Friday, April 5, 2019
Court of Appeal:
Majority: Monitoring Will Deter Boy, Who Unleashed Racial Epithet at Teacher, From Accessing Matter On Internet That Would ‘Kindle’ Bigotry; Would Unveil Probation Violations
Dissenter: Probation Condition Unrelated to Offense of Fighting in Schoolyard
By a MetNews Staff Writer
The Court of Appeal for this district, in a 2-1 opinion, yesterday validated a condition of probation that a youthful offender, who got into a fist fight on the schoolyard and directed a racial epithet at a teacher who attempted to intercede, be subject to a search of his electronic devices.
The condition, imposed by San Luis Obispo Superior Court Judge Charles Crandall, requires that the youth, Jose G., “[s]ubmit any electronic device, used to store or transmit digital information, that you own, possess or control, to a search of any source of electronic data identified below, at any time, with or without probable cause, by a peace officer, and provide the peace officer with any passwords necessary to access the data source specified.”
Crandall authorized searches of text messages, voicemail messages, call logs, photographs, email accounts, social media accounts and Internet browsing history.
That, the youth contended on appeal, is not reasonably related to his disruptive behavior on campus.
Justice Kenneth Yegan of Div. Six, writing for himself and Justice Steven Z. Perren, disagreed. He said:
“The internet is a source of great knowledge and communication of ideas. Unfortunately, it can be used for purposes which are not so wonderful. Here the trial court required a juvenile to consent to a search of electronic devices as a correctional tool in the juvenile’s reformation and rehabilitation. It seems obvious that the juvenile court is trying to keep the juvenile from accessing information which may kindle his interest in racial hatred and bigotry. This is such a laudable goal that it is difficult to see the merit in academic counter arguments.”
“Resolution of the issue should not turn on an academic analysis of privacy considerations and the relationship to terms and conditions of juvenile probation. Rather, the approach should be a practical one to serve this juvenile who is in need of monitoring for his own good. This kid is in trouble. He needs guidance. He does not need to access racial hatred which is so readily available on the internet.”
Reasonableness of Condition
The jurist went on to declare that the condition is reasonable, explaining:
“The conditions of his probation require him to refrain from using drugs, threatening others with violence and visiting school grounds without prior approval. We conclude the electronic search condition is reasonable because it will allow law enforcement to monitor appellant’s compliance with these conditions.”
He said the condition was not overly broad because searches could reveal violations of other conditions of probation, “including those that prohibit drug and alcohol use and threats of violence against others.” Yegan said that Crandall’s order, in restricting searches to particular sources of electronic data, “reduces the likelihood that law enforcement will access medical records, financial information or other data unrelated to criminal activity.”
Dissenting, Justice Martin J. Tangeman wrote:
“It is…difficult to fathom any case in which an electronic search probation condition would not pass the test used by the majority here.”
“The electronic search condition bears no relationship to J.G.’s crime of disturbing the peace on school grounds or his social history.”
Addressing the majority’s view that the condition permits police to monitor J.G.’s future criminality, Tangeman said:
“This rationale does not justify the condition where nothing in the offense or social history shows a predisposition to use electronic devices in connection with criminal activity.”
The case is In re J.G., 2019 S.O.S. 1634.
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