Opinion
D072348
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS ARPALLAN, Defendant and Appellant.
Sandra Payne Hagood, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE368464) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson and Daniel B. Goldstein, Judges. Affirmed as modified with directions. Sandra Payne Hagood, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Jesus Arpallan was charged with robbery (Pen. Code, § 211), with the use of a deadly weapon (§ 12022, subd. (b)(1)). Arpallan entered into a plea agreement under which he pleaded guilty to burglary (§ 459). The robbery charge and the weapon enhancement were dismissed.
All further statutory references are to the Penal Code unless otherwise specified.
The court granted Arpallan probation subject to various terms and conditions. One of the conditions imposed (6n.) required Arpallan to: "Submit person, vehicle, residence, property, personal effects, computers, and recordable media to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer."
At the sentencing hearing, Arpallan objected to that portion of 6n. which permitted warrantless searches of "computers, and recordable media," on the grounds there was no nexus between the offense and the condition and that it was impermissibly overbroad. The trial court "rejected" the objection without explanation.
Arpallan appeals, challenging only the computer and recordable media portion of condition 6n. He contends there is no nexus to the offense nor relationship to proposed rehabilitation. He further argues the challenged portion of 6n. is constitutionally overbroad and thus is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent).
In our review of the record we have found nothing to connect computers or recordable media to either the offense or Arpallan's background. There is no explanation for the expanded search condition in the probation officer's report, and the trial court certainly provided no insight into the reasons for the condition. Given the heightened privacy interests in electronic communications, the vast amount of data potentially available in such devices and the utter void of reasons for the imposition of such condition, we will find the condition is overbroad and invalid under the rule established by Lent, supra, 15 Cal.3d 481.
Before proceeding further, we acknowledge our Supreme Court has numerous cases before it which deal with the issues presented here. The court will provide guidance when it resolves those cases, however, until then we must make our best effort to properly resolve the cases before us.
The issue of the validity of electronic search conditions before our Supreme Court include In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210.
Alternatively, Arpallan contends the condition is invalid because it potentially impacts the privacy interests of third parties. In light of our conclusion the condition must be modified, we decline to address the question of whether Arpallan has standing to raise the privacy rights of third parties.
STATEMENT OF FACTS
According to the probation officer's report, Arpallan entered a Walmart store in La Mesa where he took a box of head phones. When he left the store without paying for the head phones Arpallan was approached by loss prevention officers. Arpallan threatened the officers and said he had a knife. Arpallan then walked away. He was arrested shortly thereafter with the head phones still around his neck.
DISCUSSION
Arpallan contends the electronics portion of condition 6n. has no nexus to the offense or his background. He argues it is invalid under Lent, supra, 15 Cal.3d 481 and given the privacy interest at stake, is not narrowly tailored to limit unnecessary intrusion into constitutionally protected activity. The People contend the condition is reasonable because it aids in supervision of Arpallan while on probation. While it can be argued that maximum surveillance of probationers would ensure better compliance, Lent does not permit wholesale intrusion into protected, otherwise lawful behavior without justification and appropriate tailoring of the restrictions to properly balance the need for supervision and the intrusion on lawful activities. In this case, with the absence of any obvious nexus and no explanation for the added intrusion, we will find the condition overbroad and will remand the case with directions to strike the challenged portion of condition 6n.
A. Legal Principles
A grant of probation to a person convicted of a felony is an act of clemency by the court. The purpose of probation is the rehabilitation of the offender and to prevent the person from committing new offenses. Trial courts have broad discretion in fashioning conditions designed to achieve the purposes of probation. (People v. Moran (2016) 1 Cal.5th 398, 402-403; People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
In Lent, supra, 15 Cal.3d 481, the court discussed circumstances where a probation condition might be invalid where it restricts otherwise lawful activity. "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Id. at p. 486.) All three of the Lent factors must be found in order to invalidate a probation condition. (Olguin, supra, 45 Cal.4th at p. 379.)
In cases where there is no demonstrated relationship between the electronic search condition and the offense or the specific needs of supervision of the probationer courts have held such conditions to be invalid under Lent, supra, 15 Cal.3d 481. (In re Erica R. (2015) 240 Cal.App.4th 907, 911.)
Where the record establishes a nexus between the offense and the use of electronic devices, or in the specific needs of supervision, courts have found the search conditions appropriate. In People v. Appleton (2016) 245 Cal.App.4th 717, 724, the court upheld a search condition because " 'either social media or some kind of computer software' " had been involved in the commission of the crime. In People v. Nachbar (2016) 3 Cal.App.5th at page 1130, review granted, this court upheld an electronic search condition where the defendant had communicated with the victim of his sex offense by means of social media.
At issue in many of the cases dealing with searches of electronic media, is the question of the privacy interests in the data contained in such devices. Arpallan cites Riley v. California (2014) 134 S.Ct. 2473 (Riley) for the proposition there is a heightened privacy interest in devices such as computers and smart phones. In Riley, the court dealt with the search of a smartphone which was done without a warrant and justified by law enforcement as a search incident to lawful arrest. At base, the court's decision found the search incident to arrest exception to the search warrant rule did not apply to a smartphone. Such devices are not weapons and there is no intrinsic reason to fear evidence seized by police will ordinarily be destroyed once it is in police possession.
In the course of the court's analysis of such searches, it commented extensively about the significantly greater privacy interest in such devices as compared to normal physical items or spaces. The vast amount of data storage capability and the attendant risk to legitimate privacy interests, persuaded the court to refuse to permit search of such devices simply as an incident to lawful arrest. Rather, police must obtain a warrant, or other exigent circumstance to permit such search. Riley, supra, 134 S.Ct. 2473 did not deal with the issue of electronic search conditions on probation or parole.
B. Analysis
The question here is whether there is a nexus between the electronic search condition and the crime or there has been any tailoring of the condition to limit its impact on otherwise protected activity. The People do not argue that either of these requirements have been met. Rather, the People argue the condition is reasonable, will aid in supervision, and it was within the court's discretion. As we have said, it is likely that maximum surveillance will provide better tools for probation supervision, but intrusions on otherwise protected activity must be justified as required by Lent, supra, 15 Cal.3d 481.
Courts do have broad sentencing discretion when imposing conditions of probation. However, where the conditions of probation are not related to the crime or the background of the defendant and intrude on otherwise lawful activity, there needs to be some articulable reason for their imposition. The decision in Lent, supra, 15 Cal.3d 481 contemplates such intrusions or limitations will be narrowly tailored to balance the needs of probation supervision with the need to protect the defendant from otherwise unnecessary limitation on constitutional rights.
The record in this case does not provide any explanation for the need for warrantless intrusion into the data and communications that may be stored in electronic devices. The probation officer's report does not contain any justification for such warrantless searches and the trial court's summary "rejection" of the defendant's concerns does not enlighten us as to why such condition was imposed. From all that appears on the record this was treated as a "standard" condition needing no justification. The defendant here was not a gang member and nothing in the crime or his criminal history provides any basis for the enhanced search condition as imposed here.
On this record, the challenged condition fails all three of the Lent factors. It is unrelated to the crime; it intrudes upon otherwise lawful activity (indeed it impacts a constitutional right); and there has been no identifiable tailoring of the condition to balance its intrusion into protected behavior.
Having reviewed the record, we are satisfied the trial court abused its discretion in imposing that portion of condition 6n., which authorizes warrantless searches of computers and recordable media.
DISPOSITION
The case is remanded to the trial court with directions to strike that portion of probation condition 6n. which reads "computers, and recordable media." In all other respects, the judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.