Monday, October 24, 2016

The Guilty Plea, “Unlawful Sexual Intercourse with a Minor” and Constitutional Overbreadth

This post examines a recent opinion from the Court of Appeal– Fourth District, California: People v. Nachbar, 2016 WL 5799785 (2016). The opinion begins by explaining that
Steven Nachbar pleaded guilty to one count of unlawful sexual intercourse with a minor more than three years younger (California Penal Code § 261.5(c)).  The court placed him on formal probation and required him to register as a sex offender. Defendant now challenges four of the conditions to his probation: that he (1) not have photographic equipment; (2) not have toys, video games, or similar items that attract children; (3) obtain approval of his residence from his probation officer; and (4) submit to warrantless and suspicionless searches of his computers and recordable media. 
People v. Nachbar, supra.
The Court of Appeals began its analysis by noting that Nachbar “forfeited his challenges to the conditions regarding toys and residence approval because he did not object to them in the trial court.” People v. Nachbar, supra.  In other words, the court would not consider those issues because Nachbar did not object to them when the court imposed those conditions as part of his probation. This post only examines the fourth probation condition, e.g., that Nachbar “submit to warrantless and suspicionless searches of his computers and recordable media.” People v. Nachbar, supra.
As courts usually do, the Court of Appeal begin its analysis of the issue by explaining how, and why, Nachbar was placed on probation:
In April 2014, when defendant was 22 years old, he was placed on summary probation for having unlawful sexual intercourse with a minor, a 17–year–old girl. While on probation for that offense, defendant met the victim in this case, a 15–year–old girl. They met through a mutual friend, became friends on Facebook, and exchanged text messages. Several of defendant's text messages were sexually explicit and indicated he wanted to have sex with the victim. Some of the victim's responses were `OMG,’ `LOL,’ and that defendant was too old for her.

The victim's parents are divorced and live down the street from each other. On September 14, 2014, the victim told her father she would be staying at her mother's house that night. Her mother was out of town. The victim and defendant arranged to meet at the mother's house, but she told him he could not stay too long because it was a school night. Defendant arrived around 8:00 p.m. and they tried to watch a movie in the victim's bedroom on her cell phone. When they were unable to do so, the victim asked defendant to leave. Defendant said he wanted to cuddle, but the victim asked him to come back another time.

Instead of leaving, defendant grabbed the victim's breasts; she asked him to stop. Defendant moved his hands toward the victim's pants; she attempted to push his hands away. Defendant removed the victim's shirt and fondled her breasts. He reached underneath the victim's pants and underwear and digitally penetrated her vagina several times; she continued to tell defendant to stop. Defendant removed the victim's pants and underwear, got on top of her, and penetrated her vagina with his penis. The victim asked defendant to stop and was eventually able to push him off of her. She asked defendant to leave, and he exited her bedroom. The victim believed defendant had left the house.

The victim put on her clothes and informed a friend by text message that defendant had just raped her. The friend notified the victim's father, who notified law enforcement. When the victim left her bedroom, she saw defendant sleeping on the couch. When sheriff's deputies arrived, they found the victim crying on the driveway and defendant asleep on the couch.
People v. Nachbar, supra.
The opinion then explains that
[d]eputies woke, arrested, and admonished defendant. He initially denied having any sexual contact with the victim, stating he knew it would be wrong because she was only 15 years old. However, during transport, defendant admitted he digitally penetrated the victim's vagina and had sexual intercourse with her. He denied the victim ever told him `no.’ Defendant said he was `”coming down”’ from having smoked methamphetamine before meeting with the victim.
People v. Nachbar, supra.
Finally, the Court of Appeal outlined the charges that were subsequently brought against Nachbar, the disposition on those charges and the sentence imposed on him:
Defendant was charged in a four-count felony complaint with forcible rape (California Penal Code § 261, subd. (a)(2)); sexual penetration using force (California Penal Code § 289, subd. (a)(1)(A)); unlawful sexual intercourse with a minor more than three years younger (California Penal Code § 261.5(c)) and penetration by a foreign object (California Penal Code § 289, subd. (i)). Pursuant to a plea agreement, defendant pleaded guilty to the unlawful sexual intercourse count and the remaining counts were dismissed.

The probation officer's presentencing report assessed defendant as having a moderate to high risk of committing another sexual offense if released on probation, but stated that his chances of success would likely improve if he were `managed on formal probation with intensive monitoring and case planning. . . .’

The trial court sentenced defendant to 381 days in custody (which was set off by custody credits) and placed him on formal probation for three years. As relevant, the conditions of defendant's probation provide that he (1) not have photographic equipment; (2) not have toys, video games, or similar items that attract children; (3) obtain approval of his residence from his probation officer; and (4) submit to warrantless and suspicionless searches of his computers and recordable media.
People v. Nachbar, supra.
Finally, the opinion explains that the trial court judge
also exercised its discretion to require that defendant register as a sex offender. The court explained that although it understood the Act required that defendant register for life, and that the court thought requiring registration for `10 years or something like that would be appropriate,’ the court nonetheless required that defendant register because of how quickly he reoffended after his prior offense. Both the order granting formal probation and the judgment state defendant is to `[r]egister per . . . [California Penal Code § 290.’
People v. Nachbar, supra.
The Court of Appeal then took up the fourth probation condition imposed on Nachbar, e.g., that he Nachbar “submit to warrantless and suspicionless searches of his computers and recordable media.”  People v. Nachbar, supra.  It began by addressing the “applicable legal principles and standard of review”, as is outlined below.  People v. Nachbar, supra. 
`Following a defendant's conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” [Citation.] A grant of probation is “qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither `punishment’ [citation] nor a criminal `judgment’ [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].”’ (People v. Moran (California Court of Appeal 5th District 2016) 1 Cal.5th 398, 402, 205 Cal.Rptr.3d 491, 376 P.3d 617 (Moran).) Accordingly, `a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release.’ (Ibid.) `Stated differently, ‘[p]robation is not a right, but a privilege.’” (Ibid.)

Consequently, a sentencing court may impose conditions to further the rehabilitative and protective purposes of probation. (Moran, supra, 1 Cal.5th at pp. 402–403, 205 Cal.Rptr.3d 491, 376 P.3d 617.) Under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent), `”[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .”’ (People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1, quoting Lent at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) `This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.’ (Olguin, at p. 379, 87 Cal.Rptr.3d 199, 198 P.3d 1; Moran, at p. 403, 205 Cal.Rptr.3d 491, 376 P.3d 617.)
People v. Nachbar, supra.
The opinion went on to explain that 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 constitutionally overbroad.’ [Citation.] ‘The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.’ (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346, 159 Cal.Rptr.3d 335.)

`As a general rule, failure to challenge a probation condition on constitutional or Lent grounds in the trial court waives the claim on appeal.” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033, 100 Cal.Rptr.2d 218; People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802 (Welch); In re Sheena K. (2007) 40 Cal.4th 875, 889, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

We generally review the imposition of probation conditions for an abuse of discretion, and constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723, 199 Cal.Rptr.3d 637 (Appleton)).
People v. Nachbar, supra.
The Court of Appeal then began its analysis of Nachbar’s challenge to the probation condition that required him to submit his computers and “recordable media” to “suspicionless searches” by law enforcement personnel.  People v. Nachbar, supra.   More precisely, it began by noting that Nachbar argued that the “the probation condition that requires him to submit his computers and recordable media to suspicionless searches is unconstitutionally overbroad.”  People v. Nachbar, supra.
The opinion goes on to explain that to
support his position, defendant cites the Sixth District Court of Appeal's recent decision in Appleton, supra, 245 Cal.App.4th 717, 199 Cal.Rptr.3d 637. The defendant in that case pleaded guilty to false imprisonment by means of deceit as part of a plea bargain after initially being charged with oral copulation with a minor, whom he had met via a social media smartphone application. (Id. at pp. 719–720, 199 Cal.Rptr.3d 637.) The defendant was placed on probation, one of the conditions of which provided that the defendant's electronic devices `shall be subject to forensic analysis search for material prohibited by law.’ (Id. at p. 721, 199 Cal.Rptr.3d 637.) The defendant appealed this condition on Lent and constitutional grounds. (Id. at pp. 721–722, 199 Cal.Rptr.3d 637.)

The Court of Appeal found the electronics-search condition did `not run afoul of the first Lent factor requiring ‘no relationship to the crime’ (Appleton, supra, 245 Cal.App.4th at p. 724, 199 Cal.Rptr.3d 637), but concluded the condition was unconstitutionally overbroad (id. at pp. 725–727, 199 Cal.Rptr.3d 637). The court reasoned the condition `would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential future criminality’ (id. at p. 727, 199 Cal.Rptr.3d 637), such as his `medical records, financial records, personal diaries, and intimate correspondence with family and friends’ (id. at p. 725, 199 Cal.Rptr.3d 637). In reaching this conclusion, the Appleton court relied on the Supreme Court's rationale in Riley v. California (2014) 134 S.Ct. 247 (Riley), which held that a warrantless search of a suspect's cell phone incident to arrest implicated and violated his Fourth Amendment rights. (Riley, at p. 2493.) The Supreme Court emphasized the wealth of information contained in modern cell phones. (Id. at pp. 2489–2490.) The Appleton court struck the probation condition and remanded for the trial court to fashion one more narrowly tailored. (Appleton, at pp. 728–729, 199 Cal.Rptr.3d 637.)
People v. Nachbar, supra.
The opinion went on to explain that,
[m]ore recently, in In re J.E. (2016) 1 Cal.App.5th 795, 205 Cal.Rptr.3d 28, our colleagues in the Court of Appeal for the First District, Division Four, concluded the Riley court's privacy concerns in the context of a search incident to arrest are inapposite in the context of determining the constitutional reasonableness of probation conditions allowing searches of electronic devices. (In re J.E., at pp. 803–804, 205 Cal.Rptr.3d 28.) As the In re J.E. court explained, unlike the defendant in Riley `who at the time of the search had not been convicted of a crime and was still protected by the presumption of innocence,’ a probationer does not enjoy  ‘“the absolute liberty to which every citizen is entitled.’” (In re J.E., at p. 804, 205 Cal.Rptr.3d 28.) That is, “ ‘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.’ ” (Ibid. quoting United States v. Knights (2001) 534 U.S. 112, 119).

The court recognized that although electronics may be a `”bottomless pit”’ of personal information, `courts have historically allowed . . . probation officers significant access to other types of searches, including home searches, where a large amount of personal information—from medical prescriptions, banking information, and mortgage documents to love letters, photographs, or even a private note on the refrigerator—could presumably be found and read.’ (Id. at p. 804, fn. 6, 205 Cal.Rptr.3d 28.) The court noted the absence of evidence in the record indicating the probationer's electronics contained any of these types of sensitive information. (Ibid.) The court further noted that the Supreme Court in Riley clarified that although cell phone data is subject to Fourth Amendment protection, it is not `”immune from search.”’ (In re J.E., at p. 804, 205 Cal.Rptr.3d 28, quoting Riley, supra, 134 S.Ct. at p. 2493.) The In re J.E. court thus concluded that although the probationer's right to privacy was implicated by the electronics search condition, the right was not violated under the circumstances. (Id. at p. 805.)
People v. Nachbar, supra (emphases in the original).
The Court of Appeal therefore found the court’s decision in In re J.E.
persuasive. As a defendant who has pleaded guilty to a felony and accepted probation in lieu of additional punishment, defendant has a diminished expectation of privacy as compared to law-abiding citizens or those subject to searches incident to arrest. Thus, we conclude the privacy concerns voiced in Riley are inapposite in the context of evaluating the reasonableness of a probation condition.

We further conclude the probation condition is suitably tailored in light of the substantial protective and rehabilitative concerns demonstrated by the record. The condition is related to defendant's crime because he communicated with his victim via social media, sent her sexually explicit text messages, and intended to watch a movie with her on a mobile device on the date of the offense.5 Defendant reoffended with a younger victim within a matter of mere months, while already on probation. His psychological evaluation revealed he is sexually attracted to adolescents and `has some emotional difficulties and anxieties regarding interpersonal relationships that place him at a higher risk for engaging in sexual acts with younger persons.’ And the probation officer reported defendant had a moderate to high risk of reoffending if released on probation, and his chances of success would likely improve if he were `intensive[ly] monitor[ed].’ Under these circumstances, we conclude the probation condition allowing searches of defendant's computers and recordable media is reasonable.
People v. Nachbar, supra.
The Court of Appeal therefore affirmed the judgment of the lower court. People v. Nachbar, supra.


Friday, October 21, 2016

“Possession of Unauthorized Access Devices,” Aiding and Abetting and the “Search”

This post examines a recent opinion from the U.S. Court of Appeals for the 5th Circuit:  U.S. v. Turner, 2016 WL 5947247 (2016). As courts usually do, the court begins by explaining how, and why, the prosecution arose:
Courtland Turner was riding in a car driven by Roderick Henderson that was pulled over for lacking a visible license plate light. Henderson failed to show the officer a valid driver's license, providing him instead with a Texas identification card. Turner likewise provided the officer with an identification card.

The officer retreated to his patrol car to conduct a records check and verify Turner's and Henderson's identities. In doing so, he discovered that Turner had an active arrest warrant for possession of marijuana. As a result, the officer asked Turner to exit the vehicle; he complied. As Turner exited the vehicle, the officer observed an opaque plastic bag partially protruding from the front passenger seat. It appeared to the officer that someone attempted to conceal the bag by pushing it under the seat.

After placing Turner in the patrol car while dispatch confirmed the warrant, the officer asked Henderson what was inside the bag. Henderson handed the officer the bag and said that `we’—apparently referring to Turner and himself—purchased gift cards. The officer opened the bag and saw approximately 100 gift cards. He then asked Henderson whether he had any receipts for the gift cards. Henderson responded that he did not and that `we’ bought the gift cards from another individual who sells them to make money.

After conferring with other officers about past experiences with stolen gift cards, the officer seized the gift cards as evidence of suspected criminal activity. Henderson was ticketed for failing to display a driver's license and signed an inventory sheet that had an entry for 143 gift cards. Turner was arrested pursuant to his warrant.

The officer, without obtaining a search warrant, swiped the gift cards with his in-car computer. Unable to make use of the information shown, the officer turned the gift cards over to the Secret Service. A subsequent scan of the gift cards revealed that at least forty-three were altered, meaning the numbers encoded in the card did not match the numbers printed on the card. The investigating officer also contacted the stores where the gift cards were purchased—a grocery store and a Walmart in Bryan, Texas. The stores provided photos of Henderson and Turner purchasing gift cards.
U.S. v. Turner, supra.
The opinion goes on to explain that
Turner was charged with aiding and abetting the possession of unauthorized access devices. He moved to suppress evidence of the gift cards, challenging both the roadside seizure of the cards and the subsequent examination of the magnetic stripes. The district court denied Turner's motion, finding that, although Turner had standing to seek suppression, there was no constitutional violation because (1) Henderson provided consent for the seizure of the gift cards and (2) the later examination of the cards did not constitute a search. Turner entered a conditional guilty plea, reserving his right to appeal the suppression ruling.
 U.S. v. Turner, supra.
The Court of Appeals prefaced its analysis of the issues in the appeal by explaining that
`When examining a district court's ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error.’ U.S. v. Hearn, 563 F.3d 95, 101 (5th Circuit  2009). We view the evidence in the light most favorable to the prevailing party, U.S. v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002), and may `affirm the district court's ruling ... based on any rationale supported by the record.’ United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
As the party seeking suppression, Turner `has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.’ U.S. v. Smith, 978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133–34 (1978)). That burden includes establishing standing to contest the evidence, U.S. v. Iraheta, 764 F.3d 455, 460–61 (5th Cir. 2014), and showing that the challenged government conduct constitutes a Fourth Amendment search or seizure. U.S. v. Smith, supra.
U.S. v. Turner, supra.
The Court of Appeals then began its analysis of the issues in the case by explaining that
[w]e agree with the district court that Turner may challenge the seizure of the gift cards. He jointly possessed the cards with Henderson, and the bag containing them was found underneath where he was sitting. See U.S. v. Iraheta, supra (explaining that passengers of a vehicle have standing to challenge seizure of their luggage); U.S. v. Miller, 608 F.2d 1089, 1101 (5th Cir. 1979) (treating a plastic portfolio as personal luggage subject to Fourth Amendment search requirements).
Turner agrees that by handing the bag to the officer in response to his question about its contents, Henderson consented to the officer's initial seizure of, and look inside, the bag. But he disagrees with the district court's conclusion that Henderson's consent extended to the officer's taking permanent possession of the gift cards. We need not resolve this dispute over the scope of Henderson's consent, because we find another lawful basis for the seizure of the gift cards.
U.S. v. Turner, supra.
The opinion went on to explain that the
taking of physical items like gift cards is a seizure that requires either a warrant or some other justification that renders such an intrusion reasonable under the Fourth Amendment. See U.S. v. Paige, 136 F.3d 1012, 1022 (5th Cir. 1998). One situation in which a warrant may not be required occurs when police `seize evidence in plain view.’ Arizona v. Hicks, 480 U.S. 321, 326 (1987) (emphasis omitted) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)). For a plain-view seizure to be lawful, the officer must have had lawful authority to be in the location from which he viewed the evidence, and the incriminating nature of the item must be `immediately apparent.’ Horton v. California, 496 U.S. 128, 136 (1990) (quoting Coolidge v. New Hampshire, supra). As the officer obviously had authority to be standing on the side of the road when he observed the gift cards (the lawful authority requirement typically arises when the police observe the item while inside a home), Turner contests only whether it was immediately apparent that the cards were instrumentalities of a crime.
U.S. v. Turner, supra.
The Court of Appeals then explained that the
`[t]he incriminating nature of an item is immediately apparent if the officers have probable cause to believe that the item is either evidence of a crime or contraband.’ U.S. v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1996). To have probable cause, `it is not necessary that the officer know that the discovered res is contraband or evidence of a crime, but only that there be “a “practical, nontechnical” probability that incriminating evidence is involved.”’ U.S. v. Espinoza, 826 F.2d 317, 319 (5th Cir. 1987) (quoting Texas v. Brown, 460 U.S. 730, 742–43 (1983)). When reviewing probable cause determinations, we `consider the totality of the circumstances—including the officers' training and experience as well as their knowledge of the situation at hand.’ U.S. v. Buchanan, supra.
U.S. v. Turner, supra.
The Court of Appeals then began its analysis of the issue in this case, explaining that the
circumstances here were as follows: the plastic bag contained approximately 100 gift cards and appeared to have been concealed under the front passenger seat. Henderson admitted not having receipts for the gift cards and further stated that he and Turner purchased the gift cards from an individual who sells them for a profit. The officer, upon learning this, conferred with other officers who had experience with large numbers of gift cards being associated with drug dealing, fraud, and theft. We conclude that these facts support probable cause to believe the gift cards were contraband or evidence of a crime. See U.S. v. Watson, 273 F.3d 599, 602 (5th Cir. 2001) (describing probable cause as a `fair probability’ that a crime occurred, which is `more than a “bare suspicion” but less than a preponderance of the evidence’ (quoting U.S. v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999))).

Turner counters that a finding of probable cause is at odds with the officer's view that during the stop there was insufficient evidence to arrest Henderson for a gift card crime. This does not control our inquiry for a couple reasons. The existence of probable cause is an objective one that does not turn on the subjective beliefs of an officer. And even if the officer's view was a reasonable assessment of the evidence, he could seize the gift cards so long as there was probable cause to believe they were evidence of a crime, even if that crime could not yet be tied to a particular suspect.
U.S. v. Turner, supra.
The Court of Appeals then explained that
[h]aving concluded that the gift cards were lawfully seized, we must decide whether it was lawful for law enforcement to scan the magnetic stripes on the cards to see the information encoded therein.
U.S. v. Turner, supra.
The opinion then goes on to explain that
[o]nce seized, most items do not give rise to a separate Fourth Amendment search inquiry. Think of a firearm or a marijuana plant. The evidentiary value of those items is the object itself, so seizing them is all law enforcement needs to do. Some items, however, conceal other items. Even when law enforcement lawfully seizes a suitcase, for example, it still needs a warrant (or some other recognized justification) to open it. U.S. v. Place, 462 U.S. 696, 699–700 (1983). That is because, in addition to the Fourth Amendment possessory interest a person has in a suitcase, there is an additional Fourth Amendment privacy interest in its contents.
When it comes to technology that allows law enforcement to obtain information embedded in an item, it can be more difficult to determine whether there is a separate privacy interest located within an item that already enjoys constitutional protection from unlawful seizure. Such a privacy interest exists in the electronic contents of computers and cell phones. See Riley v. California, 134 S.Ct. 2473 (2014). Yet, other applications of technology that reveal information not visible to the naked eye—for example, using a special light to detect ultraviolet ink on currency or examining the metadata located within an electronic image already in the lawful possession of the government—have not been thought to constitute a search. See U.S. v. Post, 997 F. Supp.2d 602, 606 (S.D. Tex. 2014); U.S. v. Medina, 2009 WL 3669636, at *10 (U.S. District Court for the Southern District of Florida Oct. 24, 2009), report and recommendation adopted in part, rejected in part sub nom. United States v. Duarte, No. 09–20717–CR, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009). What about the information encoded in the magnetic stripe on the back of gift cards?
U.S. v. Turner, supra.
The court went on to explain that a
Fourth Amendment privacy interest is infringed when the government physically intrudes on a constitutionally protected area or when the government violates a person's `reasonable expectation of privacy.’ U.S.v. Jones, 132 S.Ct. 945, 949–50, (2012). Although technology can sometimes involve the former, see id. at 949 (finding that placement of a GPS tracking device on a car amounted to an unlawful trespass), it more often involves the latter. Indeed, the “reasonable expectation of privacy” approach arose from wiretapping. See Katz v. U.S., 389 U.S. 347 (1967).
U.S. v. Turner, supra.
Turner argues that scanning the gift cards amounted to a search under the `reasonable expectation of privacy’ inquiry. That requires `first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”’ Katz v. U.S., supra (Harlan, J., concurring). The reasonableness of an expectation of privacy turns on our `societal understanding’ about what deserves `protection from government invasion.’ 978 F.2d at 177 (quoting Oliverv. U.S., 466 U.S. 170, 178 (1984)). Analogizing to the cell phones the Supreme Court discussed in Riley, Turner contends that society recognizes as reasonable an expectation of privacy in a gift card's magnetic stripe because it is an electronic storage device that contains personal information.
U.S. v. Turner, supra. 
At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search. One such court has explained that the typical magnetic stripe has `three data strips which hold only 79 alphanumeric characters, 40 numeric characters, and 107 numeric characters, respectively.’ See U.S. v. Bah, 794 F.3d 617, 633 (U.S. Court of Appeals for the 6th Circuit Court of Appeals 2015). For credit cards, most of which have more information than a gift card, that limited space usually contains the `account number, a bank identification number, the card's expiration date, a three digit “CSC” code, and, at times, the cardholder's first and last name.’ U.S. v. Bah, supra. Of course, it is the issuing institution, not card users, that initially codes and stores this information on the magnetic stripe. See U.S. v. Alabi, 943 F.Supp.2d 1201, 1279 (U.S. District Court for the District of New Mexico 2013). Users do have the ability to re-encode the cards, but need an uncommon device to do so. See U.S. v. Alabi, supra. The time and expense it takes to purchase and use a re-encoding device to change at most a few lines of characters means it will rarely be worth doing for a lawful purpose. U.S. v. Alabi, supra; U.S. v. Bah, supra. U.S. v. DE L'Isle, 825 F.3d 426, 432–33 (U.S. Court of Appeals for the 8th Circuit 2016). The incentive to re-encode exists, however, when a fraudster changes the account number encoded in a gift card to match one with a higher balance than the card he purchased or counterfeited. See U.S. v. Alabi, supra.
U.S. v. Turner, supra.
The Court of Appeals explained that a
number of these features lead us to conclude that there is no reasonable expectation of privacy in the magnetic stripe of a gift card. For starters, the few lines of characters encoded in a gift card are infinitesimally smaller than the `immense storage capacity’ of cell phones or computers. Riley v. California, supra. The Supreme Court described that capacity as `[o]ne of the most notable distinguishing features of modern cell phones’ that had `several interrelated consequences for privacy,’ including that `a cell phone collects 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.’ Riley v. California, supra.  
Even more important is that the vast gulf in storage capacity between gift cards and cell phones reflects their different purposes. A primary purpose of modern cell phones, and certainly of computers, is to store personal information. See Riley v. California, supra.  The purpose of a gift card is to buy something. See See U.S. v. Alabi, supra. The issuer of a gift card places the information on it, which can only be altered using a device that few Americans know about and even fewer own. As one court has put it, `[r]ather than using credit and debit cards to manipulate and store the data contained in the cards' magnetic strips, individuals and society put to use the magnetic strips by using the data that the issuer encoded on them . . . to facilitate a financial transaction and purchase goods and services.’ See U.S. v. Alabi, supra. . . .
U.S. v. Turner, supra.
The opinion concludes with these observations:
The technology of today will not, however, be the technology of tomorrow. The Supreme Court has noted the need to take account of rapidly evolving capabilities when applying the Fourth Amendment to other Information Age technologies. See Kyllo v. U.S., 533 U.S. 27, 33–34 (2001) (“`t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.... The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy’). . . .
As other courts deciding this issue have, we thus limit our holding to the gift cards of today, which are not intended to be used for—and rarely are used for—storing information entered by the user. See U.S. v. Bah, supra (`Our holding today is limited in scope ... we do not address hypothetical magnetic strips of the future that may have greater storage capacity and tend to store more private information’). . . . And even with the gift cards of today, law enforcement can view the encoded information only after coming into lawful possession of the cards.
U.S. v. Turner, supra.

The Court of Appeals therefore affirmed the U.S. District Court Judge’s denial of Turner’s motion to suppress. U.S. v. Turner, supra.

Wednesday, October 19, 2016

The Juvenile, the Criminal Threat and the Emojis

This post examines a 2015 decision from the California Court of Appeal – First District: In re L.F., 2015 WL 3500616.  As Wikipedia explains, in
jurisprudencein re: is used to indicate that a judicial proceeding may not have formally designated adverse parties or is otherwise uncontested. The term is commonly used in case citations of probate and  bankruptcy proceedings. . . . It is sometimes used for consolidated cases, as with In re Marriage Cases. It was adopted by certain U.S. states like California when they adopted no-fault divorce to reflect the fact that the modern proceeding for dissolution of marriage was being taken out of the adversarial system. It is also used in juvenile courts, as, for instance, In re Gault.
Getting back to the opinion this post examines, the Court of Appeal begins by explaining that
Minor L.F. appeals after the juvenile court sustained a wardship petition alleging she committed a criminal threat. (Penal Code, § 422; Welfare & Institutions Code § 602.) On appeal, Minor contends the juvenile court: (1) erred in finding she violated section 422, (2) erred in overruling her demurrer, (3) abused its discretion by not reducing the violation to a misdemeanor, (4) improperly failed to include a scienter requirement in a probation condition, and (5) improperly failed to inform her of the duration of her probation. 
In re L.F., supra.
The Court of Appeal then went on to explain how, and why, the case arose:
Thomas F.'s two daughters attended Fairfield High School (FHS). One evening in May 2014, one of his daughters told him she did not want to go to school after reading on Twitter that `somebody was going to shoot up the school the following morning.’ The person `tweeting’ was Minor, another FHS student. Thomas F. looked at the `tweets’ on his daughter's phone and then found the Twitter account on his own phone. Although he was not one of Minor's `followers,’ Thomas F. was able to view the account by searching for her username.

The tweets in question were made over the course of approximately three hours. Among Minor's tweets were the following: `If I get a gun it's fact I'm spraying [five laughing emojis] everybody better duck or get wet’; `I'm dead ass [three laughing emojis] not scared to go to jail for shooting up FHS warning everybody duck’; `Nigga we ain't fighting I'm bringing a gun [six laughing emojis]’; `Mfs don't really kno me [two laughing emojis] I have touched a gun pointed one don't [. . .] Bitch I kno how to aim’; `Mfs tripping boii [three laughing emojis] I'm frfr black mask yellow tape homicide niggas better he cool’; `Ain't nobody safe [‘100’ emoji]’; `I'm finnah come to FHS like black opps stabbing niggas! Who really with it?’; `I feel sorry for whoever got c wing 1st period [four laughing emojis]’; `@[username] idk when shit go down prolly the next day’; `I hope ms Sheila run c wing that day’; `Oh yeah all my friends have c wing so d wing’; `And wtf lol tf you getting popped first fr try me [laughing emoji]’; `It's funny cause nobody fighting no more sooooo!! I'm just shootin niggas for fun’; `Mfs wanna test me now [three clapping hands emojis] you crazy I'm crazy too let's die shooting’; `I'm leaving school early and going to get my cousin gun now [three laughing emojis and two clapping hands emojis]’; `Y'all gonna make me go to jail before I step foot on campus [laughing emoji]’; `I really wanna a challenge shooting at running kids not fun [laughing emoji]’; `Ok I'm done and if I get called in by the FBI or something bout shooting up a school you Mfs really gonna get shot’; and `Kill or be killed!!’ Thomas F. also testified that he saw a response on Minor's account in which someone offered to sell her a gun.
In re L.F., supra.
The opinion goes on to explain that
[s]ome of Minor's tweets include laughing emojis and statements like `just kidding.’ For example, Minor tweeted: `Lmao I'm really jk tho [three laughing emojis] don't jump him and it's g frfr [‘100’ emoji] or ima really come spraying’; `Do y'all really think I'm that crazy it's a compliment’; `I love my life [laughing emoji].’ Minor's Twitter account showed that some Twitter users who responded to her tweets did so in a joking manner. For example, one user, `@[username]’ tweeted to Minor `o you crazy [laughing emoji, devil emoji].’

Thomas F. grew concerned about the number and nature of the tweets and called the police. He was concerned for his daughters' safety, and neither of them attended school the next day.

A police officer arrived at Thomas F.'s house, and he showed the officer the tweets. The officer reviewed and took pictures of the tweets, spoke to Thomas F. and his daughter, and determined Minor's name and address. Thomas F. told the officer he was concerned about his children's safety and feared sending them to school the next day.

The officer went to Minor's home, placed her in handcuffs, and read her her constitutional rights. Minor said that she did not mean the statements she had made on Twitter and that they were a joke. She was unable to explain why she made the statements. She told the officer she was not angry. Minor and her mother told the officer there were no weapons in the house.
In re L.F., supra.
The Court of Appeal then explained that on the
same evening, Dr. William Cushman, a vice principal of FHS, received a text message from a former student informing him of tweets indicating that someone was going to shoot up the school. Dr. Cushman asked for screen shots of the tweets. Dr. Cushman saw tweets that made specific references to parts of the school, C-wing and D-wing, and specific people. Dr. Cushman felt `[s]cared and nervous’ because as the person in charge of the lockdown protocol in an emergency, he would have to `go out and clear the hallways and make sure people leave the rooms,’ and he would be in `as much danger as anybody else.’

Dr. Cushman contacted the school resource officer and the principal, and sent out a mass text to school faculty and staff about the issue. The following morning, Dr. Cushman decided to concentrate resources on C-wing. He sent a campus-wide email to the school's staff saying there had been a specific threat to C-wing and directed Bell, who had been specifically mentioned in the tweets, to remain in the office.
In re L.F., supra.
Next, the opinion explains that an
intern at the district attorney's office testified that although she was not one of Minor's Twitter followers, she was able to look up Minor's Twitter account by searching for her username. Minor had about 500 followers. It was possible to create a private Twitter account that could be viewed only with permission, but Minor's account was not private.

Minor's best friend testified that she had read the tweets and did not take them seriously, and that the use of laughing emojis in the tweets indicated that Minor was joking. Minor's sister also testified that when she saw the tweets, she thought they were a joke due to the use of laughing and smiling emojis and the terms for `just kidding’ and `laugh out loud.’ She had never known Minor to be violent or threaten others. No one in the family owned a gun, and Minor did not have access to a gun.
In re L.F., supra.
The next development was that the
district attorney filed a juvenile wardship petition alleging Minor had made felony criminal threats against `FAIRFIELD HIGH SCHOOL STUDENTS AND STAFF.’ (§ 422.) Minor demurred on the ground the petition failed to state a public offense, and the court overruled the demurrer.

The juvenile court sustained the petition after a contested hearing. The juvenile court found that the tweets were clearly a threat. The juvenile court also found specific intent that the tweets be taken as a threat because `[s]he had approximately 500 people on her account . . . and the fact that some of those wouldn't take that as a serious threat is inconceivable.’ The juvenile court stated, `Two to three hours of tweets that—I just don't see how you can get around it. It was intended to be taken as a threat. There's anger in those. There's statements in there about the teacher going to be the first to get it, and other racial comments about they're going to be the first to get popped and all.’ The juvenile court was satisfied `beyond a reasonable doubt that the offense has occurred.’
In re L.F., supra.
The opinion then explains that
Minor moved to have the offense reduced to a misdemeanor, and the trial court denied the motion.

Minor was released to her mother and granted probation. Among Minor's terms of probation, she was prohibited from possessing any weapons or ammunition.
In re L.F., supra.
The Court of Appeal then began its analysis of Minor’s argument as to why her conviction for making “criminal threats” in violation of § 422 of the California Criminal Code.  In re L.F., supra. The court explained that
Minor contends there was insufficient evidence to support a finding that she made a criminal threat under section 422. `To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) However, where the appellant raises a `plausible First Amendment defense’ to a criminal threat conviction, we make an independent examination of the record in order to ensure that the speaker's free speech rights have not been infringed. (In re George T. (2004) 33 Cal.4th 620, 632 (George T.).) Credibility determinations and findings of fact that are not relevant to the First Amendment issue are not subject to independent review. (Id. at p. 634.) Thus, we defer to the lower court's credibility determinations but make an independent examination of the whole record to determine whether the facts establish a criminal threat. (Ibid.)
In re L.F., supra.
The opinion then explains that
[a]s noted in George T., supra, 33 Cal.4th at page 630, not all threats are criminal. In order to prove a violation of section 422, the People must establish the following: (1) that Minor “`”willfully threaten[ed] to commit a crime which [would] result in death or great bodily injury to another person,”’ (2) that Minor made the threat  `”with the specific intent that the statement ... be taken as a threat, even if there is no intent of actually carrying it out,”’ (3) that the threat was, ‘”on its face and under the circumstances”’ in which it was made, ‘”so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”’ (4) that the threat actually caused the person threatened ‘”to be in sustained fear for his or her own safety or for his or her immediate family's safety,”’ and (5) that the threatened person's fear was “reasonabl[e]” under the circumstances.’ (People v. Toledo (2001) 26 Cal.4th 221, 227–228 (Toledo ).)

Minor does not dispute that the evidence supports the first element of the offense but argues that there is insufficient evidence to establish the remaining elements.
In re L.F., supra.
The Court of Appeal went on to analyze the extent to which the evidence established the three remaining elements of the offense with which Minor was charged. In re L.F., supra.
It began with “specific intent,” explaining that
[t]o determine whether Minor had the specific intent that her tweets be taken as a threat, section 422 `does not require that a threat be personally communicated to the victim by the person who makes the threat’; however, `it must be shown that [she] specifically intended that the threat be conveyed to the victim.’  (In re Ryan D. (2002) 100 Cal.App.4th 854, 861 (Ryan D.).) `[I]f one broadcasts a threat intending to induce sustained fear, section 422 is violated if the threat is received and induces sustained fear—whether or not the threatener knows [her] threat has hit its mark.’ (People v. Teal (1998) 61 Cal.App.4th 277, 281.)

Minor contends there is no evidence she intended to convey her threats to FHS students and staff through her Twitter account. We disagree. Minor had approximately 500 Twitter followers, and her account was publicly accessible. The posts themselves indicate that some of those who replied to, or `retweeted,’ Minor's posts were FHS students. The evidence is sufficient to support the juvenile court's factual finding that Minor intended to convey a threat.
We are not persuaded otherwise by Minor's reliance on Ryan D. There, a month after being cited for possession of marijuana, a minor submitted a painting in his art class depicting him shooting the officer who had cited him. The art instructor found the painting to be ‘”disturbing”’ and ‘”scary”’ and showed it to an administrator. (Ryan D., supra, 100 Cal.App.4th at p. 858.)

A day later, an assistant principal confronted the minor, who admitted he was angry with the officer and that it was reasonable that she would eventually see the picture. (Ibid.) Later that day, the officer was shown the painting and ‘”was pretty shocked’ and ‘upset’ because it depicted somebody ‘blowing [her] head off.”” (Ryan D., supra.) The juvenile court found the minor had made a criminal threat, and the appellate court reversed the trial court's order on this point, holding that the painting did not constitute a criminal threat in violation of section 422. (Ryan D., supra.) In doing so, the court noted that the minor had turned the painting into his class for credit, rather than displaying it to the officer or putting it in a location where he knew she would see it, and concluded the evidence was insufficient to support a finding that he intended the officer to see it. (Ryan D., supra.) Here, on the other hand, the evidence supports an inference that, in posting the threatening statements on her Twitter account, Minor intended to convey them to members of the victim group.
In re L.F., supra.
The court also explained that,
[r]elying on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), Minor also argues the evidence does not show she intended her statements to be taken as a threat. The minor in Ricky T. was charged with violating section 422 after threatening his teacher. The minor stepped out of class to use the restroom. (In re Ricky T., supra.) When he returned and found the door locked, he pounded on it; when the teacher opened the door, the door hit the minor. He became angry, cursed at his teacher, and said, `I'm going to get you.’ (In re Ricky T., supra.) The teacher felt physically threatened. (In re Ricky T., supra.) The police were called the following day. (In re Ricky T., supra.) Division Four of the First Appellate District reversed the juvenile court's finding and held that there was no violation of section 422. (In re Ricky T., supra.) The court concluded the remark was `ambiguous on its face and no more than a vague threat of retaliation without prospect of execution.’ (In re Ricky T., supra.) Moreover, the court noted, the surrounding circumstances did not indicate gravity of purpose: There was no prior history of disagreements, the police were not called until the next day, and they did not interview the minor again until a week after the incident. (In re Ricky T., supra.)

Minor contends her statements were similarly ambiguous because many of them were accented by symbols of laughing faces and some were accompanied by the terms such as `jk’ or `Lmao,’ which, Minor argues, show her statements were meant as a joke. In the circumstances of this case, we cannot fault the juvenile court's findings. Minor's threatening statements were made over a period of hours, they included threats to shoot people in C-wing or D-wing, including one named staff member, and Minor stated she was going to get a gun. Moreover, Minor provided specific details about the impending shooting, going so far as clarifying that she would target D-wing instead of C-wing; she also stated she did not care about going to jail and threatened to shoot those who called the FBI. On these facts, it was reasonable for the juvenile court to conclude Minor intended her statements to be taken as a threat.
In re L.F., supra.
The court then took up the next element of the crime with which Minor was charged and of which she was convicted, explaining that
Minor contends the tweets were too vague and general in nature to satisfy the requirement that a threat be `so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.’ (§ 422, subd. (a).)

To determine if a purported threat meets this standard, it must be examined `on its face and under the circumstances in which it was made.’ (In re Ricky T., supra.) `The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat.’ (In re Ricky T., supra.) Examples of circumstances that may be considered include `the prior relationship of the parties and the manner in which the communication was made.’ (In re Ricky T., supra.)  `”’[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances.’”’ (In re George T., supra). The four elements are `”’simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.’”’ (People v. Wilson (2010) 186 Cal.App.4th 789, 807.) `”A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does `not communicate a time or precise manner of execution[;] section 422 does not require those details to be expressed.’”’ (People v. Wilson, supra).
In re L.F., supra.
The court therefore found that the
evidence here supports the juvenile court's conclusion that Minor's statements were sufficiently `unequivocal, unconditional, immediate and specific’ to constitute a criminal threat under section 422. Minor mentioned her intention to direct violence at specific parts of the school, she said she was `sorry for whoever got c wing 1st period,’ she said she was `leaving school early and going to get [her] cousin['s] gun now,’ and her Twitter page included the statement, `idk when shit go down prolly the next day’  Indeed, Dr. Cushman notified the school's staff the next morning, `We have a very specific threat. It's limited to C-wing.’

Given the specific references to parts of FHS and an individual staff member and the indication the threats would be carried out in first period, `prolly the next day,’ the juvenile court properly found the threats were `”so unequivocal, unconditional, immediate, and specific,’” that they constituted a criminal threat. (People v. Toledo, supra).
In re L.F., supra.
The Court of Appeal then took up the third element of the offense, explaining that Minor
contends the People failed to prove the threats actually caused students and staff reasonably to suffer sustained fear. Section 422 applies where `the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety.”’ (People v. Toledo, supra). `The phrase to ‘cause[ ] that person reasonably to be in sustained fear for his or her own safety’ has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.’ (In re Ricky T., supra.) `Sustained fear’ means `a period of time `that extends beyond what is momentary, fleeting, or transitory.’ (In re Ricky T., supra.) What constitutes `sustained fear’ may depend on the circumstances: `Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.’ (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
In re L.F., supra.
The opinion goes on to explain that
Minor contends this element is not satisfied because (1) rather than immediately calling law enforcement to arrest her, Dr. Cushman called the school resource officer and principal; (2) Thomas F.'s testimony about his daughter's statements to him were admitted not for their truth but to explain his actions; and (3) although Thomas F. testified to his own fear, he was not among the students and staff at the school, the alleged victims of the offense.

Whether or not the fear of Thomas F. or his daughter may properly be considered, we conclude the evidence of Dr. Cushman's fear is sufficient to support a finding that this element has been met. Dr. Cushman testified that he was `[s]cared and nervous’ because as the person in charge of the lockdown protocol, he would be in danger. His actions show he took the threat seriously; he called the principal and the school resource officer and he sent a mass text to staff members that evening. The next morning he told Bell to remain in the office and sent an email to the entire school staff telling them there had been a specific threat to C-wing. This evidence is sufficient to support a finding that Minor's victims were in sustained, reasonable fear due to Minor's tweets.

Viewing the evidence in the light most favorable to the judgment, the trial court reasonably concluded that all the elements of a criminal threat were met. Further, because the juvenile court properly found Minor's statements were criminal threats within the meaning of section 422, the statements were not protected by the First Amendment. (In re George T., 33 Cal.4th 620 (Supreme Court of California 2004).
In re L.F., supra.

For these and other reasons, the Court of Appeal modified the “weapon probation condition” imposed on Minor so that it reads as follows: `Minor shall not knowingly possess any ammunition, or deadly or dangerous weapons.’ In re L.F., supra. Otherwise, the court affirmed the Juvenile Court judge’s decision. In re L.F., supra.