Opinion
C083038
04-13-2020
THE PEOPLE, Plaintiff and Respondent, v. KISHA DONNETTE SANDERS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE015967)
Defendant Kisha Donnette Sanders appeals a judgment entered following her no contest plea to possession of paper and a printer or other thing for the purpose of counterfeiting bank notes or bills (Pen. Code, § 480, subd. (a)) and grant of felony probation for a term of five years. Defendant challenges the electronic search provision found in specific condition of probation No. 5, arguing it is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and overbroad in violation of the United States Constitution. We concur that the condition is overbroad and accordingly will strike it to allow the trial court to craft a new electronic search provision that is more narrowly tailored to the state's legitimate interests.
BACKGROUND
The People's felony complaint charged defendant and three codefendants with one count of possession of "paper and a printer, or other thing for the purpose of counterfeiting bank notes or bills." Defendant pled no contest to this charge. The factual basis for the plea was that defendant, along with her codefendant Jose Morfinreynaga, did "commit a felony violation of section 480(a) of the Penal Code of the [S]tate of California in that said defendants did willfully, unlawfully and knowingly have in their possession materials—including computer, printer and other items—for the purpose of counterfeiting bank notes or bills. [¶] Specifically, . . . sheriff's deputies contacted four individuals inside Room 200 at a La Quinta Hotel. Those four individuals included Mr. Morfinreynaga and [defendant], as well as [two other codefendants].
It was further stipulated that this room was registered in defendant's name.
"Inside the hotel room, deputies discovered five laptop computers, an iPad, several printers and, along with those devices, other indicia that may be used in the process of counterfeiting U.S. currency. Deputies also recovered what appeared to be the security strips used in $100 bank notes as well as images which may be involved in counterfeiting $100 notes. [¶] Deputies also recovered what appeared to be printouts of $100 bills on letter-size[d] paper, the size of which appeared consistent with a $100 note. [¶] Based upon that evidence, Detective Brown from the Sheriff's Department would testify that in his training and experience those items found in Room 200 where the defendants were found could be used to counterfeit those items." At defendant's request, the People's factual basis was supplemented to include that "the mechanism by which [defendant] was using them was by using the printer as a photocopier, and that's how the counterfeits were created. . . . [I]t was the photocopier being used to make the counterfeit bills that [defendant] later possessed."
Defendant waived a formal probation report and was sentenced at the same hearing to felony probation for a term of five years with 364 days in county jail and custody credit of 56 days. The court imposed a $300 restitution fine (§ 1202.4), a stayed $300 probation revocation restitution fine (§ 1202.44), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8). The court also imposed a $402.38 booking fee and a $99.19 classification fee (Gov. Code, § 29550.2).
Defendant objected to specific condition of probation No. 5 because "the mechanism of production of the counterfeit bills was the printers, which are effectively scanners and photocopiers. [¶] What weren't involved in this were the computers, the iPads and cell phones. So I object to this search condition regarding any of those electronic devices as a violation of my client's Fourth Amendment rights and the state constitutional right to privacy as codified in Penal Code section 1546." Therefore, defendant asked that any condition imposed be "limited to scanners, photocopiers, and printers . . . [and] explicitly exclude computers, iPads, similar devices to iPads and cell phones."
Defendant also filed a boilerplate written objection to this search condition, arguing in pertinent part that it did not relate to the crime or future criminality, that the nature of the search was too intrusive to be justified in this case, and that the condition was unconstitutionally overbroad requiring modification. These combined objections have preserved her as-applied challenge to the constitutionality of the electronics search provision. The People's appellate arguments to the contrary are not well-taken.
The People countered that electronic devices had been used in the commission of the crime and that defendant had pled to a common set of underlying facts. Specifically, the People represented that one of the computers had been physically connected to a printer inside the hotel room, that "[t]here were printouts of what appeared to be attempts to counterfeit $100 bill notes," and that at least one of the printouts was in the size and shape of a fake $100 bill. The flash drives and iPad recovered had not yet been examined, nor were the seven cell phones recovered from the room. Further, the People argued "the law itself acknowledges use of computers in counterfeiting currency, and . . . provides for the forfeiture and destruction of computers used in the production of counterfeit money." The People did not oppose the narrowing of the condition to eliminate cell phones, consistent with the condition imposed on a codefendant.
The court narrowed the proposed condition by eliminating cell phones and limiting the devices searchable to those specifically identified in the condition. As modified, specific condition of probation No. 5 stated: "P.C. 1546 searchable - Defendant shall submit her person, place, property, automobile, electronic storage devices, limited to computers, printers, tablets, and/or flash drives 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 access to any electronic storage devices and data contained therein, including disclosing and providing any and all [information] necessary to conduct a search." (Italics added.)
DISCUSSION
Defendant requests that we strike specific condition of probation No. 5 because it is invalid under Lent and unconstitutionally overbroad. We agree that it is overbroad and will strike it on that basis.
A. The Court's Authority to Set Conditions of Probation as Limited by Lent
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et. seq.)" (Lent, supra, 15 Cal.3d at p. 486.) Consequently, the imposition of a probation condition is generally reviewed for an abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "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.]" (Lent, at p. 486.) The Lent test "is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, at pp. 379-380.)
In an opinion issued after briefing was completed here, the Supreme Court clarified that the third prong of Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1122 (Ricardo P.).) In that case, a minor was placed on probation after admitting to two counts of burglary. Included among the conditions of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Id. at p. 1115.) Although the minor did not use electronic devices in committing the burglaries, the juvenile court "imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Id. at p. 1115.)
The court found that the required proportionality was not present. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The electronic search condition significantly burdened the minor's privacy interests given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at pp. 1122-1123.) In contrast, the record did not support such a significant burden on the minor's privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Ibid.) Such an abstract or hypothetical connection to the interest served by the probation condition was insufficient to justify the significant intrusion into the minor's privacy. (Id. at pp. 1119-1123.)
The court reasoned: "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
Nor did the court accept the argument that any condition reasonably related to effective supervision was valid under Olguin, which had upheld a probation condition requiring the probationer to notify the probation officer of the presence of any pets at his/her residence. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.) Unlike a minimally intrusive notification requirement meant to ensure officer safety, "requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Id. at p. 1126.)
In contrast to the minor in Ricardo P., here, the electronic search condition is related to the crime to which defendant pled guilty and there is evidence in the record supporting that defendant intended to utilize a computer in her counterfeiting activities. The stipulated factual basis for defendant's plea included that she "willfully, unlawfully and knowingly ha[d] in [her] possession materials—including computer, printer and other items—for the purpose of counterfeiting bank notes or bills," and that the People's expert would testify that the items found in the hotel room with defendant and her codefendants could be used to counterfeit $100 bills. Further, the People argued in support of the search condition that one of the computers in the hotel room was plugged into one of the printers possessed for the purposes of counterfeiting bills, and that there were printouts of attempts to make counterfeit money in the approximate size and shape of $100 bills.
There is slight ambiguity regarding whether defendant admitted to possessing a computer for the purpose of counterfeiting bills given that defendant's counsel added to the stipulation of facts that "the mechanism by which [defendant] was using them was by using the printer as a photocopier, and that's how the counterfeits were created. . . . [I]t was the photocopier being used to make the counterfeit bills that [defendant] later possessed." Further, the nexus for the search of iPads and flash drives is attenuated, given that these items (like cell phones) were not mentioned in the factual basis, which only referenced "other items." Ultimately, we find it unnecessary to decide whether specific condition of probation No. 5 complies with Lent given our conclusion that it is constitutionally overbroad.
B. Specific Condition of Probation No. 5 is Constitutionally Overbroad
"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.) "Conditions which infringe on constitutional rights are not automatically invalid. 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.)
To that end, 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.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153, quoting In re Victor L. (2010) 182 Cal.App.4th 902, 910.) "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., at p. 1153.) Our review of the constitutionality of specific condition of probation No. 5 is de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)
Specific condition of probation No. 5's electronic search provision allows for the warrantless search of defendant's "electronic storage devices, limited to computers, printers, tablets, and/or flash drives" to be conducted by any member of law enforcement, at any time, and without defendant's presence. (Italics added.) The condition further requires defendant to "provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search." There are no limits on the information that may be searched within the identified electronic devices.
The subject search condition plainly implicates defendant's constitutional rights. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123; Riley v. California (2014) 573 U.S. 373, 393-395 [189 L.Ed.2d 430, 446-447] (Riley); People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton).) As recognized by the United States Supreme Court in Riley, supra, at pages 393 through 397, allowing searches of modern cell phones implicates significant privacy concerns. Quantitatively, cell phones have an immense storage capacity, enabling the collection of large amounts of data, much of which would not have been previously kept, dating back to the purchase of the device or beyond. (Riley, supra, 573 U.S. at pp. 394-395.) Qualitatively, phones collect types of data previously unavailable, such as search histories, location data, and software applications, which allow unprecedented infiltration into an individual's private life, including medical and romantic interests, et cetera. (Id. at pp. 395-396.) In fact, "[a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." (Id. at pp. 396-397.)
Although the trial court excluded cell phones from the electronic search provision at issue here, defendant's computers, tablets, and flash drives remain subject to unlimited search by authorities. Computers and tablets implicate many of the same privacy concerns outlined in Riley. (See, e.g., Appleton, supra, 245 Cal.App.4th at pp. 724-725 [recognizing much of Riley's reasoning "would apply to other modern electronic devices," including computers]; State v. Mansor (Or. 2018) 363 Ore. 185, 201, fn. 10 ["We agree that different species of personal digital devices, such as tablets, smart phones, laptops, and desktop computers, share many of the attributes discussed in Riley"].) This is all the more true considering that tablets not only have the same storage capabilities and software applications as mobile phones, but can also be linked with a smart phone, further highlighting the applicability of Riley's privacy concerns. (See <https://support.apple.com/en-us/HT204681> [as of Apr. 10, 2020], archived at <https://perma.cc/73BA-AU3Z> [discussing Apple's continuity function].)
Further, while defendant has a reduced expectation of privacy by virtue of her probationer status, she still retains a protectable privacy interest. (Ricardo P., supra, 7 Cal.5th at p. 1140 (dis. opn. of Cantil-Sakauye, C. J.) [citing In re Jaime P. (2006) 40 Cal.4th 128, 137 for proposition that " 'both parolees and probationers retain some expectation of privacy, albeit a reduced one' "]; Samson v. California (2006) 547 U.S. 843, 849-850 [165 L.Ed.2d 250, 258].) This reduced privacy interest still begs the question whether a broad intrusion into personal affairs is tailored carefully to the government's legitimate interest in defendant's rehabilitation. On the facts of this case, we conclude that it is not.
The state has a legitimate and significant interest in ensuring that the purpose of probation—defendant's rehabilitation—is achieved in this case. (See People v. Wardlow (1991) 227 Cal.App.3d 360, 365 ["The purpose of probation is rehabilitation"].) This interest includes not only the rehabilitation of the probationer, but also protection of the community. (United States v. Knights (2001) 534 U.S. 112, 119-120 [151 L.Ed.2d 497, 505].)
However, the state's interest in reforming defendant's counterfeiting tendencies while protecting the community does not justify unfettered access to defendant's computers, tablets, and flash drives, enabling the search of highly personal data having no reasonable connection to ensuring defendant does not reoffend. The language utilized in specific condition of probation No. 5 subjects almost all of defendant's "electronic storage devices" to unlimited search. This imprecise and limitless language could require defendant to give law enforcement access to storage media containing medical records, social media accounts, digital photographs and videos, her GPS location, and private communications including personal e-mails, unrelated to the crime for which she was convicted and even files that predate the grant of probation. Even with her lessened expectation of privacy as a probationer, such access sweeps more broadly than necessary to achieve the state's legitimate purposes and on that ground must be stricken. (See In re P.O. (2016) 246 Cal.App.4th 288, 298-299 [striking search condition permitting review of information unrelated to goal of monitoring minor's involvement with drugs as overbroad]; Appleton, supra, 245 Cal.App.4th at p. 725 [striking as overbroad electronic search probation condition that "could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity"].)
On remand, the trial court may choose (or the People may move) to impose a probation condition permitting searches of a narrower range of electronic information related to the court's supervisory concerns. Such a condition could, for example, limit searches of defendant's electronic storage devices to electronic information that is reasonably likely to reveal whether defendant is engaged in counterfeiting activity after the date of the grant of probation.
DISPOSITION
We strike specific condition of probation No. 5 because it is constitutionally overbroad and remand for further proceedings in the trial court consistent with this opinion. The judgment is otherwise affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. HOCH, J.