Wednesday, October 5, 2016
C.A. Approves Searches of Probationer’s Cell Phones, Computers, Other Devices
By a MetNews Staff Writer
A man who pled guilty to making criminal threats against his female cohabitant was unsuccessful yesterday in challenging a probation condition that he be subject to searches of his electronic data devices.
The Third District Court of Appeal, in an opinion that was not certified for publication, found reasonable this condition:
“The defendant shall be required to make available for inspection, including providing passwords or unlock codes, any data storage device, including cellular telephones and computers, and any network applications associated with those devices, including social media and remote storage services. All said devices are subject to search by any peace officer upon request.”
Defendant Shane August Frankel argued that the condition bore no relationship to his offense.
Frankel menaced his girlfriend, Lindsay Dunlap, with a knife and uttered a threat that he would kill her. He then grabbed her neck, pinning her against a fence with her feet dangling above the ground, resulting in her unconsciousness.
Presiding Justice Vance Raye wrote:
“Although communicating electronically is not itself criminal and nothing in the record suggests any electronic device played a role in defendant’s current offense, the electronic search condition is reasonably related to preventing future criminality. Defendant is subject to a criminal protective order and a probation condition prohibiting him from contacting Dunlap in any way, including electronically….During the short length of their relationship, defendant threatened to kill Dunlap and committed serious violence against her, including strangling her to the point of unconsciousness. Even if there is no evidence of defendant’s previously using an electronic device to contact Dunlap, it is not unreasonable that he might attempt to do so in the future. The electronic search condition enables the probation officer to monitor defendant’s compliance with the protective order and his probation conditions. Accordingly, the electronic search condition was reasonable under the circumstances, and the trial court did not abuse its discretion in imposing it.”
Raye noted that there is pending before the California Supreme Court a case in which a probation condition of providing “electronics including passwords” is overbroad.
The case decided yesterday is People v. Frankel, C080650.
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