P. v. Finley

Filed 7/12/17 P. v. Finley CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DALLAS WAYNE FINLEY,
Defendant and Appellant.
H043668
(Santa Clara County
Super. Ct. No. C1508768)
Defendant Dallas Wayne Finley appeals following his plea of no contest to
possession of methamphetamine for sale (Health & Saf. Code, § 11378). Defendant
asserts that the trial court erred in imposing an electronic search condition, because it is
unreasonable and unconstitutionally overbroad.
STATEMENT OF THE CASE1
On April 19, 2016, a complaint was filed alleging that defendant possessed
methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and that he had been
previously convicted of the same offense (Pen. Code, § 1203.073, subd. (b)(8)). The
complaint also alleged that defendant had two prior convictions for possession of a
controlled substance (Health & Saf. Code, § 11370.2, subd. (c)). Defendant pleaded no
contest to count 1 and admitted the truth of the prior conviction allegations.
1 The underlying facts are omitted because they are not included in the record on
appeal.

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On June 7, 2016, the trial court sentenced defendant to three years in the county
jail, one of which to be spent in custody, and the other two to be spent on mandatory
supervision. The court imposed a number of conditions of mandatory supervision. At
sentencing, the trial court imposed the following modified condition: “[Defendant] shall
provide all passwords to any cellular telephones and computers within his custody or
control and shall submit to search at any time without a warrant by any peace officer
limited to programs used for interpersonal communications, photos, e-mail, text, and
social media.”
Defense counsel objected to the condition on the grounds that there was no
relationship between the condition and defendant’s offense and on the grounds that it was
constitutionally overbroad. The court overruled defendant’s objection and stated that the
condition was appropriate because the case involved the sale of drugs and the condition
was limited in scope to “interpersonal communication, photos, e-mail, text, and social
media, that’s designed to limit it to prevent future criminality . . . .”
On June 9, 2016, defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that the electronic search condition imposed in this case is
unreasonable because it is not related to his offense, prohibits conduct that is not itself
criminal, and does not relate to future criminality. (People v. Lent (1975) 15 Cal.3d 481,
486 (Lent).) In addition, defendant asserts that the condition is unconstitutionally
overbroad.
Reasonableness
“In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety . . . .” (People v. Carbajal (1995) 10 Cal.4th
1114, 1120.) This broad discretion, however, “is not without limits.” (Id. at p. 1121.) A
condition of probation is generally “invalid [if] it ‘(1) has no relationship to the crime of
which the offender was convicted, (2) relates to conduct which is not in itself criminal,

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and (3) requires or forbids conduct which is not reasonably related to future
criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.) “This test is conjunctive—all three
prongs must be satisfied before a reviewing court will invalidate a probation term.”
(People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review the imposition of
probation conditions for abuse of discretion. (Ibid.)
There is no dispute that the second prong of the Lent test is satisfied here, because
the condition relates to conduct that is not itself criminal. The United States Supreme
Court has deemed cell phones “such a pervasive and insistent part of daily life that the
proverbial visitor from Mars might conclude they were an important feature of human
anatomy.” (Riley v. California (2014) __ U.S. __ [134 S. Ct. 2473, 2484] (Riley).) Given
that “a significant majority of American adults now own such phones” (ibid.)—and the
same probably is true for computers, notepads, and social media accounts, we find the
electronic search conditions relate to conduct that is not by itself criminal. (See also In re
J.B. (2015) 242 Cal.App.4th 749, 755 (J.B.) [“it is beyond dispute that the use of
electronic devices and of social media is not itself criminal”].)
With regard to the first Lent factor, we disagree with the People that defendant’s
crime was related to the use of electronics. The People argue that possession of
methamphetamine for sale “is an activity which is commonly associated with the use of
electronic devises such as mobile phones.” While this statement may be true, there is
nothing in this case showing that defendant’s crime was connected to his use of any
electronic device. The record shows that defendant was charged with his crime as the
result of the execution of a search warrant of his home and the seizure of
methamphetamine. The prosecutor noted that defendant had a computer in this home, but
added no information that the computer was used to support defendant’s possession for
sale of methamphetamine. We find that the first factor in Lent, that the condition have
“ ‘no relationship to the crime of which the offender was convicted,’ ” is met in this case.
(Lent, supra, 15 Cal.3d at p. 486.)

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The issue remains as to whether the third prong of the Lent test is met. Defendant
argues that nothing in the record that connects his crime of possession of
methamphetamine for sale or his personal history to the use of electronic devices or
social media. However, under two California Supreme Court decisions, a search term
that facilitates the supervision of a probationer relates to future criminality within the
meaning of Lent, even if the criminal behavior to be deterred does not relate to the
offense of conviction. (Olguin, supra, 45 Cal.4th at p. 378; People v. Ramos (2004) 34
Cal.4th 494, 506 (Ramos).)
The probation condition in Olguin required the probationer to notify his probation
officer of any pets present at his place of residence. (Olguin, supra, 45 Cal.4th at p. 378.)
Convicted of driving under the influence, the defendant argued that the challenged
condition was not reasonably related to his future criminality. The court disagreed,
noting that “[p]robation officers are charged with supervising probationers’ compliance
with the specific terms of their probation to ensure the safety of the public and the
rehabilitation of probationers. Pets residing with probationers have the potential to
distract, impede, and endanger probation officers in the exercise of their supervisory
duties. By mandating that probation officers be kept informed of the presence of such
pets, this notification condition facilitates the effective supervision of probationers and,
as such, is reasonably related to deterring future criminality.” (Ibid.)
In Ramos, the challenged condition required the defendant to submit to a
warrantless search of his person, property, automobile, and any object under his control.
Ruling on a motion to suppress, the court found the probation search term was valid
given the “ ‘de minimis’ ” intrusion and “ ‘greatly reduced’ ” expectation of privacy
“ ‘when the subject of the search is on notice his activities are being routinely and closely
monitored.’ ” (Ramos, supra, 34 Cal.4th at p. 506.) The court explained that “ ‘the
purpose of the search condition is to deter the commission of crimes and to protect the

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public, and the effectiveness of the deterrent is enhanced by the potential for random
searches.’ ” (Ibid.)
Defendant argues we should follow the rationale of two recent juvenile cases that
have differed in their treatment of probation conditions similar to the electronic search
conditions here. Defendant cites In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.)
and J.B., supra, 242 Cal.App.4th 749. These cases declined to read Olguin as
sanctioning imposition of electronic search conditions without evidence the probationer is
likely to use his or her electronic devices or social media for proscribed activities.
Because there was no evidence in the record connecting the minor’s conviction for drug
possession with her use of electronic devices, the court in Erica R., rejected the juvenile
court’s justification that “ ‘many juveniles, many minors, who are involved in drugs tend
to post information about themselves and drug usage.’ ” (Erica R., supra, at p. 913.) The
court explained that “ ‘[n]ot every probation condition bearing a remote, attenuated,
tangential, or diaphanous connection to future criminal conduct can be considered
reasonable.’ ” (Ibid.) Similarly in J.B., the court rejected the juvenile court’s imposition
of electronic search conditions on a minor convicted of petty theft who also had admitted
to using marijuana: “[T]here is no showing of any connection between the minor’s use of
electronic devices and his past or potential future criminal activity. As in Erica R., ‘
“there is no reason to believe the current restriction will serve the rehabilitative function
of precluding [J.B.] from any future criminal acts.” ’ ” (J.B., supra, at p. 756.)2
We find that J.B. and Erica R. are distinguishable given that neither case involved
the commission of an offense involving possession of drugs for sale. Moreover, both J.B.
and Erica R. stand in contrast with In re P.O. (2016) 246 Cal.App.4th 288, 296 (P.O.) in
2 The California Supreme Court has granted review in a third case that followed
the reasoning in J.B. and Erica R. (In re Mark C. (2016) 244 Cal.App.4th 520, 535, rev.
granted Apr. 13, 2016, S232849.)

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which the appellate court upheld a comparable condition under Lent despite no direct
evidence that the juvenile defendant was inclined to use electronic devices or social
media. The minor in P.O. admitted to a misdemeanor count of public intoxication.
The juvenile court imposed an electronic search condition, reasoning that “ ‘we have
people who present themselves on the Internet using drugs or . . . in possession of
paraphernalia, and that’s the only way we can properly supervise these conditions.’ ” (Id.
at p. 293.) The court affirmed the juvenile court’s finding that the condition was
reasonably related to future criminality because it “enables peace officers to review
P.O.’s electronic activity for indications that P.O. has drugs or is otherwise engaged in
activity in violation of his probation.” (Id. at p. 295.)
Reasonableness under the third prong of the Lent test exists when a probation
condition “enables a probation officer to supervise his or her charges effectively . . .”
(Olguin, supra, 45 Cal.4th at pp. 380-381), even if the condition “has no relationship to
the crime of which a defendant was convicted.” (Id. at p. 380.) Ramos emphasized the
deterrence purpose of a probation search condition as it relates to preventing future
criminal conduct, including “ ‘the potential for random searches.’ ” (Ramos, supra, 34
Cal.4th at p. 506.) In P.O., the offense was public intoxication, and the court found that
enabling supervision of the minor’s online activity was reasonably related to monitoring
her sobriety. (P.O., supra, 246 Cal.App.4th at p. 295.)
Here, the electronic search conditions’ effectiveness as it relates to future
criminality is to monitor defendant’s activity and communications associated with the
sale of methamphetamine through the use of his electronic devices and social media.
Without question, the use of electronic devices and social media is ubiquitous with the
sale of drugs. We find that the electronic search condition is reasonably related to future
criminality and the court did not abuse its discretion in imposing it.

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Overbreadth
In addition to his argument that the electronic search condition was unreasonable,
defendant also asserts that it is unconstitutionally overbroad.
“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,
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
defendant’s constitutional rights . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
We review de novo the constitutional challenge to the probation conditions. (In re Shaun
R. (2010) 188 Cal.App.4th 1129, 1143.)
Defendant relies on the recent United States Supreme Court decision in Riley,
supra, __ U.S. at pages __ [134 S.Ct. at pp. 2494-2495], wherein the court considered the
privacy concerns in the context of warrantless cell phone searches. “Modern cell phones
are not just another technological convenience. With all they contain and all they may
reveal, they hold for many Americans ‘the privacies of life.’ ” (Ibid.)
Riley identified several “consequences for privacy” that arise from the massive
storage capacity of these “minicomputers” and their pervasiveness, including the
revelatory quality of “distinct types of information” available all in one place and the
depth of information that may be conveyed. (Riley, supra, __ U.S. at p. __ [134 S.Ct. at
p. 2489].) “[I]t is no exaggeration to say that many of the more than 90% of American
adults who own a cell phone keep on their person a digital record of nearly every aspect
of their lives—from the mundane to the intimate.” (Id. at p. __ [134 S.Ct. at p. 2490].)
Defendant cites Riley to argue that requiring him to turn over passwords for his
electronic devices and social media accounts implicates privacy concerns that go beyond
the general search conditions of his probation. The People note that in People v.
Ebertowski (2014) 228 Cal.App.4th 1170, this court rejected a similar argument and

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determined the “[d]efendant’s constitutional privacy rights are not improperly abridged
by the password conditions any more than they are by the search condition.” (Id. at
p. 1176.) We note that in Ebertowski, the defendant used electronic devices and social
media to promote his gang activity. This court found that the probation department
needed to monitor defendant’s gang communications and that the conditions did not
unreasonably infringe on defendant’s privacy rights any more than a standard search
condition. Moreover, the defendant in Ebertowski did not suggest how the password
conditions could be more tailored to protect defendant’s privacy. (Id. at p. 1175.)
Defendant notes that in contrast to Ebertowski, in People v. Appleton (2016) 245
Cal.App.4th 717, 721, a different panel of this court considered whether a condition
allowing the search of “ ‘[a]ny computers and all other electronic devices belonging to
the defendant, including, but not limited to cellular telephones, laptop computers or
notepads . . . for material prohibited by law,’ ” was unconstitutionally overbroad. This
court answered the question in the affirmative, finding that the condition as worded
“could potentially expose a large volume of documents or data, much of which may have
nothing to do with illegal activity.” (Id. at p. 725.) This court found that the condition
was overbroad, and needed to be narrowed to reduce the likelihood that a search would
garner significant private personal information.
Here, unlike the condition in Appleton, the electronic search condition is tailored
to achieve the probation department’s interest in deterring defendant’s drug sales activity.
Specifically, the condition limits searches “to programs used for interpersonal
communications, photos, e-mail, text, and social media.” This is not a broad sweeping
condition that could amount to an “unfettered search of vast amounts of personal
information unrelated to [defendant’s] criminal conduct or potential for future
criminality . . . .” The condition is tailored to reveal defendant’s personal
communications, and does not allow all-encompassing searches of defendant’s electronic

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devices. As such, the condition is sufficiently limited so as not to unlawfully infringe on
defendant’s right to privacy.
DISPOSITION
The judgment is affirmed.

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Premo, Acting P.J.
WE CONCUR:
Elia, J.
Mihara, J.

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