Multiple Violations of the Same Protective Order Grounds for Imprisonment

After having a prison sentence twice suspended in favor of probation for violating a protective order, a third violation of the same order and its resulting prison sentence is not unfair

State v. Moosman, 2017 UT App 11.

The Utah Court of Appeals affirmed a trial court’s sentence of imprisonment for a defendant’s repeated violation of a protective order. The defendant has had a protective order issued against him from contacting the mother of his child, but after two violations of that order which limited contact with the mother, he was placed on probation when his initial prison sentences were suspended. After the third violation of that order, the court revoked his probation and sentenced him to prison for his violations and after a recommendation from Adult Probation and Parole that he serve time in prison for his repeated offenses. The Court of Appeals rejected the defendant’s appeal, finding that there was nothing inherently unfair in the prison sentence and that the trial court was well within its discretion in issuing the sentence. All things considered, including multiple violations of the order and the recommendation by Adult Probation and Parole, the term of imprisonment was fair and affirmed by the Court of Appeals.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Moosman20170112.pdf

Restitution Allowed to be Condition of Supervised Release

Restitution can have a punitive effect, but it has a primarily remedial and compensatory effect that does not violate excessive punishment under the Eighth Amendment

United States v. Alvarez, 2016 BL 286186, 9th Cir., No. 14-50506, 8/1/16.

   The Ninth Circuit found that restitution as a condition of a supervised release is not excessive under the Eighth Amendment. The defendant claimed that restitution paid towards to a car rental agency after damaging one of their vehicles, was excessive because the restitution was part of his punishment. The court noted that there may be a “secondary punitive” effect of paying restitution, but its effect is primarily remedial and compensatory. Without being punishment, the judge can set the restitution payments and without the aid of the jury as trier of fact.

http://www.bloomberglaw.com/public/document/United_States_v_Alvarez_No_1450506_2016_BL_286186_9th_Cir_Sept_01.

Ban from Home Depot for Shoplifting Does Not Violate Right to Travel

After shoplifting from Home Depot, a court imposed ban from visiting the store was determined to be constitutional because it did not violate a person’s right to travel

People v. Moran, 2016 BL 252329, Cal., No. S215914, 8/4/16.

    The California Supreme Court ruled that as a condition of a convicted burglar’s probation, a court can impose a complete ban from a store’s property throughout the state without violating the right to travel. After robbing a Home Depot and being placed on probation, the defendant argued that the prohibition was to expansive and violated his right to travel. The court disagreed and held that “He was not, after all, prohibited from entering all retail establishments nor even all home improvement, hardware, or big box stores. The condition simply prevented him from entering the stores (and adjacent parking lots) of the company he victimized.”

http://www.bloomberglaw.com/public/document/People_v_Moran_No_S215914_2016_BL_252329_Cal_Aug_04_2016_Court_Op.

Diminishes Privacy Expectation for Those in Pretrial Intervention Programs

Probation officers legitimately executed a warrantless search, based on reasonable suspicion, of the house of a man in a pretrial intervention program.

 

Castillo v. United States, 2016 BL 77940, 11th Cir., No. 13-11757, 3/15/16

     The U.S. Court of Appeals for the Eleventh Circuit used the same rationale that is used to justify warrantless searches of probationers and parolees; namely, the state's strong interest in rehabilitating persons who enter pretrial intervention.

     The man had a diminished expectation of privacy in his home because he had entered into a pre-trial intervention program as a part of a deferred prosecution agreement. Furthermore, the court rejected an ineffective assistance of counsel claim for failing to contest the search, because the officers acted after receiving an solid tip which led to "reasonable suspicion" that the defendant possessed a firearm, which was a violation of his deferred prosecution agreement.

http://www.bloomberglaw.com/public/desktop/document/Castillo_v_United_States_No_1311757_2016_BL_77940_11th_Cir_Mar_15?1459453775

Probationers Get Right To Digital Privacy

The government may not search a probationer's mobile phone based only on the fact that the person agreed to allow the government to search his "property" at any time.

 

United States v. Lara, 2016 BL 64094, 9th Cir., No. 14-50120, 3/3/16

      In this case, the Ninth Circuit Court of Appeals confirmed their view that a probationer's acceptance of specific search terms in a probation agreement does not, by itself, justify otherwise unconstitutional searches. The court also extended some digital privacy rights to nonviolent probationers. The court said that "there is a limit on the price the government may exact in return for granting probation."

     Without specific mention of digital devices in a probation agreement, ambiguous terms will not be read to include mobile phones and the data therein. Even a search of a probationer needs to be reasonable. That is determined by balancing the degree of intrusion against the degree to which the search is needed to advance a legitimate government interest.

     The court here indicated that even though the probationer's privacy interest was diminished, and the government had a clear interest in combatting recidivism, looking through the nonviolent probationer's phone was not justified just because they missed a meeting.

 http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_PAULO_LARA_BRO_1_De?1457714431

'All Passwords' Condition to Parole is Overbroad

A probation condition which requires a juvenile convicted of burglary to surrender every password used in his electronic devices, and to submit to warrantless searches of those devices, is overbroad.

 

People v. Ricardo P., 2015 BL 348208, Cal. Ct. App., No. A144149, 10/22/15

   A juvenile was sentenced to parole conditions requiring that he surrender all of the passwords for accounts in his electronic devices, and to submit to warrantless searches of those devices. The California Court of Appeal, First District, ruled that those conditions were not tailored narrowly enough to the purpose of rehabilitating the specific offender. The conditions did not minimize interference with his Constitutional rights to privacy, speech, and association.

    The court accepted that a condition for the search of an offender's electronics can be permitted so long as it is reasonably related to the goal of preventing future criminality, but that this condition as the court "interpreted it, does not limit the types of data on or accessible through his cell phone that may be searched in light of this purpose."

    The condition is overly broad because it "permits review of all sorts of private information that is highly unlikely to shed any light on whether Ricardo is complying with the other conditions of his probation, drug-related, or otherwise."

    The case was remanded to the juvenile court to tailor the conditions to fit the offender's situation given the criminal history.

    The court did also not completely write off this type of parole condition. The court recognized a sister appellate court's case about the surrender of all passwords in a case involving gang activity. In that case the 'all passwords' condition was acceptable because the offender had admitted to gang activity and there was evidence that he'd used social media to promote gang activity.

http://www.bloomberglaw.com/public/desktop/document/People_v_Ricardo_P_No_A144149_2015_BL_348208_Cal_App_1st_Dist_Oct?1448298181