1

Filed 7/2/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER WRIGHT,

Defendant and Appellant.

C082729

(Super. Ct. No. 16FE011619)

APPEAL from a judgment of the Superior Court of Sacramento County, Jack 

Sapunor, Judge. Affirmed as modified.

Jin H. Kim, under appointment by the Court of Appeal for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Stephen G. Herndon, Supervising Deputy 

Attorney General, Matthew A. Kearney, Deputy Attorney General for Plaintiff and 

Respondent.

Defendant Christopher Wright admitted a felony violation of Penal Code section 

530.5, subdivision (c)(3), acquiring personal identifying information with intent to 
2

defraud, in relation to the possession of about 60 credit cards, driver’s licenses, gift cards 

and Social Security cards in the names of other persons. (Statutory references that follow 

are to the Penal Code unless otherwise stated.) The trial court placed defendant on 

probation with various terms and conditions, including that defendant submit his 

electronic storage devices and e-mail/Internet accounts to search without a search 

warrant. 

Defendant now contends (1) the electronic device search condition is invalid under 

People v. Lent (1975) 15 Cal.3d 481, 486 (Lent)

1

; (2) the electronic device search 

condition violates his right to privacy and is overbroad; (3) the electronic device search 

condition violates his privilege against self-incrimination; (4) the electronic device search 

condition violates the California Electronic Communications Privacy Act (§ 1546 et 

seq.); (5) the e-mail/Internet account search condition violates his right to privacy and his 

privilege against self-incrimination; (6) his counsel was ineffective in failing to object to 

the e-mail/Internet account search condition; (7) the urinalysis test fee is unauthorized 

and cannot be made a condition of probation; (8) the order granting probation must be 

modified to make clear that payment of the court facility fee is not a condition of 

probation; and (9) the criminal impact fee is unauthorized. Defendant withdrew his 

contention that certain probation conditions must be modified to include a scienter 

requirement. 

We modify the order granting probation to strike the urinalysis testing fee and the 

criminal impact fee, and to provide that the court facility fee is not imposed as a 

condition of probation, but instead is imposed as an order of the trial court entered at 

judgment. We affirm the order granting probation as modified.

 

1 Lent was superseded by statute on another ground, as stated in People v. Wheeler

(1992) 4 Cal.4th 284, 290-291.
3

FACTS AND PROCEEDINGS

Defendant entered a plea of no contest to willfully and unlawfully acquiring and 

retaining the personal identifying information of 10 or more persons with intent to 

defraud. He waived referral to probation and requested immediate judgment and 

sentencing. 

The People asked the trial court to impose an electronic device search condition to 

help the probation department monitor whether defendant was violating the law. 

The People submitted the declaration of Detective Sean Smith in support of the 

request. Detective Smith was a member of the Sacramento Valley Hi Tech Crimes Task 

Force, an agency which investigated cyber crimes. Detective Smith averred, based on his 

training and experience, that persons who committed identity theft and fraud crimes 

commonly used electronic devices to research and purchase victim information and 

manufacture counterfeit credit cards, checks and identifications. The detective explained 

how electronic devices could be used to commit identity theft and fraud crimes. He said, 

for example, that cell phones were commonly used to photograph and store victim 

information, identify locations where the defendant intended to commit fraud, and 

deposit counterfeit checks into bank accounts. Detective Smith explained why it was 

necessary to search all content on a device and obtain password information in identity 

theft and fraud cases. 

Defendant’s trial counsel objected to the electronic device search condition 

because there was no indication a cell phone or electronic device was used in this case or 

that defendant manufactured the items found in his car, and defendant’s only prior crime 

was for driving stolen cars. Defendant’s trial counsel argued the electronic device search 

condition was not tailored to defendant or the current offense and was overbroad. He 

also argued the condition violated defendant’s Fifth Amendment rights in that it required 

defendant to disclose passwords. Defendant’s trial counsel pointed out that another 
4

probation condition already required disclosure of e-mail/Internet accounts and access to 

computers, networks and passwords. Defendant’s trial counsel did not object to the email/Internet account search condition. 

The trial court imposed the electronic device search condition over defendant’s 

objection. It said, “It does appear that computers, cell phones, other electronic devices 

are extremely useful in violating this code section. One can violate it by possessing these 

things and also the manufacture of these things or the negotiation of various instruments 

can be facilitated through the use of these electronic devices. So I think there is a nexus 

here in this case, given the offense.” 

The trial court suspended imposition of sentence and placed defendant on formal 

probation for five years. It imposed 19 specific conditions of probation including a 

general search condition which provided, “Defendant shall submit his person, property 

and automobile and any object under [his] control to search and seizure in or out of . . . 

[his] presence . . . , by any law enforcement officer and/or probation officer, at any time 

of the day or night, with or without his consent, with or without a warrant.” 

The trial court also imposed an electronic device search condition as follows: 

“P.C. 1546 searchable - Defendant shall submit his . . . person, place, property, 

automobile, electronic storage devices, and any object under his . . . control, including but 

not limited to cell phone and computers, to search and seizure by any law enforcement 

officer or probation officer, any time of the day or night, with or without a warrant, with 

or without his . . . presence or further consent. [¶] Defendant being advised of his . . . 

constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this 

regard, and having accepted probation, is deemed to have waived same and also 

specifically consented to searches of his . . . electronic storage devices. [¶] Defendant 

shall provide access to any electronic storage devices and data contained therein, 

including disclosing and providing any and all information necessary to conduct a 

search.” 
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In addition, the trial court imposed an e-mail/Internet account search condition: 

“Defendant shall disclose all email accounts, all internet accounts and any other means of 

access to any computer or computer network, all passwords and access codes. Defendant 

shall consent to the search of such email and internet accounts at any time and for the 

seizure of any information without a search warrant or probable cause.” 

Defendant was also prohibited from possessing, controlling or using a personal 

checking account, unless authorized by his probation officer; possessing personal 

identifying information of another person, as defined in section 530.5, without prior 

approval of the probation department; possessing an access card, as defined in section 

484d, subdivision (2), in the name of another without prior approval of the probation 

department; possessing software designed for manufacturing checks or blank check 

paper; knowingly possessing a scanner; possessing an access card reader or encoder; 

intentionally concealing the source, destination or content of any electronic 

communication transmitted or otherwise sent by defendant; providing false information 

about his identity to an electronic communications service provider, as defined in section 

2510(15) of title 18 of the United States Code, when purchasing or agreeing to purchase 

any service from that provider which allows defendant to send and receive electronic 

communications; and possessing any software and/or hardware designed to encrypt or 

decrypt computer files. 

Defendant was further required to pay restitution, a restitution fine under section 

1202.4, subdivision (b), a criminal impact fee pursuant to section 1465.7, subdivision (a), 

a urinalysis test fee, and a court facility fee pursuant to Government Code section 70373. 

Defendant filed a brief opposing the electronic device search condition after the 

sentencing hearing. He asserted privacy, overbreadth, the Electronic Communications 

Privacy Act and his Fifth Amendment privilege against self-incrimination as the basis for 

his objection and asked the trial court to narrowly tailor the condition to fit the 
6

government’s purposes. The appellate record does not indicate whether a further hearing 

was requested or held based on defendant’s written brief. 

DISCUSSION

I

The Electronic Search Condition Is Not Invalid Under Lent

Defendant claims the electronic device search condition is invalid under Lent, 

supra, 15 Cal.3d at page 486, because the condition is unrelated to his current offense, 

possession of electronic storage devices is lawful, and the condition is not reasonably 

related to his future criminality. We disagree.

A grant of probation is an act of clemency. (People v. Moran (2016) 1 Cal.5th 

398, 402 (Moran).) Probation is a privilege, not a right. (Ibid.) When an offender 

chooses probation, thereby avoiding incarceration, the sentencing court may impose 

reasonable conditions of probation as it “may determine 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.” (§ 1203.1, subd. 

(j).) Section 1203.1 grants sentencing courts broad discretion to impose probation 

conditions to foster rehabilitation and protect public safety. (People v. Carbajal (1995) 

10 Cal.4th 1114, 1120.) 

“ ‘Generally, “[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[, which the 

California Supreme Court adopted in Lent,] 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 
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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.]” 

(Moran, supra, 1 Cal.5th at p. 403.)

We review the validity of a probation condition under Lent for abuse of discretion. 

(Moran, supra, 1 Cal.5th at p. 403; People v. Carbajal, supra, 10 Cal.4th at p. 1121.) We 

will not disturb the trial court’s decision to impose a particular condition of probation 

unless that choice is arbitrary and exceeds the bounds of reason, all of the circumstances 

being considered. (Moran, supra, 1 Cal.5th at p. 403; People v. Anderson (2010) 

50 Cal.4th 19, 32.) As the party challenging the condition, defendant must clearly show 

that the condition is irrational or arbitrary. (People v. Balestra (1999) 76 Cal.App.4th 57, 

63 (Balestra).) Absent such a showing, we presume the sentencing court “ ‘ “acted to 

achieve legitimate sentencing objectives, and its discretionary determination to impose a 

particular sentence will not be set aside on review.” [Citation.] Concomitantly, “[a] 

decision will not be reversed merely because reasonable people might disagree. ‘An 

appellate tribunal is neither authorized nor warranted in substituting its judgment for the 

judgment of the trial judge.’ [Citations.]” [Citation.]’ ” (Ibid.)

Addressing the first and second Lent factors, the Attorney General agrees there is 

no evidence an electronic device played a role in the current offense, and using an 

electronic device is not criminal. Turning to the third Lent factor, however, the Attorney 

General argues the electronic device search condition is reasonably related to preventing 

future criminality. We agree.

Probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled, 

but only . . . conditional liberty properly dependent on observance of special [probation] 

restrictions.’ [Citation.] [¶] These restrictions are meant to assure that the probation 

serves as a period of genuine rehabilitation and that the community is not harmed by the 

probationer’s being at large. [Citation.] These same goals require and justify the 
8

exercise of supervision to assure that the restrictions are in fact observed.” (Griffin v. 

Wisconsin (1987) 483 U.S. 868, 874-875 [97 L.Ed.2d 709, 718] (Griffin).)

In general, a probation search condition helps “ ‘deter further offenses by the 

probationer and to ascertain whether he [or she] is complying with the terms of . . . 

probation.’ [Citation.]” (People v. Bravo (1987) 43 Cal.3d 600, 610 (Bravo); see People 

v. Robles (2000) 23 Cal.4th 789, 795 (Robles).) “By allowing close supervision of 

probationers, probation search conditions serve to promote rehabilitation and reduce 

recidivism while helping to protect the community from potential harm by probationers.” 

(Robles, supra, 23 Cal.4th at p. 795.) A term of probation that facilitates effective 

supervision of a probationer is, therefore, reasonably related to deterring future 

criminality. (People v. Olguin (2008) 45 Cal.4th 375, 378, 380-381 (Olguin).)

In Olguin, the probationer had agreed to the warrantless search of his residence. 

The California Supreme Court there held that a condition requiring the probationer to 

notify his probation officer of the presence of pets at the probationer’s residence was 

reasonably related to future criminality because the pet disclosure condition helped 

protect probation officers during compliance visits and facilitated unannounced searches 

of the probationer’s residence, aimed at discovering whether the probationer was 

complying with the terms of his probation. (Olguin, supra, 45 Cal.4th at pp. 381-382.) 

Similarly, the appellate court in Balestra upheld a condition requiring the probationer to 

submit her person and property to search with or without probable cause, concluding that 

such condition served the rehabilitative purpose of helping a probation officer ensure that 

his or her charge was obeying all laws. (Balestra, supra, 76 Cal.App.4th at pp. 61, 64-

68.) For that reason, the condition was reasonably related to future criminality. (Ibid.; 

see Olguin, supra, 45 Cal.4th at p. 381.) An electronic device search condition is 

likewise reasonably related to preventing a defendant’s future criminality. (People v. 

Valdivia (2017) 16 Cal.App.5th 1130, 1137-1139, review granted Feb. 14, 2018, 

S245893 (Valdivia) [electronic device search condition was reasonably related to future 
9

criminality because it helped the probation officer ensure that the defendant was 

complying with the conditions of his probation by obeying all laws]; In re P.O. (2016) 

246 Cal.App.4th 288, 293-296 [electronic device search condition was reasonably related 

to future criminality because it enabled peace officers to review the probationer’s 

electronic activity for indications that the probationer had drugs or was otherwise 

violating his probation].) 2

Here, defendant admitted that he willfully, and with intent to defraud, acquired the 

personal identifying information of 10 or more persons. The trial court found that 

electronic devices would be extremely useful in manufacturing, obtaining and using the 

kinds of items found in defendant’s possession. The trial court imposed other probation 

conditions aimed at deterring defendant’s commission of identity theft crimes in the 

future. Defendant does not challenge those other terms of his probation. Searching 

defendant’s cell phone, computers and other electronic storage devices would enable 

defendant’s probation officer to ascertain whether defendant is complying with the other 

unchallenged conditions of defendant’s probation.

 

2 The California Supreme Court granted review in a number of cases challenging 

electronic device search conditions. The lead case is In re Ricardo P. (2015) 

241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923. Some of the cases now 

before the Supreme Court concluded, like Valdivia, an opinion from this court, that the 

electronic device search condition was reasonably related to future criminality. (People 

v. Trujillo (2017) 15 Cal.App.5th 574, 583, review granted Nov. 29, 2017, S244650 

(Trujillo); In re J.E. (2016) 1 Cal.App.5th 795, 801-803, review granted Oct. 12, 2016, 

S236628; In re George F. (2016) 248 Cal.App.4th 734, 740-742, review granted Sept. 14, 

2016, S236397; In re A.S. (2016) 245 Cal.App.4th 758, 770-772, review granted May 25, 

2016, S233932; In re Alejandro R. (2015) 243 Cal.App.4th 556, 563-567, review granted 

Mar. 9, 2016, S232240; In re Patrick F. (2015) 242 Cal.App.4th 104, 109-111, review 

granted Feb. 17, 2016, S231428; In re Ricardo P., supra, 241 Cal.App.4th 676, review 

granted.) Others invalidated electronic device search conditions under the third Lent

factor. (People v. Bryant (2017) 10 Cal.App.5th 396, 401-406, review granted June 28, 

2017, S241937; In re Mark C. (2016) 244 Cal.App.4th 520, 532-535, review granted Apr. 

13, 2016, S232849.)
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While nothing in the record indicates that defendant used an electronic device to 

acquire, obtain, manufacture or use the credit cards, driver’s licenses, gift cards, and 

Social Security cards found in his possession, the trial court’s finding that electronic 

devices can facilitate the commission of identity theft crimes is not outside the bounds of 

reason. (People v. Valenzuela (2012) 205 Cal.App.4th 800, 803 [the defendant possessed 

credit card information, dates of birth, Social Security numbers, telephone numbers, and 

addresses for three people which he obtained from a Web site that advertised the sale of 

people’s personal identifying information]; People v. Love (2008) 166 Cal.App.4th 1292, 

1295-1296 [use of credit card information belonging to other people to make 

unauthorized online purchases]; People v. Shabtay (2006) 138 Cal.App.4th 1184, 1188-

1189 [same].) Whatever the outer limits of Olguin may be, we conclude that in this case, 

the electronic device search condition imposed by the trial court would facilitate the 

effective supervision of defendant during his probation period by helping his probation 

officer determine whether defendant was complying with the terms of his probation, 

thereby deterring the future commission of identity theft crimes by defendant, 

effectuating the rehabilitative purpose of section 1203.1 and protecting the public. 

(Olguin, supra, 45 Cal.4th at pp. 378, 380-381; Valdivia, supra, 16 Cal.App.5th at 

pp. 1138-1139, review granted; id. at pp. 1137-1138 [rejecting the contention that a 

probation condition must have a specific connection to the facts of the current offense or 

the defendant’s past criminal conduct]; In re P.O., supra, 246 Cal.App.4th at p. 295; see

People v. Mason (1971) 5 Cal.3d 759, 764 (Mason), [validating a search condition aimed 

at deterring or discovering subsequent criminal offenses], disapproved on another ground 

in Lent, supra, 15 Cal.3d at p. 486, fn. 1; Balestra, supra, 76 Cal.App.4th at pp. 65-68.) 

As the Supreme Court explained in Olguin, as a general rule, “[a] condition of probation 

that enables a probation officer to supervise his or her charges effectively is . . . 

‘reasonably related to future criminality.’ ” (Olguin, supra, 45 Cal.4th at pp. 380-381.)
11

Defendant nevertheless argues the electronic device search condition is not 

reasonably related to his future criminality because there is no reasonable relationship 

between the condition and his current offense or his social and criminal history. 

Defendant asks us to follow In re Erica R. (2015) 240 Cal.App.4th 907 and In re J.B.

(2015) 242 Cal.App.4th 749. 

The minor in In re Erica R. admitted to misdemeanor possession of Ecstasy after a 

school counselor found a baggie of pills in her purse. (In re Erica R., supra,

240 Cal.App.4th at p. 909.) The juvenile court placed the minor under supervision with 

the condition that she submit to searches of her electronic devices and turn over her 

passwords to her probation officer. (Ibid.) The juvenile court said, “ ‘I found in practice 

that many juveniles, many minors, who are involved in drugs tend to post information 

about themselves and drug usage. They post photos of themselves using drugs and drug 

paraphernalia. This is the way of keeping track [of] her drug usage, not just a way of 

testing her.’ ” (Id. at p. 910, fn. omitted.) The Court of Appeal struck the electronic 

device search condition under Lent because there was no evidence connecting the minor’s 

electronic device or social media usage to her offense or to a risk of future criminal 

conduct. (In re Erica R., supra, at pp. 909-910.) With regard to the third factor under 

Lent, the appellate court said the record did not support a conclusion that the electronic 

device search condition was reasonably related to future criminality because nothing in 

the minor’s past or current offenses or her personal history showed a predisposition to use 

electronic devices or social media in connection with criminal activity. (Id. at p. 913.)

The minor in In re J.B. admitted committing a petty theft. (In re J.B., supra, 

242 Cal.App.4th at p. 752.) The trial court placed the minor on probation with the 

condition that he submit to searches of his electronics and disclose his passwords. (Ibid.) 

The trial court explained it imposed the condition because the minor admitted using 

marijuana, people who used drugs tended to record their usage on the Internet, the 

condition deterred the minor from committing crimes and allowed his probation officer to 
12

monitor what he was doing, the minor’s grade point average was 0.0, and on one 

occasion the minor played on his cell phone during an interview with his mother and the 

probation officer. (Id. at p. 753.) The Court of Appeal held the electronic device search 

condition was unreasonable because there was no evidence connecting the minor’s 

electronic device or social media usage to his offense or to a risk of future criminal 

conduct. (Id. at pp. 752, 756-757.) 

We do not find In re Erica R. persuasive because it does not consider the 

California Supreme Court’s interpretation of Lent’s third factor in Olguin. The condition 

in Olguin—requiring notice of the presence of pets kept at the defendant’s residence—

had no relationship to the defendant’s offense of driving under the influence of alcohol. 

(Olguin, supra, 45 Cal.4th. at pp. 379-380.) That fact, however, did not require 

invalidating the probation condition under Lent. There is also no indication in the 

Supreme Court’s opinion in Olguin that the defendant had any pets, planned to have a 

pet, or had a history of engaging in conduct which interfered with compliance visits or 

unannounced searches. Nevertheless, Olguin held that the pet notice condition was 

reasonably related to deterring future criminality because it facilitated the effective 

supervision of the probationer; in particular, the condition helped probation officers make 

unscheduled visits and conduct unannounced searches of the probationer’s residence, 

which was a term of probation the defendant did not challenge. (Id. at pp. 378, 380-381.) 

In re Erica R. failed to consider whether the electronic device search condition in that 

case would aid in the effective supervision of the minor and serve the goals of probation. 

(In re Erica R., supra, 240 Cal.App.4th at pp. 913-915.)

In re J.B. considered Olguin but questioned whether Olguin “justifies a probation 

condition that facilitates [the] general supervision of a ward’s activities if the condition 

requires or forbids noncriminal conduct bearing no relation to the minor’s offense that is 

not reasonably related to potential future criminality as demonstrated by the minor’s 

history and prior misconduct.” (In re J.B., supra, 242 Cal.App.4th at p. 757.) Olguin, 
13

however, does not require the risk of future criminality to be established by the 

probationer’s history and prior misconduct. (Olguin, supra, 45 Cal.4th at pp. 380-381.) 

Also, In re J.B. conflates the analysis under Lent with a determination whether a 

probation condition is unconstitutionally overbroad. (In re J.B., supra, 242 Cal.App.4th 

at pp. 757-758; In re P.O., supra, 246 Cal.App.4th at p. 296 [claim of violation of the 

minor’s privacy is better addressed by the overbreadth doctrine and not under Lent); cf. 

Moran, supra, 1 Cal.5th 398 at pp. 406-408 [examining validity under Lent separately 

from constitutional claims]; Olguin, supra, 45 Cal.4th at pp. 384-387 [same].) As we 

have explained, the electronic device search condition in this case is valid under Lent, as 

interpreted in Olguin.

II

The Electronic Device Search Condition Is Not Unconstitutionally Overbroad

Defendant also claims the electronic device search condition is unconstitutionally 

overbroad in that it infringes on his state and federal constitutional rights to privacy. 

The Attorney General first responds that defendant waived his privacy claims by 

consenting to the electronic device search condition. We reject the Attorney General’s 

contention. A defendant who accepts a term of probation may, after objecting in the trial 

court, challenge the condition as unconstitutional. (Moran, supra, 1 Cal.5th at p. 403, fn. 

5; People v. Woods (1999) 21 Cal.4th 668, 678, fn. 5; People v. Brandão (2012) 

210 Cal.App.4th 568, 572.) Defendant objected to the electronic device search condition 

in the trial court, asserting that the condition violated his right to privacy and was 

overbroad. The record does not show that he waived his right to challenge the condition 

on appeal on those grounds.

We also reject the Attorney General’s claim that defendant forfeited his state 

constitutional claims. We interpret defendant’s trial court objection to include a state 

constitutional claim. 
14

Defendant asserts the search condition is overbroad because it violates his right to 

privacy under the Fourth and Fourteenth Amendments to the federal constitution and 

article 1, section 1, of the state constitution. We disagree. But before we explain why, 

we first discuss the test we are to apply to determine whether the condition violates 

defendant’s right to privacy. It is a different test than what a number of courts have 

applied to this issue.

A. The Inapplicability of the “Closely Tailored” Test

Generally, “ ‘[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.’ (In re Sheena K. (2007) 

40 Cal.4th 857, 890[.])” (Olguin, supra, 45 Cal.4th at p. 384; People v. Harrisson (2005) 

134 Cal.App.4th, 637, 641.) Many of the appellate courts, including a panel of this court, 

that have evaluated the constitutionality of electronic device search conditions did so 

using this “closely tailored” test. (See Valdivia, supra, 16 Cal.App.5th at p. 1142, review 

granted; People v. Appleton (2016) 245 Cal.App.4th 717, 723; In re Ricardo P., supra, 

241 Cal.App.4th 676, review granted.) 3

 

3 Some of the cases now before the California Supreme Court that held electronic 

device search conditions were valid under Lent were, nevertheless, unconstitutionally 

overbroad because they were not tailored to limit the impact on the probationer’s privacy 

rights. (Valdivia, supra, 16 Cal.App.5th at p. 1142, review granted; In re Ricardo P., 

supra, 241 Cal.App.4th at pp. 687-689, review granted; In re Alejandro R., supra,

243 Cal.App.4th at pp. 567-568, review granted; In re Patrick F., supra, 242 Cal.App.4th 

at pp. 112-114, review granted.) 

Others upheld electronic device search conditions against an overbreadth 

challenge based on the alleged violation of the probationer’s privacy rights. (People v. 

Maldonado (2018) 22 Cal.App.5th 138, 144-145, review granted June 20, 2018, S248800 

[condition not overbroad because prohibition against arbitrary, capricious, or harassing 

searches sufficiently protected defendant]; Trujillo, supra, 15 Cal.App.5th at pp. 586-589, 

review granted [probation was needed to monitor the defendant; search condition was no 

different than conditions authorizing warrantless searches of a probationer’s residence]; 
15

However, a more deferential standard of review applies where the constitutional 

right being infringed is the defendant’s right to privacy. The privacy right defendant 

asserts arises from the privacy interests protected by the Fourth Amendment. The test for 

reviewing infringements of Fourth Amendment privacy is not whether the infringement is 

closely tailored to its governmental purpose. Instead, it is whether the infringement is 

reasonable after weighing the competing interests. 

“The Fourth Amendment commands that searches and seizures be reasonable. 

What is reasonable depends upon all of the circumstances surrounding the search or 

seizure and the nature of the search or seizure itself. (New Jersey v. T.L.O. [(1985) 

469 U.S. 325, 337-342] [83 L.Ed.2d 720].) The permissibility of a particular law 

enforcement practice is judged by ‘balancing its intrusion on the individual’s Fourth 

Amendment interests against its promotion of legitimate governmental interests.’ 

[Citations.]” (U.S. v. Montoya de Hernandez (1985) 473 U.S. 531, 537 [87 L.Ed.2d 

381].) Whether a search is reasonable “is determined by assessing, on the one hand, the 

degree to which it intrudes upon an individual’s privacy and, on the other, the degree to 

which it is needed for the promotion of legitimate governmental interests.” (U.S. v. 

Knights (2001) 534 U.S. 112, 118-119 [151 L.Ed.2d 497] (Knights) (internal quotation 

marks omitted).)

 

In re Q.R. (2017) 7 Cal.App.5th 1231, 1236-1239, review granted Apr. 12, 2017, 

S240222 [“robust access” to the minor’s electronic devices was critical to probation 

supervision in case where the minor used an electronic device to commit the charged 

offenses]; In re J.E., supra, 1 Cal.App.5th at pp. 803-807, review granted [minor’s 

circumstances required intensive supervision]; People v. Nachbar (2016) 3 Cal.App.5th 

1122, 1128-1130, review granted Dec. 14, 2016, S238210 [electronic device search 

condition was suitably tailored in light of the defendant’s need for intensive monitoring]; 

In re A.S., supra, 245 Cal.App.4th at pp. 772-775, review granted the minor’s broad array 

of problems required intensive supervision].) 

The California Supreme Court did not grant review on the issue of overbreadth in 

the above cases. However, the court, after first deferring further action in the case, has 

asked the parties in Trujillo to submit briefing on the issue. 
16

We apply the same test when evaluating infringements of the state constitutional 

right of privacy under article 1, section 1. Unlike other state constitutional rights, “[t]he 

‘privacy’ protected by [article 1, section 1] is no broader in the area of search and seizure 

than the ‘privacy’ protected by the Fourth Amendment . . . .” (Hill v. National Collegiate 

Athletic Assn. (1994) 7 Cal.4th 1, 30, fn. 9.) “Under the Fourth Amendment and the 

parallel search and seizure clause of the California Constitution (art. I, § 13), the 

reasonableness of particular searches and seizures is determined by a general balancing 

test ‘weighing the gravity of the governmental interest or public concern served and the 

degree to which the [challenged government conduct] advances that concern against the 

intrusiveness of the interference with individual liberty.’ [Citation.]” (Id. at pp. 29-30, 

fn. omitted.; People v. Buza (2018) 4 Cal.5th 658, 684-685.)

The United States Supreme Court has not required a probation or parole search 

condition be “closely tailored” when it infringes on an expectation of privacy. Instead, it 

has evaluated the condition under the general balancing test just described to determine 

whether the intrusion was reasonable under the circumstances. In Knights, supra, 

534 U.S. 112, the court upheld the constitutionality of searches made pursuant to the 

probation condition commonly used in California requiring the probationer to submit his 

“ ‘person, property, place of residence, vehicle, personal effects, to search at anytime, 

with or without a search warrant[.]’ ” (Id. at p. 114.) Affirming the investigative search 

of a probationer’s home and vehicle who was suspected of arson, the court ruled the 

search was reasonable under “our general Fourth Amendment approach of ‘examining 

the totality of the circumstances,’ [citation], with the probation search condition being a 

salient circumstance” (id. at p. 118), an approach the court called its “ordinary Fourth 

Amendment analysis[.]” (Id. at p. 122.) The balance of the state’s interest in 

rehabilitating the probationer and protecting the public from additional harm by him 

outweighed the probationer’s limited interest in privacy. (Id. at p. 121.)
17

The Knights court did not address whether the probation condition so diminished 

the probationer’s expectation of privacy that a search without individualized suspicion 

would have satisfied the Fourth Amendment’s reasonableness requirement. (Knights, 

supra, 534 U.S. at p. 120, fn. 6.) It did not because the search before it was supported by 

reasonable suspicion. (Ibid.) In Samson v. California (2006) 547 U.S. 843 [165 L.Ed.2d 

520] (Samson), the court addressed that issue, albeit in the context of a parole search 

condition. 

The Samson court upheld the warrantless and suspicionless search of a parolee. It 

did so by applying the same balancing test of reasonableness it applied in Knights: 

“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree 

to which it intrudes upon an individual’s privacy and, on the other, the degree to which it 

is needed for the promotion of legitimate governmental interests.’ ([Knights, supra, 

534 U.S. at pp.] 118-119 (internal quotation marks omitted.)” (Samson, supra, 547 U.S. 

at p. 848.) Upholding the search, the court found the state’s interests in supervising 

parolees, who have a high recidivism rate, and reintegrating them into the community 

were “substantial” and “overwhelming” in light of the parolee’s reduced interest in 

privacy. (Id. at pp. 850-855.) Although Samson noted parolees have fewer expectations 

of privacy than probationers (id. at p. 850), the balancing test for conditions affecting 

both probationers and parolees is reasonableness, and the government may still impose 

reasonable conditions that deprive a probationer of freedoms enjoyed by law-abiding 

citizens. (Knights, supra, 534 U.S. at p. 119.)

The United States Supreme Court has used the same balancing test of 

reasonableness to review other infringements of Fourth Amendment privacy rights 

without determining whether the intrusion was “closely tailored” to its purpose. For 

example, by applying the balancing test, the court found to be reasonable, and thus 

constitutional, a state statute requiring officers to take a DNA swab from persons charged 

with committing crimes of violence even though the swab was taken without a warrant 
18

(Maryland v. King (2013) 569 U.S. 435, 448 [186 L.Ed.2d 1]); a warrantless search of 

public employees’ offices and desks (O’Connor v. Ortega (1987) 480 U.S. 709, 725-726 

[94 L.Ed.2d 714]; and warrantless searches of school students (New Jersey v. T.L.O., 

supra, 469 U.S. at pp. 341-342). Applying the same balancing test of reasonableness, the 

high court found unconstitutional a police officer’s warrantless search of an arrestee’s 

cell phone. (Riley v. California (2014) 573 U.S. 373 [189 L.Ed.2d 430] (Riley).) While 

the competing interests in these cases were different from each other, the high court 

nonetheless applied the general balancing test of reasonableness to determine 

constitutionality in each of them.

The California Supreme Court has yet to speak on the constitutionality of 

electronic device probation search conditions, perhaps because under California law, 

probation search conditions are constitutionally valid due to the probationer’s waiver of 

all Fourth Amendment rights when the probationer accepts probation. (Bravo, supra, 

43 Cal.3d at p. 607; Mason, supra, 5 Cal.3d at pp. 765-766.)4 

In many similar contexts, however, the California Supreme Court has reviewed the 

constitutionality of a search or a search condition’s infringement on Fourth Amendment 

privacy under the general balancing test of reasonableness, not whether the condition was 

closely tailored. For example, the court upheld as reasonable, and thus constitutional, a 

statute’s requirement to collect DNA samples from persons arrested for felonies (People 

v. Buza, supra, 4 Cal.5th at pp. 684-691); a statute’s requirement to collect DNA samples 

from convicted felons (People v. Robinson (2010) 47 Cal.4th 1104, 1120-1122); and a 

condition requiring an arrestee released from custody on his own recognizance to submit 

 

4 The Knights court did not address the condition’s validity under California’s 

doctrine of consent because it found the search reasonable. (Knights, supra, 534 U.S. at 

p. 118.) 
19

himself to random drug tests and warrantless searches and seizures (In re York (1995) 

9 Cal.4th 1133, 1137, 1150-1151).

The California Supreme Court has applied the balancing test in other contexts 

involving the right to privacy. It applied the balancing test to conclude a probation 

condition requiring the probationer to waive his psychotherapist-patient privilege did not 

violate his right to privacy. (People v. Garcia (2017) 2 Cal.5th 792, 810-811.) It also 

applied the balancing test to determine that a trial court’s erroneous disclosure of a 

parolee’s statements to his therapist in a hearing to commit the parolee as a sexually 

violent predator did not violate the parolee’s Fourth Amendment privacy. (People v. 

Gonzales (2013) 56 Cal.4th 353, 386.) 

The California Supreme Court has analyzed the constitutionality of parole search 

conditions under the balancing test for reasonableness. In People v. Reyes (1998) 

19 Cal.4th 743 (Reyes), the court applied the balancing test to hold that a warrantless 

blanket search condition imposed on a parolee and executed without suspicion of 

wrongdoing did not violate the Fourth Amendment. (Id. at p. 752.) “When parole or 

probation searches are involved,” the court wrote, “the balance struck between individual 

interest and government necessity is implicit in the determination that a ‘warrantless 

search condition is a reasonable term’ in a parole or probation agreement.” (Ibid.) 

In People v. Schmitz (2012) 55 Cal.4th 909, the California Supreme Court applied 

the balancing test to hold a warrantless search of a known parolee who was a passenger in 

a vehicle did not violate the driver’s Fourth Amendment rights. (Id. at pp. 921-922.) The 

court described the test as follows: “Whether a search is reasonable within the meaning 

of the Fourth Amendment depends on the ‘ “totality of the circumstances.” ’ [Citations.] 

This test includes an assessment of the degree to which a search promotes legitimate 

governmental interests, balanced against the degree to which it intrudes upon an 

individual’s privacy. [Citations.] Both we and the United States Supreme Court have 

employed traditional standards of reasonableness to evaluate the constitutionality of 
20

warrantless vehicle searches and parole searches. Accordingly, we consider whether the 

officer’s search here was reasonable, with a ‘salient circumstance’ being the presence of a 

parolee subject to a search condition. [Citations.]” (Id. at pp. 921-922.)

The California Supreme Court has also applied the balancing test in probation and 

parole search cases involving third parties’ privacy rights. In Robles, supra, 23 Cal.4th 

789, the court determined the police violated the defendant’s reasonable expectations of 

privacy under the Fourth Amendment when they searched a garage attached to his 

residence that he shared with a probationer, and they did so without a warrant, without 

consent, and without knowing the roommate was on probation. (Id. at p. 800.) The court 

reached the same conclusion when police searched an apartment shared by the defendant 

and a parolee without knowing the parolee’s status. (People v. Sanders (2003) 31 Cal.4th 

318, 330.) The issue again was reasonableness: “[W]hether a search is reasonable must 

be determined based upon the circumstances known to the officer when the search is 

conducted.” (Id. at p. 334.)

Even though the California Supreme Court has reviewed privacy challenges to 

probation search conditions almost uniformly under the doctrines of consent and waiver, 

it has indicated the reasonableness balancing test would apply were it not reviewing the 

condition as one of consent. In its first case to address these issues, Mason, supra, 

5 Cal.3d 759, the high court decided the case based on waiver, but it stated the 

reasonableness test was also at play: “We have heretofore suggested . . . that persons 

conditionally released to society, such as parolees, may have a reduced expectation of 

privacy, thereby rendering certain intrusions by governmental authorities ‘reasonable’ 

which otherwise would be invalid under traditional constitutional concepts, at least to the 

extent that such intrusions are necessitated by legitimate governmental demands 

[Citations.] Thus, a probationer who has been granted the privilege of probation on 

condition that he submit [himself] at any time to a warrantless search may have no 
21

reasonable expectation of traditional Fourth Amendment protection.” (Id. at pp. 764-

765.)

And at least on one occasion, the court has upheld a blanket probation search 

condition under the general balancing test of reasonableness as well as consent. In 

People v. Ramos (2004) 34 Cal.4th 494, the court upheld on the basis of reasonableness a 

search of a suspect’s home and truck conducted pursuant to a probation condition 

authorizing warrantless searches of “person, property and automobile” at any time. (Id. 

at pp. 504-506.) In none of these cases did the court reach its decision based on whether 

the unlimited search conditions were “closely tailored” to their purpose.

In contrast, the cases that require a probation condition be closely tailored to its 

purpose, and on which other courts of appeal have relied when reviewing an electronic 

device search condition, did not involve a right to privacy under the Fourth Amendment. 

In Olguin, supra, 45 Cal.4th 375, the probationer claimed the condition requiring him to 

notify his probation officer of pets infringed his rights of speech and association, not his 

privacy rights. (Id. at p. 384.) The court in In re Sheena K., supra, 40 Cal.4th 875, by 

applying the “closely tailored” test, found a condition prohibiting the probationer from 

associating with anyone not approved by the probation officer to be unconstitutionally 

vague in violation of due process, not Fourth Amendment privacy. (Id. at p. 890.) The 

authority that In re Sheena K. relied on to impose the “closely tailored” test, In re White

(1979) 97 Cal.App.3d 141, held a condition prohibiting a probationer convicted of 

prostitution from being in certain geographical areas violated the probationer’s right to 

travel. (Id. at pp. 148-150.) And in People v. Harrisson, supra, 134 Cal.App.4th 637, a 

case heavily relied upon as authority for the “closely tailored” test, this court applied that 

test to invalidate conditions that infringed on the probationer’s rights to work, 

communicate, and associate with others. (Id. at p. 642.) The case did not concern the 

Fourth Amendment right to privacy. Indeed, the opinion’s claim that “[i]t is not enough 

to show the government’s ends are compelling” does not square with the United States 
22

Supreme Court’s and the California Supreme Court’s Fourth Amendment jurisprudence. 

(Id. at p. 641.)

We thus conclude the courts of appeal that have applied the “closely tailored” test 

to a probation search condition allowing the search of a probationer’s electronic devices 

applied the wrong test. The appropriate test is the balancing of interests to determine 

reasonableness that the United States Supreme Court and the California Supreme Court 

consistently apply to alleged violations of Fourth Amendment privacy rights. This test 

correctly determines a person’s right to privacy against unreasonable searches and 

seizures.

Understanding the reasonableness test is the proper standard of review leads to 

another important conclusion: “ ‘If the search is reasonable, there is no constitutional 

problem, for the Fourth Amendment only protects individuals from unreasonable 

searches and seizures. (Skinner [v. Railway Labor Executives’ Assn. (1989) 489 U.S.

602], 619 [103 L.Ed.2d 639].)’ ” (People v. Travis (2006) 139 Cal.App.4th 1271, 1282, 

quoting U.S. v. Sczubelek (3d Cir. 2005) 402 F.3d 175, 182, italics added.) In other 

words, if the search condition is constitutionally reasonable, it is by definition not 

overbroad. 

Thus, our review of the electronic device search condition does not look for 

overbreadth under the “closely tailored” standard. Rather, it weighs defendant’s interest 

in his privacy against the state’s interests in support of the search condition. “ ‘The 

touchstone of the Fourth Amendment is reasonableness . . . .’ ([Knights, supra, 534 U.S. 

at pp.] 118-119 [].) ‘When faced with . . . diminished expectations of privacy, minimal 

intrusions, or the like, the Court has found that certain general, or individual, 

circumstances may render a warrantless search or seizure reasonable.’ (Illinois v. 

McArthur (2001) 531 U.S. 326, 330 [148 L.Ed.2d 838]; accord, People v. Robinson, 

[supra, 47 Cal.4th at p.] 1120.)
23

“Whether a search is reasonable within the meaning of the Fourth Amendment 

depends on the ‘ “totality of the circumstances.” ’ (Samson, supra, 547 U.S. at p. 848; 

see Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347].) This test includes an 

assessment of the degree to which a search promotes legitimate governmental interests, 

balanced against the degree to which it intrudes upon an individual’s privacy. (Samson, 

supra, at p. 848; [Wyoming v. Houghton (1999) 526 U.S. 295,] 300 [143 L.Ed.2d 408].)” 

(People v. Schmitz, supra, 55 Cal.4th at p. 921.) Accordingly, we consider whether the

electronic device search condition was reasonable, with a “salient circumstance” being 

defendant was subject to the search condition as a condition of probation. (Knights, 

supra, 534 U.S. at p. 118; accord, Samson, supra, 547 U.S. at p. 848.) We review the 

constitutionality of probation conditions de novo. (In re Malik J. (2015) 240 Cal.App.4th 

896, 901.)

B. The Electronic Device Search Condition Agreed to by Defendant and Imposed

by the Court was Constitutionally Reasonable

Weighing the competing interests, we turn first to determine the degree to which 

the electronic device search condition promotes legitimate governmental interests. We 

have discussed the government’s interest already. (See pp. 7-9, supra.) The Knights

court explained it clearly: “In assessing the governmental interest side of the balance, it 

must be remembered that ‘the very assumption of the institution of probation’ is that the 

probationer ‘is more likely than the ordinary citizen to violate the law.’ (Griffin,[ supra, 

483 U.S. at p.] 880.) The recidivism rate of probationers is significantly higher than the 

general crime rate. [Citation.] And probationers have even more of an incentive to 

conceal their criminal activities and quickly dispose of incriminating evidence than the 

ordinary criminal because probationers are aware that they may be subject to supervision 

and face revocation of probation, and possible incarceration, in proceedings in which the 

trial rights of a jury and proof beyond a reasonable doubt, among other things, do not 

apply. [Citations.]
24

“The State has a dual concern with a probationer. On the one hand is the hope that 

he will successfully complete probation and be integrated back into the community. On 

the other is the concern, quite justified, that he will be more likely to engage in criminal 

conduct than an ordinary member of the community. . . . [The state’s] interest in 

apprehending violators of the criminal law, thereby protecting potential victims of 

criminal enterprise, may therefore justifiably focus on probationers in a way that it does 

not on the ordinary citizen.” (Knights, supra, 534 U.S. at pp. 120-121.)

Further, the effectiveness of a search condition as a deterrent to committing more 

crime “is enhanced by the potential for random searches.” (Reyes, supra, 19 Cal.4th at 

p. 753.)

“Moreover, it must be remembered that probation is an ‘important aspect[] of the 

state’s penal system,’ the ‘optimum successful functioning’ of which ‘is of compelling 

public interest.’ [Citation.]” (Robles, supra, 23 Cal.4th at p. 799.) The electronic device 

search condition significantly promotes the state’s interest in the effectiveness of its penal 

system, protecting the community, and in rehabilitating defendant by authorizing 

probation officers to determine from defendant’s electronic devices whether defendant is 

complying with the terms of his probation and the law and is integrating into the 

community in lawful ways.

In addition, the search condition promotes the state’s specific interest in defendant, 

for, as mentioned above, it relates to the crime to which defendant admitted committing. 

He admitted to acquiring personal identifying information unlawfully. As the trial court 

found, electronic devices are extremely useful in manufacturing, obtaining, and using the 

kinds of items found in defendant’s possession. The state thus has grounds to believe 

future similar criminality by defendant would be found on his cell phone and other 

electronic devices. 

We compare the state’s interest in the search condition with the degree to which 

the condition intrudes upon defendant’s privacy. To assess this factor, we look “to a 
25

hierarchy of privacy interests. Reasonable expectations of privacy that society is 

prepared to recognize as legitimate receive the greatest level of protection; diminished 

expectations of privacy are more easily invaded; and subjective expectations of privacy 

that society is not prepared to recognize as legitimate have no protection. [Citations.]” 

(Reyes, supra, 19 Cal.4th at p. 751.)

There is no doubt defendant had a diminished expectation of privacy due to his 

status as a probationer. “ ‘Probation, like incarceration, is “a form of criminal sanction 

imposed by a court upon an offender after verdict, finding, or plea of guilty.” ’ (Griffin, 

supra, at [p.] 874 (quoting G. Killinger, H. Kerper, & P. Cromwell, Probation and Parole 

in the Criminal Justice System 14 (1976)). Probation is ‘one point . . . on a continuum of 

possible punishments ranging from solitary confinement in a maximum-security facility 

to a few hours of mandatory community service.’ ([Id. at p.] 874.) Inherent in the very 

nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every 

citizen is entitled.” ’ (Ibid., quoting Morrissey v. Brewer [(1972)] 408 U.S. 471, 480 

[33 L.Ed.2d 484] [].) 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.” (Knights, 

supra, 534 U.S. at p. 119.)

Defendant’s expectation of privacy is further reduced by his understanding and 

accepting the search condition. “[T]he expectation of privacy [is] greatly reduced when 

the subject of the search is on notice that his activities are being routinely and closely 

monitored.” (Reyes, supra, 19 Cal.4th at p. 753.) The probation order clearly expressed 

the search condition, and defendant was “unambiguously informed of it. The probation 

condition thus significantly diminished [defendant’s] reasonable expectation of privacy.” 

(Knights, supra, 534 U.S. at pp. 119-120, fn. omitted.)

Weighing the state’s interests and defendant’s reduced interests, we conclude the 

electronic device search condition here is reasonable for purposes of the Fourth 
26

Amendment and does not offend defendant’s diminished expectations of privacy. The 

degree to which the search condition promotes the government’s significant, if not 

compelling, interests in integrating defendants and protecting the community outweighs 

defendant’s limited expectations against government intrusion. 

The intrusion is little different from the condition authorizing warrantless searches 

of defendant’s residence. Like an electronic device, “a person’s home also contains 

considerable confidential information and is a place in which a person has the absolute 

right to be ‘left alone,’ and thus has long been provided the highest level of protection 

from governmental interference.” (Trujillo, supra, 15 Cal.App.5th at p. 587.) “[W]hen it 

comes to the Fourth Amendment, the home is first among equals. At the Amendment’s 

‘very core’ stands ‘the right of a man to retreat into his own home and there be free from 

unreasonable governmental intrusion.’ (Silverman v. United States [(1961)] 365 U.S.

505, 511 [5 L.Ed.2d 734] [].)” (Florida v. Jardines (2013) 569 U.S. 1, 6 [185 L.Ed.2d 

495].) “ ‘[T]he “physical entry of the home is the chief evil against which the wording of 

the Fourth Amendment is directed.” ’ (Payton v. New York (1980) 445 U.S. 573, 585

[63 L.Ed.2d 639].)” (People v. Schmitz, supra, 55 Cal.4th at p. 919.) As a “basic 

principal of Fourth Amendment law . . . searches and seizures inside a man’s house 

without warrant are per se unreasonable in the absence of some one of a number of well 

defined ‘exigent circumstances.’ ” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 

477-478 [29 L.Ed.2d 564].)

“Yet courts routinely uphold probation conditions granting probation officers 

broad authority to search a probationer’s residence without a warrant or reasonable 

cause.” (Trujillo, supra, 15 Cal.App.5th at p. 588; Knights, supra, 534 U.S. at pp. 118-

122; People v. Woods, supra, 21 Cal.4th at pp. 674-675.) Courts uphold these conditions 

as reasonable even though the conditions are not expressly limited or tailored in some 
27

way to restrict the search’s scope. This is due to the probationer’s reduced expectation of 

privacy. We see little difference between the two types of search conditions.5

Many courts of appeal that have invalidated an electronic device search condition 

as overbroad in violation of a probationer’s right to privacy have relied on Riley, supra, 

573 U.S. 373 to conclude the condition was not closely tailored to further its purpose and 

would allow the searching officers to view items the courts believed had little to do with 

the state’s interest in integrating the probationer and protecting the community. 

(Valdivia, supra, 16 Cal.App.5th at pp. 1142-1145, review granted6; Appleton, supra,

245 Cal.App.4th at pp. 724-725.) 

Riley held that a police officer’s warrantless search of a civilian’s cell phone 

incident to his arrest was an unreasonable search in violation of the Fourth Amendment. 

Riley’s Fourth Amendment analysis was made in the context of searches incident to arrest 

and not in the context of probation. (Riley, supra, 573 U.S. at p. 382.) As a result, it is 

 

5 Defendant was also subject to warrantless searches of his residence, and he did not 

object to that condition.

6 Valdivia struck an electronic device search condition identical to the one in this 

case as unconstitutionally overbroad because, under the circumstances in that case, there 

was no substantial reason for believing that evidence of future criminal activity by the 

defendant was likely to be found on electronic storage devices under the defendant’s 

control. (Valdivia, supra, 16 Cal.App.5th at pp. 1135-1136, 1145-1147, review granted.) 

The defendant in Valdivia pleaded no contest to a charge of inflicting corporal injury on a 

spouse. (Id. at p. 1134.) There was no evidence the defendant used an electronic device 

in committing the crime or for a wrongful purpose in the past. (Id. at p. 1145.) And there 

was no indication that he had previously physically assaulted his wife. (Ibid.) The 

Valdivia court said the record, unlike the record in this case, demonstrated little 

likelihood or even possibility that evidence of illegal activity will be found in the devices 

subject to search under the condition. (Ibid.) 

Without deciding whether the analysis in Valdivia is correct, we observe that the 

nature of defendant’s offense (identity theft) and other specific probation terms targeted 

at deterring re-offense provide stronger justification for the imposition of an electronic 

device search condition here than in Valdivia. 
28

inapposite because a probationer is not entitled to the same expectation of privacy as an 

ordinary citizen (Mason, supra, 5 Cal.3d at p. 768), and the governmental interests 

supporting a warrantless search incident to a lawful arrest are different from those 

justifying a probation search condition. (Riley, supra, 573 U.S. at pp. 384-385 [concerns 

for officer safety and evidence preservation underlie the search incident to arrest 

exception to the warrant requirement]; cf. Knights, supra, 534 U.S. at pp. 120-121 

[state’s interests are that the probationer will successfully complete probation and 

integrate back into the community and protect the community from future lawbreaking by 

the probationer].)

Nonetheless, courts have relied on Riley’s discussion of privacy concerns 

implicated by cell phone searches to invalidate electronic device search conditions. 

Defendant’s main argument against the search condition is based on Riley. In dicta, the 

Riley court stated, “[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.” (Riley, 

supra, 573 U.S. at p. 396, italics omitted.) Despite this statement, we believe Riley is 

distinguishable and does not foreclose our ruling.

Riley stated the data accessible on cell phones was quantitatively different from 

traditional records. (Riley, supra, 573 U.S. at pp. 391-395.) But Riley made its 

comparison of a cell phone to objects that a civilian arrestee might keep on his person, 

such as a cigarette pack, a wallet or a purse, not a house. (Id. at pp. 392-393.) Many of 

the uses the Riley court stated would be part of a cell phone could certainly be in a 

probationer’s residence and subject to search. Such items include “cameras, video 

players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, 

or newspapers.” (Id. at p. 393.) Like cell phones, homes can hold “millions of pages of 

text, thousands of pictures, and hundreds of videos.” (Id. at p. 394.) Like cell phones, 
29

homes can collect in one place “many distinct types of information—an address, a note, a 

prescription, a bank statement, a video—that reveal much more in combination than any 

isolated record.” (Ibid.) And, as already shown, probation conditions authorizing 

warrantless searches of homes are reasonable.

Riley notes, “Prior to the digital age, people did not typically carry a cache of 

sensitive personal information with them as they went about their day.” (Riley, supra, 

573 U.S. at p. 395.) But people maintained, and continue to maintain, “a cache of 

sensitive personal information” in their homes. Photos, medicines, financial statements, 

books, magazines, receipts, mail, clothing, trinkets, equipment, and even garbage may 

reflect “ ‘a wealth of detail about [a person’s] familial, political, professional, religious, 

and sexual associations.’ ” (Id. at p. 396, quoting U.S. v. Jones (565 U.S. 400, 415 

[181 L.Ed.2d 911] conc. opn. of Sotomayor, J. [warrantless attachment of GPS monitor 

to car was a search].) A peace officer searching a probationer’s residence will see all of 

this information and still not violate the probationer’s Fourth Amendment rights. Simply 

because a cell phone may allow access to more of this type of information in one place 

does not give the probationer a greater expectation of privacy in the same type of 

information than he keeps in his home. “[T]he fact that a search of an electronic device 

may uncover comparatively more private information than the search of a person, or a 

personal item like a wallet, does not establish that a warrantless electronic search 

condition of probation is per se unconstitutional.” (People v. Guzman (2018) 

23 Cal.App.5th 53, 65.)

Riley also stated that data stored on cell phones was “qualitatively different” than 

physical records. (Riley, supra, 573 U.S. at p. 395.) Browsing histories could reveal 

private concerns, historic location information could reconstruct a person’s movements 

down to the minute and inside a building, and installed mobile application software “can 

form a revealing montage of the user’s life.” (Id. at p. 396; Carpenter v. U.S. (2018) 

__ U.S. __ [201 L.Ed.2d 507] [police acquisition of wireless carrier’s cell-site records 
30

revealing the past locations of suspect’s cell phone was a search that required a warrant].) 

Additionally, the data stored on cell phones may not be stored on the device itself but 

instead on remote servers. (Riley, supra, 573 U.S. at p. 397.)

We do not dispute these characteristics of cell phone data. What we dispute with 

our sister courts is whether they put a cell phone beyond reach of a warrantless probation 

search of a probationer’s home or person where the cell phone is found. This issue Riley

expressly did not decide. (Riley, supra, 573 U.S. at p. 395, fn. 1.)

We believe these qualitative characteristics do not imbue a probationer’s cell 

phone with greater privacy protection than his home due to the state’s significant interests 

in integrating the probationer and protecting the public and the probationer’s limited 

expectations of privacy. The state already can obtain much of this qualitatively-different 

information from probationers in other ways. For example, unlike with a citizen, the 

state has a strong interest in knowing a probationer’s whereabouts and activities. Thus, 

courts may order a probationer as a condition of probation to be subject to continuous

electronic monitoring by GPS. (§ 1210.7; In re R.V. (2009) 171 Cal.App.4th 239, 247-

248.) Cell phone data that records a probationer’s whereabouts is little different from 

what the state can already lawfully acquire.

Similarly, if a court requires the probationer as a condition of probation to work 

and earn money, it may require the probationer to keep a record of his expenses and 

earnings and report them to the probation officer. (§ 1203.1, subd. (d); People v. Quiroz

(2011) 199 Cal.App.4th 1123, 1129-1130.) Such records would be as detailed, if not 

more so, as the probationer’s bank statements. And third party interests have not been a 

concern in probation or consent searches when the probationer has common or superior 

authority over the area or item being searched. (See People v. Woods, supra, 21 Cal.4th 

at pp. 675-676.) 

Moreover, the risk of disclosing the probationer’s confidential information is little 

different whether police search a phone or a home. Officers searching a probationer’s 
31

cell phone will treat it no differently than they treat private information and items they 

find in a home. Any possible item a probationer could store in a home, be it innocuous or 

embarrassing, benign or incriminating, officers have seen without a warrant and without 

probable cause during a probation search even though the specific item or information is 

not relevant to the search’s purposes. This has caused courts no concern so long as the 

search itself is reasonably related to the purposes of probation. (Robles, supra, 23 Cal.4th 

at p. 797.) 

Moreover, the search of a phone, like a home, will be adequately circumscribed by 

law. Any “concern that California’s suspicionless search system gives officers unbridled 

discretion to conduct searches, thereby inflicting dignitary harms that arouse strong 

resentment in parolees [or probationers] and undermine their ability to reintegrate into 

productive society, is belied by California’s prohibition on ‘arbitrary, capricious or 

harassing’ searches.” (Samson, supra, 547 U.S. at p. 856; Bravo, supra, 43 Cal.3d at 

pp. 610–611.)

To be sure, officers will conduct a thorough search. “[A] consent search [which a 

probation search is in California], to be effective, must be thorough.” (People v. 

Crenshaw (1992) 9 Cal.App.4th 1403, 1415.) “[T]he reasonable understanding of what 

search means . . . is to look for things that the officer suspects may be evidence of a 

crime.” (People v. Williams (1980) 114 Cal.App.3d 67, 73.) “[T]he term ‘search’

implies something more than a superficial, external examination. It entails ‘looking 

through,’ ‘rummaging,’ ‘probing,’ ‘scrutiny,’ and ‘examining internally.’ ” (U.S. v. Snow

(2d Cir. 1995) 44 F.3d 133, 135.)

However, when an officer views a private or confidential item on an electronic 

device that does not further probation’s purposes of enforcing the law and rehabilitating 

the probationer, the officer will simply pay no attention to the item and continue on with 

the search, just as officers do in probation home searches. They will not further disclose, 
32

duplicate, or reveal the irrelevant information. To do so would almost certainly 

constitute capricious or harassing behavior and render the search invalid. 

We thus believe the concerns Riley expressed about searching a citizen’s cell 

phone do not apply to probationers. Their reduced expectations of privacy are 

significant, as they have been convicted of a crime, are on probation in lieu of 

imprisonment, are more likely to reengage in criminal behavior, and the state can already 

obtain from them much of the information a cell phone records. These reduced 

expectations do not outweigh the state’s interest in rehabilitating the probationer, 

protecting the public from harm, and ensuring the success of its penal system. We 

conclude the electronic device search condition is reasonable and does not violate 

defendant’s Fourth Amendment right to privacy.

III

The Privilege Against Self-Incrimination

Defendant next argues the electronic device search condition is void because it 

violates his state and federal constitutional privilege against self-incrimination. 

As the Attorney General points out, defendant did not raise a state constitutional 

self-incrimination claim in the trial court. Defendant’s trial court objection was based 

solely on the Fifth Amendment to the federal Constitution. In addition, defendant’s 

appellate briefs do not analyze his state constitutional claims with citation to supporting 

authority. For those reasons, we do not consider defendant’s state constitutional claim. 

(People v. Wilson (2008) 44 Cal.4th 758, 790, fn. 6; People v. Barnett (1998) 17 Cal.4th 

1044, 1107, fn. 37.)

“The Fifth Amendment, in relevant part, provides that no person ‘shall be 

compelled in any criminal case to be a witness against himself.’ It has long been held 

that this prohibition not only permits a person to refuse to testify against himself at a 

criminal trial in which he is a defendant, but also ‘privileges him not to answer official 
33

questions put to him in any other proceeding, civil or criminal, formal or informal, where 

the answers might incriminate him in future criminal proceedings.’ [Citation.] In all 

such proceedings, [¶] ‘a witness protected by the privilege may rightfully refuse to 

answer unless and until he is protected at least against the use of his compelled answers 

and evidence derived therefrom in any subsequent criminal case in which he is a 

defendant . . . . Absent such protection, if he is nevertheless compelled to answer, his 

answers are inadmissible against him in a later criminal prosecution.’ [Citation.]” 

(Minnesota v. Murphy (1984) 465 U.S. 420, 426 [79 L.Ed.2d 409, 418].)

A probationer retains the protections of the Fifth Amendment privilege against 

self-incrimination. (Minnesota v. Murphy, supra, 465 U.S. at p. 426.) However, 

requiring a probationer to answer questions relevant to his or her probationary status, 

where the answer may result in revocation of probation but does not pose a realistic threat 

of incrimination in a separate criminal proceeding, does not give rise to a Fifth 

Amendment claim. (Id. at p. 435, fn. 7.) “[A] State may validly insist on answers to 

even incriminating questions and hence sensibly administer its probation system, as long 

as it recognizes that the required answers may not be used in a criminal proceeding and 

thus eliminates the threat of incrimination. Under such circumstances, a probationer’s 

‘right to immunity as a result of his compelled testimony would not be at stake,’ 

[citations], and nothing in the Federal Constitution would prevent a State from revoking 

probation for a refusal to answer that violated an express condition of probation or from 

using the probationer’s silence as ‘one of a number of factors to be considered by the 

finder of fact’ in deciding whether other conditions of probation have been violated. 

[Citation.]” (Ibid.)

The electronic device search condition in this case requires defendant to provide 

any and all information necessary to conduct a search of electronic storage devices under 

defendant’s control. While conditioning the grant of probation on a waiver of the Fifth 

Amendment privilege would be unconstitutional (Garcia, supra, 2 Cal.5th at p. 803), the 
34

electronic device search condition here does not require defendant to waive his privilege 

against self-incrimination. Even if the condition requiring defendant to provide 

information necessary to conduct an electronic search constitutes compelled testimonial 

communications, nothing on the face of the probation condition authorizes the use of any 

compelled statements against defendant in a criminal proceeding. Accordingly, the 

electronic device search condition does not violate defendant’s Fifth Amendment rights. 

(Chavez v. Martinez (2003) 538 U.S. 760, 767-769 [155 L.Ed.2d 984, 994-995] 

[compulsive questioning, without more, does not violate the Fifth Amendment; a 

violation of the Fifth Amendment only occurs when compelled statements are used 

against the defendant in a criminal case]; Garcia, supra, 2 Cal.5th at pp. 806-807 [statute 

mandating participation in polygraph examinations as part of sex offender management 

program does not violate the probationer’s Fifth Amendment rights where the 

probationer’s statements could not be used in a subsequent criminal prosecution]; 

Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127, 1134 [the Fifth Amendment 

does not prohibit the government from eliciting self-incriminating disclosures; it only 

bars the use of such disclosures in a criminal proceeding against the person who made 

them]; Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 727 [“Constitutionally 

based prophylactic rules . . . have arisen to protect the core [Fifth Amendment] privilege, 

but the right against self-incrimination is not itself violated until statements obtained by 

compulsion are used in criminal proceedings against the person from whom the 

statements were obtained”].) Because no violation of defendant’s constitutional right has 

been shown, we do not consider defendant’s related overbreadth claim. 
35

IV

The California Electronic Communications Privacy Act

Defendant also argues the electronic device search condition is invalid under the 

California Electronic Communications Privacy Act (ECPA) because he did not give 

specific consent to access his electronic storage devices. 

The ECPA was enacted in 2015 and went into effect on January 1, 2016, before 

defendant was sentenced. (Stats. 2015, ch. 651, § 1.) As relevant here, under the ECPA 

a government entity may not “access electronic device information by means of physical 

interaction or electronic communication with the electronic device,” unless it obtains the 

“specific consent of the authorized possessor of the device.” (Ibid. [§ 1546.1, subds. 

(a)(3), (c)(3)].) The issue here is whether defendant gave specific consent to access data 

on his electronic storage devices within the meaning of section 1546.1, subdivision (c).

Our task in interpreting a statute is to determine the Legislature’s intent so as to 

effectuate the purpose of the statute. (In re C.H. (2011) 53 Cal.4th 94, 100.) We begin 

by examining the words of the statute because they are generally the most reliable 

indicator of legislative intent. (Ibid.) We give the words of the statute their ordinary and 

usual meaning. (Ibid.) If the meaning of the words used in the statute is without 

ambiguity, the statutory language controls. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. 

(1992) 6 Cal.App.4th 1233, 1239.) If the statutory language is ambiguous or subject to 

more than one interpretation, we may resort to extrinsic sources, including the ostensible 

objects to be achieved and the legislative history. (John v. Superior Court (2016) 

63 Cal.4th 91, 96; In re R.V. (2015) 61 Cal.4th 181, 192.) We “ ‘select the construction 

that comports most closely with the Legislature’s apparent intent, with a view to 

promoting rather than defeating the statutes’ general purpose, and to avoid a construction 

that would lead to unreasonable, impractical, or arbitrary results.’ ” (Poole v. Orange 
36

County Fire Authority (2015) 61 Cal.4th 1378, 1385; see People v. Hunt (1999) 

74 Cal.App.4th 939, 945-947.)

The apparent purpose of the ECPA is to restrict government access to “electronic 

device information.” The ECPA authorizes government access to such information by 

means of “physical interaction or electronic communication” with the device upon the 

“specific consent” of the “authorized possessor of the device.” (Stats. 2015, ch. 651, § 1 

[§ 1546.1, subd. (c)(3)].) “ ‘Specific consent’ means consent provided directly to the 

government entity seeking information . . . .” (Stats. 2015, ch. 651, § 1 [§ 1546, subd. 

(k)].)

In accepting probation, defendant expressly consented to subject the electronic 

storage devices under his control to search by any law enforcement or probation officer. 

Defendant waived his rights under the ECPA and “specifically consented to searches of 

his . . . electronic storage devices.” 

Defendant argues he did not give specific consent within the meaning of the 

ECPA because the terms of his probation do not identify any agency to which he was 

giving consent. But neither section 1546 nor 1546.1 states that the party giving consent 

must identify the government entity to which consent is given. (Stats. 2015, ch. 651, § 1 

[§§ 1546, subd. (k), 1546.1, subd. (c)(3)].) 

Defendant also contends he did not give specific consent because he did not 

consent directly to anyone other than the trial judge. We reject that claim. It is 

reasonable to imply from defendant’s consent to electronic device searches by any law 

enforcement or probation officer that defendant provided consent directly to law 

enforcement and probation authorities. The alternative of requiring the People to 

anticipate and name every government entity which may conduct an electronic device 

search pursuant to the probation condition, requiring each government entity to which a 

consent applies to participate in the defendant’s sentencing, or requiring a separate 

consent whenever a government entity seeks to conduct an electronic device search 
37

pursuant to the probation condition, could unnecessarily hamper grants of probation and 

impair the significant government interests served in supervising probationers.

Moreover, we do not glean from the language of sections 1546 and 1546.1—and 

the parties have not provided us with any legislative history materials showing—an intent 

to prohibit electronic device search probation conditions. The ECPA does not mention 

probation. In the absence of any indication that the Legislature intended to affect 

electronic device search conditions imposed as part of the supervision of probationers 

when it enacted the ECPA, we decline to reach such a conclusion. 

After defendant was sentenced, the Legislature amended section 1546.1 to provide 

that a government entity may access electronic device information by means of physical 

interaction or electronic communication with the device “if the device is seized from an 

authorized possessor of the device who is subject to an electronic device search as a clear 

and unambiguous condition of probation . . . .” (Stats. 2016, ch. 541, § 3.5 [§ 1546.1, 

subd. (c)(10), eff. Jan. 1, 2017].) The comments sections of the bill analyses, of which 

defendant asks us to take judicial notice, suggest that section 1546.1, subdivision (c)(10) 

addressed an unintended interpretation of the original statute.7 The amendment further 

indicates no legislative intent that the ECPA would affect electronic device search 

conditions.

V

The E-mail/Internet Account Search

Defendant further argues the e-mail/Internet account search condition violates his 

constitutional right to privacy and privilege against self-incrimination for the same 

reasons the electronic device search condition violates those rights. That search 

 

7 We grant defendant’s unopposed request for judicial notice. (Evid. Code, §§ 452, 

subd. (c), 453, subd. (a), 459.) 
38

condition provides: “Defendant shall disclose all email accounts, all internet accounts 

and any other means of access to any computer or computer network, all passwords and 

access codes. Defendant shall consent to the search of such email and internet accounts 

at any time and for the seizure of any information without a search warrant or probable 

cause.” 

Although he acknowledges he did not object to the e-mail/Internet account search 

condition in the trial court, defendant says he did not forfeit his appellate claims because 

he brings a facial constitutional challenge only. The Attorney General urges that 

defendant forfeited his appellate claims because he challenges the e-mail/Internet account 

search condition as applied to his case and he did not raise such claims in the trial court. 

While he maintains his appellate claims present a facial challenge, defendant 

argues the trial court must specifically tailor the e-mail/Internet account search condition 

to his offenses and personal history, a claim which does not involve pure questions of 

law. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261; People v. Kendrick (2014) 

226 Cal.App.4th 769, 777-778.) In any event, it appears from this record that an 

objection to the e-mail/Internet account search condition on the same grounds raised and 

rejected as to the electronic device search condition would have been an idle act. 

Accordingly, we consider defendant’s claims on the merits. (People v. Abbaszadeh

(2003) 106 Cal.App.4th 642, 648; People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) 

For the reasons we have explained with regard to the electronic device search 

condition, we conclude the e-mail/Internet account search condition does not violate 

defendant’s right to privacy under the Fourth Amendment and the California Constitution 

because it authorizes a reasonable search in light of the government’s prevailing interests 

in protecting the public and rehabilitating defendant when balanced against his 

significantly reduced interest in privacy. We reject defendant’s claim that the email/Internet account search condition violates his Fifth Amendment rights for the 

reasons we have explained regarding the electronic device search condition.
39

VI

Ineffective Assistance of Counsel

Defendant says his trial counsel provided ineffective assistance by failing to object 

that the e-mail/Internet account search condition was invalid under Lent and violated his 

right to privacy and privilege against self-incrimination. 

Because we addressed defendant’s constitutional challenges to the e-mail/Internet 

account search condition, we need not consider his related ineffective assistance of 

counsel claim. We limit our discussion to defendant’s claim that his trial counsel 

rendered ineffective assistance by failing to object to the e-mail/Internet account search 

condition under Lent. 

To establish ineffective assistance of counsel, defendant must prove that his 

(1) trial counsel’s representation was deficient because it fell below an objective standard 

of reasonableness under prevailing professional norms, and (2) the deficiency resulted in 

prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. 

Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an 

insufficient showing on either of those components, his ineffective assistance claim fails. 

(People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington, supra, 466 U.S. at 

p. 687.)

Defendant must affirmatively prove prejudice to establish ineffective assistance. 

(People v. Mickel (2016) 2 Cal.5th 181, 198.) “[T]he record must demonstrate ‘a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury, 

supra, 30 Cal.4th at p. 389.) Defendant must show a reasonable probability of a more 

favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. 

Washington, supra, 466 U.S. at pp. 693-694.)
40

Defendant fails to show a reasonable probability that the trial court would have 

stricken the e-mail/Internet account search condition had defendant’s trial counsel 

objected to the condition under Lent. The trial court rejected the arguments by defense 

counsel that the electronic device search condition should not be imposed, and defendant 

does not convince us the trial court would have ruled differently regarding the email/Internet account search condition. 

VII

The Urinalysis Testing Fee

In addition, defendant claims the urinalysis testing fee imposed by the trial court is 

unauthorized under section 1203.1ab, and even if it is authorized, it cannot be made a 

condition of probation because probation costs are collateral to the offense. 

The probation department recommended a $367.81 main jail booking fee and a 

$67.03 main jail classification fee, among other fees. The recommendation noted that the 

monthly cost of probation supervision was $46 and urinalysis testing was $25 per test. 

The trial court did not impose a main jail booking fee, main jail classification fee, or 

monthly probation supervision fee, but it did impose a urinalysis testing fee. Defendant 

did not object to the urinalysis testing fee. 

Sections 1203.1ab and 1210.1 and Health and Safety Code section 11551 do not 

authorize the trial court’s order. Section 1203.1ab authorizes an order requiring, as a 

condition of probation, a defendant convicted of an offense involving the unlawful 

possession, use, sale or other furnishing of any controlled substance to pay the cost of 

drug and substance abuse testing, under certain circumstances. Section 1210.1 requires 

drug testing as a condition of probation in a case where the defendant was convicted of a 

nonviolent drug possession offense. (§ 1210.1, subd. (a).) Defendant was not convicted 

of a drug-related offense. Moreover, even when it applies, Health and Safety Code 

section 11551, which authorizes periodic drug tests in certain circumstances, does not 
41

authorize an order requiring the probationer to pay the cost of administering the tests. 

(Health & Saf. Code, § 11551, subds. (a), (d).)

The Attorney General argues section 1203.1, subdivision (j) authorized the trial 

court to order defendant to undergo urinalysis testing and to pay for the cost of such 

testing as a means to foster his rehabilitation and ensure public safety. Section 1203.1, 

subdivision (j) provides that a sentencing court may impose reasonable conditions of 

probation “as it may determine 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.” A sentencing court’s exercise of discretion under 

section 1203.1, subdivision (j) must be reasonable. (People v. Beal (1997 ) 

60 Cal.App.4th 84, 86.) As we have explained, a condition of probation will not be held 

invalid unless it has no relationship to the crime of which the defendant was convicted, 

relates to conduct which is not in itself criminal, and is not reasonably related to future 

criminality. (Moran, supra, 1 Cal.5th at p. 403; Lent, supra, 15 Cal.3d at p. 486.) 

Nothing in the record indicates defendant had used illegal drugs or consumed 

alcohol. Although we review the trial court’s order under the deferential abuse of 

discretion standard (Moran, supra, 1 Cal.5th at p. 403), there is simply no support in this 

record for the challenged probation condition. (Cf. People v. Shimek (1988) 

205 Cal.App.3d 340, 342-343 [proper to impose drug testing probation condition on a 

defendant convicted of unlawful cultivation of marijuana because the condition would aid 

in determining whether the defendant was once again using and cultivating marijuana 

unlawfully].) Accordingly, we will modify the probation order to strike the condition 

requiring defendant to pay a $25 urinalysis testing fee. 
42

VIII

The Court Facility Fee

Defendant further argues the order granting probation must be modified to make 

clear that payment of the court facility fee imposed under Government Code section 

70373 is not a condition of probation, and to strike the criminal impact fee imposed 

pursuant to section 1465.7, subdivision (a) as unauthorized. The Attorney General 

agrees. 

We also agree. (§ 1202.4, subd. (e); People v. Kim, (2011) 193 Cal.App.4th 836, 

842-843.) We will modify the order granting probation to clarify that the payment of the 

court facility fee imposed under Government Code section 70373 is not a condition of 

probation but rather a separate order of the court entered at judgment. In addition, we 

will modify the order granting probation to strike the criminal impact fee imposed 

pursuant to section 1465.7, subdivision (a). 
43

DISPOSITION

The order granting probation is modified to strike the following: the condition 

requiring defendant to pay a $25 urinalysis testing fee, and the requirement that defendant 

pay a criminal impact fee pursuant to section 1465.7, subdivision (a). In addition, the 

order granting probation is modified to provide that the court facility fee imposed 

pursuant to Government Code section 70373 is not imposed as a condition of probation, 

but instead is imposed as an order of the trial court entered at judgment. The order 

granting probation is otherwise affirmed. 

 

HULL, Acting P. J.

I concur:

 

HOCH, J.
1

Mauro, J., Concurring and Dissenting.

I fully concur with parts I, III, IV, VI, VII, and VIII of the majority opinion, but

I disagree with parts II and V addressing the electronic device search condition and the email/internet search condition (hereafter the e-search conditions), which the majority 

opinion appears to analyze in the same manner. Although the majority opinion disagrees 

with the test applied in some other published opinions, I would reach the same result 

regardless of the test. Whether the appropriate test is the “closely tailored” test or the 

“reasonableness” test (see the majority opinion at part IIA), I would remand the matter to 

the trial court to craft more closely tailored, or more reasonable, e-search conditions.

Given the current state of technology, I disagree with the majority that the 

intrusion imposed by the e-search conditions “is little different from the condition 

authorizing warrantless searches of defendant’s residence.” (Maj. opn. ante, at p. 26) 

Unless the e-search conditions are limited in some way, they authorize a potentially far 

greater intrusion than the search of a residence. Several years ago, in Riley v. California

(2014) 573 U.S. 373 [189 L.Ed.2d 430] (Riley), the United States Supreme Court 

described the capability of modern mobile devices. (Id. at p. 394.) Since then, electronic 

devices have become even more powerful and capable. An unlimited authorization to 

search electronic devices implicates privacy concerns far beyond the inspection of an 

individual’s pockets or even the most exhaustive search of a house (see id. at pp. 392-

397) because modern electronic devices can perform a myriad of functions and can 

access significant amounts of private information.

Certainly, mobile devices can be used as telephones, calendars, address books, 

diaries, note pads, cameras, video players, tape recorders, albums, maps, and web 

browsers. (Riley, supra, 573 U.S. at p. 393.) They can also reveal a person's private 

interests or concerns and other details of life. (Id. at pp. 395-396.) The “apps” on a 

person's cell phone can disclose his or her medical, political, legal, financial, sexual, 
2

religious and other private interests or concerns. (Ibid.) They can support sobriety, 

arrange intimate relationships, and track health condition and care, including menstrual 

cycles, blood pressure, pregnancy, diabetes, and medications. Because electronic devices 

can contain and reveal so much information, they now hold “ ‘the privacies of life.’ ” 

(Id. at p. 403.)

But the reach of online access is now so extensive and pervasive that the 

challenged e-search conditions may also permit intrusion into the privacy of those who 

are not on probation, did not consent to have their private information viewed, and may 

have no idea their information is being viewed. Modern devices have the capability to 

determine the location of family members and friends. They can also be used to access 

the social media postings of others, even when those other individuals have attempted to 

limit access to their content through appropriate privacy settings. In addition, with the 

passwords that the e-search conditions require defendant to divulge, defendant’s 

electronic devices may permit access to numerous confidential family member accounts 

and records. I am unaware of any case holding that when an individual consents to 

probation, officers may observe the location of the probationer’s family members and 

friends throughout the country, and may also view, without a warrant, confidential family 

records and account information held by employers, financial institutions, health plans, 

hospitals, doctors, retirement plans, retailers, schools, media outlets, transportation 

providers, restaurants and food delivery services, entertainment and streaming businesses, 

cloud storage providers, associations, and political organizations. Yet all of that 

information may be available through a single mobile device.

The state certainly has interests in reducing recidivism, apprehending violators of 

the criminal law, and helping probationers integrate back into the community. It is also 

true that probationers have reduced privacy interests. Nevertheless, persons on probation 

subject to search conditions retain some residual expectation of privacy. (In re Jaime P.
3

(2006) 40 Cal.4th 128, 136-137; see also United States v. Lara (9th Cir. 2016) 815 F.3d 

605, 611-612.)

Here, I would conclude the unlimited e-search conditions challenged in this case 

are overbroad and unreasonable. The interest in controlling future identity theft, while 

significant, is simply not addressed by search conditions that could be used to review a 

genealogy report or a child’s school records. I understand the concern that if a search 

authorization is expressly limited, the probationer may move criminal activities to the 

protected location. But that is a concern with any search limitation, and it is not a 

sufficient basis under the law to permit unfettered search authorization.

_________________________

Mauro, J.