Thursday, August 14, 2014
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C.A. Upholds Requirement That Probationer Disclose Passwords
By a MetNews Staff Writer
A probationer may be required to disclose his electronic passwords to law enforcement officers and to submit to ensuing searches of his computer, phone, and other devices, the Sixth District Court of Appeal ruled yesterday.
These modern versions of the traditional search condition do not, on their face, violate constitutional rights of privacy, Justice Nathan Mihara wrote for the court, nor did a trial judge abuse his discretion in imposing them on a gang member who had been promoting his gang on social media.
Police said they encountered Robert Ebertowski during an investigation of a gun charge and found him intoxicated. He gave them a false name and resisted them physically before they determined that he was on felony probation and had an outstanding warrant, and took him into custody.
Officer’s Testimony
The arresting officer also testified that Ebertowski identified himself as a member of a gang, threatened the officer and his family, and urinated on the floor several times during the booking process.
He eventually pled no contest to criminal threats and resisting an officer, and admitted that the crimes were related to active membership in a gang. Santa Clara Superior Court Judge Gilbert T. Brown imposed a number of probation conditions, including that he submit to warrantless searches, not wear gang clothing or display gang insignia, and not associate with known gang members.
None of those conditions were objected to in the trial court or challenged on appeal, but two others were—that Ebertowski “provide all passwords to any electronic devices (including cellular phones, computers or notepads) within his or her custody or control and shall submit said devices to search at anytime [sic] without a warrant by any peace officer” and that he “provide all passwords to any social media sites (including Facebook, Instagram and Mocospace) and shall submit said sites to search at anytime [sic] without a warrant by any peace officer.”
The defense objected to the conditions. In arguing for them, the prosecutor cited documents showing that Ebertowski had been promoting his gang on MySpace.
Constitutional Muster
Mihara said the conditions were sufficiently narrowly tailored to pass constitutional muster.
He wrote:
“Defendant is a criminal street gang member who promotes his gang on social media, makes violent threats in person to armed police officers, and physically resists armed police officers. The evident purpose of the password conditions was to permit the probation officer to implement the search, association, and gang insignia conditions that were designed to monitor and suppress defendant’s gang activity. Without passwords for defendant’s devices and social media accounts, the probation officer would not be able to search them under the unchallenged search condition in order to assess defendant’s compliance with the unchallenged association and gang insignia conditions. Defendant does not suggest how the password conditions could be more closely tailored to this purpose, and we can conceive of no adequate restriction that would still serve this purpose. Access to all of defendant’s devices and social media accounts is the only way to see if defendant is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation.”
The password conditions, Mihara went on to say, were a reasonable means of monitoring Ebertowski’s activities and deterring future criminality, given that his gang association “gave him the bravado to threaten and resist armed police officers.”
The case is People v. Ebertowski, 14 S.O.S. 3383.
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