People v. Malik J. (In re Malik J.)

240 Cal.App.4th 896

193 Cal.Rptr.3d 370

IN RE MALIK J., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent

v.Malik J., Defendant and Appellant.

A143355

Court of Appeal, First District, Division 3, California.

Filed September 29, 2015

First District Appellate Project, Nathan Siedman for Defendant and Appellant, Malik J.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General for Plaintiff and Respondent, the People.

Opinion

Siggins, J.Malik J., a minor, appeals from a dispositional order issued pursuant to Welfare & Institutions Code section 602 after he admitted an allegation that he violated the terms of his probation. He contends the court unconstitutionally imposed a condition of probation that requires him and his family to permit searches of and disclose all passwords to their electronic devices and social media sites. We agree the condition is overbroad and order it to be modified to conform to constitutional requirements.

BACKGROUND

On the night of September 21, 2014, 17–year–old Malik and one or two companions physically assaulted and robbed three different women near the MacArthur Street BART station. Malik had previously been adjudged a ward of the court after admitting a robbery in 2012, and was on probation in the custody of an aunt. Among the conditions of probation imposed for the 2012 adjudication was that Malik “submit person and any vehicle, room or property under your control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.”

The Alameda County District Attorney filed a notice of probation violation alleging that Malik committed three robberies and possessed eight baggies of marijuana. At the dispositional hearing, Malik admitted the probation violations. The court ordered him detained at juvenile hall pending out of home placement and continued all previously ordered terms and conditions of probation, “[i]ncluding the search clauses.”

The prosecutor interjected that Malik had been working with two other individuals, which “would indicate electronic devices might be used to coordinate with other people, and one of these robberies involved an iPhone, which means electronic devices on his person might be stolen.” In response, over a defense objection, the court added additional probation conditions that required Malik and possibly his family to provide all passwords and submit to searches of electronic devices and social media sites. “So you're to—and the family—is to provide all passwords to any electronic devices including cell phones, computers and notepads within your custody and control, and submit to search of devices at any time to any peace officer. And also provide any passwords to any social media sites, including [F]acebook, Instagram, and submit those [s]ites to any peace officer with or without a warrant.”¹

The signed minute order states this probation condition somewhat differently, omitting the references to Malik's family and social media sites. It states: “Minor is ordered to provide all passwords to any electronic devices, including cell phones, computers or [notepads], within your custody or control, and submit such devices to search at any time without a warrant by any peace officer.”

Malik filed this timely appeal.

DISCUSSION

I. Legal Principles

Welfare and Institutions Code section 730 authorizes the juvenile court to “impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst.Code, § 730, subd. (b).) In planning conditions of probation, the juvenile court must consider the minor's entire social history, in addition to the circumstances of the offense. (In re Todd L. (1980) 113 Cal.App.3d 14, 169 Cal.Rptr. 625 (Todd L. ).)

The juvenile court has broad discretion to formulate probation conditions. (In re Tyrell J. (1994) 8 Cal.4th 68, 81, 90, 32 Cal.Rptr.2d 33, 876 P.2d 519, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130, 51 Cal.Rptr.3d 430, 146 P.3d 965 ; In re Josh W. (1997) 55 Cal.App.4th 1, 5, 63 Cal.Rptr.2d 701.) Because juvenile probation conditions are imposed on the minor to ensure his rehabilitation, “[a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.” (Todd L., supra, 113 Cal.App.3d at p. 19, 169 Cal.Rptr. 625 ; In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153, 244 Cal.Rptr. 254.)

Indeed, a juvenile court may impose a condition of probation that would be unconstitutional in an adult context, “so long as it is tailored to specifically meet the needs of the juvenile.” (Josh W., supra , at p. 5, 63 Cal.Rptr.2d 701.) “This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may ‘curtail a child's exercise of the constitutional rights ... [because a] parent's own constitutionally protected “liberty” includes the right to “bring up children” [citation] and to “direct the upbringing and education of children.” [Citation.]’ [Citations.]” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941, 93 Cal.Rptr.2d 212.)

But the juvenile court's discretion is not unlimited. A probation condition is invalid if 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.” (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545( Lent ) .) In addition, a juvenile court may not adopt probation conditions that are constitutionally vague or overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 889–891 (Sheena K .) ; In re Victor L. (2010) 182 Cal.App.4th 902, 910, 106 Cal.Rptr.3d 584 (Victor L. ).)

While we generally review the court's imposition of a probation condition for abuse of discretion, we review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, 116 Cal.Rptr.3d 84.) In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified. (See, e.g., Sheena K., supra , 40 Cal.4th at p. 892, 55 Cal.Rptr.3d 716, 153 P.3d 282 ; People v. Lopez (1998) 66 Cal.App.4th 615, 629, 78 Cal.Rptr.2d 66.)

II. Overbreadth and Vagueness

Malik argues the electronics condition fails under Lent because it bears no reasonable relationship to his criminality, and restricts his constitutional rights of privacy and freedom of expression without being narrowly tailored. The People maintain the condition is justified by Malik's history of robbing people of their cell phones and his claim that he does not himself own a cell phone. “[I]t is manifestly reasonable to impose the probation search condition so that, if [Malik] were found in possession of a cell phone, a probation or police officer could check the phone to determine whether it had been stolen.” True, as far as it goes. But the electronics search condition goes considerably farther than permitting police to search a cell phone to determine whether Malik is the owner. It also requires him to turn over his passwords to, and authorizes unfettered searches of, all of his electronic devices and all of his social media accounts. As Malik observes, identifying whether an electronic device is stolen has no relationship to accessing the content of his social media accounts.

Under the overbreadth doctrine, “conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.” (Victor L., supra , 182 Cal.App.4th at p. 910, 106 Cal.Rptr.3d 584 ; Sheena K., supra , 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) The mismatch here is of concern, because the threat of unfettered searches of Malik's electronic communications significantly encroaches on his and potentially third parties' constitutional rights of privacy and free speech. “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life[.]’ [Citation]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” (Riley v. California (2014) ––– U.S. ––––, ––––, 134 S.Ct. 2473, 2494–2495, 2491, 189 L.Ed.2d 430 (Riley ).) In view of these significant privacy implications, the electronics search condition must be modified to omit the requirement that Malik turn over passwords to social media sites and to restrict searches to those electronic devices found in his custody and control.

But this does not mean that officers would have the unfettered right to retrieve any information accessible from any phone or computer in Malik's possession. The probation condition allowing officers to search property in Malik's control is nominally broad enough to allow the search of electronic devices. Such a condition allows warrantless searches of a probationer's property so long as they are not arbitrary, capricious or harassing. (In re Jaime P., supra, 40 Cal.4th at p. 136, 51 Cal.Rptr.3d 430, 146 P.3d 965.) While a search condition diminishes a juvenile probationer's reasonable expectation of privacy, it does not entirely preclude it. (Ibid . ) As is evident here, the ubiquitous advent of...