Filed 9/ 4/15 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MARSALIS JOSEPH SMITH, Defendant and Appellant. G050496 (Super. Ct. No. 14CF0251)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.2 In 2011, the California S upreme Court issued its opinion People v. Diaz (2011) 51 Cal.4th 84 ( Diaz ), holding police may conduct a warrantless search of a cell phone seized from a defendant ’ s person at the time of arrest without violating the Fourt h Amendment’ s proscription against unreasonable searches and seizures

.

In January 2014, police officers arrested Marsalis Joseph Sm ith, who had a cell phone, for various offenses. Eleven days later, officers searched his cell phone using data extraction technology . The trial court den ied Smith’s motion to suppress evidence recovered from his cell phone pursuant to Diaz, supra, 51 Cal.4th 84.

W eeks later, in Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473,
2482 ( Riley ) , the Supreme Court of the United States he ld the search inc ident to arrest exception to the warrant requirement did not apply to cell phones, and absent exigent circumstances, a warran t was required to search a cell phone seized at the time of arrest.

A few weeks later, the trial court denied Smith’s renewed motion to suppress, concluding offi cers acted in good faith on existing law at the time of the search. Smith subsequently pleaded guilty and appealed.

Smith argues Riley controls and Diaz was both not good law and inapposite . The Attorney General cont ends Diaz was good law and officers acted in goo d
faith on Diaz

. We agree with the Attorney General

. 1
FACTS In January 2014, police officers arrested a 17

- year

- old girl for suspicion of prostitution. Sh e told officers that Smith was her pimp, Smith watc hed while hi s friends assaulted her, and Smith took photographs of her with his cell phone for his illicit
website. When officers arrested Smith, he had a Samsung Galaxy S4 cell phone (the Cell Phone) , which was passwor d protected. Eleven days later, off icer s recovered 4,175 pages
of data from the Cell Phone using Cellebri te data extraction technology.

1 The same issue is pending before the California Supreme Court in People v. Macabeo , S221852, re view granted November 25, 2014.3 An information charged Smith with the following: human trafficking with the intent to pimp (Pen. Code, § 236.1, subd. (c)(1) , all further statutory refer ences are to the Pen. Code ) (count 1); pimping a minor (§ 266h, subd. (b)(1) (count 2); and pandering with a minor over 16 years old by procuring (§ 266i, subds. (a)(1), (b)(1) ). The information alleged Smith committed count 1 using force and fear (§ 236. 1, sub d. (c)(2)),
and he suffered a prior pri son term (§ 667.5, subd. (b)).

After the trial court denied Smith’s non

- statutory motion to dismiss count 1,
Sm ith filed a motion to suppress evidence recovered from the Cell P hone (§ 1538.5). The p rosecution opposed the motion, and Smith replied ; the parties stipulated to the facts for purposes of the motion

. The trial court denied the motion concluding it was bound by Diaz, supra, 51 Cal.4th 84, although the court stated it expected the law to cha nge.

Smith filed a motion for rehearing of his motion to suppress citing to the then recently decided case, Rile y, supra, 134 S.Ct. 2473. The prosecution opposed the motion, arguing the court should deny the motion because officers relied in good faith on Diaz , which was existing law at the time of the search, citin g Davis v. United States (2011) ___ U.S. ____, 131 S.Ct. 2419 ( Davis ). The trial court agai n denied the motion to suppress, this time concluding officers acted in good faith on the existing law at the time
of the search. After the prosecutor amended the information by interlineation , S mith pleaded guilty to human trafficking (§ 236.1, subd. (a) , count 4 ), and criminal threats (§ 422, subd. (a) , count 5 ). The trial court sentenced Smith to five years in prison on count 4, and a concurren t term of two years on count 5. On the prosecutor’s motion, the

court dismissed counts 1, 2, and 3. Smith timely appealed.
DISCUSSION “The Fourth Amendment generally requires police to secure a warra nt before conducting a se arch.” ( Maryland v. Dyson (1999) 527 U.S. 465, 466, citing California v. Carne y ( 1985) 471 U.S. 386, 390

- 391.) “[I]t is a cardinal principle that4

‘searches conducted outside the judicial process, without prior approval by judge or

m agistrate, are per se unreasonable under the Fourth Amendment

-- subject only to a few specifically established a nd well

- delineated exceptions.’” ( Mincey v. Arizona (1978) 437 U.S. 385, 39 0 , quoting Katz v. United States (1967) 389 U.S. 347, 35 7 , fns. omi tted.) One such exception is the search incident to lawful arrest. ( Chimel v. California (1969) 395 U.S. 752, 762.)

“The [Fourth] Amendment says nothing about suppressing evidence
obtained in violati on of [its] command. That rule

-- the exclusionary ru le

-- is a ‘prudential’ doctrine, [citation], created by this Court to ‘compel respect for the
constitu tional guaranty.’ [Citations.] Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconsti tutional search. [Citations.] The rule’s sole purpose, we have repe atedly held, is to deter future Fourth Amendment violations. [Citations.] Our cases have thus limited the rule’s operation to situations in which this purpose is ‘thought most efficacio usly served.’ [Citation.] Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly . . . unwarrant ed.’ [Citation.]” ( Davis, supra, 131 S.Ct. at pp. 242 6

- 2427

. )

“‘“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry
under the deferential substantial

- evidence standard. The ruli ng on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” [Citation.] On appeal we consider the correctness of the trial court’s ruling itself , not the correctness of the trial court ’s reasons for reaching its decision. [Citations.]’ [Citation.]” ( People v. Bryant (2014) 60 Cal.4th 335, 364

- 365.)

Smith argues, and the Attorn ey General effectively concedes , that pursuant

to Rile y, supra , 134 S.Ct. at page 2482, the warrantless search of Smi th’s cell phone was
unlawful. But e ven if the search was unlawful under Riley , the evidence was admissible5

pursuant to Diaz . We will first address issues related to the precedential value of Diaz and then discuss its applicability to the fac ts here.
Precedential Value

In Davis , the United States Supreme Court evaluated the applicability of the good faith exception in a case involving a change in the law concerning the permissibility
of automobi le searches incident to arrest. The Court held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not sub ject to the exclusionary rule.” ( Davi s, supra, 131 S.Ct. at pp. 2423

- 2424, 2426

- 2429.) The Court explained the exclusionary rule is not a personal constitutional right nor is it designed to redress the injury caused by an unconstitutional search; rather, its sole purpose is to deter
futu re Fourth Amendment violations. ( Id . at p. 2426.) “For exclusion to be appropriate,
the deterrence benefits of s uppression must outweigh its heavy costs.” ( Id . at p. 2427.)

Here, at the time the Cell Phone was searched , the se arch was authorized by Diaz , which hel d a warrantless search of the digital contents of a cell phone is lawful when the search is pe rformed incident to an arrest. ( Diaz, supra, 51 Cal.4th at p. 101.) Although Diaz is no longer good law in light of Rile y, supra, 134 S.Ct. 2473 , it was binding precedent in California at the time of the search

. We presume that when officers
searched the Cell Phone, they acted in objectively reasonable reliance on Diaz ’s authorization of such a search as incident to Smith’s arrest. ( Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163 , 178 [“A public officer is presumed to know the law, pro vided it is c learly established” ].) Consequently, the good faith exception precludes application of the exclusionary rule that would otherwise result in the suppression of the evidence recovered from the cell phone.

Smith asserts that despite Davis , police officers c ould not have reasonably
relied on Di az , which he describes as an “outlier,” for the following reasons: (1) Riley
was a 9

- 0 decision decided just three years after Diaz ; (2) Rile y did not overrule any of its6

own precedent; and (3) the concurrence and diss ent in Diaz demonstrate the majority’s

op inion was contrary to the law.

First, we do not think it is the role of police officers to determine if the decisions of the California Supreme Court are “outliers.” We conclude it is reasonable
for law enforcemen t agencies to train their officers to follow the directions of the California Supreme Court until directed otherwise.

Second, to the extent the timeliness and unanimity of the United States Supreme Court is indicative of the soundness of the majority op inion in Diaz , we note the United States Supreme Court denied petition for writ of certiorari in Diaz . ( Diaz v. California (2011) 132 S.Ct. 94. ) Defendant ’s appellate counsel in Diaz could not
convince just four justices 2 the California Supreme Court’s decision was glaringly
incorrect

. Third, that the Riley court did not overrule any of its own precedent does
not establish Diaz was contrary to law. The Riley court noted the smart phone “was unheard of [10] years ago.” ( Rile y, supra , 1 34 S.Ct. at p. 2484.) Thus , the Riley court examined existing precedent and applied its rationale to a new technology. Not every case, either at the nation’s highest cou rt or our State Supreme Court , requires overruling existing preceden t to r each its holding. Courts routinely apply old law to new facts.

Finally, the fact Diaz included a concurrence and dissent does not demonstrate it was such an anomaly officers shou ld have disregarded it. First, a majority opinion states the law and constitutes the decision of the court that binds lower courts and a dissent constitutes only the personal views of the author. ( Wall v. Sonora Union High
School Dist. (1966) 240 Cal.App.2d 870, 872.) Second, the majority opinion in Diaz

2 Custom at the Supreme Court of the United States is a grant of certiorari requires the approval of four justices. (See Thigpen v. Roberts (1984) 468 U.S. 27, 33 (Rehnquist, J., dissenting).7

thoroughly ex amined and interpreted United States Supreme Court precedent 3 in deciding

t he novel issue before it. The fact the United States Supreme Court interpreted t hat precedent differently as applied to new technology is of no consequence . Third , the Diaz

court was no t the only court to conclude officers could s earch a cell phone pursuant to the
search incident to lawful arrest excepti on to the warrant requirement. ( U.S. v. Murphy (4th Cir. 2009) 552 F.3d 405, 411

- 412 ; Silvan W. v. Briggs (10th Cir. 2009) 309 Fed.Appx. 216, 225; U.S. v. Finley (5th Cir. 2007) 477 F.3d 250, 259

- 260; U.S. v. Mendoza (8th Cir. 2005) 421 F.3d 663, 667

- 668; see U.S. v. Ortiz (7th Cir. 1996) 84 F.3d 977, 984 [warrantless search of pager prop er as incident to lawful arrest ].) Th us, officers reasonably relied on Diaz at the time of the search because it was good law. Applicability Diaz, supra, 51 Cal.4th at pages 90

- 93 , began its analysis of the i ssue with
a discussion of three controlling United States Supreme Court decisions, Robinson ( cigarette package ) , Edwards ( clothes ) , and Chadwick ( footlocker ) . The court stated the issue was whether defendant’ s cell p hone was personal property immediately associated with his person like the cigarette package in Robins on and the clothes in Edwards . The court opined if the cell phone was associated with his person, then the delayed
warrantless search was a valid search incident to defend ant’ s lawful custodial arrest. ( Dia z, supra, 51 Cal.4th at p. 93 .) The Diaz court co ncluded, “We hold that the cell phone was ‘immedia tely associated with [defendant’s] person’ [citation] , and that the warrantless search of the cell phone therefore was valid.” ( Ibid .)

Here, Smith “agrees that the constitutionality of a delayed search incident to arrest is not dependent on whether the delay is short (minutes or hours) or lon g (as the

3 United States v. Chadwick (1977) 433 U.S. 1 ( Chad wick ) , overruled on other grounds in California v. Acevedo (1991) 500 U.S. 565, 579; United States v. Edwards (1974) 415 U.S. 800 ( Edwards ); United States v. Robinson (1973) 414 U.S. 218 ( Robinson ).8

11

- day delay here).” Smith asserts the relevant constitutional question is whether officers had the “ ability ” to search the personal p roperty at the time of arrest. In other words, if the Cell Phone had not been password protected officers could have lawfully searched the Cell Phone but because it was password protected the search, irrespective of time, was unlawful. We agree with the Attorney General th at Smith mistakes an officer’s authority to search with an officer’s ability to search because of the character of the item. Again, Diaz is instructive.

In rejecting defendant’s argument the character of the item is dispositive,
the Diaz court, citing again to Robinson , Edwards , and Chadwick , stated, “The relevant high court decisions do not support the view that whether police must get a warrant before searching an item they have properly seized from an arrestee’s person incident to
a la wful custodial arrest depends on the item’s character, including its capacity for storing personal information.” ( Diaz, supra, 51 Cal.4th at p. 94.) The Diaz court also examined “analogous contexts” to conclude the character of an item is not determinati ve. For example, the Diaz court cited to United States v. Ross (1982) 456 U.S. 798, 825 ( Ross ) , where the United States Supreme Court held that where police have probabl e cause to search a vehicle without a warrant, the search may encompass not only a clo sed compartment such as a glove box, but also any containers or packages found inside the
vehicle. The Diaz court cited to the following language in Ross : “[A] constitutional distinction between ‘worthy’ and ‘unworthy’ containers would be improper. Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distin ction.” ( Ross, supra, 456 U.S. at p. 822; Diaz, supra, 51 Cal.4th at p. 95.) Based on this language , we conclude the character of the item, and the ability to search that item at the time of arrest, is not the focus of the inquiry. The focus is whether at the time of the9

arrest, officers had the authorit y to search the item. Here, based on Diaz , officers had the authority to search the Cell Phone , although their ability to search it came later.

Smith’s reliance on a concurrence in U.S. v. Jones (2012) ___ U.S. ___, 132 S.Ct. 945, 963

- 964 ( Jones ) , a case concerning GPS surveillance of an automobile, for the proposition technological advancements requires reexamination on the legalit y of searches, is unpersuasive . Reliance on Jones is misplaced b ecause it was decided after Diaz

. That the United States Supreme Court, as the final arbiter on questions of federal constitutional law, subsequently reexamined whether warrantless searches of cell phones
were lawful and overruled Diaz , is not dispositive here. As we explain above, Diaz was the law when the Cell Phone was searched here and the search was constitutionally
lawful as a search incident to Smith’s arrest

. DISPOSITION The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.