Should a probationer be forced to submit to warrantless searches of their electronic devices at any time, including being forced to provide all electronic passwords to a probation officer to allow remote and continuous monitoring? In its recent decision in In re Ricardo P., the California Supreme Court grappled with this question as it related to juvenile probationer Ricardo P. After admitting to two counts of felony burglary, the minor was placed on probation; “[o]ne of the probation conditions requires Ricardo to ‘[s]ubmit…electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.’” Ricardo challenged the condition as both constitutionally overbroad and unreasonable under People v. Lent, a California Supreme Court case setting out a three-prong test which, if satisfied, invalidates a probation condition as unreasonable. On appeal neither party disputed that the first two prongs were satisfied and only the third prong, which looks at whether the condition is reasonably related to future criminality, was at issue. The Court ultimately found that for Ricardo, the electronic search condition was not reasonably related to future criminality, the third prong of Lent was thus satisfied, and the condition was therefore invalid. In so holding, the Court explained that an analysis of the third prong of Lent required weighing an interest in effective supervision with the burden on a probationer.
Writing for the majority, Justice Liu discussed the deep privacy right implications of such a probation condition, and the significant burden that imposing the condition would place on a probationer. In rejecting the California Attorney General’s argument that the probation condition should be upheld as reasonably related to future criminality simply because it allowed effective supervision of a probationer, Justice Liu likened the condition to requiring “that probationers wear 24-hour body cameras or permit a probation officer to accompany them at all times.” While extreme examples, these types of continuous surveillance are quite similar to a probation condition that allows search of electronic devices and requires the probationer to provide passwords for all of their online accounts. With such passwords, a probation officer does not even need to be with the probationer to search them. What’s more, the probation officer can use their access to a probationer’s various accounts to continuously monitor them from afar. It is difficult to see how such monitoring is different from the constant surveillance proposed by Justice Liu’s hypotheticals. The majority opinion also cites Riley v. California, specifically in regards to the recognition that cell phones, unlike traditional things subject to random searches such as a probationers home, contain so much more information about a person than a search of a home would ever reveal. This recognition by the Court that searches of electronic devices are not directly analogous to searches of homes is a significant milestone in California’s privacy rights jurisprudence; at the time of oral argument the applicability of this analogy was very much a debated question.
While the outcome of this case can be seen as a significant victory for the protection of probationer privacy rights in California, the story does not end here. The California Supreme Court specifically stated that its holding in this case should not be construed as a categorical prohibition against electronics search conditions. While probationers have a diminished expectation of privacy, the California Supreme Court declined to establish exactly where the line should be drawn. Until they do, probationers in California will not know how far their rights of privacy extend.