In re Erica R.: Search Condition for Juvenile’s Electronic Devices Goes Too Far

In re Erica R. (2015) _Cal.App.4th__, Case No. A143215, decided on September 28, 2015, involves a minor who pled guilty to misdemeanor possession of ecstasy after a school counselor found a baggie of pills in her purse.  As a condition of probation, the juvenile court required defendant to submit to a search of her electronic devices, and to turn over her passwords to her probation officer. The juvenile appealed and argued that the  search condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).  

Welfare and Institutions Code section 730, subdivision (b) empowers 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." In In re Victor L. (2010) 182 Cal.App.4th 902, we discussed the principles underlying the imposition of probation conditions on minors: " 'The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents' [citation], thereby occupying a 'unique role . . . in caring for the minor's well-being.' [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. '[E]ven where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." ' [Citation.] 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.' [Citation.] Thus, ' "a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' [Citations.]" (Id. at pp. 909-910.)

While the juvenile court's discretion is broad, it is not unlimited. Our Supreme Court in Lent stated the criteria for assessing the validity of a condition of probation as follows: "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 {Slip Opn. Page 5} which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality[.]' " (Lent, supra, 15 Cal.3d at p. 486.) "Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.) The Lent test is conjunctive -- all three prongs must be satisfied before we will invalidate a term of probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Courts have "consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent[.]" (In re D.G. (2010) 187 Cal.App.4th 47, 52 (D.G.); see also In re Josh W. (1997) 55 Cal.App.4th 1, 6.)

Here, the court found that the challenged electronic search condition has no relationship to the crime of misdemeanor possession of ecstasy. There is nothing in the original or amended juvenile petitions or the record that connects Erica's use of electronic devices or social media to her possession of any illegal substance. The Attorney General argues that Erica's cell phone and electronic devices "could have been used to negotiate the sales of the illegal substance." The problem with this argument is that there is no evidence suggesting that Erica--who was convicted of misdemeanor possession, not selling any illegal substance--ever used an electronic device in this way.

Obviously, the typical use of electronic devices and of social media is not itself criminal. "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[.]' " (Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2494-2495].)

Finally, the record does not support a conclusion that the electronic search condition is reasonably related to future criminal activity by Erica. The juvenile court justified the electronic search condition solely by reference to its experience that "many juveniles, many minors, who are involved in drugs tend to post information about themselves and drug usage." However, "[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable." (People v. Brandao (2012) 210 Cal.App.4th 568, 574.) There is nothing in this record regarding either the current offense or Erica's social history that connects her use of electronic devices or social media to illegal drugs. In fact, the record is wholly silent about Erica's usage of electronic devices or social media. Accordingly, "[b]ecause there is nothing in [Erica's] past or current offenses or [her] personal history that demonstrates a predisposition" to utilize electronic devices or social media in connection with criminal activity, "there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts." (D.G., supra, 187 Cal.App.4th at p.53.)

The appellate court rejected the Attorney General’s argument that Erica's electronic search condition is valid under People v. Ramos (2004) 34 Cal.4th 494 (Ramos). The defendant in Ramos was on probation for a prior DUI conviction when police conducted a search of his home and truck pursuant to a probation search condition. (Id. at pp. 504-505.) " '[J]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.' " (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128.) A juvenile "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." (In re Binh L. (1992) 5 Cal.App.4th 194, 202 (Binh).) Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor." (See People v. Rios (2011) 193 Cal.App.4th 584, 597; see also Binh, supra, 5 Cal.App.4th at p. 203.) 

For the reasons discussed above, Erica's electronic search condition is not properly tailored to her circumstances under Lent and is therefore invalid. The disposition is modified to strike the probation condition requiring Erica to submit "any electronic[s] with passwords under your control" to search. In all other respects the disposition is affirmed. {Slip Opn. Page 9}.

Copyright © 2015 Christine Esser

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