Out of the Mouths (or Lives) of Babes

If you’re on probation, can the court require you to surrender your passwords to your electronic devices and social-media accounts, so they can be searched at any time?

California has been weighing that question lately, and one month ago, the Court of Appeal issued decisions in two separate juvenile cases—one with a girl and one with a boy—that help shed light on the answer.

For starters, courts have plenty of discretion in formulating probation conditions, and when it comes to kids, they have even more latitude than they do with adults because kids need more guidance and supervision, and their rights haven’t ripened to maturity.

The final analysis, however, is the same for kids or adults: A probation condition is invalid if it’s not reasonably related to any of the following: (1) your underlying crime; (2) conduct that is criminal in itself; or (3) conduct that makes it more likely you’ll commit more crime. See People v. Lent (1975) 15 Cal. 3d 481, 486; In re D.G. (2010) 187 Cal. App. 4th 47, 52-53 (applying Lent to juvenile probation conditions).

First, the girl’s case. It began one day when she was meeting with her school counselor, who thought she was high on something because she was acting fidgety and her pupils were dilated. After their meeting, the girl left her purse behind, so the counselor opened it and found a sandwich bag of 30-45 orange pills. The counselor took one of the pills before the girl came back for her purse, and the pill later tested positive for amphetamine.

Subsequently, the girl admitted to misdemeanor possession of ecstasy, and the court put her on probation, which included drug testing as well as searches of her person, room, vehicle, and property.

She didn’t fight those conditions, but another one was that she submit to searches of her electronic devices and surrender her passwords to them. The probation office hadn’t recommended that, and the girl objected to it, but the court wouldn’t budge.

On appeal, however, the court struck that condition because there was nothing in the record that tied the girl’s drug possession to her use of electronic devices. The government argued that she could’ve used her devices to sell the pills, but there was no evidence she ever did that. Since her use of electronic devices was not criminal in itself, and it bore no reasonable relationship to her risk of getting in trouble again, the court struck the condition.

Next, the boy’s case. It began one night when he and his friends robbed and assaulted three different people. The boy was already on probation because of a prior robbery, and he admitted the new violations. The court ordered him detained, and it also ordered all his probation conditions to remain in place, including existing search conditions for his person, room, vehicle, and property. The prosecutor then suggested an additional search condition for his electronic devices, and the court agreed, ordering the boy to submit to searches of his electronic devices and social-media accounts and to turn over all his passwords.

On appeal, the court agreed that the boy, who’d stolen cell phones in the past, would need to submit to searches of devices found in his possession to confirm that he owned them.

But the court stopped short of permitting unfettered searches of the devices he did own or requiring him to give up his social-media passwords. That was a step too far because there was no evidence that the boy used email, text messaging, social media, or other personal data to facilitate his criminal activity, and his personal data implicated not just his privacy rights but those of other kids and people who were not subject to court supervision. So the court modified the electronics-search condition accordingly.

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