In re Cesar R.













Filed 3/11/13 In re Cesar R. CA4/3















NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

In re CESAR R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. CESAR R., Defendant and Appellant.	G046443 (Super. Ct. No. DL039844) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Gregory W. Jones, Judge. Affirmed.

Meldie Moore, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Warren Williams, Deputy
Attorneys General, for Plaintiff and Respondent.



Appellant Cesar R., a
minor, challenges the juvenile court’s finding he violated Penal Code section
148 by unlawfully obstructing a police officer.
Appellant argues he resisted an illegal
search and therefore did not obstruct an officer engaged in the lawful
performance of his duties. We hold the
officer’s search was lawful and therefore affirm the judgment.

FACTS

At 10:15 p.m. on December
1, 2011, Investigator Kurt Lawson of the Orange Police Department
noticed appellant sitting on the steps outside an apartment complex. Lawson had encountered appellant several
times before and knew he was a probationer subject to search and seizure. After parking his car, Lawson approached
appellant and asked him to come down to the sidewalk so he could search him. At the time, appellant was listening to his
iPod. He promptly came down the stairs
and handed Lawson the device. Lawson
searched appellant, and finding nothing noteworthy, tried to access his
iPod.

The iPod was protected
by a password, so Lawson asked appellant what it was. Appellant said his lawyer told him he did not
have to reveal his password. Lawson
reminded appellant he was on probation and subject to search and seizure, but
appellant didn’t budge on the password.
He said that, although there was nothing incriminating on his iPod, he
just didn’t trust Lawson. Lawson then
questioned appellant about his address, date of birth, school and whether he
had any scars or tattoos. When appellant
refused to answer the questions, Lawson told him he was in violation of his
probation and placed him under arrest.

Appellant was charged
with violating Penal Code section 148, which makes it a crime to willfully
resist a peace officer who is engaged in the lawful performance of his
duties. (Pen. Code, § 148, subd.
(a)(1); People v. Simons (1996) 42
Cal.App.4th 1100, 1108-1109.) At trial,
the People argued appellant violated this section both by refusing to answer
Lawson’s basic questions about his address and by refusing to tell Lawson his
iPod password. The juvenile court
rejected the first factual basis for the violation, but it found appellant
obstructed Lawson by failing to disclose his password.

DISCUSSION

Appellant argues Lawson
did not have the right to ask him for his password, and therefore he did not
obstruct him in the lawful
performance of his duties when he refused to tell him what it was. We disagree.


At the time of the
encounter, appellant was on probation subject to the condition that he
“[s]ubmit [his] person, residence and property to search and seizure by any
peace/probation officer/school official any time of day or night, with or
without a warrant, probable cause, or reasonable suspicion.” By agreeing to this condition, appellant
waived his Fourth Amendment rights,
except the right to be free from harassment or searches that are conducted in
an unreasonable manner. (>People v. Bravo (1987) 43 Cal.3d 600,
607; People v. Mason (1971) 5 Cal.3d
759, fn. 3, disapproved on other grounds in People
v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.)


Appellant
does not allege that Lawson harassed him or searched him unreasonably. In fact, he concedes Lawson had the right to
search both him and his iPod. Appellant
also admits Lawson had the right to make him unlock the iPod himself. However, he contends Lawson did not have the
right to ask him for his
password. Even though he consented to a
search of his property as condition of probation, appellant argues that request
exceeded the scope of his consent because his password is a mental impression,
not “property.”

In so arguing, appellant
relies on cases which have recognized an expectation of privacy in
password-protected computers. (See,
e.g., United States v. Heckenkamp
(9th Cir. 2007) 482 F.3d 1142; United
States v. Buckner (4th Cir. 2007) 473 F.3d 551.) However, the issue in those cases was whether
the police had the right to search for information contained >within a computer. Since it is undisputed Lawson had the right
to search the contents of appellant’s iPod, those decisions are inapt. They simply did not address the question
presented here, which is whether the police may ask the owner of an electronic
device for its password when the contents of the device are otherwise subject
to a lawful search.

Appellant argues a
password is entitled to special protection because it is “among the most
private of any personal information” and can be used to access untold amounts
of information about a person. However,
“[a] password on a computer does not automatically convert a routine search
into a non-routine search.” (>United States> v. McAuley (W.D.Tex. 2008) 563
F.Supp.2d 672, 678.) Although we
acknowledge the great privacy concerns of the digital age (see >United States> v. Jones (2012) __ U.S.
__, __; 132 S.Ct. 945, 957 (conc. opn. of Sotomayor, J.)), the character of the
item searched does not affect the validity of a search. (People
v. Diaz (2011) 51 Cal.4th 84, 94-95
[valid search of phone’s text messages]; United
States v. Flores-Lopez (7th Cir. 2012) 670 F.3d 803 [valid search of cell
phone to determine the phone number]; United
States v. Finley (5th Cir. 2007) 477 F.3d 250, 258-260 [valid search of
phone’s call logs and text messages].) We
see no reason the Fourth Amendment should protect passwords any more than the
data they guard.

Like a key to a locked door, appellant’s password was simply a
means to the end of conducting a valid search.
Because the password would not have granted Lawson access to any
information he was not lawfully entitled to search, it doesn’t matter whether
he asked appellant for the password or had appellant unlock the iPod
himself. In choosing the former option,
Lawson did not violate appellant’s rights, nor did he exceed his legal
duties. Therefore, appellant’s refusal
to disclose his password to Lawson clearly amounted to unlawful obstruction of
an officer. There is no basis for
disturbing the juvenile court’s finding in that regard.

DISPOSITION

The judgment is
affirmed.





BEDSWORTH,
ACTING P. J.



WE CONCUR:







FYBEL, J.







IKOLA, J.