People v. Valdivia

16 Cal.App.5th 1130

225 Cal.Rptr.3d 181

The PEOPLE, Plaintiff and Respondent,

v.Jose Alberto VALDIVIA, Defendant and Appellant.

C082622

Court of Appeal, Third District, California.

Filed November 8, 2017

Jyoti Malik, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Matthew Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, Acting P. J.

In this domestic abuse case, defendant Jose Alberto Valdivia challenges a condition of his probation authorizing the warrantless search of electronic storage devices, such as cellular phones and computers, under his control.¹ He contends the condition must be stricken because it: (1) "is unreasonable under [ People v. ] Lent [ (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 ], as it bears no relationship to [his] current offense or potential future criminality"; and (2) "is unconstitutional under the Fourth and Fifth Amendments of the United States Constitution because [his] privacy and privilege against self[-] incrimination far outweigh the State's purported and unproven rehabilitation and societal protection interests." He also contends the condition infringes on the privacy interests of third parties.

We find no merit in defendant's arguments that the electronic storage device search condition is unreasonable under Lent , nor do we find any merit in his argument that the condition is unconstitutional under the Fifth Amendment. Furthermore, we conclude that his attempt to raise the privacy interests of third parties is barred by forfeiture. We do agree with him, however, that on the facts of this case, the electronic storage device search condition is unconstitutionally overbroad because its potential impact on his Fourth Amendment rights exceeds what is reasonably necessary to serve the government's legitimate interest in ensuring that he complies with the terms of his probation. Accordingly, we will strike the electronic storage device search condition but will also remand the case to the trial court to consider in the first instance whether the condition can be narrowed in a manner that will allow it to pass constitutional muster.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2016, defendant physically assaulted his wife, leaving her with abrasions on her neck, bruises on her cheek, a swollen forearm, and small lacerations on her knee and head. He was charged with one count of inflicting corporal injury on a spouse. The case was resolved by a negotiated plea under which defendant pled no contest to the charge in exchange for a grant of probation and 90 days in jail.

On the day of the hearing when defendant changed his plea, the People filed a 23-page boilerplate memorandum of points and authorities, accompanied by a 12-page declaration from a Sacramento County Sheriff's deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force, in support of the imposition of a probation condition requiring defendant to submit his electronic storage devices, including but not limited to cell phones and computers, to warrantless search and seizure. The boilerplate memorandum explained that the superior court had "developed new language describing search and seizure terms and conditions accompanying grants of probation for certain cases." Essentially, the new language added "electronic storage devices" to the standard condition permitting warrantless probation searches, which already permitted searches of a probationer's "person, place, property, automobile, ... and any object under [the probationer's] control."² According to the memorandum, the probation department was "recommending the imposition of this new language in cases, such as this, where there is a nexus between the grant of probation and the defendant's use of an electronic device." Being a boilerplate document, however, the memorandum did not provide any details relating to this specific case. Instead, the memorandum asserted in a footnote that the new search condition "should be imposed in cases where there has been a demonstrated connection between the type of criminal conduct involved and the use of electronic devices and/or [where the condition] bears a reasonable relation to future criminality, such as the following: drug sales/transportation; fraud, identity theft, financial crimes; sex offenses; human trafficking, pimping and pandering; domestic violence ; weapons-related offenses; gang enhancements and gang membership; and any other case where a defendant used an electronic device during the current offense or in a previous crime." (Italics added.)

The accompanying declaration explained how evidence of additional criminal activity (in the officer's training and experience) tended to be found on the electronic devices of those who had engaged in the various types of criminal conduct identified above. With respect to crimes of domestic violence, the officer asserted that the perpetrators of those crimes "often violate restraining orders, protective orders, or no[-] contact orders which ha[ve] been issued post-offense" and "[e]vidence of these violations is often found on electronic devices." The officer explained that such evidence could include actual communications with the protected party "via text, chat, or email," or "[g]eolocation data" that could "provide evidence that the suspect's device was near the victim['s] location in violation of an order." The officer further asserted that "[p]hotographic images, videos, or voice recording communications" could violate such orders, and evidence of those items might be found on the perpetrator's electronic device.

In a section applicable generally to all of the previously identified categories of crimes, the officer also purported to explain the need to examine the "[e]ntire [c]ontents of [e]lectronic devices." (Bold text omitted.) According to the officer, "it is necessary to search all the content contained on the device in some shape or form in order to identify ownership, possession, and activity related to the specific offense."

The same day the People filed the boilerplate memorandum and accompanying declaration supporting imposition of the electronic storage device search condition, defense counsel filed a boilerplate memorandum objecting to the imposition of that condition. Defense counsel's memorandum asserted that a condition allowing the search of electronic storage devices was too intrusive to be imposed, and even if it was not, such a condition would be constitutionally overbroad. The memorandum also asserted that compelling someone to reveal the password for their computer would violate the Fifth Amendment.

At the hearing, after defense counsel stipulated to the factual basis for defendant's no contest plea, counsel objected to the proposed electronic storage device search condition "as without a nexus to the particular facts of this case, as well as being overbroad." Defense counsel further asserted that if the court was going to "impose a search condition on cell phones," "that condition should be limited only to material on that phone which would have a nexus to the charge."

The prosecutor responded that the People were seeking imposition of the electronic storage device search condition "particularly because this is a domestic violence case." The prosecutor pointed out that a protective order was going to be issued in the case and then argued (consistent with the declaration from the sheriff's deputy) that evidence of the violation of such orders is often found on electronic devices.

The court imposed the condition "as stated," i.e., without modification. Thus, the probation conditions imposed on defendant included the following: "Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] ... [¶] Defendant shall provide access to any electronic storage devices and data contained there, including disclosing and providing any and all information necessary to conduct a search." Defendant was also ordered as a condition of probation to "[o]bey all laws applicable to [him]." And the court ordered, as a condition of probation, that defendant have only peaceful contact with the victim (his wife). To that end, the court issued a criminal protective order, effective during the probationary period, that did not prohibit defendant from having contact with his wife but did prohibit him from (among other things) harassing, striking, threatening, assaulting, following, stalking, and molesting her.

Defendant timely appealed from the order granting probation.

DISCUSSION

On appeal, defendant offers four arguments as to why the electronic storage device search condition is unlawful. First, he contends the condition violates the test set forth in Lent . Second, he contends the condition is overbroad in violation of his constitutional rights under the Fourth Amendment. Third, he contends the condition infringes on the privacy interests of third parties. And fourth, he contends the condition violates his privilege against self-incrimination under the Fifth Amendment. We address each argument in turn, albeit in a different order than presented by defendant.

IThe Lent Test

" ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to...