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People v. Silvanic.

2023 COA 16. No. 20CA1503. Sex Offender Intensive Supervision Probation Conditions—Monitoring of Electronic Devices—Less Restrictive Means to Achieve a Legitimate Purpose.

February 16, 2023

Silvanic entered a written waiver and guilty plea to one count of criminal attempt to commit sexual assault on a child by one in a position of trust, and he was sentenced to 10 years of sex offender intensive supervision probation (SOISP). Silvanic’s probation conditions allowed him to use electronic devices and the Internet as long as he disclosed the devices he was using and provided the associated usernames, email addresses, and passwords to his probation officer. The probation officer was authorized to search Silvanic’s property, including electronic devices, given reasonable grounds. After the probation order was entered, Silvanic’s probation officer ordered him to enroll, at his own expense, in a program to monitor his electronic devices (the monitoring condition). Silvanic objected to the monitoring condition, as relevant here, because it contemplated ongoing surveillance of his phone and did not comply with the probation department’s reasonable grounds requirement. The district court denied the objection, determining that the monitoring condition was appropriately imposed. The court’s order did not address whether Silvanic’s concerns could be addressed in a less restrictive manner than that contemplated by the monitoring condition.

On appeal, Silvanic argued that the district court erred by requiring him to submit to the monitoring condition because less restrictive means of achieving the legitimate purpose of his probation exist. SOISP is authorized by CRS § 18-1.3-1007, which allows the court to impose standard probation conditions and additional conditions that further curtail the probationer’s liberty. But sentencing courts may not impose probation conditions that violate constitutional requirements or are otherwise contrary to law. Accordingly, before imposing a condition that subjects a probationer to ongoing, unrestricted monitoring of the probationer’s electronic devices and Internet usage, the district court must (1) make sufficient factual findings concerning the extent of the electronic monitoring necessary to accomplish the legitimate purposes of the probationary sentence, and (2) evaluate whether less restrictive means are available to achieve those ends. Here, the court failed to make such findings and conclusions, and the monitoring condition contemplates continuous monitoring of all Silvanic’s electronic communications, which would capture large amounts of information for which there may be no legitimate probationary purpose and that could be privileged. Therefore, the monitoring condition does not comply with statutory requirements, and the district court erred.

The order was reversed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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