Filed 12/22/23 P. v. Hsu CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

Plaintiff and Respondent,

v.

MICHAEL ROE CHIEN HSU,

Defendant and Appellant.

B319181

Los Angeles County

Super. Ct. No. SA097779

APPEAL from an order of the Superior Court of 

Los Angeles County, Upinder S. Kalra and Lauren Weis 

Birnstein, Judges. Affirmed.

Werksman Jackson & Quinn and Kelly C. Quinn 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

The police arrested Michael Roe Chien Hsu after he poured

a liquid containing MDMA into a woman’s wine glass while she 

was in the restroom. The government suspected Hsu intended to 

assault the woman sexually, and it obtained warrants to search 

his phone on the basis that it might contain evidence of other 

sexual assaults. After initially struggling to bypass the phone’s 

security, the government eventually unlocked the phone and 

discovered photographs and videos apparently showing Hsu

sexually assaulting an unconscious woman. Based on those

discoveries, the People charged Hsu with multiple counts 

of sexual assault. 

Before the preliminary hearing, Hsu moved to suppress 

the evidence seized from his phone. The magistrate denied 

the motion and held Hsu to answer. After a court denied his 

motion to set aside the information, Hsu agreed to a plea deal, 

under which he pleaded guilty to a single count of sexual 

penetration by foreign object. The court placed him on formal 

probation for eight years. 

On appeal, Hsu challenges the denial of his motion 

to suppress. He argues the magistrate should have granted 

the motion because the government failed to comply with 

the particularity and notice requirements of California’s 

Electronic Communications Privacy Act (CalECPA) (Pen. Code, 

§ 1546 et seq.).

1 Alternatively, he argues the government

did not have lawful possession of his phone and unreasonably 

delayed obtaining the search warrant, there was not probable 

cause to search his phone, and the warrant contains material 

1 Unless noted, undesignated statutory references are to 

the Penal Code.
3

misrepresentations and omissions. We reject Hsu’s arguments 

and affirm. 

FACTS AND PROCEDURAL BACKGROUND

1. The arrest

On May 26, 2016, Hsu was at a restaurant drinking wine 

with L.U. Hsu and L.U. were coworkers and had been in a casual 

sexual relationship for about a year. Recently, L.U. had met a

new partner, and she was starting to “ ‘pull away’ ” from Hsu.

At some point, L.U. left the table to go to the restroom. 

Three people sitting nearby noticed Hsu holding a small glass 

object containing a white substance. Hsu looked from side 

to side, poured the substance into L.U.’s wine glass, and then 

slid the glass toward her end of the table. The witnesses 

informed the restaurant’s security, who called the police. 

One of the witnesses also ran to the restroom and told L.U. 

what she had observed. Although L.U. was shocked, she 

returned to the table and pretended not to know what Hsu 

had done. Hsu tried to make a toast with L.U., but she refused 

to drink the wine.

Santa Monica Police Department officers arrived at the

restaurant and arrested Hsu. They searched Hsu and seized 

his iPhone. The officers found three small glass vials in Hsu’s

pocket, two of which were filled with liquid. Hsu told police the 

vials contained liquid vitamins that he used to help him sleep. 

However, lab tests revealed the vials and L.U.’s wine glass 

contained MDMA. L.U. denied having given Hsu permission 

to put MDMA in her drink.

L.U. told police she sometimes felt nauseous after spending 

an evening with Hsu. She recounted attending two concerts with 

Hsu in the past. Both nights she consumed drinks that Hsu had 
4

given her, after which she felt “ ‘amazing’ ” and “ ‘on top of the 

world.’ ” One of those nights she jokingly told Hsu she thought 

he had “ ‘drugg[ed] [her]’ ” because she felt so good, which Hsu 

denied. After the concerts, L.U. felt “super tired” and wanted 

to sleep as soon as she returned to Hsu’s home. According to 

L.U., Hsu had shown her pictures of them kissing in public 

at one of the concerts, which surprised her because it was not

her normal behavior.

2. The government searches Hsu’s digital devices

Shortly after arresting Hsu, the government obtained 

a warrant to search his home and vehicle (Warrant One). 

During that search, the police seized a computer and several 

other digital devices.

About a month later, on June 30, 2016, the government 

sought a warrant to search Hsu’s digital devices, including a

phone seized during his arrest (Warrant Two). In support of

the warrant, the government submitted a five-page affidavit 

of probable cause from Detective Nicole Sierra.2

In the affidavit, Sierra summarized the May 26 incident 

at the restaurant and said she believed Hsu was attempting to 

drug L.U. in order to assault her sexually. Sierra also said she 

believed Hsu may have drugged and sexually assaulted other 

victims. According to Sierra, Hsu’s digital devices might contain 

evidence of his crimes because those “involved in these types 

of crimes will at times photograph or record their crimes for 

2 At some point during the case, Sierra married and changed 

her last name to Murphy. For the sake of clarity, we refer to her 

only by her original surname, Sierra.
5

the purpose of keeping a momento or ‘reliving’ the sexual assault 

at a later date.”

A magistrate found probable cause to search Hsu’s devices 

and issued Warrant Two. The police attempted to search Hsu’s 

phone, but they could not unlock it. However, the police were 

able to search Hsu’s other digital devices, on which they 

apparently discovered evidence that he had sexually assaulted 

L.U. Based on that evidence and the incident at the restaurant, 

the People charged Hsu with several crimes, including poisoning 

(§ 347, subd. (a)) and sexual penetration by foreign object (§289, 

subd. (d)).

3. Hsu moves to suppress evidence from his devices

Hsu moved for an order returning his property—including 

his phone—on the basis that it was neither evidence nor 

contraband. The court ordered the government to return “all

previously imaged electronic devices” seized from Hsu. The police 

did not return Hsu’s phone because they had not been able to 

unlock it to create an image. 

A few months later, in September 2016, Hsu moved to 

quash Warrant One and Warrant Two, suppress all evidence 

seized under the warrants, and return his property. The 

court granted the motion in part, finding the warrants lacked 

sufficient probable cause. The court explained that, although 

the magistrate properly found people who sexually assault 

victims may retain evidence in photographs and recordings, 

the affidavit contained insufficient facts to support an inference 

that Hsu intended to assault L.U. or anyone else. The court 

noted the affidavit stated MDMA is a Schedule I narcotic, but 

it failed to describe its effects, how it is used, and who uses it. 

Therefore, it failed to address the central issue: whether those 
6

who commit sexual assaults or drug-facilitated sexual assaults 

use MDMA and, if so, how.

The court deferred ruling on Hsu’s motion to return his 

property, and it explicitly stated it was not ordering the return 

of the property at that time. The court noted it had discussed 

this issue with the parties at the bench, and it asked Hsu if he 

had anything to add to the record. Hsu did not object or urge 

the court to issue a ruling. Instead, he asked the court if it would 

allow a special master to “go through the electronic devices” if 

the parties reached an agreement on the issue. The court said 

it would not interfere with the parties’ agreement.

After the court suppressed the evidence from Hsu’s 

digital devices, the People dismissed all the charges except a 

single count of poisoning.

4. The government successfully searches Hsu’s phone

In February 2017, the government obtained a new warrant 

to search Hsu’s phone. Once again, however, the police were 

unable to unlock the phone to search it.

After learning of a new method that could unlock Hsu’s 

model of iPhone, the government sought a new warrant to search 

his phone in October 2017. The parties refer to this warrant 

as “Warrant Five,” so we do the same. The government also 

requested an order delaying notification of the warrant, citing

the possibility that Hsu could flee or remotely wipe his phone.

The government supported Warrant Five with a 13-page 

affidavit drafted by Detective Sierra. Compared to the affidavit 

supporting Warrant Two, Sierra included in this affidavit 

significantly more information related to MDMA, the 

characteristics of sexual predators, and the basis for believing 

Hsu’s phone might contain evidence of sexual assaults. 
7

The affidavit states MDMA “can . . . be used and [is] 

known as one of the ‘date rape drugs.’ ” It is “an illegal narcotic 

that is commonly used by perpetrators of sexual assault because 

it [a]ffects the mind of the user in a fashion that can render them 

incoherent.” MDMA belongs to the hallucinogen category of 

drugs, a category with “indicators” that include “memory loss, 

nausea, body tremors, dazed appearance, difficulty with speech, 

disorientation, flashbacks, hallucinations, paranoia, perspiration, 

piloerection, poor perception of time and distance, and 

synesthesia.” MDMA is commonly used “to enhance one’s senses 

so one can have increased positive and arousing responses to 

touch, smell and vision.” L.U. reported feeling euphoric, wanting 

to be touched, experiencing nausea, and suffering memory loss 

while with Hsu, which were consistent with having been under 

the influence of MDMA.

Under the heading, “Characteristics of Sexual Predators,”

the affidavit states “perpetrators of sexual assault commonly 

will drug their victims to make it easier to sexually assault 

them while they are incoherent so as to reduce the likelihood of 

being caught.” In addition, “[p]erpetrators of sexual assault who 

assault their victims while they are incoherent typically do so 

through supplying drugs secretly to a drink or through other 

means of intoxication. These drugs render the victim incoherent 

and allow[ ] the suspect to forcibly assault their victims with 

little to no resistance.” Further, sexual predators “commonly 

collect trophies such as clothing, videos and photographs of 

their sexual assault experiences, commonly found on their 

cellular phone devices and other electronic devices.”

The affidavit concludes Hsu “could potentially be a sexual 

predator with a proclivity to assaulting women who have been 
8

drugged.” Further, “like other likeminded individuals, [Hsu] 

is likely to have evidence of his assaults on his cellular phone.”

A magistrate found the affidavit established probable cause 

to search Hsu’s phone, and it issued Warrant Five on October 19, 

2017. The magistrate also ordered delayed notification of the 

warrant.

The police successfully unlocked Hsu’s phone and 

discovered photographs and videos of L.U. that appeared to 

have been taken without her knowledge. The photographs and 

videos showed L.U. dressing and undressing, L.U. passed out 

while Hsu used his hand to reveal her anus and vagina, and 

Hsu digitally penetrating L.U.’s vagina and anus.

5. Hsu’s motions related to Warrant Five

Based on the evidence obtained from Hsu’s phone, the 

People filed a new case against him alleging several counts of 

sexual penetration with a foreign object (§ 289, subds. (d), (e)).

Before the preliminary hearing on the new case, Hsu 

moved to quash Warrant Five and suppress evidence obtained 

from his phone. He argued the warrant was not supported 

by probable cause, the scope of items to be searched exceeded

the probable cause statement, and the warrant failed to comply 

with CalECPA’s particularity and notice requirements. Hsu also 

moved to traverse the warrant, arguing it contained misleading 

statements and omissions concerning MDMA and the prior 

warrants.

The same magistrate who quashed Warrant Two heard

Hsu’s motions concerning Warrant Five. The magistrate 

considered the motions at the preliminary hearing, which 

it conducted over the course of several days.
9

Although Hsu did not raise the issue, the magistrate asked

the parties to submit briefs addressing whether Warrant Five 

relies on suppressed evidence. The magistrate expressed concern 

that the affidavit potentially refers to photographs the People

had obtained from Hsu’s computer, which the magistrate had

suppressed.

After receiving the supplemental briefs, the magistrate

denied Hsu’s motions and held him to answer the charges. The

magistrate noted the affidavit supporting Warrant Five was 

“much more detailed” than the affidavit supporting Warrant Two.

It concluded the “details [of] the citizen[ ] informants’

observations of Mr. Hsu’s pouring MDMA into the victim’s drink 

. . . . coupled with the victim’s recitation of her past experiences 

with Mr. Hsu and the expert’s and the affiant’s description of

the manner in which sexual assaults may be accomplished 

through the secret drugging of victims with substances like 

MDMA sufficiently establish that Mr. Hsu[ ] falls within the 

class of offenders who surreptitiously drug victims in order [to] 

incapacitate the victims to sexually assault them.”

6. Hsu’s section 995 motion

In September 2019, Hsu moved to set aside the information 

under section 995. He argued the government unlawfully 

obtained evidence from his phone, without which the People

lacked sufficient evidence to hold him to answer the charges.

Hsu’s section 995 motion repeated many of the arguments 

he raised in connection with his motions at the preliminary 

hearing, including that the affidavit relies on suppressed 

evidence. Hsu alternatively argued the government was not 

in lawful possession of his phone when it conducted the search. 

According to Hsu, section 1538.5 required the government to 
10

return his phone within 10 days of the order granting his motion 

to quash Warrant Two. Hsu also argued the government’s 

prolonged retention of his phone with “no ‘persuasive 

justification’ ” violated his Fourth Amendment rights.

At a hearing on the motion, the court allowed the People 

to present testimony from Detective Sierra and Detective 

Monique Carrillo concerning whether Warrant Five relies on 

suppressed evidence. After hearing the testimony, Hsu seemed 

to concede the issue, noting it had “become clear” the relevant 

photographs did not come from his computer.

The court denied Hsu’s motion in substantial part. 

It found the government lawfully possessed the phone, the 

delay in obtaining Warrant Five was reasonable, the warrant 

complies with CalECPA’s requirements, the affidavit establishes

probable cause for the search, and the affidavit does not rely on

suppressed evidence.

7. Plea and sentencing

After the court denied the section 995 motion, Hsu and 

the People reached a deal under which Hsu pleaded guilty to a 

single count of sexual penetration while the victim was prevented 

from resisting by an intoxicating or controlled substance (§ 289, 

subd. (e)). The court suspended imposition of sentence and 

placed Hsu on probation for eight years. The court dismissed 

the remaining counts on the People’s motion in the interests 

of justice. Hsu timely appealed.

DISCUSSION

1. Standard of review

The parties disagree about the standard of review on 

appeal, which stems from their disagreement about the nature 

of the motion Hsu filed to challenge the magistrate’s denial of 
11

his motion to suppress. Hsu insists he challenged the decision 

by filing a motion to set aside the information under section 995 

(995 motion). The Attorney General contends that, although 

labeled a 995 motion, Hsu’s motion in substance was a renewed 

motion to suppress under section 1538.5, subdivision (i). The 

proper standard of review on appeal depends on our resolution 

of this dispute. 

When a magistrate denies a motion to suppress at 

the preliminary hearing, the defendant has several avenues 

to challenge the decision. If the defendant is held to answer, 

one option is to file a 995 motion in the “superior court to set 

aside the information for lack of probable cause on the ground 

that the evidence is the product of an illegal search.” (People v. 

Gephart (1979) 93 Cal.App.3d 989, 995–996 (Gephart).) “In a 

proceeding under section 995, the superior court’s role is similar 

to that of an appellate court reviewing the sufficiency of the 

evidence to sustain a judgment. [Citations.] The superior court 

merely reviews the evidence; it does not substitute its judgment 

on the weight of the evidence nor does it resolve factual conflicts.” 

(People v. McDonald (2006) 137 Cal.App.4th 521, 529 

(McDonald).)

The defendant also may challenge the magistrate’s decision 

by filing a renewed motion to suppress at a special hearing 

in the superior court. (Gephart, supra, 93 Cal.App.3d at p. 996; 

§ 1538.5, subd. (i).) Unless otherwise agreed to by the parties, 

“evidence presented at the special hearing shall be limited to 

the transcript of the preliminary hearing and to evidence that 

could not reasonably have been presented at the preliminary 

hearing, except that the people may recall witnesses who testified 

at the preliminary hearing.” (§ 1538.5, subd. (i).) The superior 
12

court is bound by the magistrate’s findings “as to evidence 

or property not affected by evidence presented at the special 

hearing.” (Ibid.) As to all other issues, the superior court 

“sits as a finder of fact with the power to judge credibility, 

resolve conflicts, weigh evidence, and draw inferences.” 

(People v. Laiwa (1983) 34 Cal.3d 711, 718 (Laiwa).) 

The standard of review on appeal depends on whether 

Hsu filed a 995 motion or a renewed motion to suppress under 

section 1538.5, subdivision (i). “On appeal from a section 995 

review of the denial of a defendant’s motion to suppress, we 

review the determination of the magistrate at the preliminary 

hearing. [Citations.] We must draw all presumptions in favor 

of the magistrate’s factual determinations, and we must uphold 

the magistrate’s express or implied findings if they are supported 

by substantial evidence.” (McDonald, supra, 137 Cal.App.4th 

at p. 529.) Although we defer to the magistrate on factual issues, 

we independently determine whether the search was reasonable. 

(Price v. Superior Court (2023) 93 Cal.App.5th 13, 34.)

In contrast, on appeal following the denial of a renewed 

motion to suppress, we review the superior court’s decision at 

the special hearing. (People v. Superior Court (Cooper) (2003) 

114 Cal.App.4th 713, 717.) In that case, “all presumptions are 

drawn in favor of the factual determinations of the superior 

court and the appellate court must uphold the superior court’s 

express or implied findings if they are supported by substantial 

evidence.” (Laiwa, supra, 34 Cal.3d at p. 718.)

Here, the record shows Hsu intended to file, and did in fact 

file, a motion to set aside the information under section 995. In 

addition to the fact that Hsu’s motion explicitly states it is a 995 

motion, Hsu did not seek to present new evidence in the superior 
13

court, which is the defining characteristic of a renewed motion 

to suppress. Although the superior court permitted the People

to present new evidence at the hearing, that does not transform 

the nature of Hsu’s motion. Because we conclude Hsu’s appeal 

challenges the magistrate’s denial of his motion to suppress, 

we will review the magistrate’s decision directly. (McDonald, 

supra, 137 Cal.App.4th at p. 529.)

2. Warrant Five satisfies CalECPA’s particularity 

requirements

Effective January 1, 2016, CalECPA specifies the 

conditions under which the government may access electronic 

information from a service provider or the owner of an electronic

device, such as an iPhone. (See § 1546 et. seq.; Sen. Bill No. 178

(2015–2016 Reg. Sess.) § 1.) Among many other provisions, it

mandates that any warrant for electronic information “describe 

with particularity the information to be seized by specifying, as

appropriate and reasonable, the time periods covered, the target 

individuals or accounts, the applications or services covered, 

and the types of information sought.” (§ 1546.1, subd. (d)(1).)

Warrant Five authorized the government to seize the 

following information from Hsu’s phone for the “time frame 

of June 2015 through May 26, 2016”: (1) “All communications 

content and records, . . . email, text (SMS/MMS or app chats), 

notes, calendar or voicemail;” (2) “All location data;” (3) “All 

photographic/video/audio data;” (4) “All internet history;” (5) 

“All financial information;” (6) “All Social Media applications;” 

and (7) “All indicia of ownership and control for both the data 

and the device.”
14

Hsu argues this description of items to be seized 

fails to satisfy any of CalECPA’s particularity requirements. 

We consider his arguments in turn.

a. Time periods covered

Hsu first argues Warrant Five fails to specify with 

particularity the “time periods covered.” (§ 1546.1, subd. (d)(1).) 

He suggests the warrant provides “really no limitation at all”

with respect to time. Alternatively, he argues the warrant lacks 

particularity because it is not limited to the time period “around 

the purported crime,” and instead permits seizure of information 

dating back to the start of his relationship with L.U. in June 

2015.

Hsu’s suggestion that Warrant Five does not provide a 

time limitation “at all” is meritless; the warrant expressly limits 

the time period covered to “June 2015 through May 26, 2016.” 

As to Hsu’s other contention—that the time period is too long—

his argument goes to the breadth of the limitation, rather than 

its particularity. (See People v. Meza (2023) 90 Cal.App.5th

520, 535–536 [breadth and particularity are distinct concepts].) 

Breadth concerns the scope of the warrant, while particularity 

concerns whether the warrant clearly states what is sought. 

(Ibid.; see Black’s Law Dict. (11th ed. 2019) [“particularity” is 

the “quality, state, or condition of being both reasonably detailed 

and exact”].) Warrant Five’s time period limitation is reasonably 

detailed and exact, such that the limitation would have been

obvious to any officer executing the warrant. (See Meza, at 

p. 535 [a warrant is stated with particularity if an officer using 

reasonable effort can ascertain what is intended to be searched].) 

Accordingly, we reject Hsu’s contention that Warrant Five fails 

to specify with particularity the time periods covered.
15

b. Target individuals and accounts

Hsu argues Warrant Five fails to specify with particularity 

the “target individuals [and] accounts” because it does not 

expressly identify either. The magistrate rejected this argument, 

reasoning that because the warrant concerns only Hsu’s phone, 

there is an “obvious and reasonable understanding that [Hsu] is 

the individual targeted and that the accounts are his accounts.” 

We agree with the magistrate’s reasoning and reject Hsu’s 

argument for the same reason.

Hsu contends this reasoning is flawed because there is 

no exception to the particularity requirement when the owner 

of an electronic device is also the account holder. True, section 

1546.1 does not explicitly contain such an exception. However, 

the statute states the warrant must specify the information with 

particularity only “as appropriate and reasonable.” (§ 1546.1, 

subd. (d)(1).) Hsu points to nothing in the record that would 

have led a reasonable person to suspect his personal cellphone 

contained anyone else’s information or accounts. Nor does 

he contend his phone actually contained either. Under these 

circumstances, it was reasonable for the government not to 

specify the targeted individuals and accounts, as both were 

already obvious and implied by the very nature of the search.

c. Applications or services covered

Hsu argues Warrant Five fails to specify with particularity 

the “applications or services” covered. He insists CalECPA 

requires the government to list each individual mobile 

application (app) it intends to search, such as “WhatsApp, 

Snapchat, Instagram, Facebook Messenger, etc.” According 

to Hsu, it was not enough for the government to identify the 
16

categories of apps subject to seizure, such as “[a]ll Social Media 

applications.”

The magistrate rejected this argument on the basis that 

it would have been impossible for the government to list each 

specific app it intended to search. We agree with the magistrate. 

According to Apple, there are “nearly two million” iPhone apps 

available in its app store. (Apple, App Store <https://www.

apple.com/app-store/> [as of Dec. 20, 2023], archived at <https://

perma.cc/T9Z7-QW5F>.) The government had no way to know 

which of those apps Hsu had installed on his phone without first 

looking through it. However, the government could not look 

through the phone without a search warrant. Therefore, in order

to list the specific apps subject to seizure in Warrant Five, the 

government first would have had to obtain a separate search 

warrant limited to examining the names of the apps installed 

on Hsu’s phone. This would have resulted in an enormous 

waste of resources, and there is nothing in the text or history 

of CalECPA to suggest it is what the Legislature intended.

Hsu insists the Legislature “made a plain and specific 

requirement” to list every application and service covered 

by the warrant, and to allow an exception for impossibility 

“ ‘ignore[s] [the statutory] language.’ ” (Italics omitted.)

However, it is Hsu who ignores the statutory language. Section 

1546.1 explicitly states the government is required to specify 

applications and services only “as appropriate and reasonable.” 

(§ 1546.1, subd. (d)(1).) It is not reasonable to require the 

government to undertake a seemingly impossible task. Hsu 

does not acknowledge the “appropriate and reasonable” language, 

let alone explain how it is consistent with his interpretation. 
17

For the first time in his reply brief, Hsu contends the 

government could have satisfied the particularity requirement 

by listing a handful of specific apps—he lists four—followed 

by a catchall provision permitting the search of “any app not 

accounted for on that list.” We see no meaningful distinction 

between Hsu’s suggestion and the approach the government 

took in Warrant Five, which was to identify “All Social Media 

applications.”

d. Types of information sought

Hsu argues Warrant Five fails to specify with particularity 

the “types of information” sought. As we understand his 

argument, he contends it was not enough for the government to 

identify “photograph” and “video” files as the target of the search. 

Instead, according to Hsu, the government was required to 

list the specific file formats associated with those types of 

information, such as “.jpg, .png, and .mov.” Hsu argues this 

level of specificity was necessary to limit the locations and 

types of documents the government could search. Without such

specificity, he asserts, the government could search “every single 

piece of data on all locations of the phone.”

As with Hsu’s contention that the government was required 

to identify the specific applications it sought to search, it would 

seem to be an impossible task to list every possible file format 

associated with each type of information sought. Hsu points 

to nothing in CalECPA’s text or legislative history to indicate 

the Legislature intended to require such an onerous level of

specificity. Nor has Hsu shown that requiring a list of specific 

file formats would have constrained the discretion of the officer 

executing the warrant in a meaningful way. As best we can tell, 

Hsu seems to believe specific file formats are limited to specific 
18

locations on a device. However, Hsu did not present expert 

testimony on the issue, and we are not aware of any such general 

limitations. 

We also reject Hsu’s alternative suggestion that Warrant 

Five violated section 1546.1, subdivision (d)(1) by prefacing each 

category of information with the word “all.” Hsu’s argument is 

essentially a challenge to the breadth of the warrant. However, 

section 1546.1, subdivision (d)(1) is concerned only with 

particularity. Hsu limited his argument to that specific statutory 

provision, and we decline to make additional arguments for him.3 

3. The government did not violate CalECPA’s notice 

requirements

Hsu contends the government failed to comply with 

CalECPA’s notice requirements.

a. Background

CalECPA generally requires the government to provide 

a targeted individual notice of the warrant “contemporaneously 

with the execution of a warrant.” (§ 1546.2, subd. (a)(1).) 

However, the government may request an order delaying 

notification for a reasonable period, not to exceed 90 days. 

(Id., subd. (b)(1).) “The court shall issue the order if the court 

3 In his reply brief, Hsu argues any purported limitations 

were nullified by a boilerplate statement found in the 

government’s request for an extension of the time to conduct 

the search. The statement notes a “suspect may try to conceal 

criminal evidence; he might store it in random order with 

deceptive file names. This may require searching authorities 

to examine all the stored data to determine which particular files 

[are] evidence or instrumentalities of crime.” We do not interpret 

this general statement to nullify the more specific limitations 

found elsewhere in the warrant. 
19

determines that there is reason to believe that notification may 

have an adverse result.” (Ibid.) CalECPA defines “adverse 

result” as (1) danger to the life or physical safety of an individual; 

(2) flight from prosecution; (3) destruction of or tampering with 

evidence; (4) intimidation of potential witnesses; and (5) serious 

jeopardy to an investigation or undue delay of a trial. (§ 1546, 

subd. (a).)

In the affidavit attached to Warrant Five, the government 

requested an order delaying notice for 90 days. The government 

asserted the delay was necessary because “providing prior notice 

. . . may result in flight from prosecution; lead to destruction of 

or tampering with evidence; or otherwise seriously jeopardize 

an investigation or unduly delay a trial. Hsu is currently out 

of custody. Hsu has potential access to electronic communication 

devices, such as computers and cell phones, which could allow 

him to remotely locate his device listed above, disable it with 

a lock (also known as a ‘kill switch’), and wipe any potential 

evidence stored on his cellular device. Hsu could potentially have 

other means or relations with an individual(s) who is technically 

well versed in electronic communication devices, such as iPhones 

like Hsu’s listed above, who can assist him in wiping his iPhone.”

The court granted the request and issued the warrant 

on October 19, 2017. The government provided notice to Hsu 

68 days later, on December 26, 2017.

b. Hsu misrepresents the magistrate’s decision

Hsu argues the magistrate refused to consider whether 

the government provided good cause for delayed notification. 

According to Hsu, the magistrate instead erroneously believed 

its role was limited to determining whether the government had 

requested delayed notification.
20

Hsu’s contention is premised on a gross misrepresentation 

of the record. At the hearing on the motion to suppress, the 

magistrate noted it appeared the government had followed 

the statute by requesting and obtaining an order for delayed 

notification. The magistrate then asked Hsu if it had “miss[ed]

something” from his argument. Hsu clarified his argument was 

that the “reasons for which [the government] requested [delayed 

notification] failed,” noting if the government “had [the phone] 

for over two years, how are they still concerned with destruction 

of it, and can’t give us proper notice?” The magistrate responded: 

“[I]t’s reasonable because you can still potentially delete the 

evidence, and that is what their concern was. It didn’t seem 

unreasonable.”

It is readily apparent from this exchange that the 

magistrate considered, and rejected, the substance of Hsu’s 

argument. Hsu’s contention that the magistrate refused to do 

so is wholly without merit. 

In another gross misrepresentation of the record, Hsu 

asserts the magistrate erroneously held the government was not 

required to comply with CalECPA’s notice requirement because 

Hsu was aware it had seized his phone. While discussing the 

notice issue, the magistrate did briefly note Hsu was on notice 

that the government was in possession of his phone. However, 

the magistrate prefaced that statement by noting it was “a 

practical matter” and “less of a legal basis.” The magistrate

then discussed, in significantly more detail, the government’s 

compliance with the statutory notice requirements. Given 

this context, no one could seriously claim the magistrate held 

Hsu’s knowledge of the seizure was alone sufficient to satisfy 

CalECPA’s notice requirement. 
21

c. The government provided a sufficient basis for 

delayed notification

Hsu contends the government’s assertion he might flee if

given contemporaneous notice of Warrant Five was “ridiculous on 

its face.” He points to the fact that the government had executed 

prior warrants to search his property, yet he consistently 

appeared in court.

True, Hsu did not flee in response to prior warrants. 

However, when the government applied for Warrant Five, Hsu 

had received notice of only a single warrant to search his phone, 

which the government obtained in June 2016. According to 

Warrant Five, as of June 2016, law enforcement did not have 

the ability to bypass the security features of Hsu’s model of 

iPhone. However, upon reading Warrant Five, Hsu would have 

learned that law enforcement had since discovered a way to 

bypass the security on his phone. That knowledge may have 

given him a new incentive to flee, especially if his phone 

contained particularly incriminating evidence. 

Even if the risk of flight were insignificant, the government 

provided an additional reason for delayed notice: the risk that 

Hsu, or someone working on his behalf, could remotely lock or

wipe his device.

Citing Riley v. California (2014) 573 U.S. 373 (Riley), Hsu 

contends the United States Supreme Court has already rejected 

the government’s line of reasoning. In Riley, the high court 

held the Fourth Amendment generally requires police officers 

to obtain a warrant to search an arrestee’s cell phone. (Id. at 

pp. 378, 381–386.) In doing so, the court rejected the State of 

California’s argument that warrantless searches are necessary 

because of the risk a third party will remotely wipe the data 
22

on the device. (Id. at pp. 388–389.) The court explained it had 

been given little reason to believe the problem was prevalent, it 

was not apparent a warrantless search would make a difference 

given the search is usually conducted hours after the arrest, and 

the government has other “specific means to address the threat,” 

such as disconnecting the device from a network and placing it 

in a special bag designed to isolate it from radio waves. (Id. at 

pp. 389–391.)

Riley is readily distinguishable. That case involved the 

risk that a third party would remotely wipe a device shortly after 

the owner was taken into custody. Here, in contrast, Hsu was 

out of custody, knew the government wanted to search his phone,

and had several months to formulate a plan to wipe the device

if the government turned it on. Under these circumstances, the 

risk of data destruction was significantly greater than in Riley.

Hsu’s reliance on Riley is misplaced for another reason. 

The issue in Riley was whether the state’s conduct violated the 

arrestee’s Fourth Amendment rights. To answer that question, 

the court balanced “ ‘the degree to which [a warrantless search 

of a phone] intrudes upon an individual’s privacy’ ” against 

“ ‘the degree to which it is needed for the promotion of legitimate 

governmental interests.’ ” (Riley, supra, 573 U.S. at pp. 385–

386.) Here, the government’s delayed notice does not implicate 

the Fourth Amendment, meaning we do not balance the 

competing interests. Instead, we merely ask whether “there 

is reason to believe that notification may” lead to the destruction 

of evidence. For the reasons discussed above, we conclude the 

government met this low standard. 
23

d. The notice explained the reason for the delay

For the first time in his reply brief, Hsu argues the 

government failed to include in the notice a statement of 

the reasons for the delay, as required under section 1546.2, 

subdivision (a)(1).

At the outset, Hsu forfeited this argument by failing 

to raise it in his opening brief. (See People v. Rangel (2016) 

62 Cal.4th 1192, 1218 [a defendant forfeited claims raised 

for the first time in a reply brief].) Regardless, the argument 

lacks merit. 

Hsu relies on language in section 1546.2, subdivision (a)(1) 

stating the government must provide the target “a copy of the 

warrant or a written statement setting forth facts giving rise 

to the emergency.” Hsu seems to believe the phrase “facts 

giving rise to the emergency” refers to the government’s reasons 

justifying delayed notification. He is wrong. Even a cursory 

review of the statute makes clear the “emergency” language 

refers to situations where the government, without a warrant, 

“obtains electronic information in an emergency pursuant to 

Section 1546.1.” (Ibid.) 

Nevertheless, Hsu is correct that the government 

was required to provide notice of the reasons for the delay. 

Under section 1546.2, subdivision (b)(3), the government must 

provide the target of a warrant “a statement of the grounds 

for the court’s determination to grant a delay in notifying the 

individual.” Here, the government included in an attachment 

to the warrant a paragraph stating the reasons the court granted 

its request to delay notice. Hsu seems to concede the government 

served the warrant and the attachment on him. Accordingly, 

he has not shown the government erred in this respect.
24

4. There was probable cause to search Hsu’s phone

The government must support an application for a search 

warrant with an affidavit that establishes probable cause to issue 

the warrant. (People v. Carrington (2009) 47 Cal.4th 145, 161.) 

To determine whether the government has met its burden, “ ‘[t]he 

task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all the circumstances 

set forth in the affidavit before him [or her], including the 

“veracity” and “basis of knowledge” of persons supplying 

hearsay information, there is a fair probability that contraband 

or evidence of a crime will be found in a particular place.’ ” (Ibid.)

On review, the “magistrate’s determination of probable 

cause is entitled to deferential review.” (People v. Kraft (2000) 

23 Cal.4th 978, 1041.) “The question facing a reviewing court 

asked to determine whether probable cause supported the

issuance of the warrant is whether the magistrate had a 

substantial basis for concluding a fair probability existed 

that a search would uncover wrongdoing.” (Id. at p. 1040.) 

a. The affidavit does not rely on unsupported 

conclusions

Hsu contends the government failed to establish probable 

cause to search his phone because the affidavit relies on 

conclusory statements, rather than statements of fact. Hsu 

identifies three specific statements that he argues lack the 

requisite factual support yet are crucial to demonstrating 

probable cause. We consider each statement in turn.

i. MDMA is a date rape drug

First, Hsu contends the affidavit lacks factual support for 

the statement that MDMA “can . . . be used and [is] known as

one of the ‘date rape drugs.’ ” Although Hsu does not distinguish 
25

between them, the statement includes two distinct assertions: 

(1) MDMA can be used as a “date rape drug;” and (2) MDMA 

is known as a “date rape drug.” Contrary to Hsu’s contentions, 

the affidavit contains ample factual support for both assertions.

The affidavit does not expressly define “date rape drug.” 

Nevertheless, its meaning can be inferred from the affidavit’s 

detailed description of sexual predators who “assault their 

victims while they are incoherent.” According to the affidavit, 

this type of perpetrator commits sexual assault typically by 

“supplying drugs secretly to a drink or through other means 

of intoxication. These drugs render the victim incoherent and 

allow[ ] the suspect to forcibly assault their victims with little to

no resistance.” From this, it is reasonable to infer the affidavit 

uses the term “date rape drug” to mean a drug that could be used 

to facilitate a sexual assault by rendering a victim incoherent. 

Based on the affidavit’s description of MDMA and its 

effects, it is reasonable to infer a perpetrator could use the drug

to render a victim incoherent and facilitate a sexual assault. 

The affidavit states MDMA “falls into the drug category of 

[h]allucinogens,” which is a group of drugs with “indicators” that 

include memory loss, nausea, disorientation, and poor perception 

of time and distance. As to MDMA, specifically, the affidavit 

asserts the drug causes the “enhancement of the senses,”

including “increased . . . responses to touch, smell and vision,” 

and it affects “the mind of the user in a fashion that can render 

them incoherent.” The affidavit also states L.U. experienced 

symptoms consistent with MDMA use, including euphoria, 

nausea, a desire to be touched, and memory loss. Based on this

profile of MDMA—and particularly the fact it may cause memory

loss, the desire to be touched, disorientation, and impaired
26

perception—it is reasonable to conclude the drug could be used 

to facilitate a sexual assault by rendering a victim incoherent, 

i.e., could be used as a “date rape drug.”

As to the second assertion in the challenged statement—

that MDMA is “known” as one of the “date rape drugs”—it is 

reasonable to infer the claim is based on the affiant’s training 

and experience. According to the affidavit, the affiant worked 

as a police officer for seven years, during which time she 

investigated drug-related crimes and sexual assaults, received 

training on narcotics, and attended a seminar and conference 

focused on sexual assault issues. The affiant’s extensive history 

with narcotics and sexual assault provided a sufficient basis

for her to make the assertion that MDMA is “known” as one 

of the “date rape drugs.”

ii. Risk of death or health risks

Hsu argues the affidavit lacks any factual support 

for the assertion there is a “risk of death or health risks with 

[MDMA] use.” We disagree. As discussed above, the affidavit 

describes several serious effects of MDMA and the category of 

drugs to which it belongs. It is not unreasonable to conclude 

some of those effects—such as disorientation, altered perception, 

and memory loss—might cause health risks or potentially death. 

Even if the factual support for the statement were 

insufficient, Hsu has not shown Warrant Five lacked probable 

cause without it. As the magistrate explained in quashing 

Warrant Two, the key to establishing probable cause was 

establishing a link between MDMA and sexual assault. Whether 

there are health risks associated with MDMA use is not relevant 

to that issue, something Hsu seems to acknowledge on appeal. 

The affidavit’s general statement concerning the health risks 
27

of MDMA use, therefore, was irrelevant to the magistrate’s 

probable cause determination. Accordingly, there is no risk 

the inclusion of the challenged statement was the basis for 

the magistrate’s decision to issue the warrant. 

iii. Perpetrators’ preference not to be without 

photographic evidence

Hsu challenges the affidavit’s assertion that “[p]erpetrators 

of sexual assault prefer not to be without their photographic 

evidence [of the assaults] for any prolonged time period.” 

According to Hsu, the affidavit improperly attributes this 

conclusion to the observations of “officers involved in the 

investigation of sexual assault throughout the world.” Hsu 

insists this is equivalent to claiming “ ‘everybody says so’ ” 

as justification for a significant assertion.

Assuming for the sake of argument Hsu is correct, he 

has not shown the warrant lacked probable cause without the 

challenged statement. In the same paragraph of the affidavit, 

the affiant states that, based on her “training and experience,” 

those who have an interest in sexual activity of inebriated 

persons will “maintain images depicting their victims secreted, 

but readily at hand.” This conveys essentially the same 

information as the challenged statement. However, Hsu does 

not argue the affiant’s statement is conclusory, lacks factual 

support, or is otherwise improper. Accordingly, even without 

the challenged statement, the magistrate would have been 

presented with essentially the same information. Suppression 

is not required under these circumstances.

b. The affidavit links Hsu to the offender profile

Hsu argues the affidavit lacks probable cause because it 

fails to link him to the profile of a typical sexual assault offender.
28

According to Hsu, the affidavit describes a profile of “a person 

who drugs a victim to unconsciousness because of a sexual 

interest in incoherent victims.” He asserts it is not reasonable 

to infer he is a member of that class because the affidavit 

“provides no facts that the complaining witness was ever 

rendered unconscious or incoherent on MDMA, or sexually 

assaulted while in an unconscious state.”

Hsu’s argument is based on a faulty premise: that the 

affidavit describes a typical offender as someone who “drugs 

a victim to unconsciousness.” As best we can tell, Hsu arrives 

at this conclusion by conflating the words “incoherent” and 

“unconscious.” For example, where the affidavit states the 

“drugs render the victim incoherent and allow[ ] the suspect to 

forcibly assault their victims with little to no resistance” (italics

added), Hsu interprets it to mean the “drugs render the victim 

[unconscious] and allow[ ] the suspect to forcibly assault their 

victims with little to no resistance.” As the trial court explained 

in rejecting a similar argument, “incoherent” and “unconscious” 

are not synonyms. Nor do we think any reasonable person would 

interpret the affidavit in the way Hsu suggests.

In his reply brief, Hsu briefly acknowledges that incoherent 

and unconscious might have different meanings, depending on 

context. Citing dictionary.com, he states it is “[c]ertainly” true 

that “ ‘incoherent’ ” can modify the word “ ‘speech,’ ” in which case 

it would convey that the person’s “speech was incomprehensible.” 

Hsu then asks this court to consider whether, in drafting 

the affidavit, the affiant believed “that typical offenders were 

exploiting women by taking pictures of victims who were 

unconscious or by taking pictures of persons who were speaking 

in a modified manner?”
29

In making this argument, Hsu overlooks—or, perhaps, 

purposefully omits—dictionary.com’s actual definitions for 

“incoherent.” The online dictionary provides eight definitions 

for the word, none of which resembles “unconscious.” One of 

the top definitions is “characterized by . . . thought or language 

[lacking logical or meaningful connection].” (Dictionary.com 

<https://www.dictionary.com/browse/incoherent> [as of Dec. 20, 

2023], archived at <https://perma.cc/G8HX-HABR>.) It is 

reasonable to infer the affidavit uses the word in this manner 

when it repeatedly describes the typical offender as a person 

who sexually assaults incoherent victims. 

Hsu asserts the affiant’s true intention is revealed by two 

sentences in the affidavit that contain the word “unconscious.”

First, the affidavit states Hsu’s phone may contain photographs 

of L.U. and other victims “while they were unconscious or after 

they had been drugged by Hsu, unbeknownst to them.” A few 

paragraphs later, it states “[i]ndividuals who sexually assault 

females, especially those that are rendered incoherent/

unconscious due to the intake of illegal narcotics . . . may receive 

sexual gratification . . . viewing unconscious women engaged 

in sexual activity . . . .”

We do not agree with Hsu that these sentences make clear 

the affiant mistakenly used the word “incoherent,” rather than 

“unconscious,” throughout the affidavit. If anything, it seems 

more reasonable to presume the affiant mistakenly used the 

word “unconscious” when she meant to say “incoherent.” 

Hsu is also wrong to claim the affidavit lacks probable 

cause because it provides no facts showing L.U. was incoherent 

or sexually assaulted while under the influence of MDMA. Hsu 

overlooks that the affidavit states facts indicating L.U. suffered 
30

memory loss after ingesting MDMA. If so, she may not recall 

having been incoherent or sexually assaulted. Accordingly, 

the affidavit’s lack of direct evidence that L.U. was incoherent 

or sexually assaulted is not determinative.

5. Hsu forfeited the unlawful possession issue; it also 

lacks merit

Hsu argues the evidence seized from his phone must 

be suppressed because the government did not have lawful 

possession of the phone when it conducted the search. He 

asserts that, after the court granted his motion to suppress 

evidence seized under Warrant Two, the government was 

required to return his phone within 10 days. Hsu relies on 

section 1538.5, subdivision (e), which states, if a motion to 

suppress “is granted at a preliminary hearing, the property 

shall be returned upon order of the court after 10 days unless 

the property is otherwise subject to lawful detention or unless, 

within that time, further proceedings authorized by this section 

. . . are utilized.” 

The Attorney General asserts Hsu forfeited this argument 

by failing to raise it below. We agree. In his motion to suppress, 

Hsu made a few passing remarks about the government’s refusal 

to return his phone. However, he did not specifically argue the 

government’s possession violated section 1538.5 or that it was 

otherwise unlawful. Hsu did explicitly make that argument

in his section 995 motion. However, on appeal, we review 

the magistrate’s order denying Hsu’s motion to suppress, 

not the superior court’s order denying his section 995 motion. 

(McDonald, supra, 137 Cal.App.4th at p. 529.) Therefore, 

to preserve the issue, Hsu was required to raise the specific 

argument in his motion to suppress. His failure to do so forfeits 
31

the issue on appeal. (See People v. Lilienthal (1978) 22 Cal.3d 

891, 896 [“it would be wholly inappropriate to reverse a superior 

court’s judgment for error it did not commit and that was never 

called to its attention”]); People v. Partida (2005) 37 Cal.4th 428, 

435 (Partida) [“[a] party cannot argue the court erred in failing 

to conduct an analysis it was not asked to conduct”].)

Hsu contends he preserved the issue by raising it orally at

the hearing on his motion to suppress. Tellingly, Hsu does not 

support that assertion with a citation to the reporter’s transcript 

from the hearing. Instead, he cites the transcript of the hearing 

on his section 995 motion. In our independent review of the 

relevant transcripts, we found no references to section 1538.5 

or specific arguments that the government’s retention of the 

phone was unlawful.

Even if we were to overlook the forfeiture, we would reject 

Hsu’s argument on the merits. Section 1538.5 does not require 

the government to return property sua sponte. Instead, the 

government must return the property only “upon order of 

the court.” (§ 1538.5, subd. (e).) As Hsu seems to concede, after 

the court granted his motion to suppress, it deferred ordering 

the government to return his phone. As best we can tell, the 

court never revisited the issue and Hsu never pressed it to do so. 

Absent an “order of the court,” the government’s retention 

of the phone did not violate section 1538.5, subdivision (e). 

6. Hsu forfeited the unreasonable delay issue; it also 

lacks merit

Hsu argues the government unreasonably delayed 

obtaining Warrant Five, which violated his Fourth Amendment 

rights.
32

Once again, we agree with the Attorney General that Hsu 

forfeited this issue by failing to raise it in his motion to suppress. 

(Partida, supra, 37 Cal.4th at p. 435.) In any event, the 

argument lacks merit.

To determine whether the government’s retention of 

property without a warrant was unreasonable, we “balance 

‘the nature and quality of the intrusion on the individual’s 

Fourth Amendment interests against the importance of 

the governmental interests alleged to justify the intrusion.’ ” 

(United States v. Sullivan (9th Cir. 2015) 797 F.3d 623, 633.) 

“Seizures, which affect a person’s possessory interest in an item, 

are less intrusive than searches, which implicate a person’s 

privacy interests.” (People v. Tousant (2021) 64 Cal.App.5th 804, 

816 (Tousant).)

Before considering the merits of Hsu’s argument, we 

address another instance in which he entirely mischaracterizes

the record. Hsu contends that, instead of balancing the relevant 

interests, the magistrate erroneously held CalECPA “specifically 

allows the government to circumvent the Fourth Amendment and 

retain and search electronic devices repeatedly and indefinitely.” 

The magistrate did nothing of the sort. While discussing the 

fact that the “phone has been retained for several years,” the 

magistrate explained that, if the government “properly retain[s] 

a phone,” CalECPA allows it to “go back and continue to get 

a warrant until they do it right.” In other words, CalECPA 

allows the government to seek successive warrants so long as it 

“properly retain[s]” the property to be searched. The magistrate 

did not hold, in any way, that CalECPA allowed the government 

to circumvent the Fourth Amendment and retain Hsu’s phone 

indefinitely.
33

Turning to the merits of Hsu’s argument, we conclude 

the government’s retention of his phone was not unreasonable. 

Although Hsu initially requested an order returning his phone, 

the court deferred ruling on the issue. Hsu did not object, press 

the court to issue a ruling, or seek a writ directing the court 

to do so. Instead, he simply requested the court allow a special 

master to search the device. By failing to object or press the 

court for a ruling, Hsu effectively conceded the government

could continue to possess his phone. At the very least, it strongly 

indicates his interest in regaining possession of the phone was 

minimal. (See Tousant, supra, 64 Cal.App.5th at pp. 816–817 

[noting a defendant’s possessory interests are not adversely 

affected where he does not seek return of the seized property].)

In contrast, the government had a significant interest 

in retaining the phone. The government had probable cause 

to believe Hsu’s phone contained evidence of sexual assaults. 

Given Hsu’s suspected modus operandi, the government also 

had reason to believe his victims were not aware of the crimes. 

However, the government was unable to bypass the phone’s 

security in order to search it. If the government had returned 

the phone to Hsu, he easily could have destroyed any evidence of 

his criminal activity contained in it. Under these circumstances, 

the government had a significant interest in retaining the phone. 

Weighed against Hsu’s minimal interest, the government’s 

retention was reasonable and not a violation of Hsu’s 

constitutional rights.

7. Hsu has not shown Warrant Five relies on suppressed 

evidence

Hsu argues the affidavit relies on suppressed evidence 

when it states L.U. “had memory loss and no recollection of Hsu 
34

and her kissing in public at one of their concert outings. Hsu 

had shown [L.U.] photographs and/or videos of them engaging 

in such intimate behavior, which surprised [L.U.].”

a. Background

Although Hsu did not raise it in his motions, at the 

preliminary hearing, the magistrate asked the parties to address 

whether Warrant Five relied on previously suppressed evidence 

by referring to photographs of L.U. and Hsu kissing. The 

magistrate expressed concern that the government may have 

obtained the photographs from Hsu’s computer while executing 

Warrant Two.

The People filed a supplemental brief responding to 

the magistrate’s concerns. According to the People, L.U. told 

a detective she saw the photographs before Hsu’s arrest and 

before the police searched his computer. Hsu did not respond 

to the People’s brief. 

L.U. testified at the preliminary hearing a few days later. 

According to L.U., the photographs in which she and Hsu were 

kissing were a “little out of the norm” for her. In response 

to Hsu’s questions on cross-examination, L.U. said a detective 

showed her the photographs on a computer and claimed they 

were recovered from Hsu’s phone. On redirect, the prosecutor 

asked L.U. if she had ever seen the photographs before meeting 

with the detective. L.U. responded: “I think I may have seen 

some of the photos . . . . I don’t recall specific instances, but 

[Hsu and I] have looked at photos . . . .”

After L.U. testified, Hsu filed a supplemental brief 

arguing Warrant Five relies on previously suppressed evidence. 

According to Hsu, L.U.s testimony established the photographs 
35

of her kissing Hsu “must have come” from a device the police 

seized and searched under Warrant One and Warrant Two.

The magistrate addressed the issue at a subsequent 

hearing. It noted that Hsu was “able to elicit from the victim 

that her current recollection is the only time she saw [the 

photographs] was from the detective, but she too was—that 

was qualified. Some time has passed.” The magistrate stated 

the issue did not affect its decision to deny Hsu’s motions 

one way or the other.

b. Analysis

Hsu contends L.U.’s preliminary hearing testimony 

establishes that Warrant Five relies on suppressed evidence. 

He argues “the only photographs [the detective] could have shown 

[L.U.] were those recovered pursuant to Warrants One and Two, 

which had been quashed and all evidence suppressed.” The 

only other explanation, Hsu contends, is that L.U. lied at 

the preliminary hearing.

Contrary to Hsu’s contention, those are not the only 

possible explanations for L.U.’s preliminary hearing testimony. 

For example, L.U. may have simply misremembered how she 

came to see the photographs. Indeed, in connection with Hsu’s 

section 995 motion, the prosecutor presented evidence that 

L.U. saw the photographs sometime before Hsu’s arrest. The 

prosecutor’s evidence was so overwhelming, in fact, that Hsu 

later remarked it had “become clear” L.U. was not talking about 

photographs taken from his computer. Considering this apparent 

concession, we question why Hsu continues to contest the issue 

on appeal. 

Even if we ignored the evidence presented at the section 

995 hearing and Hsu’s apparent concession, we would still reject 
36

his argument. Assuming L.U.’s preliminary hearing testimony 

were accurate—in which case the detective showed her the 

photographs—it does not follow that the photographs must have 

come from Hsu’s computer. Indeed, it is possible the detective 

obtained the photographs through some other lawful channel. 

Given this possibility—for which Hsu does not account—we reject 

his insistence that the “photographs could have only come from 

the suppressed evidence.”

8. The affidavit does not contain material 

misstatements and omissions 

“[A] defendant may challenge the veracity of statements 

contained in an affidavit of probable cause made in support of 

the issuance of a search warrant. When presented with such a 

challenge, the lower courts must conduct an evidentiary hearing 

if a defendant makes a substantial showing that: (1) the affidavit 

contains statements that are deliberately false or were made in 

reckless disregard of the truth and (2) the affidavit’s remaining 

contents, after the false statements are excised, are insufficient 

to justify a finding of probable cause. At the evidentiary hearing, 

if the statements are proved by a preponderance of the evidence 

to be false or reckless, they must be considered excised. If the 

remaining contents of the affidavit are insufficient to establish 

probable cause, the warrant must be voided and any evidence 

seized pursuant to that warrant must be suppressed.” (People 

v. Bradford (1997) 15 Cal.4th 1229, 1297 (Bradford).)

“A defendant who challenges a search warrant based 

upon an affidavit containing omissions bears the burden of 

showing that the omissions were material to the determination 

of probable cause. [Citation.] ‘Pursuant to section 28(d), 

materiality is evaluated by the test of Illinois v. Gates (1983) 
37

462 U.S. 213, which looks to the totality of the circumstances 

in determining whether a warrant affidavit establishes good 

cause for a search. [Citation.]’ [Citation.]” (Bradford, supra, 

15 Cal.4th at p. 1297.)

Hsu argues Warrant Five contains four categories of 

material misstatements and omissions. We consider each 

category in turn.

a. MDMA’s effects

Hsu challenges the affidavit’s assertion that “MDMA 

is a Schedule I drug under the Controlled Substances Act 

and there is a risk of death or health risks with use.” According 

to Hsu, the statement is false because the federal government 

does not classify drugs based on their health risks. Instead, the 

government classifies a drug as “Schedule I” if it has no currently 

accepted medical uses and poses a high potential for abuse.

Contrary to Hsu’s insistence, the affidavit does not state 

MDMA is a Schedule I drug because there is a risk of death or 

health risks with use. Nor do we think a reasonable magistrate 

would interpret the statement in the way Hsu suggests. 

Accordingly, we reject his argument. 

Hsu next argues the affidavit misleadingly suggests MDMA 

has the same indicators as other hallucinogens. He contends 

the affidavit should have listed only those effects the People’s 

drug expert, Jason Olson, identified at the first preliminary 

hearing.4 Olson testified that MDMA may affect the user’s 

4 Hsu insists the affidavit should have mirrored Olson’s 

testimony because it purports to be a summary of it. Not so. 

The affidavit states the affiant spoke with Olson regarding 

MDMA and he “provided [the affiant] with an in depth 

explanation of his opinions and suspicions regarding the overall 
38

speech, coordination, memory, and body temperature, and it 

may cause dehydration and goose bumps.

Hsu points to no direct evidence that MDMA does not share 

the same indicators as other hallucinogens. Instead, he simply 

assumes Olson testified to an exhaustive list of MDMA’s effects. 

The record, however, belies that assumption. At the second 

preliminary hearing, the People presented testimony from a 

different drug expert, Trinka Porrata, who identified several 

effects of MDMA that Olson had not. Those effects include 

panic attacks, exhaustion, elevated heart rate, “twisted” senses, 

impaired ability to resist, and “terrible spasms.” Because these

effects generally resemble the indicators of hallucinogens listed

in the affidavit, we reject Hsu’s argument that the affidavit is

misleading in this respect. 

Hsu alternatively contends the affidavit improperly omits 

Olson’s preliminary hearing testimony that MDMA “mirrors 

a stimulant.” Hsu asserts that, because stimulants usually 

increase wakefulness and movement, a stimulant “would not 

be a drug that would render its user incoherent.”

Hsu’s argument seems to be premised on his belief that 

“incoherent” is synonymous with “unconscious.” For the reasons 

we discussed in detail above, we disagree. Absent that faulty 

presumption, there is no merit to Hsu’s argument.

b. MDMA is a date rape drug

Hsu argues there is nothing in the literature, law, or 

expert testimony to support the affidavit’s statement that MDMA 

circumstances of this case.” From this, it is clear the affidavit 

reflects information Olson conveyed to the affiant directly; it 

does not simply summarize his preliminary hearing testimony.
39

is a “date rape drug.” In support, he cites a U.S. Department 

of Health & Human Services (HHS) webpage, which states 

the three most common “date rape drugs” are Rohypnol 

(flunitrazepam), gamma hydroxybutyric acid (GHB), and 

ketamine. (Office on Women’s Health, U.S. Dept. Health 

& Human Services, Date Rape Drugs (May 22, 2018) <http://web.

archive.org/web/20180728010337/https://www.womenshealth.gov/

a-z-topics/date-rape-drugs> [as of Dec. 21, 2023], archived at 

<https://perma.cc/H5HU-WD6G> (HHS webpage).) Hsu 

also asserts federal law defines “date rape drug” to mean 

flunitrazepam, GHB, and ketamine. (See 21 U.S.C.

§ 841(g)(2)(A).)

Despite accusing the government of omitting relevant 

information in order to paint a misleading picture, Hsu engages 

in similar tactics himself. For example, Hsu does not mention 

the HHS webpage defines “date rape drugs” as “drugs that are 

sometimes used during sexual assault.” Nor does he mention 

the webpage explicitly states MDMA “has been used to commit 

sexual assault. It can be slipped into someone’s drink without 

the person’s knowledge.” (HHS webpage.) In other words, 

Hsu’s own source seems to support the affidavit’s assertion 

that MDMA is a “date rape drug.”5

5 In a footnote, Hsu acknowledges the HHS webpage states 

MDMA use can inhibit the ability to give reasoned consent and 

place an individual at greater risk of sexual assault. However, 

he suggests that fact is irrelevant because the webpage does not 

specifically state MDMA is a “ ‘date rape’ drug which renders 

the victim unconscious.” True, the webpage does not claim 

MDMA can render a victim unconscious. However, neither does 

the affidavit.
40

Also misleading is Hsu’s suggestion that federal law 

provides an exhaustive list of “date rape drugs.” It does not. 

The statute states that, in addition to flunitrazepam, GHB, and 

ketamine, the term “ ‘date rape drug’ ” includes “any substance 

which the Attorney General designates . . . to be used in 

committing rape or sexual assault.” (21 U.S.C. § 841(g)(2)(A).) 

Although it does not appear the Attorney General has designated 

MDMA to be a “date rape drug,” based on the information in 

the record concerning its effects, it would not be unreasonable 

to designate it a “substance . . . to be used in committing rape 

or sexual assault.”

Hsu also wholly ignores Porrata’s testimony on the issue.6 

At the second preliminary hearing, Porrata defined “date rape 

drugs” as drugs used “for the purpose of committing . . . drugfacilitated sexual assault.” She testified it is a “myth” that there 

are only three such drugs. Instead, according to Porrata, more 

than 50 drugs have “been identified and used in this manner,” 

including MDMA.

Considering the ample evidentiary support for the 

affidavit’s characterization of MDMA as a “date rape drug”—

including from one of Hsu’s own sources—we reject Hsu’s 

argument that the affidavit misstated or omitted material 

information on the issue.

6 We reject Hsu’s suggestion that, because the affiant 

drafted the affidavit before the second preliminary hearing, 

Porrata’s testimony is irrelevant. As Hsu acknowledges, the 

question before us is whether the affidavit makes material 

misrepresentations or omissions concerning MDMA’s status 

as a “date rape drug.” Porrata’s testimony is directly relevant 

to that issue.
41

c. The quantity of MDMA in L.U.’s wine glass

Hsu argues the affidavit improperly omits the fact that 

L.U.’s wine glass contained roughly 16.95 milligrams of MDMA. 

He argues this information is crucial because 16.95 milligrams 

are not enough to render someone “unconscious or incoherent.” 

In support, Hsu relies entirely on Olson’s testimony that 

recreational MDMA users often recommend 120 milligrams 

as a safe first-time dose of the drug.

In making this argument, Hsu simply ignores the fact that 

police discovered two additional vials of MDMA in his pocket. 

From this, it is reasonable to infer Hsu intended to administer 

more MDMA to L.U. If so, the fact that L.U.’s glass contained 

a relatively small amount of MDMA is largely irrelevant.

Even if we were to assume Hsu did not intend to 

administer more MDMA to L.U., his argument still fails. In

relying on Olson’s testimony, Hsu assumes the dose required to 

facilitate a sexual assault is the same as the dose required for 

recreational use. That assumption is not well founded. Porrata 

testified that a typical dose of MDMA is in the range of 50 to 150 

milligrams, “but we see lower doses needed in sexual assault.” 

In fact, Porrata explained that a high dose of MDMA could be 

counter-productive for facilitating a sexual assault because 

it may cause increased energy and activity. Considering this

testimony, the fact that L.U.’s glass contained less than a 

recreational dose of MDMA would seem to support—rather 

than refute—the government’s suspicion that Hsu’s goal was 

sexual assault. Accordingly, we reject Hsu’s contention that 

the government’s omission was material or intended to mislead

the magistrate.
42

d. Disclosure of the previously quashed warrants

Hsu argues the government made material 

misrepresentations and omissions concerning the fact that 

a court previously quashed Warrant One and Warrant Two.

The trial court rejected this argument, explaining that, “while 

it is disturbing that the affiant failed to disclose to the magistrate 

that this Court granted a motion to quash a previous warrant, 

even when factoring in this omitted information, probable cause 

still existed for authorizing the search.”

Hsu does not directly address the court’s reasoning. 

Instead, he simply accuses the government of strategically 

omitting the information to hide the fact that it made only 

superficial additions to Warrant Five that failed to correct 

the deficiencies with Warrant Two. According to Hsu, the 

government “shopp[ed] for a judge (while failing to notify 

those judges of what else was occurring) that would allow the 

government to do what they had been unsuccessfully trying to do 

for over two years—use the purported poisoning in a restaurant 

in Santa Monica to search Mr. Hsu’s electronic devices.”

To the extent Hsu is suggesting the government spent 

two years “shopping for a judge” who would sign a search 

warrant, his argument finds no support in the record. The delay 

in completing the search was the result of the government’s 

inability to bypass the phone’s security; it had nothing to do 

with the government’s difficulty obtaining a warrant. The 

government seized Hsu’s phone in May 2016 and completed 

its search sometime around December 2017. During those 

19 months, three different magistrates issued warrants 

to search the phone.
43

Equally meritless is Hsu’s suggestion that the government 

made only superficial additions to Warrant Five. The affidavit 

supporting Warrant Five is eight pages longer than the affidavit 

supporting Warrant Two. Those additional pages directly 

address the deficiencies with Warrant Two by providing 

significant new details concerning the effects of MDMA, the 

characteristics of sexual assault perpetrators, and the reasons 

to suspect Hsu used MDMA to facilitate a sexual assault. Indeed, 

the same judge who quashed Warrant Two found Warrant Five 

is “much more detailed” and “contains significant facts” that 

address Warrant Two’s deficiencies. While we share the court’s 

concern that the government did not disclose the quashed 

warrants, we also agree it does not necessitate granting 

Hsu’s motion to suppress.

DISPOSITION

We affirm the order.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J. LAVIN, J.