IN THE SUPREME COURT OF
CALIFORNIA
In re RICARDO P., a Person Coming Under the Juvenile Court
Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO P.,
Defendant and Appellant.
S230923
First Appellate District, Division One
A144149
Alameda County Superior Court
SJ14023676
August 15, 2019
Justice Liu authored the opinion of the Court, in which
Justices Cuéllar, Kruger, and Groban concurred.
Chief Justice Cantil-Sakauye filed a concurring and dissenting
opinion, in which Justices Chin and Corrigan concurred.
In re RICARDO P.
S230923
Opinion of the Court by Liu, J.
In People v. Lent (1975) 15 Cal.3d 481 (Lent), we held that
“a condition of probation which requires or forbids conduct
which is not itself criminal is valid if that conduct is reasonably
related to the crime of which the defendant was convicted or to
future criminality.” (Id. at p. 486.) In this case, juvenile
defendant Ricardo P. was placed on probation after admitting
two counts of felony burglary. As a condition of his probation,
the juvenile court required Ricardo to submit to warrantless
searches of his electronic devices, including any electronic
accounts that could be accessed through these devices.
Although there was no indication Ricardo used an electronic
device in connection with the burglaries, the court imposed the
condition in order to monitor his compliance with separate
conditions prohibiting him from using or possessing illegal
drugs.
Ricardo challenged the electronics search condition as
invalid under Lent and unconstitutionally overbroad. Although
the Court of Appeal agreed that the condition was
unconstitutionally overbroad and should be narrowed for that
reason, it held the condition was permissible under Lent because
it “is reasonably related to enhancing the effective supervision
of a probationer” and thus serves to prevent future criminality.
In so holding, the court recognized that its decision conflicted
with other decisions holding identical search conditions under
similar circumstances invalid under Lent.
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Opinion of the Court by Liu, J.
We granted review to decide whether an electronics search
condition like the one at issue here is “ ‘reasonably related to
future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.) We hold
that the record here, which contains no indication that Ricardo
had used or will use electronic devices in connection with drugs
or any illegal activity, is insufficient to justify the substantial
burdens imposed by this electronics search condition. The
probation condition is not reasonably related to future
criminality and is therefore invalid under Lent.
I.
In September 2014, the Santa Clara County District
Attorney filed a petition under Welfare and Institutions Code
section 602 seeking to declare Ricardo a ward of the court. The
petition alleged that Ricardo, along with his two adult cousins,
committed two felony burglaries in San Jose earlier that year.
According to the petition, Ricardo and his cousins were seen
entering a house; when a resident entered through the front
door, they fled through the back door without taking anything.
A few hours later, they entered a different house in San Jose,
broke a glass door, and stole costume jewelry worth about $200.
Ricardo admitted the allegations in the petition, and the
case was transferred to the Alameda County juvenile court. In
December 2014, Ricardo was declared a ward of the court and
placed on probation. The juvenile court imposed various
probation conditions, including drug testing, prohibitions on
using illegal drugs and alcohol, and prohibitions on associating
with people whom Ricardo knew to use or possess illegal drugs.
Ricardo objected to the drug-related conditions, noting that
“there’s no indication there were any drugs associated with this
crime.” Dismissing the objection, the court cited the probation
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Opinion of the Court by Liu, J.
report, which stated that Ricardo had told a probation officer
that “he wasn’t thinking” when he committed the offense and
that “he stopped smoking marijuana after his arrest because he
felt that [it] did not allow him to think clearly.”
One of the probation conditions requires Ricardo to
“[s]ubmit . . . electronics including passwords under [his] control
to search by Probation Officer or peace office[r] with or without
a search warrant at any time of day or night.” Ricardo
challenged this condition, arguing that it “is not reasonably
related to the crime or preventing future crime.” The court said:
“I think the law is very clear that [such a condition] is
appropriate . . . particularly [for] minors or people that are
[Ricardo’s] age. I find that minors typically will brag about their
marijuana usage or drug usage, particularly their marijuana
usage, by posting on the Internet, showing pictures of
themselves with paraphernalia, or smoking marijuana. It’s a
very important part of being able to monitor drug usage and
particularly marijuana usage.” Based on Ricardo’s statements
that “he wasn’t thinking” when he committed the offense and
that smoking marijuana “did not allow him to think clearly,” the
court found that Ricardo “himself has made reference to the fact
that marijuana was involved in the commission of this offense.”
Ricardo appealed from the juvenile court’s order imposing
probation, arguing among other things that the electronics
search condition is unreasonable under Lent and
unconstitutionally overbroad. The Court of Appeal rejected
Ricardo’s argument that the condition runs afoul of Lent. The
court “agree[d] with Ricardo that there is nothing in the record
permitting an inference that electronics played a role in his
crimes.” But the court reasoned that the electronics search
condition “is reasonably related to enabling the effective
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Opinion of the Court by Liu, J.
supervision of Ricardo’s compliance with his other probation
conditions,” namely, the various drug-related conditions. While
the court apparently “share[d] some of Ricardo’s skepticism
about the prevalence of minors’ boasting on the Internet about
marijuana use,” it declined to reject the juvenile court’s findings
as “speculative.” The court acknowledged that its decision
conflicted with a recent decision by a different division of the
same Court of Appeal, In re Erica R. (2015) 240 Cal.App.4th 907,
which held that an essentially identical electronics search
condition was not “reasonably related to future criminal
activity” and thus invalid under Lent. (Erica R., at p. 913.
At the same time, the Court of Appeal held that the
electronics search condition is overbroad since it “does not limit
the types of data on or accessible through his cell phone that
may be searched” in light of the “juvenile court’s stated purpose
. . . to permit monitoring of Ricardo’s involvement with illegal
drugs.” Because the condition is “insufficiently tailored to its
purpose of rehabilitating Ricardo in particular,” the court struck
the condition and remanded for the juvenile court to impose “a
narrower condition if it wishes.” The court suggested that a
probation condition that “limit[ed] searches of Ricardo’s cell
phone and other devices to electronic information that is
reasonably likely to reveal whether Ricardo is boasting about
his drug use or activity, such as text and voicemail messages,
photographs, e-mails, and social media accounts,” would be
constitutional.
We granted review, limited to the question whether the
electronics search condition imposed by the juvenile court
satisfies Lent.
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Opinion of the Court by Liu, J.
II.
“The purposes of juvenile wardship proceedings are
twofold: to treat and rehabilitate the delinquent minor, and to
protect the public from criminal conduct.” (In re Jose C. (2009
45 Cal.4th 534, 555.) To those ends, a juvenile court may order
a ward under its jurisdiction to probation. (Welf. & Inst. Code,
§§ 727, 730, subd. (a).) Under Welfare and Institutions Code
section 730, subdivision (b), the court “may impose and require
any and all reasonable conditions that it may determine fitting
and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.” “The
juvenile court has wide discretion to select appropriate
conditions,” but “[a] probation condition that imposes
limitations on a person’s constitutional rights must closely tailor
those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K.
(2007) 40 Cal.4th 875, 889, 890 (Sheena K.).) “A condition of
probation which is impermissible for an adult criminal
defendant is not necessarily unreasonable for a juvenile
receiving guidance and supervision from the juvenile court.” (In
re Todd L. (1980) 113 Cal.App.3d 14, 19.) On appeal, we
“ ‘review conditions of probation for abuse of discretion.’ ”
(People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).
Specifically, we review a probation condition “for an indication
that the condition is ‘arbitrary or capricious’ or otherwise
exceeds the bounds of reason under the circumstances.” (People
v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).
In Lent, we held that “a condition of probation which
requires or forbids conduct which is not itself criminal is valid if
that conduct is reasonably related to the crime of which the
defendant was convicted or to future criminality.” (Lent, supra,
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Opinion of the Court by Liu, J.
15 Cal.3d at p. 486.) We adopted the following three-part test
from People v. Dominguez (1967) 256 Cal.App.2d 623: “A
condition of probation will not be held invalid unless it ‘(1) has
no relationship to the crime of which the offender was convicted,
(2) relates to conduct which is not in itself criminal, and
(3) requires or forbids conduct which is not reasonably related
to future criminality.’ ” (Lent, at p. 486, quoting Dominguez, at
p. 627.) The Lent test “is conjunctive — all three prongs must
be satisfied before a reviewing court will invalidate a probation
term.” (Olguin, supra, 45 Cal.4th at p. 379.
Although Lent involved an adult probationer, the Courts
of Appeal have “consistently held that juvenile probation
conditions must be judged by the same three-part standard
applied to adult probation conditions under Lent.” (In re D.G.
(2010) 187 Cal.App.4th 47, 52; see, e.g., In re P.O. (2016) 246
Cal.App.4th 288, 294; In re Josh W. (1997) 55 Cal.App.4th 1, 5–
6; In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.) We agree
that the Lent test governs in juvenile and adult probation cases
alike.
The Court of Appeal concluded that the first two prongs of
the Lent test are satisfied here: First, the electronics search
condition “ ‘has no relationship’ ” to the crime for which Ricardo
was convicted (Lent, supra, 15 Cal.3d at p. 486); there is no
indication that any electronic device was involved in the
commission of the burglaries. Second, the electronics search
condition clearly “ ‘relates to conduct which is not in itself
criminal.’ ” (Ibid.
The issue on which we granted review presupposes that
the first and second Lent requirements are satisfied. This case
turns on whether the electronics search condition satisfies
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Opinion of the Court by Liu, J.
Lent’s third prong — that is, whether it “ ‘requires or forbids
conduct which is not reasonably related to future criminality.’ ”
(Lent, supra, 15 Cal.3d at p. 486.) The Court of Appeal
determined that the electronics search condition is “reasonably
related to enabling the effective supervision of Ricardo’s
compliance with his other probation conditions.” We hold that
the condition does not satisfy Lent’s third prong because, on the
record before us, the burden it imposes on Ricardo’s privacy is
substantially disproportionate to the countervailing interests of
furthering his rehabilitation and protecting society.
As noted, the juvenile court imposed the electronics search
condition solely to enable probation officers to monitor whether
Ricardo is communicating about drugs or with people associated
with drugs. The court imposed this condition even though, as
the Court of Appeal explained, “there is no legitimate basis for
inferring that electronic devices were connected to the
commission of the burglaries.” Moreover, there is no suggestion
in the record or by the Attorney General that Ricardo has ever
used electronic devices to commit, plan, discuss, or even consider
unlawful use or possession of drugs or any other criminal
activity. The juvenile court instead imposed drug-related
conditions because of statements by Ricardo in the probation
report that “he wasn’t thinking” when he committed the offense
and that “he stopped smoking marijuana after his arrest
because he felt that [it] did not allow him to think clearly.” The
court then added the electronics search condition based on its
observation that teenagers “typically” brag about such drug use
on social media.
Like the Court of Appeal, we “share some of Ricardo’s
skepticism” about the juvenile court’s inference that he was
using drugs at the time he committed the burglaries, as well as
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Opinion of the Court by Liu, J.
the juvenile court’s generalization about teenagers’ tendency to
brag about drug use online. But even accepting these premises,
we conclude that the electronics search condition here does not
satisfy Lent’s third prong because the burden it imposes on
Ricardo’s privacy is substantially disproportionate to the
condition’s goal of monitoring and deterring drug use.
Our cases upholding probation conditions under Lent’s
third prong have involved stronger connections between the
burdens imposed by the challenged condition and a
probationer’s criminal conduct or personal history. In Lent
itself, “there [was] no question as to the relationship of the total
sum of restitution ordered to the crime of which defendant was
convicted.” (Lent, supra, 15 Cal.3d at p. 486.) The probation
condition at issue in Lent required the defendant to pay
restitution related to a charge of grand theft of which the
defendant was acquitted. (Id. at p. 485.) In upholding the
condition, we noted that restitution “has generally been deemed
a deterrent to future criminality” and that a court “is not limited
to the transactions or amounts of which defendant is actually
convicted.” (Id. at p. 486.) The defendant in Lent had been
charged with two counts of grand theft and was convicted of one
of them (id. at p. 485), and we held that the restitution condition
was directly related to the defendant’s crime of conviction and
criminal history.
In People v. Carbajal (1995) 10 Cal.4th 1114, we again
considered whether a trial court may order restitution as a
condition of probation, this time in the context of an adult
defendant convicted of a “ ‘hit-and-run.’ ” (Id. at p. 1118.) We
held that the restitution condition was “related to the crime of
leaving the scene of the accident” and “also related to the goal of
deterring future criminality.” (Id. at p. 1124.) On the second
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Opinion of the Court by Liu, J.
point, we explained that the condition “force[s] the defendant to
accept the responsibility he attempted to evade by leaving the
scene of the accident without identifying himself,” thus “act[ing]
both as a deterrent to future attempts to evade his legal and
financial duties as a motorist and as a rehabilitative measure
tailored to correct the behavior leading to his conviction.” (Ibid.
In upholding the condition, we noted that restitution could
“serve a salutary rehabilitative purpose by directing the
defendant to accept the social responsibility he attempted to
evade when he fled the scene.” (Id. at p. 1125.
Our pre-Lent cases similarly required a closer relationship
between the probation condition on one hand and the
probationer’s criminal conduct and deterring future criminality
on the other. In People v. Mason (1971) 5 Cal.3d 759 (Mason),
we determined that the validity of a condition requiring a “prior
narcotics offender” to submit to warrantless property searches
“seems beyond dispute . . . since that condition is reasonably
related to the probationer’s prior criminal conduct and is aimed
at deterring or discovering subsequent criminal offenses.” (Id.
at p. 764.) We relied on case law holding that “such a condition
is reasonable and valid” because it is “ ‘related to [the
probationer’s] reformation and rehabilitation in the light of the
offense of which he was convicted.’ ” (Ibid., italics added; cf. Cal.
Rules of Court, rule 4.414(a)(1) & (b)(1) [“Criteria affecting the
decision whether to grant or deny probation” include the
defendant’s “[p]rior record of criminal conduct, whether as an
adult or a juvenile”].
By contrast, in In re Bushman (1970) 1 Cal.3d 767, we
invalidated a probation condition requiring the defendant “to
seek psychiatric treatment at his own expense with a qualified
psychiatrist approved by the court, and to continue the
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Opinion of the Court by Liu, J.
treatment as required by the doctor and approved by the
probation department and the court.” (Id. at p. 776.) The
defendant had been convicted of disturbing the peace, and there
was no evidence that he needed psychiatric care and no
suggestion that psychiatric care had any relationship to the
crime of which he was convicted. (Id. at p. 777.) “Furthermore,”
we explained, “without any showing that mental instability
contributed to that offense, psychiatric care cannot reasonably
be related to future criminality.” (Ibid.
The Courts of Appeal have similarly recognized that Lent’s
third prong requires more than just an abstract or hypothetical
relationship between the probation condition and preventing
future criminality. In People v. Brandão (2012) 210 Cal.App.4th
568 (Brandão), the defendant, who had been convicted of
possessing methamphetamine, challenged a “no-gang-contact”
probation condition. (Id. at p. 570.) “Nothing in the record,” the
Brandão court noted, “indicates that defendant has any gang
affiliations or other gang-related history, nor did the underlying
offense have anything to do with a gang.” (Ibid.) The court
concluded that the no-gang-contact probation condition was not
“reasonably related to a risk that defendant will reoffend.” (Id.
at p. 574.) The court rejected the Attorney General’s argument
that the probation condition should be upheld because of the
“possible beneficent effect” (id. at p. 577) that it would prevent
the defendant from associating with gang members and thereby
“ ‘slide down the recidivist ladder’ ” (id. at p. 576; see id. at
pp. 576–577). “To be sure,” the court acknowledged, “making
contact with members of criminal street gangs could be
deleterious to defendant,” but Lent does not “authoriz[e]
conditions to shield probationers from exposure to people and
circumstances that are less than ideal but are nonetheless
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Opinion of the Court by Liu, J.
unrelated to defendant’s current or prior offenses or any factor
suggesting a risk of future criminal conduct.” (Id. at p. 577; see
also People v. Petty (2013) 213 Cal.App.4th 1410, 1421 [striking
probation condition requiring the defendant to take
antipsychotic medicine because there was no showing that it
was “reasonably related to his criminal offense or his future
criminality”]; In re D.G., supra, 187 Cal.App.4th at p. 53
[striking condition prohibiting the defendant from coming
within 150 feet of school campus “[b]ecause there is nothing in
his past or current offenses or his personal history that
demonstrates a predisposition to commit crimes near school
grounds or upon students, or leads to a specific expectation he
might commit such crimes”]; People v. Burton (1981) 117
Cal.App.3d 382, 390 [striking condition prohibiting consuming
alcoholic beverages because “there [was] no evidence in the
record that appellant had ever been convicted of an alcohol-
related offense [or] that he had manifested a propensity to
become assaultive while drinking”].
Ricardo argues that we have interpreted Lent’s third
prong to require “a nexus between the probation condition and
the defendant’s underlying offense or prior offenses.” We would
not go that far. Requiring a nexus between the condition and
the underlying offense would essentially fold Lent’s third prong
into its first prong. We have said that “conditions of probation
aimed at rehabilitating the offender need not be so strictly tied
to the offender’s precise crime” (Moran, supra, 1 Cal.5th at
pp. 404–405) so long as they are “reasonably directed at curbing
[the defendant’s] future criminality” (id. at p. 404). For
example, courts may properly base probation conditions upon
information in a probation report that raises concerns about
future criminality unrelated to a prior offense. (People v. Lopez
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Opinion of the Court by Liu, J.
(1998) 66 Cal.App.4th 615, 623–625 [upholding condition that
defendant avoid gang involvement].
Yet Lent’s requirement that a probation condition must be
“ ‘reasonably related to future criminality’ ” contemplates a
degree of proportionality between the burden imposed by a
probation condition and the legitimate interests served by the
condition. (Lent, supra, 15 Cal.3d at p. 486; see People v.
Fritchey (1992) 2 Cal.App.4th 829, 837–838 [“ ‘[A] reasonable
condition of probation is not only fit and appropriate to the end
in view but it must be a reasonable means to that end.
Reasonable means are moderate, not excessive, not extreme, not
demanding too much, well-balanced.’ ”].
Such proportionality is lacking here. As noted, nothing in
the record suggests that Ricardo has ever used an electronic
device or social media in connection with criminal conduct. The
juvenile court instead relied primarily on indications that
Ricardo had previously used marijuana and its generalization
that “minors typically will brag about their marijuana usage or
drug usage, particularly their marijuana usage, by posting on
the Internet, showing pictures of themselves with
paraphernalia, or smoking marijuana.” Based solely on these
observations, the juvenile court imposed a sweeping probation
condition requiring Ricardo to submit all of his electronic
devices and passwords to search at any time. Such a condition
significantly burdens privacy interests. (See Hill v. National
Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 [“privacy”
guarantee in Cal. Const. art. I, § 1 protects individuals against
“misuse
of
sensitive
and
confidential
information
(‘informational privacy’)”]; Riley v. California (2014) 573 U.S.
373, 393, 394, 395 (Riley) [a cell phone’s “immense storage
capacity” means it “collects in one place many distinct types of
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Opinion of the Court by Liu, J.
information . . . that reveal much more in combination than any
isolated record”; “[t]he sum of an individual’s private life can be
reconstructed through a thousand photographs labeled with
dates, locations, and descriptions”; cell phone users “keep on
their person a digital record of nearly every aspect of their
lives—from the mundane to the intimate”].) The warrantless
search of a juvenile’s electronic devices by a probation officer, a
government official, plainly raises privacy concerns of a
different order than parents checking their children’s cell
phones. (Cf. conc. & dis. opn. of Cantil-Sakauye, C.J., post, at
p. 13.
If we were to find this record sufficient to sustain the
probation condition at issue, it is difficult to conceive of any case
in which a comparable condition could not be imposed, especially
given the constant and pervasive use of electronic devices and
social media by juveniles today. In virtually every case, one
could hypothesize that monitoring a probationer’s electronic
devices and social media might deter or prevent future criminal
conduct. For example, an electronics search condition could be
imposed on a defendant convicted of carrying an unregistered
concealed weapon on the ground that text messages, e-mails, or
online photos could reveal evidence that the defendant possesses
contraband or is participating in a gang. (But see People v.
Bryant (2017) 10 Cal.App.5th 396, 405 (Bryant), review granted
June 28, 2017, S241937 [invalidating such a condition “in the
absence of facts demonstrating ‘ “ ‘a predisposition’ to utilize
electronic devices . . . in connection with criminal activity” ’ ”].
Indeed, whatever crime a juvenile might have committed, it
could be said that juveniles may use electronic devices and social
media to mention or brag about their illicit activities.
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Opinion of the Court by Liu, J.
The plain language of this electronics search condition
would require Ricardo to provide probation officers full access,
day or night, not only to his social media accounts but also to the
contents of his e-mails, text messages, and search histories, all
photographs and videos stored on his devices, as well as any
other data accessible using electronic devices, which could
include anything from banking information to private health or
financial information to dating profiles. (See Riley, supra, 573
U.S. at p. 397 [“the data a user views on many modern cell
phones may not in fact be stored on the device itself” in light of
“ ‘cloud computing’ ”].) If the juvenile court’s observation that
“minors typically will brag about their marijuana usage or drug
usage” online were sufficient to justify the substantial burdens
the condition imposes, it is hard to see what would be left of
Lent’s third prong.
We agree with our dissenting colleagues that our role in
reviewing probation conditions for abuse of discretion is a
limited one. (Conc. & dis. opn. of Cantil-Sakauye, C.J., post, at
pp. 3–5, 16–17; see also Sheena K., supra, 40 Cal.4th at p. 885
[“[C]haracteristically the trial court is in a considerably better
position than [an appellate court] to review and modify a . . .
probation condition that is premised upon the facts and
circumstances of the individual case.”].) But meaningful review
requires more than speculation that the juvenile court had in
mind “myriad considerations” that “cannot be completely
accounted for through a relatively clinical and abstract
proportionality assessment” on appeal. (Conc. & dis. opn. of
Cantil-Sakauye, C.J., post, at pp. 16–17.) Even deferential
review must be anchored in the record made by the juvenile
court. This case involves a probation condition that imposes a
very heavy burden on privacy with a very limited justification.
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Opinion of the Court by Liu, J.
This disproportion leads us to conclude, on this record, that the
electronics search condition is not “ ‘reasonably related to future
criminality’ ” and is therefore invalid under Lent. (Lent, supra,
15 Cal.3d at p. 486, italics added.) We do not decide whether
there is sufficient basis in the present record to support the
Court of Appeal’s suggestion that the juvenile court, on remand,
may restrict the condition to search of “electronic information
that is reasonably likely to reveal whether Ricardo is boasting
about his drug use or activity, such as text and voicemail
messages, photographs, e-mails, and social-media accounts.”
Nor do we address how the parameters of such a condition might
be delineated.
III.
The Court of Appeal rested its analysis of Lent’s third
prong entirely on Olguin, supra, 45 Cal.4th 375, where we
considered whether “a condition of probation requiring
defendant to notify his probation officer of the presence of any
pets at defendant’s place of residence” was “reasonably related
to future criminality.” (Id. at p. 378.) Olguin pleaded guilty to
two counts of driving while intoxicated and was sentenced to
three years of supervised probation. (Ibid.) He challenged a
probation condition that required him to “ ‘[k]eep the probation
officer informed of place of residence, cohabitants and pets, and
give written notice to the probation officer twenty-four (24
hours prior to any changes,’ ” arguing that “pet ownership . . . is
not reasonably related to future criminality” under Lent. (Id. at
p. 380.
We rejected Olguin’s argument, holding that “the
notification condition in question is reasonably related to the
supervision of defendant and hence to his rehabilitation and
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Opinion of the Court by Liu, J.
potential future criminality.” (Olguin, supra, 45 Cal.4th at
p. 380.) This was so, we explained, because the notification
condition “serves to inform and protect a probation officer
charged with supervising a probationer’s compliance with
specific conditions of probation.” (Id. at p. 381.) “Proper
supervision includes the ability to make unscheduled visits and
to conduct unannounced searches of the probationer’s residence.
Probation officer safety during these visits and searches is
essential to the effective supervision of the probationer and thus
assists in preventing future criminality.” (Ibid.) We also
dismissed Olguin’s claim that the notification condition
“restrict[ed] his ability to own a pet.” (Id. at p. 382.) It required
only that he “inform his probation officer of the presence of any
pets at his place of residence”; it did not forbid him from owning
pets or require him to obtain permission before doing so. (Id. at
p. 383.) “Reporting the presence of pets to a probation officer,”
we said, “is a simple task, imposes no undue hardship or burden,
and is a requirement that clearly falls within the bounds of
reason.” (Id. at p. 382.
Like the Court of Appeal, the Attorney General
characterizes Olguin as “unmistakably stand[ing] for the
principle that conditions reasonably related to enhancing the
effective supervision of probationers are valid under Lent.”
Ricardo argues that accepting this understanding of Olguin
would “render[] Lent meaningless by broadening the third prong
to allow any probation condition that enhances surveillance of
the probationer.”
We think Ricardo has the better argument. If we were to
hold that any search condition facilitating supervision of
probationers is “reasonably related to future criminality,” we
might be obligated to uphold under Lent a condition mandating
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Opinion of the Court by Liu, J.
that probationers wear 24-hour body cameras or permit a
probation officer to accompany them at all times. Such
conditions would enhance supervision of probationers and
ensure their compliance with other terms of probation. But they
would not be reasonable because the burden on the probationer
would be disproportionate to the legitimate interest in effective
supervision.
Contrary to the Attorney General’s reading of Olguin, the
defendant in that case did not challenge the residence search
condition itself; he objected only to the requirement that he
notify the probation officer about any pets at his residence.
(Olguin, supra, 45 Cal.4th at p. 380.) This notification
requirement was reasonable, we said, because it “facilitat[ed]
unannounced searches of [Olguin’s] residence” to ensure
compliance with the unchallenged probation search condition.
(Id. at p. 382.) We had no occasion in Olguin to consider, let
alone approve, the reasonableness of any search condition that
would assist an officer in supervising a probationer’s compliance
with another term of probation.
It is true that our opinion in Olguin contains some
expansive language — for example, “[a] condition of probation
that enables a probation officer to supervise his or her charges
effectively is . . . ‘reasonably related to future criminality.’ ”
(Olguin, supra, 45 Cal.4th at pp. 380–381.) But our reasoning
reflected the specific circumstances presented by the pet
notification condition at issue and emphasized the
nonburdensome manner in which the condition helped to ensure
the probation officer’s safety and ability to properly supervise
the probationer. In particular, we observed that the condition
“serve[d] to inform and protect a probation officer” and that “the
protection of the probation officer while performing supervisory
17
In re RICARDO P.
Opinion of the Court by Liu, J.
duties is reasonably related to the rehabilitation of a
probationer for the purpose of deterring future criminality.” (Id.
at p. 381.) Reporting the presence of pets was a “simple task”
(id. at p. 382) that did not “forbid defendant from owning pets”
nor “require defendant to obtain permission from his probation
officer in order to obtain or keep any pet” (id.at p. 383). Based
on this reasoning, we held that the probation condition “imposes
no undue hardship or burden, and is a requirement that clearly
falls within the bounds of reason.” (Id. at p. 382.) Compared to
the minimally invasive pet notification requirement in Olguin,
requiring a probationer to surrender electronic devices and
passwords to search at any time is far more burdensome and
intrusive, and requires a correspondingly substantial and
particularized justification.
The fact that an electronics search condition may burden
a juvenile probationer’s constitutional rights does not
necessarily render it invalid. (See Sheena K., supra, 40 Cal.4th
at p. 889; In re Josh W., supra, 55 Cal.App.4th at p. 5 [“A
juvenile court enjoys broad discretion to fashion conditions of
probation for the purpose of rehabilitation and may even impose
a condition of probation that would be unconstitutional or
otherwise improper so long as it is tailored to specifically meet
the needs of the juvenile.”].) But the fact that substantial
privacy concerns are involved here only highlights the
differences between this case and Olguin, where “no
fundamental or constitutional rights [we]re implicated by the
challenged term of probation.” (Olguin, supra, 45 Cal.4th at
p. 378.) These significant differences have led several Courts of
Appeal to reject the expansive reading of Olguin urged by the
Attorney General and instead to conclude that Olguin does not
compel a finding of reasonableness “for every probation
18
In re RICARDO P.
Opinion of the Court by Liu, J.
condition that may potentially assist a probation officer in
supervising a probationer.” (People v. Soto (2016) 245
Cal.App.4th 1219, 1227; see Bryant, supra, 10 Cal.App.5th at
p. 404 [“The fact that a search of Bryant’s cellular phone records
might aid a probation officer in ascertaining Bryant’s
compliance with other conditions of supervision is, without
more, an insufficient rationale to justify the impairment of
Bryant’s constitutionally protected interest in privacy.”]; In re
J.B. (2015) 242 Cal.App.4th 749, 758 [“The fact that a search
condition would facilitate general oversight of the individual’s
activities is insufficient to justify an open-ended search
condition permitting review of all information contained or
accessible on . . . [a] smart phone or other electronic devices.”].
We likewise decline to read Olguin to categorically permit
any probation conditions reasonably related to enhancing the
effective supervision of a probationer. “Not every probation
condition bearing a remote, attenuated, tangential, or
diaphanous connection to future criminal conduct can be
considered reasonable” under Lent. (Brandão, supra, 210
Cal.App.4th at p. 574.) Endorsing the Court of Appeal’s broad
reading of Olguin would effectively eliminate the
reasonableness requirement in Lent’s third prong, for almost
any condition can be described as “enhancing the effective
supervision of a probationer.”
The Attorney General also argues that invalidating the
electronics search condition here would make it impossible for
courts to impose “common” and “standard search conditions,”
such as those permitting warrantless searches of a juvenile
probationer’s person, property, and residence. But a property or
residence search condition is likewise subject to Lent’s three-
part test. Under the rule we set forth today, a juvenile court
19
In re RICARDO P.
Opinion of the Court by Liu, J.
imposing such a condition must consider whether, in light of
“the facts and circumstances in each case” (Bryant, supra, 10
Cal.App.5th at p. 402), the burdens imposed by the condition are
proportional to achieving some legitimate end of probation. Our
determination that the electronics search condition here is not
reasonably related to Ricardo’s future criminality will not
impair juvenile courts’ ability to impose traditional search
conditions in future cases when warranted.
Moreover, the Attorney General’s argument does not
sufficiently take into account the potentially greater breadth of
searches of electronic devices compared to traditional property
or residence searches. (See Riley, supra, 573 U.S. at pp. 396–
397 [“[A] cell phone search would typically expose to the
government far more than the most exhaustive search of a
house: A phone not only contains in digital form many sensitive
records previously found in the home; it also contains a broad
array of private information never found in a home in any form
— unless the phone is.”].) As noted, the electronics search
condition here is expansive in its scope: It allows probation
officers to remotely access Ricardo’s e-mail, text and voicemail
messages, photos, and online accounts, including social media
like Facebook and Twitter, at any time. It would potentially
even allow officers to monitor Ricardo’s text, phone, or video
communications in real time. Further, the condition lacks any
temporal limitations, permitting officers to access digital
information that long predated the imposition of Ricardo’s
probation.
Our dissenting colleagues agree that the electronics
search condition here “sweeps too broadly relative to its
rationale,” although they would reach this conclusion not under
Lent but under constitutional overbreadth analysis, an issue on
20
In re RICARDO P.
Opinion of the Court by Liu, J.
which we did not grant review. (Conc. & dis. opn. of Cantil-
Sakauye, C.J., post, at p. 19.) The dissent appears troubled by
the fact that both Lent, as we interpret it here, and
constitutional overbreadth analysis require a court to assess the
relative burdens and benefits of probation conditions. (Conc. &
dis. opn. of Cantil-Sakauye, C.J., post, at pp. 2, 15–16.) But Lent
is an interpretation of the Legislature’s requirement that
probation conditions be “reasonable.” (Pen. Code, § 1203.1,
subd. (j); Welf. & Inst. Code, § 730, subd. (b).) That qualification
indicates some concern with the fit between the means and
legitimate ends of probation conditions: A probation condition
that imposes substantially greater burdens on the probationer
than the circumstances warrant is not a “reasonable” one.
Indeed, the dissent acknowledges that some proportionality
inquiry is warranted under Lent; how else to conclude that some
highly intrusive (and presumably highly effective) means of
supervising probationers would be “absurd”? (Conc. & dis. opn.
of Cantil-Sakauye, C.J., post, at p. 11.
The dissent also expresses concern that our approach
saddles appellate courts with “an unduly exacting
proportionality inquiry” for all probation conditions challenged
under Lent, the kind of inquiry the dissent would reserve only
for those probation conditions that implicate constitutional
rights. (Conc. & dis. opn. of Cantil-Sakauye, C.J., post, at pp. 2,
16 fn. 9.) But probation conditions often implicate the
probationer’s liberty interests, and appellate courts are
certainly capable of determining whether a condition’s
infringement on liberty is substantially disproportionate to the
ends of reformation and rehabilitation. (See, e.g., Sheena K.,
supra, 40 Cal.4th at p. 889; In re White (1979) 97 Cal.App.3d
141, 149–151; Mason, supra, 5 Cal.3d at p. 768 (dis. opn. of
21
In re RICARDO P.
Opinion of the Court by Liu, J.
Peters, J.) [“Where a condition of probation requires a waiver of
precious constitutional rights, the condition must be narrowly
drawn; to the extent it is overbroad it is not reasonably related
to the compelling state interest in reformation and
rehabilitation and is an unconstitutional restriction on the
exercise of fundamental constitutional rights.”].) Of course, we
must be mindful of “the superior ability of the trial and juvenile
courts to gather and apply” information about the probationer.
(Conc. & dis. opn. of Cantil-Sakauye, C.J., post, at p. 16.) But
there is no doctrinal or statutory basis, nor any basis in
considerations of judicial competence, for declaring an inquiry
into proportionality off-limits under Lent, even as it is required
under constitutional overbreadth analysis.
In sum, we hold that the electronics search condition here
is not reasonably related to future criminality and is therefore
invalid under Lent. Our holding does not categorically
invalidate electronics search conditions. In certain cases, the
probationer’s offense or personal history may provide the
juvenile court with a sufficient factual basis from which it can
determine that an electronics search condition is a proportional
means of deterring the probationer from future criminality.
(See People v. Appleton (2016) 245 Cal.App.4th 717, 724 [finding
electronics search condition reasonable because the defendant
lured victim using “ ‘either social media or some kind of
computer software’ ”]; In re Malik J. (2015) 240 Cal.App.4th 896,
902 [condition allowing officers “to search a cell phone to
determine whether [the defendant] is the owner” was
reasonable in light of the defendant’s “history of robbing people
of their cell phones”]; People v. Ebertowski (2014) 228
Cal.App.4th 1170, 1173, 1176–1177 [finding electronics search
condition related to the defendant’s future criminality where the
22
In re RICARDO P.
Opinion of the Court by Liu, J.
defendant was convicted of making gang-related criminal
threats and had previously used social media sites to promote
his gang].) But in this case, on the record before us, the
electronics search condition imposes a burden that is
substantially disproportionate to the legitimate interests in
promoting rehabilitation and public safety.
CONCLUSION
We affirm the Court of Appeal’s judgment striking the
electronics search condition and remand to the Court of Appeal
so that it may remand the case to the juvenile court for further
proceedings consistent with this opinion.
LIU, J.
We Concur:
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
23
In re RICARDO P.
S230923
Concurring and Dissenting Opinion by
Chief Justice Cantil-Sakauye
I concur in the remand of this matter for further
proceedings as may be appropriate, but I respectfully dissent
from the majority’s rationale for doing so. The Court of Appeal
got it right: The electronics search condition imposed by the
juvenile court as a condition of probation satisfies the standard
we adopted in People v. Lent (1975) 15 Cal.3d 481 (Lent) for the
review of probation conditions, but it does not pass the distinct
test for overbreadth that applies to the subset of conditions that
implicate a probationer’s constitutional rights. The juvenile
court, acting in its distinctive, quasi-parental role, could
properly require Ricardo P. (Ricardo) to provide probation
officers with limited access to his social media, messaging, and
e-mail accounts in order to deter and detect further marijuana
use.1 But the electronics search condition imposed by the
juvenile court authorized far broader surveillance that served
1
As imposed by the juvenile court, this condition required
Ricardo to “[s]ubmit . . . electronics including passwords under
[his] control to search by [p]robation [o]fficer or peace office[r]
with or without a search warrant at any time of day or night.”
The condition did not require that a search be premised on
reasonable suspicion that the electronic device or online account
being searched contains evidence of a crime. (See People v. Reyes
(1998) 19 Cal.4th 743, 752 [upholding a suspicionless search
condition].) I do not read the majority as expressing any view
regarding the validity, under Lent, of an otherwise equivalent
search condition that includes such a requirement.
1
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
no similar purpose. The solution, as the Court of Appeal
recognized, is to strike the condition and remand the matter to
allow the juvenile court to impose a narrower electronics search
condition, should it choose to do so.
As I will explain, my principal disagreement with the
majority concerns its importation of an unduly exacting
proportionality inquiry into the Lent framework. (See maj. opn.,
ante, at pp. 7, 12, 17, 23.) In expanding the Lent analysis, the
majority needlessly subverts the multistep approach to
appellate review of probation conditions that we have previously
endorsed and applied.
Under our precedent, search conditions generally have
been recognized as “ ‘reasonably related to future criminality’ ”
(Lent, supra, 15 Cal.3d at p. 486), thereby satisfying Lent,
without the additional proportionality assessment that the
majority requires (see People v. Olguin (2008) 45 Cal.4th 375,
380-381 (Olguin)). Reserving closer scrutiny of a search
condition for the subsequent overbreadth step of appellate
review properly recognizes the broad discretion generally
accorded to trial courts and especially juvenile courts in crafting
appropriate conditions of probation. At the same time, it
vindicates the principle that probation conditions that implicate
constitutional rights and on that basis merit closer review must
be properly tailored to the justifications behind them. This
balanced multistep analysis, were it to be applied here, would
adequately address the concerns raised by the majority about
the electronics search condition that was imposed below.
Because the majority’s quite different approach departs from
and in fact may threaten our viable, indeed preferable, existing
methodology for reviewing probation conditions, I respectfully
dissent in part.
2
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
I. THE ELECTRONICS SEARCH CONDITION IMPOSED BY THE
JUVENILE COURT SATISFIES LENT
A. Trial Courts, and Especially Juvenile Courts,
Have Broad Discretion in Crafting Appropriate
Conditions of Probation
Probation is a creature of statute, and juveniles are
treated differently from adults. With formal juvenile probation,
the state, through the juvenile court, acts much like a parent
would to provide guidance and direction to the delinquent ward.
“Minors under the jurisdiction of the juvenile court as a
consequence of delinquent conduct shall, in conformity with the
interests of public safety and protection, receive care, treatment,
and guidance that is consistent with their best interest, that
holds them accountable for their behavior, and that is
appropriate for their circumstances. This guidance may include
punishment that is consistent with the rehabilitative objectives
of this chapter.” (Welf. & Inst. Code, § 202, subd. (b).) Thus,
“When a ward . . . is placed under the supervision of the
probation officer or committed to the care, custody, and control
of the probation officer, . . . [t]he court may impose and require
any and all reasonable conditions that it may determine fitting
and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.” (Id.,
§ 730, subd. (b).
With juvenile probationers, as with adult probationers,
the Legislature has generally directed that conditions attached
to probation must be “reasonable.” (Pen. Code, § 1203.1, subd.
(j); Welf. & Inst. Code, § 730, subd. (b).) But it is well-
established that the juvenile court has particularly broad
latitude in crafting appropriate conditions of probation. (In re
Sheena K. (2007) 40 Cal.4th 875, 889; In re Tyrell J. (1994
3
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
8 Cal.4th 68, 81-82, overruled on other grounds in In re Jaime P.
(2006) 40 Cal.4th 128, 139.) This discretion includes the
authority to impose conditions that could not properly be applied
to an adult probationer in otherwise similar circumstances. (In
re Sheena K., at p. 889; In re Tyrell J., at p. 81; People v. Nassetta
(2016) 3 Cal.App.5th 699, 705, fn. 3; In re Byron B. (2004) 119
Cal.App.4th 1013, 1018; In re Frankie J. (1988) 198 Cal.App.3d
1149, 1153; In re Todd L. (1980) 113 Cal.App.3d 14, 20; cf.
Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52,
74 [“[t]he Court . . . long has recognized that the State has
somewhat broader authority to regulate the activities of
children than of adults”].) The reasonableness of these
conditions is determined not only by the circumstances of the
current offense, but also by reference to the minor’s entire social
history. (In re Walter P. (2009) 170 Cal.App.4th 95, 100.
The conferral of especially broad latitude to the juvenile
court to craft suitable conditions of probation — even conditions
that implicate constitutional rights — recognizes that
“ ‘[j]uvenile probation is not an act of leniency, but is a final
order made in the minor’s best interest.’ ” (In re Tyrell J., supra,
8 Cal.4th at p. 81; see also In re Sheena K., supra, 40 Cal.4th at
p. 889.) “[J]uveniles are deemed to be more in need of guidance
and supervision than adults, and a . . . minor’s constitutional
rights are more circumscribed. The state, when it asserts
jurisdiction over a minor, stands in the shoes of the parents.
And a parent may ‘curtail a child’s exercise of . . . constitutional
rights . . . [because a] parent’s own constitutionally protected
“liberty” includes the right to “bring up children” [citation,] and
to “direct the upbringing and education of children.” ’ ” (In re
Antonio R. (2000) 78 Cal.App.4th 937, 941.
4
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
The statutory scheme governing juvenile probation
illustrates the wide variety of probation conditions that the
Legislature regards as appropriate for a delinquent ward. These
statutes explicitly place several probation conditions within the
discretion of the juvenile court to impose, including conditions
that the juvenile stay in school (Welf. & Inst. Code, § 729.2,
subd. (a)), obey a curfew (id., § 729.2, subd. (c)), submit to drug
testing (id., § 729.3), and apply any earnings as directed by the
juvenile court (id., § 730, subd. (b)). The Legislature has further
directed that certain of these conditions, such as a curfew and
school attendance, are mandatory unless the juvenile court
makes a contrary finding. (Id., § 729.2.)2
B. Lent Must Be Understood as Part of a Larger
Framework for the Evaluation of Probation
Conditions
Lent, supra, 15 Cal.3d 481, meanwhile, supplies a
framework for determining whether a condition of probation is
“reasonable” and therefore authorized by the Legislature’s
general endorsement of such conditions.3 (Pen. Code, § 1203.1,
subd. (j); Welf. & Inst. Code, § 730, subd. (b); see People v.
Carbajal (1995) 10 Cal.4th 1114, 1121.) In Lent, we explained
2
Even though a juvenile court acts in a quasi-parental
capacity in its oversight of a juvenile adjudicated a delinquent
and placed on formal probation, its authority and that of a
parent are of course not exactly coextensive. Parents can do
some things that the state cannot. (See, e.g., Gonzalez v. Santa
Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72,
86; cf. In re Dennis M. (1969) 70 Cal.2d 444, 454.
3
The statutory requirement that a condition of probation be
reasonable, whether imposed upon an adult probationer or a
juvenile, long predates our decision in Lent. (See Stats. 1927,
ch. 770, § 1, p. 1495; Stats. 1961, ch. 1616, § 2, p. 3487.
5
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
that “[a] condition of probation will not be held invalid unless it
‘(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal,
and (3) requires or forbids conduct which is not reasonably
related to future criminality.’ ” (Lent, at p. 486, quoting People
v. Dominguez (1967) 256 Cal.App.2d 623, 627 (Dominguez).
This test condemns only probation conditions that satisfy all of
its three prongs, i.e., conditions which do not have a relationship
to the crime of conviction, relate only to noncriminal conduct,
and require or forbid conduct which is not reasonably related to
future criminality. (People v. Moran (2016) 1 Cal.5th 398, 403.
In applying Lent, we review the imposition of a probation
condition for an abuse of discretion. (Moran, at p. 403.) “That
is, a reviewing court will disturb the trial court’s decision to
impose a particular condition of probation only if, under all the
circumstances, that choice is arbitrary and capricious and is
wholly unreasonable.” (Ibid.
Significantly, we have recognized that an additional layer
of analysis, above and beyond the Lent test, applies to the subset
of probation conditions that implicate a probationer’s
constitutional rights. “A probation condition that imposes
limitations on a person’s constitutional rights must closely tailor
those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K.,
supra, 40 Cal.4th at p. 890.) “The essential question in an
overbreadth challenge is the closeness of the fit between the
legitimate purpose of the restriction and the burden it imposes
on the [probationer]’s constitutional rights — bearing in mind,
of course, that perfection in such matters is impossible, and that
practical necessity will justify some infringement.” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.
6
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
The Lent test and the distinct inquiry into overbreadth
represent complementary methods of ascertaining whether a
probation condition is appropriate. When relevant, Lent’s third
prong — whether a condition “ ‘requires or forbids conduct which
is not reasonably related to future criminality’ ” (Lent, supra, 15
Cal.3d at p. 486) — entails a basic assessment of whether the
condition, as applied to the defendant, represents a permissible
method of achieving the goals associated with probation.4 To
the extent that this inquiry involves a proportionality inquiry,
it is a circumscribed one, mindful of the broad discretion
possessed by the trial court and, especially, the juvenile court in
composing appropriate conditions of probation. For many
conditions of probation, the inquiry will end there. Conditions
4
Probation conditions have been rejected under Lent or
similar standards when, among other things, they set goals
beyond the probationer’s ability to achieve (see, e.g., In re Juan
G. (2003) 112 Cal.App.4th 1, 7-8), violate public policy, or have no
relationship to the crime of conviction, criminal conduct, or the
probationer’s future criminality (see, e.g., In re Bushman (1970
1 Cal.3d 767, 776-777). The condition imposed in Dominguez,
supra, 256 Cal.App.2d 623, is illustrative. There the court
directed the probationer, who had been convicted of robbery,
“ ‘[Y]ou are not to live with any man to whom you are not married
and you are not to become pregnant until after you become
married.’ ” (Id., at p. 625.) In finding this condition void, the
Court of Appeal properly concluded that the “[a]ppellant’s future
pregnancy had no reasonable relationship to future criminality.
It is certainly not pragmatically demonstrable that unmarried,
pregnant women are disposed to commit crimes. There is no
rational basis to believe that poor, unmarried women tend to
commit crimes upon becoming pregnant. Contraceptive failure
is not an indicium of criminality.” (Id., at p. 627.
7
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
that are fundamentally flawed fail the Lent test. Those that
survive, but do not bear upon constitutional rights, warrant no
further scrutiny. (See In re Angel J. (1992) 9 Cal.App.4th 1096,
1101.) When a condition that satisfies Lent also implicates the
probationer’s constitutional rights, however, a closer analysis is
warranted, and is undertaken through a review for overbreadth.
As so applied, the overbreadth inquiry serves to rein in
conditions of probation that, although not intrinsically
misguided, are nevertheless clearly excessive in their scope and
therefore improper in light of their impact on constitutional
rights.
It is unclear how literally Lent’s third prong should be
applied to a condition of probation imposed upon a juvenile
offender. The aims of juvenile probation are broader and more
ambitious than merely avoiding future criminality (see Welf. &
Inst. Code, § 202, subd. (b)), suggesting that the “ ‘reasonably
related to future criminality’ ” criterion (Lent, supra, 15 Cal.3d
at p. 486) should be given a particularly liberal construction in
the juvenile context. On this point, the Legislature’s
endorsement of certain probation conditions having only an
indirect relationship to a juvenile’s future criminality, such as
curfews (Welf. & Inst. Code, § 729.2, subd. (c)), fairly conveys
that it regards a broad array of probation conditions to be
“reasonable” (id., § 730, subd. (b)) as they relate to juvenile
probationers. And should any tension arise between the Lent
test and the more fundamental inquiry into reasonableness
compelled by the statutory scheme, it is Lent’s phrasing that
must yield.
8
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
C. The Electronics Search Condition Before Us
Satisfies Lent as We Have Construed That Test
Lent’s third prong is satisfied here. Search conditions
have long been recognized as reasonable tools for detecting and
deterring future criminality by a probationer, and the juvenile
court below could properly regard an electronics search
condition, in particular, as a critical part of a probation plan
designed to advance Ricardo’s best interests.
Conditions of probation that allow for the warrantless
search of a person and his or her residence and effects have been
regarded as reasonable simply by reference to the offense of
conviction, without any additional case-specific balancing of
benefits and burdens. In People v. Mason (1971) 5 Cal.3d 759
(Mason), disapproved on another point in Lent, supra, 15 Cal.3d
at page 486, footnote 1, we applied a variation of the Lent test
and upheld a warrantless search condition that had been
imposed after the defendant had been convicted of possession of
marijuana. (Mason, at p. 764.)5 We reasoned, “It seems beyond
dispute that a condition of probation which requires a prior
narcotics offender to submit to a search meets the test [for
validity under state law], since that condition is reasonably
related to the probationer’s prior criminal conduct and is aimed
at deterring or discovering subsequent criminal offenses.
Indeed, the cases have held that such a condition is reasonable
and valid, being ‘related to [the probationer’s] reformation and
5
The probation condition in Mason, supra, 5 Cal.3d 759,
“required [the probationer] to ‘submit his person, place of
residence, vehicle, to search and seizure at any time of the day
or night, with or without a search warrant, whenever requested
to do so by the Probation Officer or any law enforcement
officer.’ ” (Id., at p. 762.
9
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
rehabilitation in the light of the offense of which he was
convicted.’ ” (Mason, at p. 764, fn. omitted; see also People v.
Reyes, supra, 19 Cal.4th at p. 752; People v. Bravo (1987) 43
Cal.3d 600, 610.
This court adopted an even more categorical view of the
relationship between Lent’s third prong and search conditions
in Olguin, supra, 45 Cal.4th 375. There, we explained that
“probation conditions authorizing searches ‘aid in deterring
further offenses . . . and in monitoring compliance with the
terms of probation. [Citations.] By allowing close supervision
of probationers, probation search conditions serve to promote
rehabilitation and reduce recidivism while helping to protect the
community from potential harm by probationers.’ [Citation.] A
condition of probation that enables a probation officer to
supervise his or her charges effectively is, therefore, ‘reasonably
related to future criminality.’ ” (Id., at pp. 380-381.)6
6
In this context, our opinion in Olguin, supra, 45 Cal.4th at
page 381 cited with apparent approval the decision in People v.
Balestra (1999) 76 Cal.App.4th 57, which had justified
warrantless search conditions of probation on the following
ground: “As our Supreme Court has recently (and repeatedly
made clear, a warrantless search condition is intended to ensure
that the subject thereof is obeying the fundamental condition of
all grants of probation, that is, the usual requirement (as here
that a probationer ‘obey all laws.’ Thus, warrantless search
conditions serve a valid rehabilitative purpose, and because
such a search condition is necessarily justified by its
rehabilitative purpose, it is of no moment whether the
underlying offense is reasonably related to theft, narcotics, or
firearms.” (Id., at p. 67.
10
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
Here, affording probation officers access to Ricardo’s
electronic devices and accounts to detect and deter further
marijuana use — which the juvenile court in its experience with
juveniles reasonably regarded as connected to possible future
unlawful behavior — would enable the officers “to supervise
[Ricardo] effectively” (Olguin, supra, 45 Cal.4th at pp. 380-381),
and “is, therefore, ‘reasonably related to future criminality’ ”
(id., at p. 381).7 True, in authorizing the search of all of
Ricardo’s “electronics,” the relevant search condition here may
sweep more broadly than necessary to achieve the goals the
juvenile court assigned to it. But prior to today, we have not
regarded such overbreadth as meaning that a search condition
“ ‘requires or forbids conduct which is not reasonably related to
future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.) Instead,
this inconsistency simply tees up an additional overbreadth
analysis through which the condition can be more narrowly
tailored.
I recognize that the discussion of Lent’s third prong in
Olguin, supra, 45 Cal.4th at pages 380-381 must be read as
stating a general, not an absolute, rule. One can envision
absurd methods of facilitating the supervision of a probationer
that would not be “ ‘reasonably related to future criminality.’ ”
(Lent, supra, 15 Cal.3d at p. 486.) But here, the electronics
search condition, in the social media and communications
environment of juveniles, is not so outlandish a method of
7
This is true even if the condition is justified solely by
reference to a need to deter and detect Ricardo’s marijuana use.
Conceivably, the condition also could have similar utility in
ensuring that Ricardo complies with the juvenile court’s order
that he have no contact with the other perpetrators (his cousins
in the burglaries.
11
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
achieving its aims as to demand a deviation from the generally
applicable principles this court recently articulated in Olguin.
If no electronics search condition could be justified on the record
before us, perhaps the situation would be a different one. In
that case, we would be faced with an unsalvageable condition,
not merely an overbroad one. But I do not believe that the
juvenile court, acting in a quasi-parental role and charged with
providing “care, treatment, and guidance” (Welf. & Inst. Code,
§ 202, subd. (b)) to Ricardo, acted wholly unreasonably in
affording probation officers some access to Ricardo’s electronic
accounts to see if they contained evidence of ongoing marijuana
use, especially given that Ricardo already had admitted to such
use in terms suggesting that there was a connection between it
and his delinquency.8
8
As the majority explains (maj. opn., ante, at p. 2), Ricardo
admitted to participating in two residential burglaries. He wore
a mask in the first burglary, which was aborted when a resident
entered. In the second burglary, the perpetrators obtained
access by breaking a sliding glass door. They stole numerous
pieces of costume jewelry from inside the house before leaving.
When approached by officers who had been alerted to the
burglary a few minutes after it occurred, Ricardo ran toward
and tried to enter another residence, only to find the door locked.
Upon being searched by police, two cell phones and a stolen
bracelet were found in Ricardo’s pants pocket.
In a subsequent interview with a probation officer,
Ricardo admitted to smoking marijuana as a 17 year old, the
same age he was at the time of the crimes. With regard to the
burglaries, Ricardo reported that “he wasn’t thinking,” adding
“that he stopped smoking marijuana after his arrest because he
felt that [it] did not allow him to think clearly.” The juvenile
court explained that it relied on these admissions in imposing
the electronics search condition.
12
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
At root, the court simply did what many concerned parents
would. With or without signs of trouble, parents commonly
monitor their teenagers’ social media accounts, e-mails, and text
messages. (See Anderson, Parents, Teens and Digital
Monitoring (2016) Pew Research Center pp. 2 [reporting that
61% of surveyed parents had checked which websites their
teenage child had visited, 60% had checked their teen’s social
media profiles, and 48% had looked through their teenage child’s
phone call records or text messages], 3 [reporting that 48% of
surveyed parents know the password to their teen’s e-mail
account, 43% know the password to their teen’s cell phone, and
35% know the password to at least one of their teen’s social
media accounts].) In doing so, parents may find
communications regarding drug or alcohol use. (See Moreno et
al., A Longitudinal Investigation of Associations Between
Marijuana Displays on Facebook and Self-Reported Behaviors
Among College Students (2018) 63 J. Adolesc. Health 313, 316
[reporting the results of a survey of college students revealing,
inter alia, that “[a]pproximately 22% of participants who
reported lifetime marijuana use displayed references to
marijuana on Facebook”].) So obtained, a child’s posts, texts, or
e-mails can provide helpful insights into problems he or she may
be struggling with. Furthermore, if the concern is that a child
is using these channels to brag about illicit conduct, the prospect
of disclosure to an authority figure may prevent him or her from
engaging in this behavior at all. Although a parent might
reasonably decide not to engage in this sort of supervision, it is
also not entirely unreasonable for a parent, particularly a
parent of a troubled teenager, to regard such oversight as
appropriate.
13
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
The juvenile court, in its experience standing in the shoes
of a parent, appears to have implicitly engaged in similar
reasoning. The court had every reason to be worried that
Ricardo might use marijuana again, that this use was connected
to criminality, and that evidence of anticipated or actual use
could be found in his social media or text accounts. If Ricardo
were otherwise inclined to obtain or use marijuana and — alone
or with others — text, e-mail, Instagram, Snapchat, or otherwise
post about it, the electronics search condition imposed by the
juvenile court would dampen this incentive to partake. (See In
re Jaime P., supra, 40 Cal.4th at p. 137 [“the very existence of a
probation search condition, whether for adults or juveniles,
should amply deter further criminal acts”].) The condition also
would allow probation officers to effectively monitor whether
Ricardo had relapsed. Although the condition imposed by the
juvenile court sweeps further than necessary to achieve the
purposes assigned to it by the juvenile court, the fact remains
that, in light of the unique role occupied by that court vis-à-vis
Ricardo, it was reasonable for the juvenile court to impose some
kind of electronics search condition here.
D. The Majority’s Concerns Are Better Addressed
Through an Overbreadth Analysis than
Through a Flawed Application of Lent
The majority does not hold otherwise. On the contrary,
the majority reserves the question of whether a more narrowly
defined electronics search condition, such as one along the lines
suggested by the Court of Appeal, could be justified on the record
before us (maj. opn., ante, at p. 15), and condemns only the broad
condition imposed by the juvenile court. Thus, my disagreement
with the majority concerns its reasoning more than the result it
reaches. Specifically, the majority opines that “Lent’s
14
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
requirement that a probation condition must be ‘ “reasonably
related to future criminality” ’ contemplates a degree of
proportionality between the burden imposed by a probation
condition and the legitimate interests served by the condition.”
(Id., at p. 12.) It concludes that the electronics search condition
here “does not satisfy Lent’s third prong because, on the record
before us, the burden it imposes on Ricardo’s privacy is
substantially disproportionate to the countervailing interests of
furthering his rehabilitation and protecting society.” (Id., at
p. 7.) The majority further asserts that all search conditions are
likewise subject to a similar proportionality analysis. (Id., at
p. 20.
The majority’s construction of the Lent test as
incorporating a case-specific appellate reweighing of the
benefits and burdens associated with a given probation
condition cannot easily be reconciled with our more categorical
endorsements of search conditions in Mason, supra, 5 Cal.3d
759, and especially Olguin, supra, 45 Cal.4th 375, as discussed
ante. Perhaps more importantly, the majority’s view and
application of Lent essentially cannibalizes the overbreadth
inquiry; it is unclear, after today’s decision, precisely what is left
of this second step of appellate review. That might be fine if the
majority’s approach were a definite improvement on our existing
methodology. But as sketched by the majority, the expanded
version of the Lent test — the coherency of which will depend on
the appellate court being capable of identifying, distinguishing
between, and assigning relative weights to the benefits and
burdens attached to a probation condition — is inferior to our
15
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
well-established multistep inquiry as a method of assessing a
probation condition’s validity.9
This critique holds regardless of whether a method for
reviewing probation conditions is evaluated by reference to
whether it yields consistent results, its faithfulness to the
statutory scheme, whether it adequately recognizes and protects
the constitutional rights preserved by a probationer, or some
other standard. My most pronounced concern regarding the
majority’s approach involves whether it fully accounts for the
myriad considerations relevant to the imposition of a probation
condition on a defendant or a delinquent ward, and the superior
ability of the trial and juvenile courts to gather and apply this
information. The juvenile court, unlike us, observed Ricardo in
person. That court, experienced in presiding over juvenile
matters, saw firsthand how Ricardo presents himself, and
perhaps whether he is shy or outgoing, calm or quick to anger,
contrite or defiant, and even whether and how often he uses a
smartphone. In short, there is every reason to believe that the
9
The majority appears to take the position that the Lent
analysis it endorses resembles an overbreadth inquiry in that
both involve nuanced assessments of the benefits and burdens
attached to a probation condition. (Maj. opn., ante, at pp. 21,
22.) But this assertion elides important differences between the
two methodologies. Among them, the majority places no limits
on the interests that must be accounted for in the Lent analysis,
whereas overbreadth is concerned with avoiding undue
constraints on constitutional rights. Moreover, a review for
overbreadth assesses how a flawed, but not fundamentally
misguided, condition might be narrowed to avoid needless
impositions on constitutional rights. This focus lends itself to a
more structured analysis than the fluid proportionality inquiry
contemplated by the majority does, and in doing so complements
the more fundamental inquiry that Lent is properly understood
as entailing.
16
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
juvenile court had a much better sense of what Ricardo needs
than we do, and a greater appreciation of not only what the
benefits and burdens of a particular probation condition will be,
but also whether they are distinct or intertwined.
We should respect these insights, which even with a
robust record cannot be completely accounted for through a
relatively clinical and abstract proportionality assessment
undertaken on appeal. Although the majority purports to
review for an abuse of discretion, it wields its view of Lent to
engage in essentially de novo review of the electronics search
condition before us. In a case such as this one, our conventional
approach toward review of probation conditions better
assimilates the juvenile court’s comparative advantages with an
appropriate degree of appellate oversight. Furthermore,
whereas the majority simply casts the electronics search
condition imposed by the juvenile court as unreasonable under
Lent, and leaves that court to guess what sort of similar
condition, if any, might pass muster, review for overbreadth
more constructively considers how a probation condition might
be appropriately tailored to respond to the juvenile court’s
concerns, without placing unnecessary impositions on
constitutional rights.
The concerns behind the majority’s construction of Lent,
meanwhile, are either overstated or can properly be addressed
through a review for overbreadth. The majority fears that if the
electronics search condition here is found to satisfy Lent, then
this type of condition (if not the precise condition before us) could
be imposed as a matter of course in any case involving formal
probation. (Maj. opn., ante, at p. 13.) Perhaps that would be
true if the condition were justifiable on the sole ground that it
was necessary to ensure that the probationer “obey all laws,” a
17
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
generic term of probation. But the juvenile court offered a more
specific rationale for the electronics search condition in this
case. No analogous justification will exist, either on the record
or as a matter of inference, in many other matters involving a
grant of probation. Moreover, we are not concerned here with
an adult probationer, with regard to whom the court’s discretion
in devising appropriate conditions of probation is more
constrained.
The majority also emphasizes the unique qualities of
electronic devices and online communications that could
translate into the disclosure of particularly sensitive or
voluminous information if a search condition applied to them.
(Maj. opn., ante, at pp. 20-21.) But there is no indication that,
in this case, these concerns cannot be adequately addressed by
placing appropriate limits on the ability of probation officers to
access Ricardo’s information, whether through the selective
provision of passwords or other measures. The electronics
search condition being susceptible to such tailoring, the
majority’s concerns are better addressed through a separate
overbreadth analysis.
II. THE ELECTRONICS SEARCH CONDITION HERE IS
OVERBROAD
The majority’s construction of Lent might be better taken
if the Lent test were the only way to address the flaw within the
condition imposed by the juvenile court. But, again, there
remains the separate inquiry into overbreadth. I agree with the
majority that the electronics search condition implicated
Ricardo’s constitutional rights, supplying the necessary premise
for engaging in an overbreadth analysis. (See In re Jaime P.,
supra, 40 Cal.4th at p. 137 [“both parolees and probationers
retain some expectation of privacy, albeit a reduced one”].) The
18
In re RICARDO P.
Cantil-Sakauye, C.J., concurring and dissenting
People have not contested the Court of Appeal’s conclusion that
this condition is, indeed, overbroad relative to the aims assigned
to it. (See In re Sheena K., supra, 40 Cal.4th at p. 890.) As the
Court of Appeal reasoned, in allowing for a search of
“electronics,” without limitation, the condition authorized
searches of hardware and software with no relevant
communicative capabilities. I therefore agree with the Court of
Appeal that the condition must be struck, but the juvenile court
should be free to consider whether to impose a narrower search
condition on remand.
III. CONCLUSION
The majority is correct that the electronics search
condition before us is flawed; the condition sweeps too broadly
relative to its rationale. But to avoid a construction of Lent that
it regards as too deferential, the majority veers too far in the
other direction. It is preferable as a matter of policy and more
consistent with our precedent to recognize that the separate
inquiry into overbreadth provides the proper method of
identifying and rectifying the problems with conditions such as
the one before us. I therefore concur in the remand of this
matter but would do so for the reasons stated by the Court of
Appeal, and with similar directions to those it issued.
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Ricardo P.
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 241 Cal.App.4th 676
Rehearing Granted
Opinion No. S230923
Date Filed: August 15, 2019
Court: Superior
County: Alameda
Judge: Leopoldo E. Dorado
Counsel:
Megan Hailey-Dunsheath, under appointment by the Supreme Court, for Defendant and Appellant.
Nicole A. Ozer, Matthew T. Cagle, Christopher J. Conley; Peter Bibring; David Loy; Lee Tien, Jennifer
Lynch and Jamie Williams for ACLU of Northern California, ACLU of Southern California, ACLU of San
Diego and Imperial Counties and Electronic Frontier Foundation as Amici Curiae on behalf of Defendant
and Appellant.
L. Richard Braucher; East Bay Community Law Center and Kate Weisburd for Pacific Juvenile Defender
Center as Amicus Curiae on behalf of Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan, Donna M. Provenzano
and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Megan Hailey-Dunsheath
1569 Solano Avenue, #457
Berkeley, CA 94707
(510) 853-0529
Christopher J. Conley
American Civil Liberties Union Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493
Ronald E. Niver
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5859
Opinion Information
| Date: | Docket Number: |
| Thu, 08/15/2019 | S230923 |
