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Criminal Defense Attorneys

Is Probation Condition Overbroad if No Social Media?

If the reader of this article is expecting to find an example of a case wherein a “No Social Media” probation condition was ruled overbroad, this is not that article.  However, in the following summary of a recent appellate decision ruling on this issue, one can see how there must be rather extreme facts so that an appellate court affirms such a probation condition.

Benjamin Sadiki Prowell and Alison V. worked at the same employer in Yolo County starting in 2015.  They soon became friends and a few months later, began dating.  Approximately six months later, in February 2016, Allison ended things because they both knew there was no future in the relationship.

At first, Prowell handled it well, but, in the words of Alison V. at the preliminary hearing, shortly thereafter, Prowell “said no thank you to the breakup.”  He then began calling Allison, sending her text messages and messages through Facebook Messenger almost daily.
 
For almost a month, Allison tried to defuse the situation with politeness, but by the end of March 2016, she stopped responding to his calls, e-mails and messages.  Prowell send close to 100 e-mails to her and sent Facebook messages to her in the middle of the night.  He e-mailed her at her work and home e-mail.

In late Spring, 2016, she blocked him from some social media and his number on her cell phone.  He then contacted her on Instagram and she blocked him from that account as well.  In some of the e-mails, defendant discussed Allison’s children and her sister.  He told her his Navy friends were coming to town, they knew what she looked like and he did not want them to get in trouble or cause trouble by dating her “because the Navy frowns upon cheaters,” suggesting she would meet his Navy friends and have sex with the married ones because she was a whore.

Defendant told Allison he had access to all her account and computer information. 

In July 2016, she sent him an e-mail telling him to leave her and her family alone, that his behavior was unacceptable, he was harassing her and she was afraid.

Unrelated to these events, the employer fired Defendant and the employer removed his key code access to the building.  After he was fired, one day, he went to the employer and knocked on the back door of the building and handed a former co-employee a box to put on Allison’s desk.  It had some of her personal effects that she had left at his house, such as a curling iron, but also a journal notebook of his in which he described his relationship with her and his anger about it being over, as well as poems and drawings.

At home, Allison took security measures like buying a dog, hanging blackout curtains on her windows and changing her alarm code.
 
Defendant continued e-mailing her, telling her he knew she had a new boyfriend and that he had photographs of him.  He also communicated with Allison’s boyfriend through Facebook Messenger, text messages and e-mails, suggesting Allison was promiscuous and detailed what her sexual preferences were. 

In October 2016, Allison contacted law enforcement.  Detective Joshua Helton of the Davis Police Department called up Defendant, identified himself as law enforcement and told defendant to stop contacting Allison because his conduct was criminal. 

Even after his conversation with Helton, Defendant continued contacting Allison through social media and e-mail.  He also contacted Allison’s new boyfriend through Instagram under the account name “TheStalker0000.”  He even sent Detective Helton a number of e-mails.

Defendant was then arrested and convicted of sending annoying or harassing communications (Penal Code § 653m(b)).

After the conviction, but before sentencing, he posted a picture on social media or Hannibal Lector eating flesh and said, “I hope she chokes on whatever pound of flesh she may have received from having pursued this matter.”

The judge placed Defendant on three years of formal probation with the condition that “Defendant shall not use any social media sits or apps, including but not limited to Twitter, Facebook, Instagram and shall consent to the search of any communication devices in his possession and control and shall disclose passwords to any such devices and provide them to probation officers upon demand without warrant or suspicion.”

On appeal to the Third Appellate District Court of Appeal, the appellate court sustained the ban on Defendant using any social media site, finding it was “sufficiently tailored to the state’s legitimate interest in reformation and rehabilitation of probationer,” but did remand the search condition on any communication device to the trial court for more narrow tailoring, as it “carries the potential for a significant intrusion into defendant’s private affairs.”

We find this appellate court ruling significant insofar as it demonstrates what a court must find before imposing a total ban on all social media usage for the period of probation.

For more information about probation conditions, please click on the following articles:

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