Thursday, October 1, 2015
C.A. Limits Scope of Probation Conditions on Electronic Devices
By KENNETH OFGANG, Staff Writer
A probation condition that required a juvenile offender and his family to provide their social media passwords to the probation officer was overbroad and must be modified, the First District Court of Appeal has ruled.
Div. Three Monday ordered revision of the probation conditions imposed by an Alameda Superior Court judge on a 17-year-old offender found to have assaulted and robbed three different women near the MacArthur St. BART station last September.
The young man, identified as Malik J., had previously been adjudged a ward of the court after admitting a robbery in 2012. He was on probation and admitted violating it by committing the new crimes, which included possession of marijuana.
After the prosecutor noted that he may have used electronic devices to coordinate the robberies with others, and that one of the robberies involved an IPhone, Judge Mark Kliszewski added additional probation conditions.
He added what the appeals court called an “electronics search condition,” declaring:
“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.”
But Justice Peter Siggins, writing for the Court of Appeal, said the condition was unconstitutional as stated.
“Officers should not be allowed to conduct a forensic examination of the device utilizing specialized equipment that would allow them to retrieve deleted information that is not readily accessible to users of the device without such equipment,” he wrote. “They should also first disable the device from any internet or cellular connection. These measures will limit a search to information that is stored on the device and accessible to the probationer, and thus in the probationer’s possession and subject to his or her control.”
Those safeguards were necessary, he said, in order to “show due regard for information that may be beyond a probationer’s custody or control or implicate the privacy rights of the probationer or third parties.”
It was not, however, unreasonable to require the probationer “to provide passwords for electronics found in his custody and control because officers can identify a phone’s legal owner by using identifying numbers and codes found on the devices.”
Nor, he said, can the phrase “any electronic devices” be misconstrued to encompass Kindles, PlayStations, and iPods, or similar devices.
The justice wrote:
“Here, the court imposed the electronics search condition in response to concerns that Malik might use cell phones to coordinate with other offenders, and that he had previously robbed people of their iPhones. The court listed cell phones, computers and notepads as examples of the devices subject to search. We think it was reasonably clear that the condition applies to similar electronic devices within Malik’s custody and control that might be stolen property, and not, as Malik conjectures, to authorize a search of his Kindle to see what books he is reading or require him to turn over his ATM password.”
The jurist went on to say that it was unclear whether the judge actually intended to impose a probation condition that was binding on Malik’s family. But he could not, in any event, do so legally, Siggins wrote.
The case is In re Malik J., 15 S.O.S. 4606.
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