Cal.4th: Probation search for “property” does not include “electronic data”

The juvenile’s probation search condition for his “property” does not reasonably include electronic data. In re I.V., 2017 Cal. App. LEXIS 392 (4th Dist. April 28, 2017):

As imposed, the condition authorizes warrantless searches of I.V.’s “person, property, [and] vehicle.” Reasonably construed, the search condition applies only to tangible physical property, and not to electronic data. We find support for this conclusion in United States v. Lara (9th Cir. 2016) 815 F.3d 605 (Lara). Lara considered whether a probation condition that allowed warrantless searches of a probationer’s “person and property, including any residence, premises, container or vehicle under [his] control” encompassed searches of his cell phone data. (Id. at p. 610.) The Ninth Circuit concluded that it did not, explaining that the types of objects named in the probation condition were “physical objects that can be possessed,” whereas cell phone data were “not property in this sense.” (Id. at p. 611.) The court further noted that some data, such as medical and banking records, were held by third parties and could neither be “possessed physically” nor be under the probationer’s “control,” as the probation condition specified. (Ibid.) Consequently, the court held that evidence obtained from a search of the defendant’s cell phone data (images, text messages, and GPS data) should have been suppressed despite the probation search condition. (Id. at pp. 607, 614.)

Giving the search condition its reasonable and practical construction, we conclude that it extends only to tangible property, and not to electronic data. As so construed, the condition is not unconstitutionally vague. (Hall, supra, 2 Cal.5th at p. 501 [“a probation condition should not be invalidated as unconstitutionally vague ‘”‘if any reasonable and practical construction can be given to its language'”‘”].) In recent years, the digital revolution has effected a sea change in how people store and carry around their private information and communications. Given this reality, we conclude that it would not be reasonable to construe the standard property search condition, the origin of which precedes the digital era, to encompass searches of electronic data. If a court intends to authorize warrantless searches of a probationer’s electronic data, the procedure is straightforward—the court must impose an explicit search condition pertaining to electronic data.