Did you hear the one about the guy from Oregon who thought it would be a good idea to taunt his probation officer through Facebook? 1 Or about the judge in Arizona who decided that a convicted sex offender violated his probation by posting on MySpace? 2
Like in many other states across the country, probation officers in California are using social media to track and monitor you if you are on probation. In the recent case People v. Ebertowski, the defendant often used his social networking accounts (such as Facebook, MySpace, or Instagram) to recruit members to his gang. Because of this, the court ruled that surrendering his login information to his probation officer was a valid condition of his probation. 3
The court held that even where there is “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct constituting a serious invasion of the privacy interest,” the constitutional right to privacy is not violated if “the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests.” 4
This ruling means that if you want to receive probation for a crime that you committed, you will have to agree to turn over your passwords to your social network accounts and your cellphone to your probation officer.
How Does Probation Work?
If you are convicted of a crime in California, the judge has wide discretion in deciding your sentence. California law authorizes the judge to sentence you to the maximum prescribed penalty for the crime of which you are convicted, or, if you are eligible, the judge can suspend your sentence and grant probation for a misdemeanor or felony (Cal. Penal Code §1203.1).
The judge can impose any term or condition on your probation so long as it is related to the crime of which you were convicted. These conditions could include that you agree to an advance waiver of your Fourth Amendment rights. In order to be granted probation instead of a jail or prison term, the judge may require you to give up your right to privacy by consenting to any searches by a probation officer without probable cause or a warrant. 5
Legal Justification for Social Networking Searches
The Ebertowski case suggests that depending on the type of crime committed, the courts will consider the surrendering of passwords to social networking accounts or cellphones to be a part of your consent to search at any time. Certain crimes, such as recruiting for a gang might be best monitored through these sites, and the court need only find that it is reasonable for the probation officer to have this access to monitor your activity to determine whether you have violated the terms of your probation.
Contact Wallin & Klarich If You Have Been Accused of Violating Your Probation
If you or someone you care about has been charged with a probation violation, you should
contact an experienced criminal defense attorney at Wallin & Klarich today. If your probation is terminated due to revocation, you can be sentenced to serve the maximum amount of time in custody allowed by law.
The attorneys at Wallin & Klarich have over 30 years of experience dealing with judges, prosecutors and probation officers to help minimize the potential consequences of a probation violation. We may be able to negotiate for a solution that does not require you to serve any time in custody. We will do everything within our power to win your probation revocation hearing.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich will do everything they can to help you get the best possible result in your case.
Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.
4. [Id., quoting In re Christopher M., 127 Cal.App.4th 684, 695 (2005), disapproved on a different point by People v. Gonzales, 56 Cal.4th 353, 373 (2013).]↩
5. [People v. Mason, 5 Cal. 3d 759, 488 P.2d 630 (1971), disapproved of on other grounds by People v. Lent, 15 Cal. 3d 481, 541 P.2d 545 (1975).]↩
Photo obtained from:http://en.wikipedia.org/wiki/Instagram#mediaviewer/File:Instagram_logo.png