Cal.6th: Probation computer search condition was overbroad and unreasonable

A probation condition allowing computer searches for material prohibited by law was overbroad under the Fourth Amendment because the condition allowed for searches of vast amounts of personal information unrelated to defendant’s criminal conduct or potential for future criminality. Narrower means could include either requiring defendant to provide his social media accounts and passwords to his probation officer for monitoring, or restricting his use of or access to social media websites and applications without prior approval of his probation officer. People v. Appleton, 2016 Cal. App. LEXIS 190 (6th Dist. March 15, 2016):

Defendant also argues the condition is overbroad in violation of the Fourth Amendment and his rights of privacy. We agree with defendant that the condition implicates his constitutional rights. It is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers. (People v. Michael E. (2014) 230 Cal.App.4th 261, 276 [178 Cal. Rptr. 3d 467]; United States v. Heckenkamp (9th Cir. 2007) 482 F.3d 1142, 1146; United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173, 190.) The United States Supreme Court has recently extended Fourth Amendment protections to searches of cell phones. (Riley v. California (2014) ___ U.S. ___ [189 L. Ed. 2d 430, 134 S.Ct. 2473, 2489] (Riley)). Much of the reasoning in Riley—which recognized how the immense storage capacity of modern cell phones allows users to carry large volumes of data—would apply to other modern electronic devices covered by the probation condition at issue here.

The Attorney General responds that courts have historically allowed for warrantless searches of probationers’ persons, homes, and vehicles. (See People v. Bravo (1987) 43 Cal.3d 600, 604 [238 Cal. Rptr. 282, 738 P.2d 336] [upholding suspicionless search of probationer’s home based on probation search condition]; People v. Medina (2007) 158 Cal.App.4th 1571 [70 Cal. Rptr. 3d 413] [same].) But those cases concern the validity of searches conducted after probationers have waived their Fourth Amendment rights by consenting to probation search conditions. Thus, those courts did not consider the reasonableness of the search conditions under Lent or Sheena K. because the defendants in those cases did not challenge the conditions before they were imposed. (People v. Bravo, supra, 43 Cal.3d at p. 604 [defendant never claimed search condition was unreasonable under Lent]; People v. Medina, supra, 158 Cal.App.4th at p. 1576 [defendant’s consent to search condition constituted a waiver of his Fourth Amendment rights].) As explained in Section II.A. above, defendant did not forfeit his claims challenging the computer search condition. Indeed, he placed his objections on the record at a hearing scheduled to consider his claims.

Furthermore, the computer 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. As the United States Supreme Court noted in Riley, “The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. [Citations.] Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on.” (Riley, supra, ___ U.S. at p. ___ [134 S.Ct. at p. 2489].) 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.

At the sentencing hearing in May 2014, the trial court lacked the benefit of the Supreme Court’s opinion in Riley. Nonetheless, recognizing the potentially invasive nature of the search condition as recommended by the probation report, the court attempted to limit the scope of the search to “material prohibited by law.” But nothing in the record reveals further instructions or directions on how to implement such a limited search. Defendant contends this language constitutes no limitation at all, thereby making all information on his computers and electronic devices subject to search. We agree. Nothing in the record evidences any technology that would allow a forensic technician to determine whether a computer file or document contains unlawful material without first examining its contents. For example, a technician would first have to look at a photograph to determine whether it constitutes child pornography. Once the photograph is viewed, defendant’s privacy interests are compromised.