The defendant juvenile took pictures of his having sex with a girl he was in school with and then he blackmailed her. He was found delinquent under the juvenile law for possession of child pornography and extortion. The broad probation electronic search condition was reasonable based on the offense. It’s up to him to tell those he communicates with that their messages to and from him would be captured. In re Q.R., 2017 Cal. App. LEXIS 60 (6th Dist. Jan. 27, 2017):
C. The Search Condition is Not Overbroad as Applied to Minor
1. Scope of “Electronic Devices”
Minor argues that the probation condition is unconstitutionally overbroad because the failure to define specific types of “‘electronic devices'” allows probation officers to search “a digital television; video game console, both hand-held and stationary; and something as innocuous as a Kindle Fire or DVD player merely because the device was in [minor’s] control.”
Minor used an electronic device—his cell phone—to perpetrate both offenses he admitted. Though it appears from the record that minor’s cell phone was the only electronic device he used to commit those offenses, the search condition is not unconstitutionally overbroad merely because it encompasses other devices. By allowing the search of other devices, the [condition ensures that minor is neither storing illegal images nor attempting to extort money by the use of any electronic device. If the condition were limited to specific types of electronic devices, minor could attempt to circumvent it by using an unlisted device for inappropriate storage or communication. As drafted, the condition is directed at preventing minor from engaging in the very conduct that brought him under the court’s supervision, while providing probation officers with flexibility in dealing with technological capabilities.
2. Privacy Rights of Third Parties
Minor argues that the condition is unconstitutionally overbroad because it enables probation officers to use minor’s electronic device to obtain information from third parties that is not within minor’s actual possession and control, which affects those third parties’ privacy rights. Minor’s argument appears to relate to his use of social media: by requiring minor to provide his social media account passwords, the condition allows probation officers to access information posted by third parties with whom minor is connected on social media even though some of that information would not be accessible to the general public.
Minor can safeguard the rights of third parties by advising them that information they make accessible to him is not private. Further, any speculative impact on third parties is not a reason to strike the condition since minor lacks standing to assert the constitutional rights of third parties. (See Rakas v. Illinois (1978) 439 U.S. 128, 134 [“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.”].) The court in Malik J. discussed access to third party information as a reason the probation condition at issue in that case was unconstitutionally overbroad. (Malik J., supra, 240 Cal.App.4th at pp. 902-904.) But there is no indication that the Malik J. court considered the standing argument presented by the People here.
3. Accessing Remotely-Stored Information
Minor argues that the condition is unconstitutionally overbroad because probation officers will “have an unfettered right to retrieve any information accessible from the electronic device, including information stored in a remote location.” But limiting the condition to information stored only on the devices themselves would allow minor to circumvent the condition by using a cloud-based storage application. Though it is unclear from the record whether the KeepSafe application minor used to store illegal images was local or cloud-based, he appears to have had the sophistication to protect the images from discovery or deletion with a password. In the context of this case, allowing access to remotely-stored information is not unconstitutional.
4. Expectation of Privacy in Contents of Electronic Devices
Minor argues that the search condition is unconstitutionally overbroad because it unnecessarily infringes on his expectation of privacy in the contents of electronic devices. In essence, minor argues that the burden of the condition is not narrowly tailored to its purpose “because the condition is not limited in any way to the types of data that may be searched.”
Though even as a juvenile probationer minor retains a constitutionally protected expectation of privacy, that expectation is greatly diminished as long as he remains a ward of the court. (In re Jaime P. (2006) 40 Cal.4th 128, 136.) By asserting jurisdiction over him, the juvenile court (and, by extension, the probation department) acts in loco parentis and may curtail minor’s constitutional rights to a greater extent than if he were an adult probationer. (In re Antonio R., supra, 78 Cal.App.4th at p. 941.) His expectation is markedly different from the broader privacy guaranteed under the Fourth Amendment to individuals who are not serving sentences or on grants of probation. It is that pre-conviction expectation of privacy that was at issue in Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] (Riley), where the United States Supreme Court announced the general rule that police may not conduct a warrantless search of a cellular phone seized incident to an arrest. (Riley, ___ U.S. at p. ___ [134 S.Ct. at p. 2485].) Riley is thus distinguishable.
We note again that minor used an electronic device to commit both crimes he admitted. Minor stored the illegal photographs and videos on his cellular phone, and he used that phone to send text messages demanding money while implicitly threatening to share the “‘pics and videos'” with others if Jane Doe did not comply. In the context of this case, robust access to minor’s electronic devices is critical to monitor his progress on probation and to ensure that he is not continuing to engage in the sort of criminal conduct that led to him being declared a ward of the court.
The nature of minor’s crimes and their direct relationship to the use of an electronic device distinguishes this case from those where similar probation conditions have been rejected as unconstitutionally overbroad. For example, in People v. Appleton (2016) 245 Cal.App.4th 717, a different panel of this court struck an electronic search condition imposed on an adult probationer in a false imprisonment case where the only connection to electronic devices was that the probationer had met the minor victim through social media several months before the crime occurred. (Id. at pp. 719-720, 728-729.) Similarly, in In re P.O. (2016) 246 Cal.App.4th 288, the court modified an electronic search condition in a juvenile public intoxication case because the condition bore no relation to the crime and was imposed to monitor the juvenile’s involvement with drugs. (Id. at pp. 291-293, 298; see also Malik J., supra, 240 Cal.App.4th at pp. 899-900, 902.)
Given the facts of this case, we conclude that the electronic search condition is not unconstitutionally overbroad as applied to minor.
