Cal.3d: Domestic battery conviction didn’t support cell phone probation search condition

A broad probation electronics search condition for domestic battery was constitutionally overbroad because it doesn’t sufficiently serve the state’s interests compared to the crime of conviction. A cell phone has far too much information on it to make it so broadly searchable. People v. Valdivia, 2017 Cal. App. LEXIS 986 (3d Dist. Nov. 8, 2017):

Given the potential for an essentially unprecedented intrusion into private affairs that may — and likely will — have nothing to do with illegal activity, the question is whether such an intrusion is nonetheless constitutionally permissible because it is tailored carefully to the government’s legitimate interest in defendant’s reformation and rehabilitation. We conclude it is not.

It goes without saying that the state has a legitimate and significant interest in ensuring that the purpose of probation — defendant’s rehabilitation — is achieved here. (See People v. Wardlow (1991) 227 Cal.App.3d 360, 365 ["The purpose of probation is rehabilitation"].) Moreover, as we have concluded already in upholding the electronic storage device search condition under Lent, a search condition that permits warrantless searches of electronic storage devices under defendant’s control for evidence of criminal activity can be understood to serve that purpose by helping to ensure that defendant is obeying all laws, which another condition of his probation requires him to do. But at the same time the electronic storage device search condition serves the state’s legitimate interest in monitoring defendant’s rehabilitation, it permits unprecedented intrusion into his private affairs — and it does so on a record that demonstrates little likelihood, or even possibility, that evidence of illegal activity will be found in the devices the condition subjects to a warrantless search.

As defendant points out, “the record does not show that electronic devices played any role in the underlying criminal conduct” — that is, defendant’s infliction of corporal injury on his wife. Moreover, there was nothing in the record to demonstrate that defendant “use[d] electronic devices for wrongful purposes in the past.” Essentially, the record here showed only that defendant physically assaulted his wife on a single occasion. And it is significant that the People did not seek, nor did the trial court issue, a protective order prohibiting defendant from having contact with his wife. Rather, defendant was subjected only to a peaceful contact order — meaning he can still lawfully reside with his wife and interact with her on a daily basis, as long as he does so peacefully. Under these circumstances, there appears to be no substantial reason for believing that evidence of future criminal activity by defendant is likely to be found on electronic storage devices under his control.

In their attempt to justify imposition of the electronic storage device search condition on defendant, the People first contend that “because [he] has pleaded no contest to a felony and accepted probation in lieu of additional punishment, [defendant] has a diminished expectation of privacy as compared to law-abiding citizens or those subject to searches incident to arrest.” This is undoubtedly true, but at the same time defendant did not entirely surrender his rights under the Fourth Amendment by pleading no contest and accepting probation. The fact that the overbreadth doctrine applies at all to probationers like defendant illustrates this point. A probation condition that infringes on the constitutional rights a probationer otherwise enjoys still must be closely tailored to achieve the legitimate purpose or purposes of that condition. The fact that a person convicted of a felony has agreed to subject himself to the supervision of probation does not, by itself, give the government the right to dig through every aspect of that person’s private affairs in search of evidence of criminal activity without any explanation or justification from the government of why such a search has, at the very least, a reasonable possibility of actually uncovering such evidence.

In attempting to suggest that such a possibility was shown here, the People argue essentially that the electronic storage device search condition was justified because defendant was convicted of a crime of domestic violence, and the evidence before the trial court (in the form of the stock declaration from the sheriff’s deputy) showed that “in domestic violence related crimes, offenders often violate criminal protective orders like the one issued against [defendant] by threatening their victims via various electronic devices.”

We find this argument unpersuasive for two reasons. First, the evidence presented to the trial court was not specific to peaceful contact protective orders like the one the court issued here. As we have explained, the sheriff’s deputy whose declaration was offered to justify imposition of the electronic storage device search condition attested only generally that the perpetrators of domestic violence crimes “often violate restraining orders, protective orders, or no[-]contact orders which ha[ve] been issued post-offense,” and “[e]vidence of these violations is often found on electronic devices” in the form of actual communications with the protected party “via text, chat, or email,” or “[g]eolocation data” that could “provide evidence that the suspect’s device was near the victim['s] location in violation of an order.” The deputy further asserted that “[p]hotographic images, videos, or voice recording communications” could violate such orders, and evidence of those items might be found on the perpetrator’s electronic device.

Whatever the validity of the deputy’s observations might be in cases involving no-contact protective orders, there appears little, if any, substantial basis for finding a reasonable possibility that evidence of a violation of the peaceful contact order imposed here would be found on an electronic storage device under defendant’s control. As defendant himself observes, “[a]nything violent or abusive [he] would potentially convey to the victim through text, Instagram or Snapchat, he could convey much more easily in the flesh.” As a matter of pure logic, just because defendant physically assaulted his wife does not make it any more likely that evidence of future behavior toward her in violation of the peaceful contact order would be found on a cell phone or computer under his control. And as a matter of experience — particularly the experience of the sheriff’s deputy whose stock declaration was offered in support of the electronic storage device search condition — there is simply no adequate evidentiary basis for concluding that evidence of a violation of a peaceful contact order is likely to be found on an electronic storage device under defendant’s control, especially when the deputy’s testimony addressed in an undifferentiated manner all types of protective orders, including no-contact orders, and that testimony was not in any way tailored to defendant or his circumstances.

The second reason we reject the People’s attempt to justify imposition of the electronic storage device search condition on the basis that evidence of a violation of the peaceful contact order might be found in a search performed pursuant to that condition is that, in any event, the People’s justification is too narrow to reasonably justify the breadth of the condition actually imposed. Essentially, the People’s position breaks down to this: Because there is a possibility that evidence of contact between defendant and his wife that violates the peaceful contact order — e.g., contact that amounts to harassing, threatening, following, stalking, or molesting her — might be found on an electronic storage device under defendant’s control, the warrantless search of such devices without any limitation whatsoever is justifiable and not overbroad under the Fourth Amendment. On the record before us, however, we cannot agree with that position. As set forth above, Riley details the staggering amount of personal information that can be found on a typical cell phone, and Appleton reinforces that point. We cannot say that it is reasonable to allow law enforcement officials to cull through all such information on defendant’s devices, without limitation, because of the remote possibility that somewhere in that information evidence of a nonpeaceful contact between defendant and his wife may be found.

For both of the foregoing reasons, we conclude that on the record in this case the electronic 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. Whether the condition can, as a practical matter, be narrowed in a manner that will allow it to pass constitutional muster is a matter we leave for the parties and the trial court to address in the first instance on remand. For now, it is sufficient for us to conclude that the imposition of the condition in its current form cannot be sustained based on the record presently before us.

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