When will a court strike down a probation order requiring a defendant to search their electronic devices in order to be placed on probation?

Both defendants objected to these conditions below. Hernandez argued that the conditions violated his right to privacy and that there was no "evidence of any kind of gang-related communication or postings on [the] internet in this case." Roman likewise argued that the conditions were "sweeping" with respect to her right to privacy and argued that the conditions violated the First Amendment, Fourteenth Amendment, and People v. Lent (1975) 15 Cal.3d 481 (Lent).

Defendants contend the electronics search conditions should be stricken as unreasonable under Lent, supra, 15 Cal.3d 481. Under Lent, a condition of probation will be held invalid if 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.]" (Lent, supra, at p. 486, fn. omitted.) "This test is conjunctiveall 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 convicted and involves conduct that is not itself criminal, the condition is valid as long as

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the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)

This court rejected a reasonableness challenge to the same probation conditions in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski). In that case, the defendant threatened and physically resisted an officer who was investigating the defendant for brandishing a weapon. The defendant also identified himself as a gang member and threw gang signs. The defendant pleaded guilty to making criminal threats and resisting arrest, and he admitted a gang allegation. After the prosecutor informed the trial court that the defendant had used MySpace to promote his gang (id. at p. 1173), the defendant was placed on probation with gang conditions that included the password conditions imposed in the instant case (id. at p. 1172).