PEOPLE v. NOTTOLINos. H035902, H035904.
199 Cal.App.4th 531 (2011)
130 Cal. Rptr. 3d 884
THE PEOPLE, Plaintiff and Appellant,
BARRY JEROME NOTTOLI, Defendant and Respondent.
THE PEOPLE, Plaintiff and Appellant,
REID WILLIAM NOTTOLI, Defendant and Respondent.
BARRY JEROME NOTTOLI, Defendant and Respondent.
THE PEOPLE, Plaintiff and Appellant,
REID WILLIAM NOTTOLI, Defendant and Respondent.
Court of Appeals of California, Sixth District.
September 26, 2011.
Bob Lee, District Attorney, and Joyce Angell, Assistant District Attorney, for Plaintiff and Appellant.
Paul B. Meltzer and Syda Kosofsky for Defendant and Respondent Barry Jerome Nottoli and for Defendant and Respondent Reid William Nottoli.
After granting suppression motions, a magistrate dismissed complaints against Barry Jerome Nottoli (Barry) and Reid William Nottoli (Reid), father and son.
We conclude that the suppression motions were erroneously granted.
A. Procedural Background
On December 24, 2010, a seven-count complaint was filed against Reid in Santa Cruz County Superior Court case No. F18672. It alleged that Reid had committed various drug and weapons offenses on or about December 16, 2009: possession of marijuana for sale (Health & Saf. Code, § 11359) (count one); cultivation of marijuana (Health & Saf. Code, § 11358) (count two); possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)) (count three); possession of a controlled substance, specifically "Oxycontin and Morphine Sulfate" (Health & Saf. Code, § 11350, subd. (a)) (count four); possession of an assault weapon (Pen. Code, § 12280, subd. (b)) (count five);
On January 22, 2010, a five-count complaint was filed against Barry in Santa Cruz County Superior Court case No. F18756. The complaint alleged that, on or about December 22, 2009, Barry had committed the following offenses: possession of marijuana for sale (Health & Saf. Code, § 11359) (count one); cultivation of marijuana (Health & Saf. Code, § 11358) (count two); possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)) (count three); possession of an assault weapon (Pen. Code, § 12280, subd. (b)) (count four); and possession of a deadly weapon (Pen Code, § 12020, subd. (a)(1)) (count five).
Reid filed a motion to suppress pursuant to section 1538.5 on the grounds that he had been unlawfully arrested on December 6, 2009, following a traffic stop and the ensuing warrantless searches of his vehicle and a cell phone found in the vehicle's passenger compartment violated the Fourth Amendment. He contended that the evidence seized during subsequent searches pursuant to warrants must be suppressed because the searches were based on evidence derived from unlawfully searching the cell phone. The exhibits attached to the motion indicated that, on December 8, 2009, Santa Cruz County Deputy Sheriff Steven Ryan obtained and executed a search warrant on Reid's cell phone based on the information obtained from the initial searches of the vehicle and cell phone. Deputy Ryan sought and obtained a warrant on December 9, 2009, to search 2001 Larkin Valley Road, Watsonville, and executed the search on December 16, 2009. The motion sought to suppress all evidence obtained as a result of the allegedly unlawful arrest of Reid, including urine test results, a gun found under the seat of the vehicle that Reid had been driving, the cell phone found in the vehicle, the officers' observations, Reid's statements, narcotics paraphernalia, and the evidence obtained in executing the search warrants, which included additional guns, scales, cash and drugs.
Barry joined in Reid's suppression motion, arguing that the search of Barry's home was "fruit of the poisonous tree." Barry further argued that the warrant to search his home was not supported by probable cause and was not executed in good faith since his residence was separate from Reid's residence even though both residences were situated on the same large parcel of land.
In their opposing papers, the People maintained that Deputy Ryan had probable cause to arrest Reid for being under the influence, Deputy Ryan lawfully searched the area of Reid's car where Reid was sitting incident to arrest, the vehicle was lawfully inventoried and towed for safekeeping, and
At the time set for the preliminary hearing, the magistrate heard and granted the suppression motion. Respondents were not held to answer. The prosecutor indicated that, based on the ruling, the People did not have sufficient evidence to proceed in either case and the magistrate dismissed the complaints.
The prosecutor subsequently moved to reinstate the complaints pursuant to section 871.5. (See § 1538.5, subd. (j).)
B. Motion to Suppress at the Preliminary Hearing
Deputy Sheriff Ryan attended a six-month police academy that included 40 hours of narcotics enforcement training. The deputy had investigated over 300 persons for being under the influence and arrested "a little over 80" individuals.
Deputy Ryan had worked with the county narcotics enforcement team and he had assisted the team in an "auxiliary fashion on search warrants" and with paperwork but he had never been a member of the team. He had used the team's expertise as a resource. Deputy Ryan had done some work with Deputy Yanez, a team member who had produced a manual about identifying
In Deputy Ryan's experience, drug paraphernalia or narcotics related to being under the influence are often found on persons under the influence, or somewhere close to them, or in their vehicles. In his experience, cell phones are the main communication device used by drug users and drug sellers. Cell phones can contain text messages related to acquiring and offering drugs. Text and voice mail messages, contact lists, call history, photos, and videos found in cell phones can be useful to investigations.
In the FTO (field training officer) training program, a trainee is paired with a more experienced deputy who teaches the trainee how to conduct a vehicle inventory in accordance with the policy of the sheriff's office and California's Vehicle Code. During Deputy Ryan's training, his FTO covered the inventory search protocol and Deputy Ryan was familiar with the policy of the sheriff's office on the subject of vehicle inventories.
At approximately 1:55 a.m. on December 6, 2009, Deputy Ryan was on duty in full uniform and traveling southbound on Highway 1 in a marked patrol car. As he was traveling at a speed of 65 miles per hour, the deputy observed a silver car, which was approximately a quarter-mile ahead, pull away from his vehicle. He accelerated to get closer and then followed approximately 100 yards behind the vehicle, keeping pace with it at 90 miles per hour for approximately a quarter of a mile. When he moved closer to the vehicle, he determined that it was a silver Acura TL.
The speed limit in that area of Highway 1 was 65 miles per hour. When the vehicle exited, Deputy Ryan followed. When the Acura made a left onto Larkin Valley Road from the off-ramp, the deputy initiated a vehicle stop by activating his overhead red stop lamp for the observed speeding in violation of Vehicle Code section 22349, subdivision (a).
Deputy Ryan contacted the driver through the front driver's window, which was rolled down, and asked for his driver's license. The driver, identified as Reid at the hearing, told the deputy that he did not have it on him. Reid said that the vehicle did not belong to him. The deputy assumed it belonged to Reid's father.
Reid appeared "very nervous" but he was "also very alert and awake" which Deputy Ryan found odd "since it was pretty late at night." Reid was not able to sit still and he was noticeably perspiring and had a "noticeable
Reid informed Deputy Ryan that he had been up all night studying and the deputy took that fact into consideration in determining whether Reid was under the influence of a drug. Reid also said he had been drinking caffeinated energy drinks, which Deputy Ryan saw littered throughout the car. Based on his observations and training and experience, Deputy Ryan concluded that Reid was potentially under the influence of a controlled substance.
Deputy Ryan also observed that a woman slouched in the passenger seat of the vehicle was highly intoxicated. She spoke animatedly "in an exaggerated fashion" and slurred her words. Her eyes were red and watery and she informed the deputy that she had been drinking and Reid was taking her home.
Deputy Ryan walked back to his patrol vehicle and ran Reid's name for warrants and driver's license status. He learned that Reid's driver's license was expired. On the radio, Sergeant Carney, the watch commander for the night, told Deputy Ryan to call him on the cell phone. Over the cell phone, Sergeant Carney alerted Deputy Ryan that a Mr. Nottoli had been investigated for his involvement in drugs sales some years back.
The deputy returned to Reid, who said his birthday was on December 5. The deputy asked Reid to step out of the vehicle. At this point it was approximately 2:20 a.m. on December 6, 2009.
Deputy Ryan conducted a pupil check of Reid's eyes with a penlight and determined, using a pupillometer, that his pupils were constricted and fixed at approximately four millimeters, which the deputy concluded was abnormal under the ambient outdoor lighting conditions. Deputy Ryan next conducted a Romberg test, which requires the subject to estimate 30 seconds with his eyes closed and head tilted back. He observed that Reid had rapid eye tremors indicative of controlled substance use. Reid's estimate of 30 seconds was actually 25 seconds, which Deputy Ryan regarded as faster than normal. He then tested for horizontal nystagmus and found nothing significant.
Next, Deputy Ryan took Reid's pulse, which was 160 beats per minute and outside the range of normal. The deputy had tested recent users of controlled substances, who had rates of 120 to 130 beats per minute. Deputy Ryan noted that Reid's muscle tone was "very tense, very rigid," which can be attributed to nervousness or controlled substance use. He observed white spittle forming
At the end of the exam of Reid, Deputy Ryan concluded that Reid was under the influence of a stimulant based on his training and experience, the results of the exam, and Reid's excessive driving speed, which indicated to the deputy that Reid's judgment was impaired. Deputy Ryan arrested Reid for being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a), and driving on an expired license in violation of Vehicle Code section 12500, subdivision (a). He handcuffed Reid and put Reid in the back of his patrol vehicle.
Deputy Ryan could not allow the passenger to drive the vehicle, even though she was a licensed driver, because she was so intoxicated. Her emotional state had continued to deteriorate during the contact and the deputy arrested her for public intoxication.
With Reid under arrest and handcuffed in the patrol car, Deputy Ryan decided to have Reid's Acura towed. Reid had wanted Deputy Ryan to leave the Acura on the side of the road or to drive the vehicle to his house, which was a half-mile up the road. Driving the vehicle to Reid's house was not an option because the deputy was on patrol and driving it would expose the sheriff's office to liability. Deputy Ryan's decision to take the vehicle into safekeeping was based on his concern that leaving the car on the side of the road would expose it to possible vehicular theft or burglary since it was nighttime, that stretch of road was sparsely populated and not frequently traveled, and the vehicle was a nicer, newer model car.
Deputy Ryan began completing a CHP-180 form, which documents the condition and contents of a vehicle to be towed. He was acting under the authority of Vehicle Code section 22651, subdivision (h).
At the hearing, Deputy Ryan acknowledged that the Santa Cruz County Sheriff's Office inventory protocol required DUI (driving under the influence) cases to be turned over to the CHP (California Highway Patrol). He explained that Reid's driving was not sufficiently impaired to require the involvement of the CHP. Reid was not arrested for DUI.
During the search of the vehicle, Deputy Ryan found a gun, with a loaded magazine and its grip facing forward so that it was easily accessible to a
At some point while Deputy Ryan was conducting a search of the vehicle, Deputy Gonzales arrived and he took over the completion of the CHP-180 form. Deputy Ryan was searching the vehicle for narcotics and drug paraphernalia.
In the driver's side door cubby, Deputy Ryan located two hollow tubes, one cardboard and the other plastic, each with a white powdery residue inside. He suspected that the tubes were "tooters," straws used to ingest drugs. At some point, the deputy called dispatch and requested a canine sniffer, a drug-trained dog, to run around the car.
Deputy Ryan found a BlackBerry Curve cell phone in the vehicle's center cup holder area. The BlackBerry Curve is a smart phone capable of receiving and sending e-mail and text messages and taking and storing photographs. It also provides Internet access and is essentially a small computer. Deputy Ryan picked up the BlackBerry and "pressed a key to see if it was functional." He also thought he was going to find further evidence of drug use.
The phone's screen showed a photograph of someone wearing a mask, a white smock, and camouflage baseball cap. The person was "wielding two rifles in akimbo fashion." The hat in the photograph was "remarkably similar" to the hat that Reid was wearing when stopped that night and the person in the photograph and Reid were both "larger in stature, more full body [sic]." Deputy Ryan believed the individual in the photograph holding the rifles was Reid.
The deputy immediately became concerned about terrorism or violence. Based on his training and experience and the characteristics of the rifles observable in the photograph, Deputy Ryan identified them as real AR-15 style assault rifles, which are a semiautomatic version of the M16. AR-15 rifles are very difficult to obtain legally in California. When the assault weapon ban was enacted in California, there was a window period during which owners of assault weapons previously purchased legally under California law could register their weapons. Otherwise, only law enforcement and military
Based on the cell phone's "wallpaper" photograph, Deputy Ryan believed that "the cell phone would have evidence of possibly gun-related crimes," such as discussions related to obtaining, trafficking or selling illegal weaponry. Since he knew that cell phones are a common means of communication between drug users and sellers and he had found tooters in the vehicle, he also believed that the cell phone would contain further evidence of drug use, drug transactions, and drug trafficking.
Deputy Ryan handed the cell phone to Deputy Gonzales. At that juncture, only about 10 minutes had elapsed since arresting defendant Reid and starting the search of the vehicle. Sergeant Carney arrived on scene about seven to 10 minutes after the handgun was found.
Deputy Gonzales looked through the cell phone's text messages, photographs and e-mails for about 10 minutes. Deputy Gonzales found many photographs of different firearms. At the scene, Deputy Ryan was shown five text messages, two photographs of guns, and an e-mail. The text messages related to marijuana cultivation. There was an e-mail receipt from gunbroker.net for "the purchase of incendiary projectiles for 50 BMG caliber." Incendiary projectiles contain highly flammable material that may set an object on fire upon impact. They are illegal in California.
In the probable cause form that Deputy Ryan completed at the scene, he stated that he believed Reid was potentially under the influence of a stimulant. At 3:17 a.m. on December 6, 2009, Deputy Ryan called for a tow truck. Someone from a towing company arrived and towed the Acura.
Deputy Ryan transported Reid to Dominican Hospital ER, where he obtained a urine sample from Reid. The deputy tested the sample and the result showed a "presumptive positive" for "THC usage, marijuana, and opiates." The drug test results showed that Reid was not under the influence of stimulants. In his Health and Safety Code section 11550 arrest report, which the deputy completed after the drug test, he stated that he thought that Reid had used opiates. At the suppression hearing, Deputy Ryan conceded that the standard investigation of a person suspected of being under the influence involves field tests and then a blood or a urine test.
Subsequently, Deputy Ryan sought and obtained a search warrant to search Reid's cell phone. Based upon the additional information obtained from the cell phone, a search warrant for his residence was sought.
2. Ruling on Motion to Suppress
The prosecutor contended that the traffic stop, detention, and arrest were reasonable. As to the vehicle search, she argued that Deputy Ryan was entitled, under Gant, supra, 556 U.S. 332 [
The magistrate determined that Deputy Ryan's observations justified the traffic stop and Reid's detention based on the violation of the posted speed limit. He concluded that Deputy Ryan lawfully arrested Reid for violating Health and Safety Code section 11550, subdivision (a), and Vehicle Code section 12500, subdivision (a), based upon his observations and his examinations of Reid and his training and experience. He further determined that Deputy Ryan properly decided to impound the Acura since defendant Reid had an expired driver's license, Reid was under the influence of a controlled substance, the passenger was unable to drive safely, the vehicle was "fairly expensive," and the location of the stop made it a possible target of theft and vandalism. The magistrate then concluded that the reasonable impoundment justified a warrantless inventory search of the vehicle pursuant to standardized procedure. The inventory search justified the discovery of the loaded handgun, the two tooters, and the cell phone. But the magistrate concluded that the circumstances did not justify the opening and searching of the BlackBerry by the officers.
The magistrate found that the search of the BlackBerry was "an intentional act by the deputy in seeking further evidence of any crimes." He explained his grant of the motion to suppress: "I think there was an expectation of privacy that the defendant had for his Blackberry, that there were not
The magistrate did not reach the remaining Fourth Amendment issues.
C. Search of Vehicle and Cell Phone
On appeal, the People agree with the magistrate's determinations that the vehicle stop and arrest of Reid were lawful and the ensuing search of the vehicle was justified as an inventory search. They argue that the vehicle search was also lawful as a search incident to arrest because it was reasonable to believe that narcotics and drug paraphernalia relevant to Reid's arrest for being under the influence might be found in the vehicle. The People also maintain that it was reasonable to believe that the cell phone might provide evidence of the offense of being under the influence. They urge us to find that the magistrate erred in suppressing the evidence derived from searching Reid's cell phone and the superior court erred in denying the People's motions to reinstate the complaints.
1. Review of Suppression Ruling on Review of Motions to Reinstate Complaints
"In a proceeding under Penal Code section 871.5 to reinstate a complaint, the superior court sits as a reviewing court and is bound by the magistrate's findings of fact if they are supported by substantial evidence. (People v. Slaughter (1984)
"On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior court's ruling and
"[I]t is the duty of the superior court, and ours as well, to measure those facts, as found by the magistrate, against the constitutional standard of reasonableness. The constitutional issue is solely a question of law and if the magistrate mistakenly concluded that a search was unconstitutional that conclusion is also erroneous `as a matter of law.'" (People v. Salzman (1982)
Respondents now argue that the magistrate's ruling was based on its "factual finding" that the deputies had "no reason to believe that the vehicle or cell phone contained evidence relevant to the crimes of arrest" and we must defer to the magistrate's "implied factual finding." We do not regard any implicit determination that it was not reasonable to believe that evidence of the arrest offenses might be found in the vehicle as a factual finding. The magistrate did not indicate that he disbelieved any of Deputy Ryan's testimony. (Cf. People v. Fay (1986)
2. Inventory Search
While "[t]he policy or practice governing inventory searches should be designed to produce an inventory" (Florida v. Wells, supra, 495 U.S. at p. 4), it is a permissible policy to require all containers to be opened, to prohibit the opening of any container, or "to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors." (Ibid.) "The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment." (Ibid.) But the lack of any policy governing the opening of closed containers encountered during an inventory search of a vehicle will invalidate the search of the closed container because the search is "not sufficiently regulated to satisfy the Fourth Amendment." (Id. at p. 5 [marijuana found in locked suitcase found in trunk properly suppressed].)
In this case, the sheriff's deputy testified, among other things, that he turned on the cell phone to determine if it was functional. But there was no evidence that this step or the subsequent search of the cell phone was taken in accordance with any standardized policy or practice governing inventory searches. Consequently, neither the viewing of the opening screen nor the subsequent search of the cell phone's contents could be considered valid as part of a lawful inventory search.
3. Search Incident to Arrest
a. Legal Principles
In Chimel v. California (1969)
In United States v. Robinson (1973)
In New York v. Belton (1981)
Thornton v. United States (2004)
In Gant, supra, 556 U.S. 332 [
The court in Gant held that "the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1719], fn. omitted.) It stated "[t]he safety and evidentiary justifications underlying Chimel's reaching-distance rule determine Belton's scope" and it made clear that "Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." (Id. at p. ___ [129 S.Ct. at p. 1714].) Consequently, Belton did not authorize a vehicular search of Gant's car since he was handcuffed and "locked in the back of a patrol car" when "police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat." (Ibid.)
In his separate opinion in Thornton, Justice Scalia had stated: "If Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime for which he was arrested." (Thornton, supra, 541 U.S. at p. 629 (conc. opn. of Scalia, J.).) Justice Scalia recognized the government's general interest in gathering evidence related to the crime of
As to application of the newly articulated justification for a vehicular search incident to arrest, the Supreme Court in Gant explained: "In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., Atwater v. Lago Vista,
b. Search of Vehicle Driven by Respondent Reid
In this case, the Belton safety and preservation of destructible evidence rationales were certainly not applicable since Reid was handcuffed and secured in a patrol car before any vehicular search occurred. As in Gant, there was no reasonable basis to believe that evidence, relevant to Reid's
While we recognize that Gant was not entirely consistent in its language, the court explicitly held that a vehicular search incident to arrest is valid when "it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle" (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1714]) or when "it is `reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' [Citation.]"
In both Belton and Thornton, the crime of arrest was possession of a controlled substance. (Belton, supra, 453 U.S. at p. 456 [arrest for unlawful possession of marijuana]; Thornton, supra, 541 U.S. at p. 618 [arrest for unlawful possession of marijuana and crack cocaine].) In Gant, the Supreme Court recognized that the offense of arrest in Belton and in Thornton supplied "a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1719].) The arrest offense of being under the influence in this case is likewise a drug crime.
Respondents attempt to distinguish Belton and Thornton on the ground that the police in those cases found illegal drugs before conducting the vehicle search incident to arrest. Citing two federal district court cases, respondents maintain that it was not reasonable to believe the vehicle might contain evidence relevant to being under the influence of a controlled substance.
In U.S. v. Reagan (2010)
In U.S. v. Grote (2009)
The court expressed its hesitation "to hold that a lawful arrest for DUI will always justify a search of a vehicle incident to arrest on the assumption it will always be reasonable to believe that evidence of DUI will be found in the vehicle" (U.S. v. Grote, supra, 629 F.Supp.2d at p. 1204). It concluded that, under the particular factual circumstances of the case, the search of the vehicle was a valid warrantless search incident to a lawful arrest under Gant. (Id. at pp. 1205-1206.) The court recognized, however, that an open bottle of vodka can be "potential corroborative evidence of DUI," "potentially corroborates that an individual was operating a motor vehicle in an intoxicated physical condition," and "arguably" constitutes "evidence of recent alcohol consumption." (Id. at p. 1205.)
We conclude that the search of the Acura incident to Reid's arrest for being under the influence was lawful under Gant based on the nature of that offense. The government was not limited to obtaining a blood or urine sample from Reid to corroborate the officer's observations as respondents suggest.
c. Search of the Cell Phone
The People argue that, since Reid was under lawful arrest for a drug-related crime, Gant authorized a search of the Acura's passenger compartment and any containers therein. They also assert that "[a] cellular phone is a container which might hold relevant evidence of drug-related activity." They point to Deputy Ryan's general testimony regarding drug users' use of cell phones and contend that the deputy "had sufficient reason to believe that [Reid's] cellular phone might provide evidence of the offense for which he had been arrested." Respondents counter that, even if the vehicle search was
We must immediately dispel any misconception that Gant limits the scope of a vehicular search incident to arrest in the situation where "it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1714], italics added; see id. at p. ___ [129 S.Ct. at p. 1719].) A close reading of Gant makes clear that warrantless vehicular searches are authorized in only two situations but, if authorized, the scope of vehicular searches incident to arrest as established by Belton is unchanged.
Although respondents acknowledge that Gant indicated "the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein" in drug offense cases (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1719], italics added), they argue that "in order to retain the integrity of the Gant rationale, the police may
We reject respondents' assertion that there must be specific, articulable facts "indicating that the cell phone held relevant evidence of the offenses for which Reid Nottoli was arrested." Respondents cannot point to any language in Gant imposing such a requirement. Under Gant, a vehicular search incident to arrest is justified "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1714], italics added.) It does not require any degree of probability that evidence bearing on that offense will be found in a particular container that is searched.
In both Robinson and Belton, the Supreme Court made clear that the authority to search incident to a lawful custodial arrest, while based on the need to disarm and preserve evidence, did not depend on the probability that weapons or evidence would actually be found. (Robinson, supra, 414 U.S. at pp. 234-235; Belton, supra, 453 U.S. at pp. 460-461.) In Robinson, the offense of arrest was driving with a revoked permit (Robinson supra, 414 U.S. at p. 220) and there was no reason to believe that evidence relevant to that offense would be found in the crumpled cigarette package found on the arrestee. In Belton, the Supreme Court recognized that it was true that "containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested." (Belton, supra, 453 U.S. at p. 461.) In Gant, the Supreme Court was cognizant that Belton "authorize[d] police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space" (Gant, supra, 556 U.S. at p. ___ [129 S.Ct. at p. 1720]; see Belton, supra, 453 U.S. at pp. 460-461). Gant certainly did not create different rules governing the scope of vehicular searches incident to arrest, the application of which depended upon the underlying justification in each particular case. Neither did Gant suggest that different rules applied to searches of containers, which turned upon whether a person or a vehicle was being searched incident to arrest.
We find no support for respondents' assertion that Gant narrowed the scope of vehicular searches incident to arrest, under the "evidence relevant to the crime of arrest" justification, to those "places and containers that `may conceal the object of the search.' (United States v. Ross [(1982)] 456 U.S. [798,] 825 [72 L.Ed.2d 572, 102 S.Ct. 2157].)" Respondents point to Gant's
Moreover, even if Gant were construed to require a factual predicate for searching each object found in a vehicle searched incident to arrest, a proposition we reject, it was reasonable for Deputy Ryan to believe, based on the objective circumstances and his training and experience, that evidence relevant to Reid's offense of arrest for being under the influence might be found on Reid's cell phone. The deputy testified that, in his experience, drug users and sellers use cell phones as their "main communication" and cell phones can contain text messages related to acquiring and offering drugs.
In ruling on the suppression motion, the magistrate erroneously focused on the deputy's subjective intentions to search for evidence of any crimes and Reid's expectation of privacy in his BlackBerry. Neither determines the applicability or scope of the warrant exception for vehicular searches incident to arrest.
4. Attempt to Call Deputy Gonzales as a Witness
At the end of the suppression hearing, the prosecutor attempted to call Deputy Gonzales to the stand to testify since he was the person who had searched Reid's cell phone and could actually answer questions regarding the extent and duration of that search. After the court indicated those facts were not at issue, the prosecutor asked if she could excuse the witness. On appeal, the People now argue that, if "the scope of the deputy's intrusion into the cellular phone's contents is found relevant and material to the legality of the phone's search, ... the magistrate erred in precluding the People from presenting [his] testimony. ..." Since the scope or duration of Deputy Gonzales's search of the cell phone's contents is not relevant to our analysis, we need not address this contention.
5. Standing and Reasonable Expectation of Privacy
The People argue that, to assert the fruit-of-the-poisonous-tree doctrine based upon the initial search of respondent Reid's cell phone, respondent Barry "needed to show that he had a personal and reasonable expectation of privacy in the contents of the phone. ..." (See Wong Sun v. United States (1963)
The People initially contended that, "[a]lthough [they] have found no California case authority directly on point, ... a defendant's burden of proving a personal, reasonable expectation of privacy in the place searched cannot be waived by the People's silence." In their reply brief, they concede that respondents found several cases indicating that standing issues are forfeited if not timely raised in the suppression motion, which they admittedly did not do. The first time that the People raised Barry's standing to challenge the search of his son Reid's cell phone was in their written argument in support of their motion to reinstate the complaint in case No. F18756.
To claim the protection of the Fourth Amendment, a defendant must ordinarily demonstrate a legitimate expectation of privacy in the place searched. (See Rakas v. Illinois (1978)
This conclusion, however, does not affect our determination that the search of the cell phone incident to arrest was lawful.
In case No. H035902, the order denying the People's motion under section 871.5 to reinstate the complaint is reversed. Upon remand, the superior court shall return the case to the magistrate with directions to resume proceedings pursuant to section 871.5, subdivision (e).
Premo, Acting P. J., and Lucas, J.
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