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Filed 11/12/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re PATRICK F., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICK F.,

Defendant and Appellant.

 A143586

 (Alameda County

 Super. Ct. No. SJ14023322)

Patrick F. (appellant) was declared a ward of the juvenile court after admitting an 

allegation of second degree burglary. (Welf. & Inst. Code, § 602; Pen. Code, § 459.) He 

appeals from a dispositional order placing him on probation, and challenges an 

electronics search condition requiring him to “[s]ubmit . . . any electronics and passwords 

under your control to search by Probation Officer or peace office[r] with or without a 

search warrant.” We reject his claim that the condition must be stricken in its entirety 

because it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and poses a 

risk of illegal eavesdropping under Penal Code section 632. We agree that as written, the 

condition was overbroad and must be modified.

I. BACKGROUND

On the morning of June 11, 2014, 17-year-old appellant burglarized the home of 

his next-door neighbor with the assistance of an adult cousin who was on parole. The 

neighbor had left earlier in the day, and when she returned home around noon the house 

had been ransacked and a gold ring and about $87 in rolled coins were missing. After he 
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was apprehended, appellant admitted to police that he had entered the neighbor’s home 

and taken the property while his cousin acted as a lookout. 

The district attorney filed a juvenile wardship petition alleging appellant had 

committed a first degree residential burglary. (Pen. Code, § 459.) The petition was 

amended to allege second degree burglary and appellant admitted the allegation. (Ibid.) 

During an interview with the probation officer who prepared a report for the dispositional 

hearing, appellant said he had decided to steal from his neighbor because he wanted 

marijuana and he did not feel comfortable asking his parents for money he was going to 

spend on drugs. He acknowledged smoking marijuana up to three times a day and 

admitted he had not attended school regularly for a long time. He also acknowledged his 

marijuana use had influenced his decision not to attend school. 

At the dispositional hearing, the court adjudged appellant a ward and placed him 

on probation, with appellant to reside with family members. The conditions of probation 

included a search term requiring appellant to “[s]ubmit person and any vehicle, room or 

property [and] any electronics and passwords under your control to search by Probation 

Officer or peace office[r] with or without a search warrant at any time of day or night.” 

Defense counsel objected to appellant’s cell phone and electronics being included in the 

search term, arguing there was no nexus between such items and the burglary. The court 

disagreed: “Well, it’s also important to have as part of his supervision, given somebody 

who[’s] been at that point where he was smoking, I think, three times a day. And I find 

from practice, that minors who are particularly using drugs or involved in offenses will 

very often post details about any offenses that they have or even photographs of them 

with drugs or paraphernalia or themselves smoking marijuana with friends. So I think 

it’s a very important part of supervision, but your objection is noted for the record.” 

II. DISCUSSION

Appellant argues the electronics search condition imposed by the court is invalid 

under Lent, supra, 15 Cal.3d at p. 486, because it has no relationship to the underlying 

offense, relates to conduct that is not illegal, and is not reasonably related to deterring 
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future criminal activity. He additionally claims the condition is unconstitutionally 

overbroad and poses a risk of illegal eavesdropping under California’s Invasion of 

Privacy Act (Pen. Code, § 630 et seq.). These issues have been recently addressed in 

three published cases from different divisions of the Court of Appeal for the First

District, each of which considered the legality of a virtually identical electronics search 

condition. 

In In re Erica R. (2015) 240 Cal.App.4th 907, 910–911 (Erica R.), Division Two 

of this court held the condition was invalid under Lent, because it had no relationship to 

the commitment offense of misdemeanor possession of Ecstasy. Having reached this 

conclusion, the court found it unnecessary to address the defendant’s constitutional 

challenge or her claim the probation condition would allow illegal eavesdropping.

In In re Malik J. (2015) 240 Cal.App.4th 896, 899–900 (Malik J.), Division Three 

found the condition to be unconstitutionally overbroad in a case where the defendant’s 

juvenile probation had been violated based on his possession of marijuana and his 

commission of three robberies, one of which involved an iPhone. The court in Malik J.

modified the search condition to eliminate the requirement that the defendant supply 

passwords to his social media sites, but allowed a search of the phone itself after it had 

been disabled from any Internet or cellular connection for the purpose of determining 

whether it had been stolen. 

Most recently, in In re Ricardo P. (Oct. 22, 2015, A144149) ___ Cal.App.4th ___

[2015 WL 6387774] (Ricardo P.), Division One considered a challenge to an electronics 

search condition in a case where the defendant had been adjudicated a ward based on two 

counts of residential burglary and, like appellant in this case, had admitted drug use. The 

Ricardo P. court concluded that although an electronics search condition was valid under 

Lent because it was reasonably related to monitoring the defendant’s future criminality, 

the condition was overbroad in allowing the probation officer access to data that was not 

reasonably likely to reveal whether the defendant was using drugs. (Ricardo P., at 

pp. *1, *4–*9.) It also rejected the defendant’s claim that the condition posed a risk of 
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electronic eavesdropping based on his lack of standing to raise the issue on behalf of the 

third parties who were arguably affected. (Id. at p. *3.) 

Having had the benefit of our colleagues’ intellectual legwork and thoughtful 

analyses, we are persuaded by the rationale of Ricardo P., the circumstances of which are 

the most similar to the case before us. We conclude the challenged electronics search 

condition, though reasonable under Lent, was overbroad as drafted, and order it modified 

accordingly. We reject appellant’s contention that the condition must be stricken in its

entirety due to the risk of unlawful eavesdropping on third parties.

A. Reasonableness of Electronics Search Condition Under Lent

Welfare and Institutions Code section 730, subdivision (b) authorizes the juvenile 

court “to impose and require any and all reasonable conditions that it may determine 

fitting and proper to the end that justice may be done and the reformation and 

rehabilitation of the ward enhanced.” (See In re Sheena K. (2007) 40 Cal.4th 875, 889.) 

A condition of probation that would be legally impermissible for an adult criminal 

defendant is not necessarily unreasonable for a juvenile receiving guidance and 

supervision from the juvenile court. (Ibid.; In re Walter P. (2009) 170 Cal.App.4th 95, 

100 (Walter P.).)

“An appellate court will not disturb the juvenile court’s broad discretion over 

probation conditions absent an abuse of discretion. [Citations.] We grant this broad 

discretion so that the juvenile court may serve its rehabilitative function and further the 

legislative policies of the juvenile court system. [Citations.] [¶] In fashioning the 

conditions of probation, the juvenile court should consider the minor’s entire social 

history in addition to the circumstances of the crime. [Citation.]” (Walter P., supra, 170 

Cal.App.4th at p. 100.)

Under Lent, “ ‘[a] condition of probation will not be held invalid unless 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.]’ [Citation.] This test is conjunctive—all 
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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 as the condition is reasonably related to preventing future 

criminality. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379–380 (Olguin), 

italics added; see In re T.C. (2009) 173 Cal.App.4th 837, 845–846 [applying same test in 

juvenile context].)

In the case before us, an electronics search condition was reasonably related to 

future criminality even if it was not directly related to the underlying burglary. Appellant 

told the probation officer he used marijuana frequently and had committed the burglary to 

get money to buy marijuana. He also acknowledged he was not going to school on a 

regular basis, due in part to his marijuana use. Both drug use and truancy have been 

recognized by the Legislature as “precursor[s] of serious criminality.” (In re P.A. (2012) 

211 Cal.App.4th 23, 36 [citing legislative history of Welf. & Inst. Code, § 729.3, 

authorizing drug testing for delinquent minors who remain placed in parents’ custody]; 

see In re Robert M. (1985) 163 Cal.App.3d 812, 815–816 [school attendance as probation 

condition upheld because reasonably related to future criminality].) As recognized by the 

trial court, and as any modern parent would likely attest, access to a teen’s electronic 

communications and social media can be a useful tool in tracking and monitoring drug 

transactions, drug usage and communications with other individuals associated with 

drugs. (See Olguin, supra, 45 Cal.4th 379–381 [probation condition “that enables a 

probation officer to supervise his charges effectively” is reasonably related to future 

criminality]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176–1177 

(Ebertowski) [password condition was necessary for probation officer to implement 

search, association and gang conditions in case where defendant was convicted of 

threatening and resisting peace officer for the benefit of his gang].)

We respectfully disagree with Erica R., supra, 240 Cal.App.4th at p. 913 in its 

conclusion that because there was nothing in the record to tie the use of electronics to the 

minor’s commitment offense—possession of Ecstasy—there was no reason to believe an 
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electronics search condition would serve a rehabilitative purpose. (Ibid.) An electronics 

search condition such as the one in this case is “not about prohibiting particular conduct 

but [is] instead about enabling the effective supervision of probationers, [bringing them] 

within the ambit of Olguin, supra, 45 Cal.4th 375[]. Nothing in Olguin, nor in any other 

case of which we are aware, requires a connection between a probationer’s past conduct 

and the locations that may be searched to uphold a search condition under Lent[]. 

Because no such connection is required, conditions permitting searches of probationers’ 

vehicles, for example, are permissible regardless of whether the record shows that the 

probationer has access to a vehicle or has engaged in illegal activity related to a vehicle. 

Given the ubiquity of electronic devices, particularly cell phones, we cannot say that an 

electronics search condition is unreasonable simply because the record does not show that

the probationer necessarily has access to such devices or has used them to engage in 

illegal activity.” (Ricardo P., supra, ___ Cal.App.4th at p. ___ [2015 WL 6387774 at 

p. *6].) Because of its relationship to future criminality, the electronics search condition 

is reasonable under Lent.

B. Overbreadth

Appellant claims the electronics search condition is unconstitutionally overbroad 

because it “forces him to surrender his privacy rights in regards to matters that are not 

reasonably related to deterring criminal behavior.” We review this constitutional 

challenge de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

“ ‘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.] Under this doctrine, ‘ “ ‘a 

governmental purpose to control or prevent activities constitutionally subject to state 

regulation may not be achieved by means which sweep unnecessarily broadly and thereby 

invade the area of protected freedoms.’ ” [Citation.]’ [Citation.]” (Ebertowski, supra, 

228 Cal.App.4th at p. 1175.)
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In arguing that the electronics search condition is overbroad, appellant relies 

heavily on the United States Supreme Court’s decision in Riley v. California (2014) 

___ U.S. ___ [134 S.Ct. 2473, 2495] (Riley). There, the court held that law enforcement 

officers generally must secure a warrant before searching the digital content of a cell 

phone incident to an arrest, observing that a cell 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.” (Id. at

p. 2491.) “Modern cell phones are not a just another technological convenience. With all 

they contain and all they may reveal, they hold for many Americans ‘the privacies of 

life.’ [Citation.]” (Id. at pp. 2494–2495.) 

The high court’s characterization of cell phones and electronics, while apt, is not 

particularly helpful in demarking the appropriate parameters of a probation search, 

particularly when the probationer is a juvenile. The court in Riley was concerned with 

the privacy interests of an adult suspect who had not yet been convicted of any crime and 

the legality of searching that suspect’s cell phone incident to arrest. Appellant is a 

juvenile who has been found to have committed a crime placing him under the 

jurisdiction of the juvenile court. As such, his constitutional interest in privacy is 

significantly more curtailed than that of an adult who has not been convicted of any 

criminal offense. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941 (Antonio R.)

[juvenile’s constitutional rights more circumscribed than adult’s]; In re Jaime P. (2006) 

40 Cal.4th 128, 136 [noting privacy rights of a probationer are “diminished”].)

In fashioning probation conditions for a juvenile who has been adjudicated a ward, 

the court has broader powers than when imposing such conditions on an adult, and we 

look to whether a condition “is consistent with the rehabilitative purpose of probation and 

constitutional parental authority.” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1243

(Frank V.).) “This is because juveniles are deemed to be more in need of guidance and 

supervision than adults, and because a minor’s constitutional rights are more 

circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of 

the parents. And a parent may ‘curtail a child’s exercise of the constitutional rights . . . 
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[because a] parent’s own constitutionally protected “liberty” includes the right to “bring 

up children” [citation] and to “direct the upbringing and education of children.” 

[Citation.]’ [Citations.]” (Antonio R., supra, 78 Cal.App.4th at p. 941.) A parent could 

quite reasonably elect to monitor a minor’s electronic communications and social media 

Web sites to keep tabs on suspected drug use; when that minor has been declared a ward 

of the juvenile court and the evidence suggests a drug problem that could lead to future 

criminality, the state may do the same. (See In re Victor L. (2010) 182 Cal.App.4th 902, 

919–923 [upholding probation conditions prohibiting a minor from using or possessing 

mobile devices and accessing social media Web sites].)

Although the juvenile court’s discretion to impose probation conditions is broad, it 

is not “boundless.” (Frank V., supra, 233 Cal.App.3d at p. 1242.) The electronics search 

condition in this case does not limit the types of data (whether on the phone or accessible 

through the phone) that may be searched. Appellant has a privacy interest in the 

information contained on his electronic devices. This interest is trumped by the state’s 

interest in effectively monitoring his probation, but only to the extent the information is 

reasonably likely to yield evidence of drug use, other criminal activity or noncompliance 

with probation conditions. The electronics search condition as currently written “permits 

review of all sorts of private information that is highly unlikely to shed any light on 

whether [appellant] is complying with the other conditions of his probation, drug-related 

or otherwise.” (Ricardo P., supra, ___ Cal.App.4th at p. ___ [2015 WL 6387774 at 

p. *8].)

Although we do not find a constitutional impediment to allowing officers to search 

data likely to reveal drug use or other criminal activities by a minor, many types of data

available on a cell phone or electronic device would not fall into this category. Banking 

information, online games, musical libraries, medical records and electronic books, 

magazines and newspapers, for example, are unlikely to assist the probation officer in 
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supervising appellant.

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 Conversely, call logs, “text and voicemail messages, 

photographs, e-mails, and social-media accounts” are reasonably likely to reveal whether 

he is using drugs or otherwise violating the terms of his probation. (Ricardo P., supra, 

___ Cal.App.4th at p. ___ [2015 WL 6387774 at p. *8].) We will therefore order the 

probation condition modified accordingly.

We note that in Malik J., supra, 240 Cal.App.4th at pp. 899–900, the court agreed 

with the defendant’s overbreadth challenge and modified the electronics search condition 

to authorize a warrantless search of an electronic device “only after the device has been 

disabled from any [I]nternet or cellular connection and without utilizing specialized

equipment designed to retrieve deleted information that is not readily accessible to users 

of the device.” (Id. at p. 906.) Malik J. is distinguishable because the minor had 

committed a robbery involving an iPhone and the trial court’s concern was not drug use, 

but that electronic devices in his possession might be stolen and that electronics might be 

used to communicate with cohorts about committing robberies. The modified version of 

the electronics search condition in that case would permit a probation officer to obtain 

information about the ownership of any device at issue and to read e-mails, text messages 

and the like that were stored on the device and might contain references to planned 

criminal activity.

To the extent Malik J. would preclude a search of any remotely stored information 

accessible through an electronic device as not within the probationer’s control, we 

respectfully disagree. The court in Malik J. was concerned that officers performing 

probation searches “show due regard for information that may be beyond a probationer’s 

custody or control or implicate the privacy rights of the probationer or third parties.” 

(Malik J., supra, 240 Cal.App.4th at pp. 903–904.) As noted in Richard P., probation 

conditions routinely allow the search of areas jointly controlled by the probationer 

and a third party, even when the probationer is not present. (Ricardo P., supra, 

 

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 We need not decide whether a probation condition allowing access to such data 

might pass muster in certain cases. Our focus is limited to the rehabilitation of appellant 

in particular, in light of his admitted history of smoking marijuana.
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___ Cal.App.4th at p. ___ [2015 WL 6387774 at p. *9].) Remotely stored or previously 

deleted data may be just as useful as data contained on a device in determining whether 

the probationer is complying with other conditions of probation, so long as the data is of 

the type that is reasonably likely to yield such information. And, as we discuss below, 

appellant lacks standing to raise the privacy interests of third parties who may be affected 

by the electronics search condition in his case.

C. Electronic Eavesdropping

Penal Code section 632, subdivision (a) provides, “Every person who, 

intentionally and without the consent of all parties to a confidential communication, by 

means of any electronic amplifying or recording device, eavesdrops upon or records the 

confidential communication, whether the communication is carried on among the parties 

in the presence of one another or by means of a telegraph, telephone, or other device, 

except a radio,” is subject to a fine, incarceration, or both. Appellant argues the 

electronics search condition “poses a risk of illegal eavesdropping” because section 632

applies to text messages and other electronic communications with third parties that are 

subject to warrantless search under the condition.

Appellant’s claim is arguably forfeited by his failure to raise it below. But even if 

we assume it may be raised on appeal, it is based solely on the privacy rights of third 

parties under Penal Code section 632. As such, appellant lacks standing to raise the 

issue. “ ‘Courts are created to resolve cases and controversies and not to render advisory 

opinions or resolve questions of purely academic interest. Accordingly, courts will not 

consider issues tendered by a person whose rights and interests are not affected.’ ” 

(Ricardo P., ___ Cal.App.4th at p. ___ [2015 WL 6387774 at p. *4], citing B. C. Cotton, 

Inc. v. Voss (1995) 33 Cal.App.4th 929, 947–948.)

III. DISPOSITION

The search condition of the probation order, which currently reads, “Submit 

person and any vehicle, room or property [and] any electronics and passwords under your 

control to search by Probation Officer or peace office[r] with or without a search warrant 
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at any time of the day or night” is modified to read: “Submit your person and any 

vehicle, room or property under your control to a search by the probation officer or a 

peace officer, with or without a search warrant, at any time of the day or night. Submit 

all electronic devices under your control to a search of any text messages, voicemail 

messages, call logs, photographs, e-mail accounts and social media accounts, with or 

without a search warrant, at any time of the day or night, and provide the probation or 

peace officer with any passwords necessary to access the information specified.”

As so modified, the judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, ACTING P.J.

BRUINIERS, J.

(A143586)
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Trial Court: Alameda County Superior Court

Trial Judge: Honorable Leopoldo E. Dorado

Counsel: 

Matthew Zwerling and Maggie Shrout, under appointments by the Court of Appeal First 

District Appellate Project, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Donna M. 

Provenzano and Ronald E. Niver, Deputy Attorneys General for Plaintiff and 

Respondent.

(A143586)