IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
November 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FORREST EDWIN EBERSOLD, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62078083)
The opinion of the court was delivered by: Blease , J.
P. v. Ebersold CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his motion to suppress evidence (Pen. Code, § 1538.5)*fn1 was denied, defendant Forrest Edwin Ebersold pled guilty to possession of child pornography (§ 311.11, subd. (a)) and misdemeanor sexual exploitation of a child (§ 311.3, subd. (a)). On appeal, he contends his suppression motion was improperly denied and that several of his probation conditions are unconstitutionally vague and/or overbroad. We conclude the trial court properly denied the motion to suppress, but modify defendant's probation conditions.
The relevant facts are taken from the hearing on the motion to suppress.
On February 4, 2008, Officer Brett Schneider was dispatched to investigate a report that a resident had found child pornography on a computer in his home. When Schneider arrived at the residence, he was met at the door and invited in by Matthew Hanson. Hanson explained that he and his wife, Alison Packard, had answered an advertisement seeking a roommate and had moved into the residence two days earlier. He further stated that defendant, the homeowner, had left town for a week and told Hanson, "Go ahead and make yourself at home. What's mine is yours." Defendant also told him and his wife, regarding defendant's belongings, "What's mine is yours for you to use anything."
The house had a spare bedroom, containing a desk, chair, and laptop computer. Hanson and Packard had used defendant's laptop to check their email and social networking accounts. Curious about defendant, they opened the "My Pictures" folder on the laptop. Upon doing so, they saw numerous photos of what appeared to be underage children in various disturbing states.
Hanson led Schneider to the spare bedroom and laptop computer. When Hanson moved the mouse, the screen lit up. Hanson then opened the "My Pictures" folder, which displayed numerous thumbnail photos on the screen, pointed to a few and said "this is what I saw." Without opening any further files, Schneider saw the thumbnail photos depicted multiple children between the ages of four and 17, including a photo of a four-year-old with her legs spread and vagina exposed. Schneider returned to the entryway of the house and called for a detective.
Detective Maschmayer arrived at the residence and was met at the front door by Hanson and Packard. The residents invited Maschmayer inside and led him to the computer. The screen displayed the thumbnail photos depicting pornographic images of small children. Maschmayer seized the laptop and a nearby USB drive that was in plain view on defendant's dresser. After obtaining a search warrant, Maschmayer sent the USB drive and laptop to forensics to be searched.
Defendant moved to suppress the evidence discovered on the laptop and USB drive. The trial court denied defendant's suppression motion, finding the search was a valid private search and, alternatively, that Hanson had the authority to consent to the government search.
After the trial court denied his motion to suppress, defendant pled guilty to possession of child pornography (§ 311.11, subd. (a)) and misdemeanor sexual exploitation of a child. The trial court placed defendant on probation with various conditions, including 60 days in county jail.
Defendant contends the trial court improperly denied his suppression motion. He argues that the warrantless search could not be justified by third-party consent, as Hanson and Packard did not have either actual or apparent authority to consent to the search. We conclude that the trial court properly found that the police investigation did not exceed the scope of Hanson's private search. Accordingly, defendant's suppression motion was properly denied.
As we explained in People v. Wilkinson (2008) 163 Cal.App.4th 1554 (Wilkinson), "[t]he Fourth Amendment's prohibition against unreasonable searches and seizures does not apply to searches by private citizens, even if the private citizens act unlawfully, unless the private citizen can be said to be acting as an agent for the government. [Citations.]" (Id. at p. 1564.) Nor do the Fourth Amendment's protections apply to a government search conducted after a private search as long as the government's inquiry is no more intrusive or extensive than the private search. (Id. at pp. 1569-1570.) A government agent's viewing of what the private party has freely made available for his inspection does not violate the Fourth Amendment. (Ibid.)
Defendant does not contend that Hanson or Packard were acting as government agents when they searched defendant's computer files and discovered the images. Nor does defendant contend that Officer Schneider or Detective Maschmayer exceeded the scope of the earlier private search. Instead, defendant invites us to reconsider our decision in Wilkinson, which effectively disposes of his contentions on appeal. We decline the invitation. The trial court properly denied defendant's suppression motion on the ground that the search was a private search.
Defendant also contends that the probation condition requiring he "shall inform all persons with whom he/she has a significant relationship about his/her criminal history" is not reasonably related to his offense and is unconstitutionally vague. The People concede that the term "significant relationship" is vague, as it does not adequately define the class of people with whom defendant must discuss his criminal history.
We agree that the probation condition is vague and would require both defendant and the court to guess what is required. (See United States v. Reeves (2d Cir. 2010) 591 F.3d 77, 81.) Accordingly, we strike the condition from the order of probation.*fn2 We, therefore, need not address defendant's contention that the condition was improvidently imposed as not reasonably related to his offense.
Finally, defendant contends that several of his probation conditions (namely, conditions three, four, six, seven and nine) are unconstitutionally vague and overbroad because they fail to contain the required knowledge or scienter element. These probation conditions place limitations on defendant's association with minors and other sex offenders, and on his presence near places where children congregate. The People concede that these conditions must include the knowledge element in accordance with People v. Turner (2007) 155 Cal.App.4th 1432, 1435.)
We need not further address this issue. As recently set forth in People v. Patel (2011) 196 Cal.App.4th 956 at pages 960-961, we now construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly. It is no longer necessary to modify the probation order to expressly include such a scienter requirement. (Id. at p. 960.)
The order granting probation is modified to strike the condition numbered "8" that he "inform all persons with whom he/she has a significant relationship about his/her criminal history." As modified, the judgment is affirmed.
We concur: RAYE , P. J. HOCH , J.