Wednesday, December 7, 2016
C.A. Orders Striking of Search-of-Computers Condition of Probation as Unreasonable
By a MetNews Staff Writer
The Court of Appeal has invalidated a condition of probation requiring that a man who pled guilty to an assault with force likely to produce great bodily injury submit to a warrantless search of his “computers and recordable media.”
The probationer, Richard Ramirez, joined with others in beating a man in a bar parking lot. He was intoxicated at the time.
In setting the conditions of probation, San Diego Superior Court Judge Daniel F. Link included this provision:
“Submit person, vehicle, residence, property, personal effects, computers and recordable media to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer.”
Ranirez’s lawyer objected to that priviso, citing In re J.B. (2015) 242 Cal.App.4th 749. There, a minor, who committed petty theft, was required to submit to a warrantless search of his electronic devices and provide his passwords to those devices and social media sites.
The First District’s Div. Three said in that case:
“Because there was no evidence connecting the juvenile’s electronic device or social media usage to his offense or to a risk of future criminal conduct, the condition is unreasonable.”
Link was unpersuaded. He said:
“The other thing I want to put on the record is this, this crime involved obviously very negligent criminal acts that involved alcohol. Cell phone pictures are often taken of people out drinking….That is something probation needs to look at. Those pictures can be transferred to computers. I think a Fourth [Amendment] waiver is appropriate. That’s all.”
Writing for the Fourth District’s Div. One, Justice Richard Huffman said in yesterday’s opinion that requiring Ramirez to submit to warrantless searches is as valid condition of probation, but extending that to electronic devices is not.
“The trial court’s afterthought that some people take pictures of themselves drinking and place them on computers does not justify such intrusion into lawful behavior in this case. The crime did not involve computers nor is there anything in the probation report to indicate appellant’s use of recordable media or computers would involve unlawful conduct or conduct in violation of probation. Nor is there anything other than the trial court’s speculation that appellant might drink, take pictures of himself and store such pictures. The court’s observation was simply an afterthought to justify what the court believed to be a “routine” condition. There is no basis in this record to support the extension of the general search condition to computers or recordable media.”
The opinion, which was a not certified for publication, came in People v. Ramirez, D070532.
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