Unpublished opinion on electronic search probation condition

In an unpublished opinion filed yesterday (Salcido, E067578), the Fourth District held that trial counsel was ineffective for failing to object to an electronic search probation condition.

People. Object. Object to all kinds of probation conditions. Object to regular search clauses that are unrelated to the crime. Object to the vagueness and overbreadth of the bar on possessing “intoxicating substances.” Object to the vagueness and overbreadth of barring someone from frequenting places with alcohol is the primary item of sale. Object to conditions where the defendant has to obtain permission of the court to take a prescription medication/controlled substance. Object. Object. Object. Below are cases supporting probation challenges. Please email me at juicejusticeandcorgis@gmail.com for sample briefing.

General principles: probation condition that is vague or overbroad violates the Due Process Clause of article 1, section 7 of California Constitution and the Due Process Clause of the 5th and 14th Amendments of the United States Constitution. (In re Sheena K. (2007) 40 Cal.4th 875, 889-890.)  A probation condition is vague or overbroad if it delegates its terms to be defined by the government “on an ad hoc and subjective basis.” (In re Sheena K., supra, at p. 890.)  This Court reviews constitutional challenges to the probation condition de novo. (In re Sheena K., supra, at p. 878.) A condition is void-for-vagueness unless it is “‘sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’” (Id. at p. 890 [quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325].)  A condition is unconstitutionally overbroad if it implicates a probationer’s constitutional rights and it is not narrowly tailored to achieving rehabilitation or public safety. (In re Sheena K., supra, at p. 890; In re White (1979) 97 Cal.App.3d 149-150.)

Probation conditions are not valid just because they can generally deter crime. (People v. Keller (1978) 76 Cal.App.3d 827, 838-839[2] [disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237]; People v. Perez (2009) 176 Cal.App.4th 380, 384; In re White, supra, 97 Cal.App.3d at p. 148.)

Search conditions invalid under Lent: People v. Burton (1981) 117 Cal.App.3d 283, 391; In re Martinez (1978) 86 Cal.App.3d 577, 584; People v. Kay (1973) 36 Cal.App.3d 759, 761-762; contra People v. Balestra, supra, 76 Cal.App.4th at pp. 66-67.)

A law is unconstitutional if it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[.]” (Connally v. General Cons. Co.(1926) 269 U.S. 385, 391.) A law “violates the first essential of due process of law” if it fails to afford persons notice of what conduct is prohibited. (Ibid.) Probation conditions that leave the the scope of the term to be defined on an ad hoc basis by whichever government actor seeks to enforce it are unconstitutional. (In re Sheena K., supra,40 Cal.4th at p. 890.)   

Probation conditions infringing on medical rights/choice of medical treatment:

All persons have the right under the Fourteenth Amendment to the United States constitution to obtain medical treatment of one’s choice. (Whalen v. Roe (1977) 429 U.S. 589, 603.)  Any restriction on this right must pass the strict scrutiny test which assesses whether the restriction is narrowly tailored to a compelling governmental interest. (See, e.g. Roe v. Wade (1973) 410 U.S. 113, 155.) Additionally, all persons have a right to privacy to medical records under the United States and California Constitution. (See, e.g. Gross v. Recabaren (1988) 206 Cal.App.3d 771, 782-783  [substantial privacy concerns are raised whenever there is an intrusion into a patient’s confidential relationship with a physician.];  Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 [the same with respect to disclosure of confidential medical information regarding the condition a patient seeks to treat]; Yin v. State of Cal. (9th Cir. 1996) 95 F.3d 864, 870 [all persons have the Fifth and Fourteenth Amendment rights in the privacy of personal medical information and records]; Doe v. Attorney General of U.S. (9th Cir. 1991) 941 F.2d 780, 795-796 [same]; see also Whalen v. Roe (1977) 429 U.S. 589, 604 n. 32 [assuming, but not deciding, that persons have a federal constitutional right to the privacy of medical information and records].) 

The California and United States Constitutions afford a person the basic privacy right of making medical decisions. (U.S. Const., Amend XIV; Cal. Const., art. I, § 1.) The probation condition here infringes on that right by requiring that the court permit appellant to take medications which a doctor has deemed medically necessary.  Because the condition is not narrowly tailored to a compelling governmental interest as less restrictive measures could be taken to achieve the same goal, the condition is unconstitutionally overbroad.

A defendant has the right to privacy and to confidentiality in medical records. (See factors set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)

(Board of Medical Quality Assutance v. Gherardini (1979) 93 Cal.App.3d 669, 679.)

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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