For defendant convicted of domestic abuse offense, electronic search probation condition is unconstitutionally overbroad. Defendant assaulted his wife and pleaded no contest to corporal injury on a spouse in exchange for probation. Over defendant’s objection, the trial court imposed a condition of probation requiring him to submit his electronic storage devices, including cell phones and computers, to warrantless search and seizure. The court also issued a criminal protective order prohibiting defendant from harassing or assaulting his wife, but otherwise permitting him to contact her. On appeal, defendant challenged the electronic search condition on overbreadth and other grounds. Held: Condition stricken and case remanded. A probation term that impinges on a constitutional right must be narrowly tailored to avoid being invalidated as overbroad. As made clear in Riley v. California (2014) __U.S.__ [134 S.Ct. 2473], a probation condition authorizing warrantless search of an electronic storage device, such as a cell phone, carries the potential for significant and unprecedented intrusion into private affairs that may have nothing to do with illegal activity. In defendant’s case, this intrusion exceeds what is reasonably necessary to serve the state’s legitimate interest in ensuring defendant complies with his probation conditions. Nothing in the record suggests evidence of future criminality will be found on defendant’s electronic devices. He assaulted his wife on a single occasion and is lawfully allowed to contact and reside with her so long as he does so peaceably. Given the staggering amount of personal information found on a typical cell phone, it is not reasonable to allow the government unlimited access to defendant’s electronic devices merely because of a remote possibility that evidence of illegal activity will be found. The court struck the condition as overbroad and remanded for consideration of whether the condition could be narrowed.

Electronic search probation condition is valid under People v. Lent. A condition of probation 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.) Here, defendant argued the electronic search condition was not reasonably related to future criminality because there was no evidence connecting his use of electronic devices to domestic violence. However, under People v. Olguin (2008) 45 Cal.4th 375, a probation condition that enables a probation officer to supervise his charges effectively is “reasonably related to future criminality.” Like most probationers, defendant was also ordered as a condition of probation to “obey all laws applicable to [him].” The electronic search condition serves to enable defendant’s probation officer to supervise him more effectively by helping the probation officer ensure defendant is obeying all laws, not just the law he previously disobeyed when he assaulted his wife. Thus, the electronic search condition serves a valid rehabilitative purpose and is reasonably related to future criminality under Lent.

Electronic search condition does not violate the Fifth Amendment privilege against self-incrimination. Defendant argued that the electronic search condition implicitly requires him to provide usernames and passwords to facilitate searches of his devices, which effectively compels him to provide communicative and potentially incriminating acts in violation of his Fifth Amendment rights. The court disagreed, concluding that even if the password provision could be understood as compelling him to incriminate himself, there is no authority for the proposition that the condition must be stricken. The defendant relied in part on Minnesota v. Murphy (1984) 465 U.S. 420, 435, where the Court noted that “if the State, either expressly or by implication, asserts that invocation of the privilege [against self-incrimination] would lead to revocation of probation, . . . the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.” However, nothing in Minnesota supports the argument that the mere existence of a condition requiring defendant to disclose and provide any and all information necessary to conduct a search of his electronic devices presently violates his Fifth amendment privilege against self-incrimination, such that that condition cannot lawfully exist and must be stricken.

Defendant forfeited his third party privacy challenge. Defendant argued that because the search condition allows for searches of electronic devices outside of his immediate control, including devices he shared with his wife and children, the condition infringed on his family’s privacy rights and must be stricken. The court found this argument forfeited because it was not raised in the trial court, but noted defendant may attempt to raise this challenge on remand. [Editor’s Note: Justice Murray filed a concurring and dissenting opinion, agreeing with the majority that the condition was overbroad, but disagreeing to some extent with the majority’s analysis under Lent and its treatment of third party privacy interests.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C082622.PDF