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Name: People v. Nachbar
Case #: D068135
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/05/2016
Summary

The constitutional concerns about warrantless searches of an arrestee’s cell phone incident to arrest, which were expressed in Riley v. California (2014) 134 S.Ct. 2473 (Riley), do not apply in determining whether probation search terms are constitutional. Nachbar pleaded guilty to unlawful sexual intercourse with a minor more than three years younger (Pen. Code, § 261.5, subd. (c)) and was placed on probation. On appeal he challenged four probation terms, including one that required him to submit his computers and recordable media to warrantless/suspicionless searches. Held: Affirmed. A probation term will 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.” (People v. Lent (1975) 15 Cal.3d 481.) A probation term that impinges on a constitutional right must be narrowly tailored to avoid being invalidated as overbroad. In Riley, the Court held that a warrantless search of an arrestee’s cell phone incident to arrest implicated and violated the suspect’s Fourth Amendment rights. However, “the Riley court’s privacy concerns in the context of a search incident to arrest are inapposite in the context of determining the constitutional reasonableness of probation conditions allowing searches of electronic devices.” (Agreeing with In re J.E. (2016) 1 Cal.App.5th 795). The arrestee in Riley was still protected by the presumption of innocence; a probationer has a diminished expectation of privacy. The search term challenged here relates to Nachbar’s offense because he communicated with his victim via the Internet. His psychological evaluation shows he is sexually attracted to adolescents and is at some risk to reoffend. The term is reasonable and constitutional.

The probation term prohibiting appellant from having photographic equipment is reasonable. Nachbar claimed the probation term restricting his possession of photographic equipment is unreasonable under Lent because he did not possess child pornography. However, Nachbar’s demonstrated attraction to adolescent females, his use of Internet pornography and social media websites, and his sending of sexually explicit messages to the minor, all reflect that the photographic equipment condition reasonably relates to his future criminality.

Appellant’s challenge to the probation condition prohibiting his possession of toys, video games, or other items that attract children was not preserved by a timely objection. At sentencing, defense counsel failed to enumerate the probation condition prohibiting Nachbar’s possession of toys as one he found inappropriate. The issue has been forfeited on appeal.

Appellant’s challenge to the probation condition requiring him to obtain his probation officer’s approval of his residence was not preserved by a timely objection. Nachbar claimed the probation condition requiring him to secure his probation officer’s approval of his residence unconstitutionally impinges on his right to travel and freedom of association. However, Nachbar does not present a pure question of constitutional law, as the condition is not necessarily overbroad in the abstract, but requires reference to factual findings in the record. Thus, Nachbar’s failure to object to this term forfeits the issue on appeal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068135.PDF