In re A.R.

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Filed 9/28/18 In re A.R. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.R., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
A149625
(San Francisco City & County
Super. Ct. No. JW15-6124)
This is an appeal from the imposition of an electronic search condition (ESC) on
appellant, A.R., as a term of her juvenile probation. The grounds for the appeal are two-
pronged. First, A.R. argues the ESC is unconstitutionally overbroad. Second, citing
Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473] (Riley), she argues the ESC
violates her Fourth Amendment right to be secure against warrantless searches and
seizures. Because A.R. failed to object to the ESC when imposed, she forfeited any
claim of unconstitutional overbreadth. We reject her Riley claim on the merits.
Accordingly, we affirm.
I. FACTUAL BACKGROUND
In August 2016, Alyssa Clark was on her way to a yoga class when appellant,
A.R., approached from behind, grabbed her hair, jerked her neck, and ripped out her hair.
A.R. stole Clark’s purse, credit cards, house keys, Fitbit, and iPhone. A white Cadillac

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Escalade pulled up, and A.R. quickly entered and left the scene. Officers eventually
spotted A.R. and the Cadillac, and they found the wallet, house keys, and credit cards
inside the vehicle. Clark never recovered her phone, purse, or several of the credit cards
in her wallet.
The District Attorney filed a petition alleging robbery, a violation of section 211
of the Penal Code. The court found the robbery allegation to be true. In October 2016,
the court declared A.R. a ward of the court and committed her to the care and custody of
the probation department for an out-of-home placement. The court imposed a number of
probation conditions, including the condition that “any electronic and/or digital device in
your possession or in your custody or under your control may be searched at any time of
the day or night by any peace or probation officer with or without a warrant or with or
without reasonable or probable cause. The search shall be limited to any and all text
messages, voice mail messages, call logs, photographs, videos, e-mail accounts and social
media accounts. Social media accounts and sites include but are not limited to Facebook,
Instagram, Twitter and Snapchat. Electronic and/or digital devices include but are not
limited to cell phones, smart phones, iPads, computers, laptops and tablets. You are also
ordered to provide any and all passwords to the devices upon request to any peace or
probation officer. Lastly, you are ordered to provide any and all passwords necessary to
access the information previously stated by the Court on the record.” Appellant did not
object to the condition when it was imposed.
II. DISCUSSION
A. Probation Exception to the Warrant Requirement
The Fourth Amendment to the United States Constitution provides: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” The “ ‘ “ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’ ” ’ ” (Riley, supra, 134 S.Ct. at p. 2482, citing

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Brigham City v. Stuart (2006) 547 U.S. 398, 403.) Precedent has determined that the
reasonableness standard “generally requires the obtaining of a judicial warrant.”
(Vernonia Sch. Dist. 47J v. Acton (1995) 515 U.S. 646, 653.) “In the absence of a
warrant, a search is reasonable only if it falls within a specific exception to the warrant
requirement.” (Riley, supra, 134 S.Ct. at p. 2482.)
One of the exceptions to the warrant requirement is the probation exception. “A
warrant requirement would interfere to an appreciable degree with the probation system,
setting up a magistrate rather than the probation officer as the judge of how close a
supervision the probationer requires.” (Griffin v. Wisconsin (1987) 483 U.S. 868, 876.)
Another rationale behind the exception in the case of an adult probationer is that the
probationer consents to waiving his or her Fourth Amendment rights in exchange for the
opportunity to avoid state prison. (People v. Romeo (2015) 240 Cal.App.4th 931, 939.)
Conditions of probation may be imposed so long as they are “fitting and proper to the end
that justice may be done, that amends may be made to society for the breach of the law,
for any injury done to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the probationer.” (Pen. Code,
§ 1203.1.)
The court has even broader discretion when it comes to minor probationers. (See
In re Josh W. (1997) 55 Cal.App.4th 1, 5 (Josh W.).) Rehabilitation is a main goal of the
probation department, and a juvenile court “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.” (Ibid.) This is because the state acts in a
parental role for minor probationers. (See In re Frank V. (1991) 233 Cal.App.3d 1232,
1242–1243 (Frank V.).) Even when there is a risk of invading the probationer’s protected
freedoms, the state has more power to control the conduct of minors than it has for adults.
(Id. at p. 1243.)
B. Forfeiture
If a criminal defendant does not challenge an erroneous ruling of the trial court in
that court, he or she generally forfeits the right to raise the claim on appeal. (In re Sheena

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K. (2007) 40 Cal.4th 875, 880.) As the United States Supreme Court made clear in
United States v. Olano (1993) 507 U.S. 725, “ ‘[n]o procedural principle is more familiar
to this Court than that a constitutional right,’ or a right of any other sort, ‘may be
forfeited in criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.’ ” (Olano, at p. 731; see also
Sheena K., supra, 40 Cal.4th at p. 880; People v. Saunders (1993) 5 Cal.4th 580, 590.)
Sheena K. carved out an exception to this rule, holding that if a constitutional challenge
to a probation condition based upon vagueness or overbreadth presents a pure question of
law and does not require the appellate court to reference the particular sentencing record
developed in the trial court, then the lack of objection in the trial court does not preclude
consideration of the claim on appeal. (Sheena K., supra, 40 Cal.4th at p. 887; see also
People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175 (Ebertowski).)
Here, A.R. did not object to the ESC in the trial court. To the extent she claims
the ESC was unconstitutionally overbroad, this claim is forfeited because it cannot be
decided without delving into the facts of this case. An evaluation of her overbreadth
claim requires reference to and analysis of the original dispositional record—
specifically, the language used by the court to impose and explain the condition, as well
as A.R.’s background and delinquency history. This information is needed to determine
whether the ESC is “closely tailored to [the probation condition’s] purpose.”
(Ebertowski, supra, 228 Cal.App.4th at p. 1175.)
C. A.R.’s Fourth Amendment Claim Under Riley
Appellant separately argues that the ESC imposed on her violates the Fourth
Amendment under Riley, supra, 134 S.Ct. 2473. This claim is a pure question of law and
thus we consider it despite the lack of an objection. But we conclude it has no merit.
In Riley, the Court held that, in the context of a search incident to arrest, officers
“must generally secure a warrant before conducting . . . a [data] search” of someone’s cell
phone. (Riley, supra, 134 S.Ct. at p. 2485.) Petitioner in Riley was stopped by a police
officer for driving with expired registration tags. (Id. at p. 2480.) The officer also
learned in the course of the stop that petitioner’s license had been suspended. (Ibid.)

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Petitioner was subjected to a search incident to arrest, and the contents of his cell phone
were also searched without a warrant. (Ibid.) The United States Supreme Court
recognized that “[t]he fact that an arrestee has diminished privacy interests does not mean
that the Fourth Amendment falls out of the picture entirely.” (Id. at pp. 2488–2489.) The
Court emphasized how cell phones and the world of electronic data are far different than
merely searching someone’s pockets for a billfold or address book. (Id. at p. 2495.)
“[C]ell phones are distinct from other physical possessions that may be searched incident
to arrest without a warrant, because of the amount of personal data cell phones contain
and the negligible threat they pose to law enforcement interests.” (Id. at p. 2482.)
Therefore, to the extent officers want to search an arrestee’s seized cell phone, the
Court’s rule is “simple—get a warrant.” (Id. at p. 2495.)
While the court in Riley recognized that petitioner, Riley, had privacy interests in
his cellular and electronic devices, Riley had been subject to a search incident to arrest
following a traffic stop. He had not been adjudicated or convicted of a crime like
someone on probation. A.R. was charged with a felony; there was an adjudication
proceeding; the felony was found to be true; she was deemed a ward of the court; and she
was placed on probation. At the time the ESC was imposed, A.R. was much more deeply
entrenched in the criminal justice system than the Riley petitioner was when his cell
phone was searched; thus, A.R. had a lessened expectation of privacy. (See Josh W.,
supra, 55 Cal.App.4th at p. 5.)
A search incident to arrest is completely different from the situation we have
before us, where a minor is assigned to a probation officer and subjected to an ESC after
having been declared a ward of the court after an adverse adjudication on a felony
offense. There is far more than reasonable suspicion or probable cause. The charge
against A.R.—of which she had notice and full opportunity to defend—has been
sustained as true. Given this fundamental difference between Riley and what we are
called upon to consider here, we see no basis for her argument. Riley does not apply
here, and A.R. cites no authority that would suggest we should extend it to this setting.
We decline to do so.

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In the alternative, A.R. argues that the probation officer should have at least
reasonable suspicion before he or she conducts a warrantless search of the minor
probationer’s electronic device(s), and that other law enforcement officers should not be
able to conduct such warrantless searches at all. A.R. emphasizes the role of probation
officers: They have the power of peace officers but also have a duty to represent the
interests of minors. In support of her reasonable suspicion argument, A.R. cites Griffin
and United States v. Knights (2001) 534 U.S. 112, 121 (Knights) for the proposition that
there are some probation circumstances where officers need to act “upon a lesser degree
of certainty than the Fourth Amendment would otherwise require in order to intervene
before a probationer does damage to himself or society.” (Griffin, supra, 483 U.S. at
p. 879.) A.R. cites no authority requiring probation officers to have reasonable suspicion
before they conduct a warrantless search of a minor probationer’s electronic device(s)
pursuant to a search condition.
The defendants in Griffin and Knights were adult probationers. We have already
pointed out the reasons why a minor probationer has a lesser expectation of privacy than
an adult, due to the state’s parental role in the minor’s reformation and rehabilitation.
(Frank V., supra, 233 Cal.App.3d at p. 1242; see also In re Tyrell J. (1994) 8 Cal.4th 68,
81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.) The fact
that Griffin and Knights entertain the idea that probation officers are allowed to have a
“lesser degree” of certainty is perfectly consistent with the law in this area: that such
officers—whose job it is to supervise minor probationers—may conduct a warrantless
search for any reason or no reason at all, so long as it is in compliance with a valid search
condition. (Griffin, supra, 483 U.S. at p. 879; Knights, supra, 534 U.S. at p. 121, italics
added.) Under Jaime P., a probation officer must either have reasonable suspicion or act
pursuant to a valid probation condition. (Jaime P., supra, 40 Cal.4th at p. 138.)
III. DISPOSITION
We affirm.

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_________________________
Streeter, Acting P.J.
We concur:
_________________________
Reardon, J.
_________________________
Schulman, J.*
* Judge of the Superior Court of California, City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
A149625/In re A.R.

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