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Some Privacy in Devices, Even When You’re On Bail

August 22, 2019

California court invalidates bail condition allowing random searches of devices and social media accounts

In the case of In Re Ricardo P., the appellant was a juvenile offender and ward of the court who had pleaded guilty to two counts of felony burglary, and was placed on probation. He had admitted to the use of marijuana and told a probation officer that he had stopped using it since being apprehended for the robbery, as it interfered with his ability to think clearly. The juvenile court imposed a condition that he “[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.” The court overruled the appellant’s objection that this condition was not related to the offences which he had committed, stating that monitoring the appellant’s drug usage was an important part of probation, and that it was not unusual for young people to “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.” This made the condition an appropriate part of the overall probation program, in the court’s view.

The case eventually proceeded to the California Supreme Court, which applied its test for when a probation order condition could be held invalid. It noted that the condition had no relation to the crime which was committed, given that there was no indication of the burglaries having anything to do with the use of electronic devices. Also, the condition related to conduct which was not itself criminal. The case turned, in the court’s view, on the third prong of their test, which asked whether the condition “requires or forbids conduct which is not reasonably related to future criminality.” Noting that the entire point of the condition had been to monitor whether the youth was “communicating about drugs or with people associated with drugs,” the court held that the condition was invalid because “the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” There was no evidence in the record that the youth had actually been using drugs when he committed the burglaries, nor was there any evidence that he had used electronic devices to plan, discuss or commit burglaries. While the condition need not be related to particular past offences by the individual, there had to be a degree of proportionality between the burden imposed by the condition and the overall goal of preventing future criminality. Such proportionality was lacking here, as the condition “significantly burdens privacy interests”:

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. … 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.

The court commented that the prosecution’s argument that this ruling would prevent the imposition of commonly-used search conditions, such as those for person, property and residence, was flawed:

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.

Accordingly, the condition was struck.

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