Probation condition requiring defendant to submit his electronic devices to search was unconstitutionally overbroad. Defendant met the minor victim through “Grindr,” a social media application for smartphones. After having engaged in a consensual relationship with defendant for awhile, the minor reported to police that defendant and two other men forced him to orally copulate them. Defendant pleaded no contest to false imprisonment by means of deceit (Pen. Code, §§ 236, 237, subd. (a)) and was placed on probation. Over defense objection, the court imposed as conditions of probation that defendant submit his electronic devices to search “for material prohibited by law,” and that he not delete his Internet browsing history for a certain time period. He appealed. Held: Search condition stricken and case remanded. Individuals retain a constitutionally protected expectation of privacy in the contents of their computers, which extends to their cell phones (Riley v. California (2014) 134 S.Ct. 2473). Although cases have allowed for warrantless searches of a probationer’s home, person, and belongings based on consent to probation, here defendant objected to the search term of probation. Furthermore, the search condition sweeps more broadly than the standard warrantless search term that encompasses a probationer’s home, person, and vehicle because it allows for searches of electronic devices that the probationer may keep in other locations. The scope of a digital search is extremely broad given the vast amounts of personal data contained on computers, much of it unrelated to defendant’s crime. The limitation on the condition allowing searches only for “material prohibited by law” is insufficiently narrow to save the condition because there is no program that would effectively conduct such a specific search.

The probation term subjecting defendant’s electronic devices to warrantless search for material that is prohibited by law is not unreasonable under People v. Lent (1975) 15 Cal.3d 481. Under Lent, a condition of probation will generally not be held invalid unless it (1) has no relationship to the crime of which the defendant was convicted; (2) relates to conduct which is not itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. The trial court did not abuse its discretion by finding that some type of social media was involved in the offense. Because a probation condition must trigger all three factors to be invalid, the condition is valid under the Lent test.

The probation term prohibiting defendant from deleting his Internet browsing history for a certain period is valid under Lent and is not vague. Requiring defendant not to delete his Internet browsing history for a certain period of time is not unduly intrusive. It serves a valid state interest in a sufficiently narrow fashion to satisfy constitutional concerns. Further, there is nothing vague about the term, so no scienter requirement need be added.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H041332.PDF