Thursday, October 27, 2016

The Computer Tower, Sexual Exploitation of Children and the Estranged Wife

This post examines a recent opinion from the Court of Appeals of Georgia:  DeGeorgis v. State, 2016 WL 6134087 (2016). The opinion begins by explaining that
[f]ollowing a jury trial, David DeGeorgis was convicted of two counts of sexual exploitation of children for possessing both printed and electronic images depicting minors engaged in sexually explicit conduct. Prior to trial, DeGeorgis filed a motion to suppress the evidence seized during the execution of the warrants to search his computer equipment and residence, and he further moved to suppress a statement he made to the investigating officers conducting the search of his home. The trial court denied DeGeorgis's motions and admitted the evidence, which DeGeorgis asserts was error. 
DeGeorgis v. State, supra.
The Court of Appeals then explains that,
[o]n appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
 (Citation omitted.) Brown v. State, 336 Ga.App. 428, 429, 785 S.E.2d 84 (Georgia Court of Appeals 2016).
DeGeorgis v. State, supra.
The court went on to outline the facts that led to DeGeorgis’ being charged and convicted:
So construed, the evidence shows that in August 2012, DeGeorgis's estranged wife brought a computer tower to the Holly Springs Police Department and expressed concern that she had discovered child pornography on its hard drive. Upon speaking to a police lieutenant, DeGeorgis's wife explained that she had recently moved out of her and DeGeorgis's marital home, but returned when she knew that DeGeorgis was absent in order to retrieve computer equipment used by DeGeorgis which she knew to contain sexually explicit pictures of herself. While later viewing images on the hard drive of one of the computer towers, she discovered what she believed to be child pornography and brought the tower to the police station. She requested that the lieutenant look at the computer's contents to confirm whether it contained unlawful material.

The lieutenant agreed to do so and after viewing some of the images, he also came to suspect that the computer contained child pornography. He thereafter took possession of the computer tower at issue, as well as a second computer tower and two external hard drives that DeGeorgis's wife had also retrieved from the residence. The lieutenant obtained search warrants for each piece of equipment and requested that a forensic study of their contents be conducted.

At the same time that the lieutenant was in the process of obtaining the search warrants and releasing the towers and drives for forensic analysis, DeGeorgis filed a police report at the same police station in reference to the missing items. The lieutenant arranged to meet an unsuspecting DeGeorgis at his home the following day. Upon arrival, the lieutenant presented DeGeorgis with a search warrant for the residence, and he and a second officer proceeded to conduct the search while two additional officers remained outside for security.

The search focused primarily on an area of the garage that DeGeorgis had converted into a `man cave,’ and in which he spent the vast majority of his time. The area contained a myriad of locked boxes, drawers, and compartments. When asked, DeGeorgis informed the lieutenant that one of the locked cabinets contained a metal key box holding color-coded keys to each of the remaining locked containers, and he provided the lieutenant with a key to the cabinet. In one locked drawer, the lieutenant found numerous ziplock baggies containing women's undergarments, each individually labeled with a female's name and a date. After being questioned about the items, DeGeorgis admitted that they were “in his possession.” The remaining locked containers contained a pornography collection so extensive that, once seized, it took law enforcement officers working in shifts almost two months to sift through its contents and to separate out the 28 printed images depicting child pornography that were ultimately tendered at trial.
DeGeorgis v. State, supra.
The opinion went on to explain that a
forensic study of the computer towers and of one of the external hard drives1 also revealed an immense collection of `bizarre’ pornography, including 127 electronic images flagged by the forensic examiner as depicting naked pictures of underage minors.

DeGeorgis was charged with and convicted of two counts of sexual exploitation of children in violation of OCGA § 16–12–100(b)(8) He filed a motion for new trial, which the trial court denied. This appeal follows.
DeGeorgis v. State, supra.  The opinion adds a footnote after the reference to “bizarre” pornography, in which the court noted that the “trial court suppressed details regarding the specific kinds of pornography not involving minors that was stored on the computers.”
DeGeorgis v. State, supra.
The Court of Appeals then began its analysis of DeGeorgis’ first argument, which was that
the trial court erred in denying his motion to suppress the electronic images located on the computer equipment. Specifically, he contends that because his wife `was estranged, separated, and had reentered the marital residence without permission to take and view the computers,’ her consent to search the computer tower was void and the lieutenant's viewing of its contents was unlawful. DeGeorgis further asserts that the resultant search warrants for the remaining computer equipment and his residence amounted to fruit from the poisonous tree and were, thus, invalid.

It is well established, however, `that no illegal search and seizure occurs when a private citizen independently discovers contraband or other evidence of illegal conduct and then brings it to the attention of law enforcement.’ Johnson v. State, 231 Ga.App. 823, 825 (3), 499 S.E.2d 145 (Georgia Court of Appeals 1998); see U.S.v. Jacobsen, 466 U.S. 109, 113 (1984)). Indeed, `[t]he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.’ (Citation, punctuation, and footnote omitted.) Hitchcock v. State, 291 Ga.App. 455, 457 (2), 662 S.E.2d 155 (2008); see Jacobsen, 466 U.S. at 113 (1), 104 S.Ct. 1652. In this context, `[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.’ U.S. v. Jacobsen, 466 U.S. at 117 (I), 104 S.Ct. 1652; see Hobbs v. State, 272 Ga.App. 148, 150 (1), 611 S.E.2d 775 (2005) (`No Fourth Amendment violation exists when an individual's privacy is initially invoked by a private act, and any additional invasion of [a defendant's] privacy . . . is measured by the degree to which [the authorities] may have exceeded the scope of the private search.’) (citations omitted).
DeGeorgis v. State, supra. 
The court went on to explain that
[h]ere, the evidence is uncontroverted that the lieutenant's initial viewing of the contents of the computer tower's hard drive occurred at the request of DeGeorgis's wife, the lieutenant was guided in his search by DeGeorgis's wife so as to view the files that she had already viewed, and the lieutenant looked at the images solely for the purpose of verifying whether the computer contained unlawful material. The lieutenant's initial search did not, therefore, amount to a violation of DeGeorgis's Fourth Amendment rights. See Hobbs v. State, supra. (`Discovery of the contraband by a private citizen and the verification of this evidence by the investigators . . . does not violate the Fourth Amendment’); Hester v. State, 187 Ga.App. 46, 47, 369 S.E.2d 278 (1988) (rejecting appellant's argument that his Fourth Amendment rights were violated when shop owner discovered what he suspected to be narcotics while working on appellant's vehicle and reported the contraband to authorities); see also U.S. v. Jacobsen, supra. After observing what he believed to be child pornography on the retower's hard drive, the lieutenant had probable cause to obtain search warrants for the remaining computer equipment and home. See generally Henson v. State, 314 Ga.App. 152, 154–55, 723 S.E.2d 456 (2012) (noting that an officer who discovered child pornography on appellant's laptop computer while searching its contents for evidence of a drug crime had probable cause to obtain additional search warrants for the phone and appellant’s computer equipment because the facts supported a finding that `there [was] a fair probability that evidence of a crime [would] be found in a particular place’) (punctuation and footnote omitted). The trial court, therefore, did not err in denying DeGeorgis's motion to suppress on that basis.
DeGeorgis v. State, supra. 
The Court of Appeals then took up DeGeorgis’ next argument on appeal, i.e., that
the trial court erred in denying his motion to suppress his admission made during the search of his residence that he possessed the ziplock baggies containing women's undergarments. He argues specifically that the statement was rendered involuntary because the lieutenant had allegedly taken his cellular phone and his car keys and he did not believe that he was free to leave at the time the statement was made.

We begin by noting that the trial court excluded both the actual question posed to DeGeorgis as well as DeGeorgis's detailed response to that question on the basis that they were unduly prejudicial. Thus, the evidence presented to the jury was limited solely to DeGeorgis's admission that the ziplocked undergarments found during the search were `in his possession.’ Nevertheless, DeGeorgis's representation of the facts surrounding his admission is belied by the record. The lieutenant seized DeGeorgis's cellular phone because it was specifically enumerated on the search warrant as an item that may contain evidence of a crime, and at no time did the lieutenant or any other law enforcement officer request or seize DeGeorgis's car keys. Rather, after being asked if he would produce keys to the myriad of locked containers in his `man cave’ so as to avoid the officers cutting those locks, DeGeorgis voluntarily produced a key ring holding the key to a locked cabinet in which the remaining keys were stored. DeGeorgis now contends, without having produced any evidence in support, that the same key ring also held his car key.
DeGeorgis v. State, supra. 
The court concluded the opinion with the following comments:
[r]egardless, even assuming DeGeorgis's car key was inadvertently taken by the lieutenant, the record fully supports the trial court's ruling that DeGeorgis's admission to possessing the undergarments was voluntary. Although DeGeorgis was asked to remain outside the home for officer safety during the search, he was not placed under arrest, was not confined in any way, and was never told that he could not leave. Indeed, the officers testified that had DeGeorgis attempted to leave during the search, he would have been permitted to do so. It follows that DeGeorgis failed to prove that his statement was involuntary. See Quedens v. State, 280 Ga. 355, 358–359 (2), 629 S.E.2d 197 (Georgia Supreme Court 2006); see also Bragg v. State, 295 Ga. 676, 679 (4) (b), 763 S.E.2d 476 (Georgia Supreme Court 2014).
DeGeorgis v. State, supra. 
The Court of Appeals therefore affirmed DeGeorgis’ conviction.  DeGeorgis v. State, supra. 

Wednesday, October 26, 2016

Possession of Child Pornography, the Guilty Plea and Restitution

This post examines an opinion from the Court of Appeals of Wisconsin:  State v. Tarlo, 2016 WL 5794352 (2016). The court begins the opinion by explaining that
David Tarlo challenges the circuit court's award of restitution to the mother of a victim of child pornography. He argues the court erred in concluding the mother met her burden of proving  the claimed loss was the result of his criminal conduct. . . .
State v. Tarlo, supra.
The opinion goes on to explain that Tarlo was
charged with five counts of possession of child pornography in relation to five images found on his computer. According to the criminal complaint, a Wisconsin Department of Justice analyst concluded most of the images were viewed in November and December 2009 and March 2011. Tarlo pled guilty to one of the counts with the other counts being dismissed but read in at sentencing.

The mother of a child alleged to be in one of the images on Tarlo's computer sought $60,000 in restitution from Tarlo for lost income. She claimed at the restitution hearing before a court commissioner in this case that she was deprived of that amount in income support due to her husband's earlier arrest and ultimate incarceration for producing child pornography, including pornographic images of her daughter. The mother provided testimony from which the court commissioner concluded that one of the images possessed by Tarlo was an image of the daughter that was produced by her husband. The State argued that the restitution request was appropriate because Tarlo had viewed and possessed the image.

The court commissioner ultimately recommended Tarlo pay restitution of $10,000. It reached this amount by dividing the $60,000 requested by six, which is the total number of people that the mother testified had been caught possessing a pornographic image of the daughter. The circuit court subsequently adopted this recommendation as its own. Tarlo moved for reconsideration, which was denied. He appeals.
State v. Tarlo, supra.
The opinion goes on to explain that
Tarlo argues the circuit court erroneously exercised its discretion in ordering him to pay $10,000 because `the family's lost income is not related to [his] possession’ of the daughter's image. He asserts the mother failed to meet her burden of demonstrating that the lost income support she sustained was a result of Tarlo's crime of viewing and possessing her daughter's image. Based upon the evidence presented at the restitution hearing, we must agree.

At a restitution hearing, `[t]he burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim.’ Wisconsin Statutes § 973.20(14)(a) (2013–14) (emphasis added). As Tarlo points out, `[b]efore restitution can be ordered' . . . there must be “a causal nexus” between the “crime considered at sentencing” and the damage.’ State v. Rash, 2003 WI App 32, ¶ 6, 260 Wis.2d 369, 659 N.W.2d 189 (Wisconsin Court of Appeals 2003) (citation omitted).

`In proving causation, a victim must show that the defendant's criminal activity was a “substantial factor” in causing damage. The defendant's actions must be the “precipitating cause of the injury” and the harm must have resulted from “the natural consequence[s] of the actions.”’ Id.(alteration in original; citation omitted). `Circuit courts have discretion . . . in determining whether the defendant's criminal activity was a substantial factor in causing any expenses for which restitution is claimed.’ State v. Johnson, 2002 WI App 166, ¶ 7, 256 Wis.2d 871, 649 N.W.2d 284 (Wisconsin Court of Appeals 2002) (citing State v. Canady, 2000 WI App 87, ¶¶ 6, 12, 234 Wis.2d 261, 610 N.W.2d 147). A discretionary decision `should only be disturbed when there has been an erroneous exercise of that discretion.’ State v. Madlock, 230 Wis.2d 324, 329, 602 N.W.2d 104 (Wisconsin Court of Appeals 1999). A court erroneously exercises its discretion if it exercises its discretion `under an erroneous view of the law,’ id., or fails to `logically interpret[ ] the facts.’ State v. Johnson, supra.
State v. Tarlo, supra.
The opinion goes on to explain that
[w]hile we are to `construe the restitution statute broadly and liberally in order to allow victims to recover their losses,’ those losses must still be shown to be `as a result of a defendant's criminal conduct.’ State v. Longmire, 2004 WI App 90, ¶ 11, 272 Wis.2d 759, 681 N.W.2d 534 (Wisconsin Court of Appeals 2004) (citation omitted). It is a `bedrock principle’ that restitution should reflect, and a defendant should be made liable for, `the consequences of the defendant's own conduct,’ `not the conduct of others.’ Paroline v. United States, 134S.Ct. 1710 (2014).
State v. Tarlo, supra.
The Court of Appeals then began its analysis of the issue in this case, noting, initially, that
[h]ere, the evidence presented at the restitution hearing establishes only financial losses incurred as a result of the earlier conduct of the mother's husband in producing the child pornography; it does not establish that any of the losses resulted from Tarlo's criminal conduct, or even general trafficking of the daughter's image over the Internet. The mother presented evidence that she incurred the $60,000 of lost income support as a result of her husband's arrest and incarceration for his production of child pornography. Of that amount, approximately $45,000 was lost due to her husband's lost employment and $15,000 was lost due to her own lost employment because, as the court commissioner found, the mother `needed to quit her jobs to supervise her children and transport them to their treatment sessions.’ The court commissioner noted, `In reality, this amount could be much higher, but the victims are only seeking $60,000.’ The amount could have been much higher because, according to the mother's testimony, $60,000 was the amount of loss incurred `every year’ since 2010, when it was discovered her husband produced the child pornography.

According to the complaint,  most of the images of child pornography on Tarlo's computer were viewed in November and December 2009 and in March 2011. The mother indicated at the restitution hearing, and the record otherwise supports, that she first learned of the viewing and possession of her daughter's image—by Tarlo and five other individuals—at some point in approximately the year leading up to the June 2, 2014 restitution hearing.

However, even if the court had awarded the mother the $10,000 it did in relation to lost income for that year immediately preceding the restitution hearing, the evidence nonetheless still failed to establish a `causal nexus’ between the lost income and the viewing and possession of the image. The evidence established that the income was lost due to the husband's earlier production of child pornography and related arrest and incarceration; no evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter's image by Tarlo or others caused any of the income loss for which the mother sought restitution. See Wisconsin Statutes § 973.20(14)(a).
State v. Tarlo, supra.
The opinion then explains that
mother also testified she and her children had participated in individual counseling as a result of her husband's production of the child pornography; but she made no request for restitution related to any counseling, provided no testimony or other evidence of any counseling costs, and indicated that the counseling was provided at no cost to her through `crime victim assistance’ in relation to her husband's crime. When asked by the court commissioner if she anticipated any future expenses related to Tarlo's crime, such as `other expenses for treatment or therapy that you think is not going to be covered,’ she could only indicate that `[t]here could be’ other expenses, but provided no suggested financial costs, past or present, upon which any treatment-related restitution award could be based.

The mother did testify her daughter is revictimized every time an individual views her image and she (the mother) feels revictimized every time she is notified of an individual viewing the image. The mother's and daughter's revictimization cannot be doubted. See Paroline v. United States, supra, (`[E]very viewing of child pornography is a repetition of the victim's abuse’). That said, evidence still needed to be presented from which the circuit court could conclude that financial losses claimed by the mother resulted from the viewing and possession of her daughter's image—and not just the earlier criminal conduct of her husband. No such evidence was presented at the restitution hearing.
State v. Tarlo, supra.
The court went on to explain that
[w]ith virtually no analysis or analogizing of the case to this one, the State provides large block quotes from Paroline to support its assertion that `[f]ederal case law supports the concept of holding consumers of child pornography liable for restitution to victims even though the pornography is created elsewhere and long ago.’ While that assertion is generally correct, Paroline does not aid the State here.

The uncle of the victim in Paroline sexually abused the victim when she was eight and nine years old in order to produce child pornography. Paroline v. United States, supra. He was convicted of the offense and required to pay $6000 in restitution. Id. The victim participated in therapy in 1998 and 1999 until the therapist determined she was `back to normal.’ Id. The victim suffered `a major blow to her recovery,’ however, when she learned at age seventeen `that images of her abuse were being trafficked on the Internet.’ Id. The possessors of her images `easily number[ed] in the thousands,’ and the knowledge that her images `were circulated far and wide’ renewed her trauma and `made it difficult for her to recover from her abuse.’ Id.
State v. Tarlo, supra.
The opinion continued outlining the analysis that applied here, explaining that
Paroline later was convicted in relation to possessing between 150 and 300 images of child pornography, including two which depicted the victim. Id. at 1717–18. The victim sought restitution under 18 U.S. Code § 2259 (1996) in the amount of nearly $3 million in lost income and $500,000 in future treatment and counseling expenses. Paroline v. United States, supra. The district court declined to award restitution, holding that the government failed to establish losses proximately caused by Paroline's crime. Id. On appeal, the Supreme Court struggled with the question of causation and how courts could properly award restitution in cases where `a particular defendant . . . is one of thousands who have possessed and will in the future possess the victim's images.’ Paroline v. United States, supra. The Court continued, `In determining the amount of general losses a defendant must pay under § 2259 the ultimate question is how much of these losses were the “proximate result,” § 2259(b)(3)(F), of that individual's offense.’ Paroline v. United States, supra. The Court discussed factors federal district courts should consider, as`“rough guideposts,’ in determining an appropriate amount of restitution, and it remanded the matter back to the district court. Paroline v. United States, supra.

Ultimately, under the federal statute at issue in that case, Paroline allows a victim in the `special context’ of child pornography to recover restitution from a possessor of the pornographic image even though `none of [the victim's] claimed losses flowed from any specific knowledge about [the possessor] or his offense conduct,’ so long as the victim's losses are shown to have been the result of trafficking in the image in general. Paroline v. United States, supra.  In Paroline, `the victim's costs of treatment and lost income result[ed] from the trauma of knowing that images of her abuse [were] being viewed over and over,’ Paroline v. United States, supra, and the evidence discussed by the Court indicates the restitution sought by the victim related to the `major blow to her recovery’ which occurred when she learned at age seventeen that her image was being viewed on the Internet, by individuals such as Paroline. Paroline v. United States, supra. By contrast, in the case before us, there simply was no evidence presented of income lost or treatment costs incurred, or of income that will be lost or costs that will be incurred, as a result of Tarlo or others viewing and possessing the daughter's image.
State v. Tarlo, supra.
The court also pointed out that
[s]ignificantly, the Paroline Court noted that a victim's `losses sustained as a result of the initial physical abuse’ are to be `disaggregat [ed]’ from `aggregate losses, including the costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole.’ Paroline v. United States, supra. Again, here the mother testified only as to the loss of income resulting from her husband's initial abuse of her children, including her daughter, and provided no testimony of losses `stem[ming] from’ Tarlo or others viewing and possessing her daughter's image. Her testimony only supports the conclusion that she would have incurred all the financial losses to which she testified at the restitution hearing even if no one had ever viewed or possessed an image of her daughter via computer.
State v. Tarlo, supra.
The court then explained that,
[n]evertheless, the State argues that Tarlo's conduct was a substantial factor in the loss of both the mother's and her husband's income. According to the State, this causal nexus was established because

`Tarlo's role as a consumer [of the child pornography] retrospectively encouraged the creation and distribution of the victim's sexually explicit images by [the mother's] husband who believed there would be consumers like Tarlo out there, so he created the images and put them on the internet for those consumers to enjoy. (Emphasis added.)’

The court commissioner, and by adoption the circuit court, rested its decision on similar reasoning, which we find flawed. It may be that when he produced the child pornography, the husband believed, based on his prior Internet experience, that the images eventually would be circulated on the Internet and viewed by other persons. It may also be that this belief contributed to his decision to produce the child pornography, which production resulted in his arrest, imprisonment, and loss of employment. It cannot be said, however, that Tarlo's actions, which occurred after the husband produced the pornography, caused the husband to produce it. Indeed, there is no evidence whatsoever to suggest the husband would not have produced the pornography if Tarlo or the others had not subsequently viewed and possessed it.
State v. Tarlo, supra (emphasis in the original).
The court then articulated its holding in the case, explaining that the
restitution statute places on the victim the burden of proving that any losses sustained were “a result of a crime considered at sentencing.” Wis. Stat. § 973.20(14)(a). A `result’ of a crime follows from the commission of the crime; the result does not precede the crime. See Result, BLACK'S LAW DICTIONARY (10th ed.2014) (defining `result’ as `[a] consequence, effect, or conclusion,’ `[t]hat which is achieved, brought about, or obtained, esp. by purposeful action,’ and `t]o be a physical, logical, or legal consequence; to proceed as an outcome or conclusion’); Result, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993) (defining `result’ as `to proceed, spring, or arise as a consequence, effect, or conclusion’); see also Paroline v. United States, supra (`[T]o say one event proximately caused another . . .  means the former event caused the latter.
(emphasis added)).
Child pornography is a scourge upon children, families, and our nation. Nevertheless, courts still must make decisions based upon evidence presented. In this case, the mother failed to meet her burden of proving she incurred any losses as a result of Tarlo's conduct; she only presented evidence she incurred losses as a result of her husband's conduct of producing the child pornography. Accordingly, the restitution order was in error, and we remand this matter to the circuit court to enter an amended judgment of conviction vacating the restitution award.
State v. Tarlo, supra (emphasis in the original).
If you would like to read the Supreme Court's opinion in Paroline, you can find it here. 

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.