little to inform the layman."
Without question, the terms "password," and "social media site," are ubiquitous in today's culture. Merriam-Webster defines "password" as "something that enables one to pass or gain admission: such as: . . . a sequence of characters required for access to a computer system." (Merriam-Webster <http://merriam-webster.com/dictionary/ password> (as of May 4, 2017).) While it is true that some current devices include the ability to use fingerprints or retinal scans for access, they also include traditional passwords as a bypass for those features. Further "social media site" is not vague, because it is "reasonably certain by reference to other definable sources." (See, e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 630.) In stating the condition, the court included specific examples of social media sites, including Facebook, Instagram, and MocoSpace. The examples define "social media site," and provide sufficient precision so that defendant knows what types of accounts are subject to search. (See Sheena K. 40 Cal.4th at p. 890.)
We find that the electronic search conditions in this case are clear and are not unconstitutionally vague.
Overbreadth
Defendant argues that the electronic search conditions are overbroad, because they implicate significant privacy concerns due to the extensive personal information that is stored on electronic devices.
This court recognized the privacy concerns posed by warrantless searches of personal electronic devices, including computers and cell phones in People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton). In Appleton, the defendant, who pleaded no contest to false imprisonment by means of deceit, challenged the probation condition that stated: " '[a]ny computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law.' " (Id. at 721.) This court concluded that the electronic search condition was overbroad because it "would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality." (Id. at p. 727.)
In Appleton, this court further stated: "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." (Appleton, supra, 245 Cal.App.4th at p. 725.) This court ordered that the electronic search condition be stricken as overbroad, and remanded the matter for the trial court to consider whether it could "impose a valid condition more narrowly tailored to the state's interests." (Id. at p. 727.)
Respondent urges us to reject the rationale in Appleton, and instead follow People v. Ebertowski (2015) 228 Cal.App.4th 1170, wherein this court found a probation condition allowing the search of electronic devices and social media cites permissible in the context of a criminal gang case. "Defendant's constitutional privacy rights are not improperly abridged by the password conditions any more than they are by the search condition." (Id. at p. 1176, fn. omitted.) "Even where there is '(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct constituting a serious invasion of the privacy interest,' the constitutional right to privacy is not violated if 'the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests.' " (Ibid.) Accordingly, in Ebertowski this court held that the state's interest in preventing the defendant from continuing to associate with gangs and participate in gang activities outweighed the minimal invasion of his privacy. (Ibid.)
While it is true that Ebertowski involved a criminal street gang, the very important distinction between it and the present case is that in Ebertowski, the defendant "used social media cites historically to promote the Seven Trees Nortefio criminal street gang," and that he "is a criminal street gang member who promotes his gang on social media, . . ." (Ebertowski, supra, 228 Cal.App.4th at pp. 1173, 1175.) Here, there was no evidence that defendant used his electronic devices or social media cites to promote his gang membership or activities.
Several cases since Ebertowski have found probation conditions similar to those in this case to be overbroad. In Malik J., supra, 240 Cal.App.4th 896, 902, the court found a probation condition that required the minor to turn over passwords to electronic devices and social media accounts "significantly encroache[d]" on the minor's and "potentially third parties' constitutional rights of privacy and free speech." (Ibid.) The court modified the electronic search condition to omit the requirement that the minor divulge his social media passwords and to restrict searches only to electronic devices found in the minors custody and control and disabled from any network connection. (Id. at pp. 902, 906.)
Similarly in In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), the court modified the electronic search condition to limit searches of the minor's "cell phone data and electronic accounts to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs." (Id. at p. 298.) The court further restricted the minor's disclosure of passwords to those accounts " 'necessary to access the information specified. Such media of communication include text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.' " (Id. at p. 300.)
The issue of whether an electronic search condition similar to the one in this case is overbroad in the context of a minor's supervision in a delinquency action is currently pending in the California Supreme Court. (In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.) --------
Based on our decision in Appleton, as well as subsequent Court of Appeal cases, we find that the electronic search conditions in this case are overbroad. As currently stated, the conditions allow for searches that can potentially sweep vast amounts of personal information that is not relevant to future gang crimes. Consistent with these findings, we hold that probation conditions Nos. 16 and 17 must be modified to limit authorization of warrantless searches of defendant's electronic devices, including computers, cell phones, and notepads, to communication reasonably likely to reveal any involvement in proscribed gang-related activity, including text and voicemail messages, photographs, e-mail accounts, and social media accounts. Defendant must disclose to peace officers any passwords necessary to gain access to those accounts reasonably likely to contain information authorized for search. (See, e.g., P.O., supra, 246 Cal.App.4th at p. 300.)
DISPOSITION
Probation condition No. 16 is modified to read: "The defendant shall provide all passwords to any electronic devices, including but not limited to, cellular telephones, computers, or notepads within his custody or control, and submit said devices to search at any time without a warrant by any peace officer. A search pursuant to this condition is limited to communication reasonably likely to reveal involvement in proscribed gang-related activity, including text and voicemail messages, photographs, e-mail accounts, and social media accounts, and excluding any personal communications."
Probation condition No. 17 is modified to read: "The defendant shall provide all passwords to any social media sites, including but not limited, to Facebook, Instagram, and Mocospace, and shall submit the sites to search at any time without a warrant by any peace officer. A search pursuant to this condition is limited to material posted to or received via social media that is reasonably likely to reveal involvement in proscribed gang-related activity, including messages, photographs, and e-mail, and excluding any personal communications."
As modified, the judgment is affirmed.
/s/_________
RUSHING, P.J. I CONCUR: /s/_________
PREMO, J. I respectfully dissent.
I would adhere to our opinion in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) in which we rejected an overbreadth argument with respect to essentially the same probation conditions challenged in this case. In this case, like defendant Ebertowski, the probationer had identified himself as a gang member. Here, defendant pleaded no contest to a crime and admitted the gang enhancement allegation. The trial court imposed various gang terms as conditions of probation.
In Ebertowski, we stated: "The evident purpose of the password conditions was to permit the probation officer to implement the search, association, and gang insignia conditions that were designed to monitor and suppress defendant's gang activity. Without passwords for defendant's devices and social media accounts, the probation officer would not be able to search them under the unchallenged [general warrantless] search condition in order to assess defendant's compliance with the unchallenged association and gang insignia conditions. Defendant does not suggest how the password conditions could be more closely tailored to this purpose, and we can conceive of no adequate restriction that would still serve this purpose." (Ebertowski, supra, 228 Cal.App.4th at p. 1175.) We concluded that "[t]he minimal invasion of his privacy that is involved in the probation officer monitoring defendant's use of his devices and his social media accounts while defendant is on probation is outweighed by the state's interest in protecting the public from a dangerous criminal who has been granted the privilege of probation." (Id. at p. 1176.)
"Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citation.] Just 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." (United States v. Knights (2001) 534 U.S. 112, 119 (Knights).) "[A] State's interests in reducing recidivism, thereby promoting reintegration and positive citizenship among probationers and parolees[,] warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. [Citations.]" (Samson v. California (2006) 547 U.S. 843, 844 (Samson).) "[T]he Fourth Amendment does not render States powerless to address these concerns effectively. [Citation.]" (Id. at p. 854.)
Generally speaking, probation searches, such as a search of a probationer's home, are "necessary to the promotion of legitimate governmental interests" (Samson, supra, 547 U.S. at p. 849). The Supreme Court has "credited the ' "assumption" ' that, by virtue of his status, a probationer ' "is more likely than the ordinary citizen to violate the law[]" ' [citation]." (Ibid.). "[P]robationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation . . . ." (Knights, supra, 534 U.S. at p. 120.) Therefore, the state may "justifiably focus on probationers in a way that it does not on the ordinary citizen." (Id. at p. 121.)
In addition, it is not uncommon for gang members to use electronic devices and social media sites, and a warrantless search of defendant's electronic devices or social media sites pursuant to the challenged conditions may disclose continuing gang involvement despite the imposition of gang-related probation conditions. The test for determining whether an electronic devices or social media search condition is unconstitutionally overbroad on its face is not whether or not defendant has in the past "used his electronic devices and social media [s]ites to promote his gang membership or activities." (Maj. opn. ante, at p. 6.) "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Here, the legitimate purpose of the challenged conditions is to closely supervise and monitor defendant for purposes of both rehabilitation and deterrence. (See Pen. Code, § 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 381 (Olguin).)
On their face, the challenged conditions do not potentially intrude upon "vast amounts of [defendant's] personal information" irrelevant to the purposes of his probation. (Maj. opn. ante, at p. 7.) "[A]n appellate claim—amounting to a 'facial challenge'—that phrasing or language of a probation condition is unconstitutionally vague [or] overbroad . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (In re Sheena K. (2007) 40 Cal.4th 875, 885, italics added.)
Riley v. California (2014) 573 U.S. ___ (Riley), which defendant cites, did not establish a rule of law applicable to probation searches. In declining to extend the categorical rule allowing warrantless searches incident to arrest to include searches of data on cell phones (id. at p. ___ ), the United States Supreme Court recognized that police searches of cell phones may potentially result in a profound intrusion into privacy because "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." (Id. at p. ___ .) But Riley involved an entirely different Fourth Amendment context and is readily distinguishable from cases involving probation conditions. (See In re Q.R. (2017) 7 Cal.App.5th 1231, 1238 (Q.R.), review granted April 12, 2017, S240222.) The balancing of law enforcement and privacy interests is very different in the present situation, which involves the individualized probation supervision of a single person who had identified himself as a Norteño gang member and was found beyond a reasonable doubt to have committed a crime for the benefit of the gang.
"[P]robation is a privilege and not a right, and . . . adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 384; see People v. Bravo (1987) 43 Cal.3d 600, 608-609.) "Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.]" (People v. Robles (2000) 23 Cal.4th 789, 795.)
The majority's modifications to "tailor" the probation conditions may well allow the probationer to circumvent effective supervision. As modified, the challenged conditions exclude "any personal communications." Moreover, the conditions as modified impose upon officers an unworkable standard, limiting searches of defendant's electronic devices and social media sites under the probation conditions to communications and materials "reasonably likely to reveal involvement in proscribed gang-related activity." (Maj. opn. ante, at p. 8.) That sounds akin to a probable cause requirement, which fundamentally undermines a warrantless search condition. (Cf. Illinois v. Gates (1983) 462 U.S. 213, 238 [probable cause requires "a fair probability that contraband or evidence of a crime will be found in a particular place" under the totality of circumstances].) It is also important to keep in mind that probation supervision and probation conditions permitting warrantless searches are aimed at all forms of criminality and prohibited behavior potentially leading to future criminality, not just gang-related activity. The majority's modifications unnecessarily hamstring probation supervision.
/s/_________
ELIA, J.