P. v. Lopez

Filed 4/18/17 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
HOMERO MARTINEZ LOPEZ,
Defendant and Appellant.
H043659
(Santa Clara County
Super. Ct. No. C1527682)
I. INTRODUCTION
Defendant Homero Martinez Lopez pleaded no contest to possession for sale of
methamphetamine (Health & Saf. Code, § 11378) and possession of controlled substance
paraphernalia (Health & Saf. Code, § 11364), and he admitted having served a prior
prison term (Pen. Code, § 667.5, subd. (b)). He was placed on probation for three years,
with conditions that included having all of his electronic devices subject to forensic
analysis search.
On appeal, defendant challenges the electronic devices search condition, claiming
it is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and that it is
unconstitutionally overbroad. For reasons that we will explain, we will affirm the order
of probation.

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II. BACKGROUND
On December 28, 2015, police responded to a complaint about a person selling
drugs out of a red SUV. An officer found defendant sleeping in a vehicle and determined
that he had two outstanding warrants. A search of the vehicle revealed two bags of
methamphetamine, a methamphetamine pipe, and two cell phones.
Defendant was charged with possession for sale of methamphetamine (Health &
Saf. Code, § 11378) and possession of controlled substance paraphernalia (Health & Saf.
Code, § 11364), and it was alleged that he had served a prior prison term (Pen. Code,
§ 667.5, subd. (b)). Pursuant to a plea agreement, defendant pleaded no contest to the
two charges and admitted the prior prison term allegation.
At the sentencing hearing, defendant was placed on probation for three years. The
trial court imposed the following conditions: “Defendant shall submit his person, place
of residence, vehicle, and any property under his control to search at any time without a
warrant by any peace officer. Defendant’s computer and all other electronic devices
including, but not limited to, cellular telephones, laptop computers, or notepad[s] shall be
subject to forensic analysis search.”
The prosecutor argued that there was a “very strong nexus between the crime
committed in this case and the use of electronic information,” noting that defendant’s cell
phone had contained “a number of e-mails that were relevant to the charges in this case.”
Defendant’s trial counsel acknowledged that an email tied defendant to his cell
phone, and that there was “narcotics-related information” in text messages on that cell
phone. Defendant’s trial counsel asked the trial court to limit the probation condition to
“any cellphone and text messages contained therein,” arguing that the condition was
overbroad insofar as it permitted a search of his computer and “all other electronic
devices.”
The prosecutor argued that text messages alone would be insufficient to prove
identity and that access to “other information” in his cellphone was important. The

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prosecutor also argued that drug dealers and drug users commonly send and receive
emails about “the product,” and that there is a “growing trend” among drug dealers to use
“other apps” that conceal their sales.
The trial court found that “given the facts of this case,” it was appropriate to
impose the electronic devices search condition.
III. DISCUSSION
A. Overbreadth
We review the constitutionality of a probation condition de novo. (In re Sheena K.
(2007) 40 Cal.4th 875, 888-889 (Sheena K.).) “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.
[Citation.]” (Id. at p. 890.)
Defendant contends the electronic devices search condition is overbroad because it
infringes on his constitutional right to privacy. He asserts that his claim is supported by
the reasoning of Riley v. California (2014) 573 U.S. __ [134 S.Ct. 2473] (Riley), in which
the United States Supreme Court held that the warrantless search of a suspect’s cell
phone implicated and violated the suspect’s Fourth Amendment rights. (Id., 134 S.Ct. at
p. 2493.) In so holding, the court explained that modern cell phones, which may have the
capacity to be used as mini-computers, can potentially contain sensitive information
about a number of areas of a person’s life. (Id. at pp. 2488-2489.) The court emphasized,
however, that its holding was only that cell phone data is subject to Fourth Amendment
protection, “not that the information on a cell phone is immune from search.” (Id. at
p. 2493.)
As Riley did not involve probation conditions, it is inapposite. Unlike the
defendant in Riley, who at the time of the search had not been convicted of a crime and
was still protected by the presumption of innocence, defendant is a probationer.

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“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute
liberty to which every citizen is entitled.” ’ [Citations.] Just as other punishments for
criminal convictions curtail an offender’s freedoms, a court granting probation may
impose reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.” (United States v. Knights (2001) 534 U.S. 112, 119.)
This court rejected an overbreadth argument in People v. Ebertowski (2014) 228
Cal.App.4th 1170 (Ebertowski), where the challenged probation condition required the
defendant to “ ‘provide all passwords to any social media sites, including Facebook,
Instagram and Mocospace and to submit those sites to search at any time without a
warrant by any peace officer.’ ” (Id. at p. 1172.) The Ebertwoski defendant was a
member of a criminal street gang who had promoted his gang on social media. This court
rejected the defendant’s claim that the probation condition was “not narrowly tailored to
[its] purpose so as to limit [its] impact on his constitutional rights to privacy, speech, and
association.” (Id. at p. 1175.) This court explained that the state’s interest in preventing
the defendant from continuing to associate with gangs and participate in gang activities,
which was served by the probation condition, outweighed the minimal invasion of his
privacy. (Ibid.)
In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), a different panel of
this court distinguished Ebertowski and found unconstitutionally overbroad a probation
condition requiring the defendant’s electronic devices to be “ ‘subject to forensic analysis
search for material prohibited by law.’ ” (Appleton, at p. 721.) In Appleton, the
defendant was convicted of false imprisonment based on an incident that occurred about
a year after he used a social media website to meet the minor victim. (Id. at p. 719.) The
Appleton panel held that the electronic devices search condition was overbroad because it
“would allow for searches of vast amounts of personal information unrelated to
defendant’s criminal conduct or his potential for future criminality.” (Id. at p. 727.) The
Appleton panel concluded that “the state’s interest here—monitoring whether defendant

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uses social media to contact minors for unlawful purposes—could be served through
narrower means,” such as by imposing “the narrower condition approved in Ebertowski,
whereby defendant must provide his social media accounts and passwords to his
probation officer for monitoring.” (Ibid., fn. omitted.)
Here, the probation condition requiring defendant’s electronic devices be subject
to forensic analysis search serves the state’s interest in preventing defendant from using
electronic devices to engage in narcotics sales. Indeed, defendant recognizes that some
intrusion on his privacy rights would be justified, but he asserts that the probation
condition should be “limited to the applications or programs on a cell phone that might
be used by [defendant] to communicate a controlled substance sale.” He contends the
condition should not permit a search of his social media accounts “because social media
would not contain any evidence of controlled substance sales.” However, as the
prosecutor pointed out, drug dealers may use electronic devices to communicate and
conduct sales on a number of platforms, including social media messaging. Limiting the
probation condition to certain applications on defendant’s cell phone would not permit
the probation officer to ensure defendant is not conducting drug sales through other
applications or through a computer or notepad, both of which are commonly-owned
electronic devices. Thus, the probation condition is closely tailored to the purposes of
the condition in this case. (See Sheena K., supra, 40 Cal.4th at pp. 888-889.) The
government’s interest in ensuring defendant complies with the terms of his probation
outweighs the minimal intrusion on defendant’s privacy rights. We therefore conclude
that the challenged probation condition is not constitutionally overbroad.1
1 The California Supreme Court has granted review in In re Ricardo P. (2015) 241
Cal.App.4th 676, review granted February 17, 2016, S230923, which presents the
question whether a probation condition requiring a minor to submit to warrantless
searches of his “electronics including passwords” is overbroad. (Id. at p. 886.) Review
has been granted in a number of other cases presenting similar issues, with briefing
(continued)

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B. Reasonableness
Defendant next contends the electronic devices search condition is unreasonable.
Under the test set forth in Lent, supra, 15 Cal.3d 481, a condition of probation will
be held 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, and (3) requires or forbids
conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (Id. at
p. 486, fn. omitted.) “This test is conjunctive – all three prongs must be satisfied before a
reviewing court will invalidate a probation term. [Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long
the condition is reasonably related to preventing future criminality.” (People v. Olguin
(2008) 45 Cal.4th 375, 379-380.)
Defendant points out that cell phones were the only electronic devices in his
possession at the time of his arrest. He notes that “the use of electronics generally” is not
criminal. He acknowledges that there was evidence he had used his cell phone to arrange
for some drug sales, but he contends that without evidence he used other electronic
devices to engage in drug sales, the challenged condition is not reasonably related to
future criminality.
We disagree. The condition requiring all of defendant’s electronic devices to be
subject to search is related to his future criminality. Since defendant had used an
electronic device to arrange drug transactions, it was reasonable for the trial court to give
the probation officer the ability to ensure that defendant was not violating his probation
deferred. (See, e.g., In re Patrick F. (2015) 242 Cal.App.4th 104, review granted
Feb. 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted
Mar. 9, 2016, S232240; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12,
2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14,
2016, S238210.)

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by arranging drug sales through any electronic devices—whether a cell phone, computer,
or tablet. (Cf. In re Erica R. (2015) 240 Cal.App.4th 907, 913-915 [electronics search
condition unreasonable where minor committed misdemeanor possession of Ecstasy;
there was no indication that she was involved in sales of drugs or that she had ever used
an electronic device].) Although the evidence showed defendant had used only a cell
phone to conduct drug deals, it was permissible for the trial court to impose a more
“wide-ranging” electronics search condition, “for conditions of probation aimed at
rehabilitating the offender need not be so strictly tied to the offender’s precise crime.”
(People v. Moran (2016) 1 Cal.5th 398, 404-405.) We conclude the trial court did not
abuse its discretion by imposing the electronic devices search condition.
IV. DISPOSITION
The order of probation affirmed.

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
People v. Lopez
H043659

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