Filed 6/23/15 P. v. Raoult CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
JEREMY EVAN RAOULT,
Defendant and Appellant. 2d Crim. No. B256148 (Super. Ct. No . 2012004512) (Ventura County)

After a police officer arrested Jeremy Evan Raou lt for possessing methamphetamine, he searched the passenger compartment of Raoult's car and found incriminating videos in a ca mera's digital storage. Su bsequently, the United States Supreme Court decided that officers may not s earch a cell phone's digital storage incident to lawful arrest. ( Riley v. California (2014) __ U.S.__ [1 34 S.Ct. 2473, 2495] ( Riley ).) We conclude that Riley does not extend to the digital came ra on this record, and, even if it did, the officer acted in good fa ith reliance on existing authority. Raoult appeals from an order denying his motion to suppress and the judgment that followed his conviction by jury of three counts of committing lewd acts upon a child (Pen. Co de, § 288, subd. (c)(1)) 1 ; one count of possessing a controlled substance (Health & Saf. Code, § 11377); and one count of failing to appear on bond (§ 1320.5). We affirm.

1 All statutory references are to the Penal Code unless stated otherwise.2 FACTUAL AND PROCEDUR AL BACKGROUND In 2012, Raoult was on probation following a convic tion for possessing narcotics. As a term of his probation, Ra oult consented to warrantless searches of his person and property "for co ntrolled substances includi ng marijuana and related paraphernalia . . . ." 2 Ventura City Police Officer Arthur Gonzales stopped Ra oult's car because the rear license plate was not illuminated. Wh en Gonzales checked Ra oult's records, he learned that Raoult was wanted and subject to the controlled substance probation search

term. Gonzales arrested Raoult. The partie s agree that the detention and arrest were lawful. Raoult complied with Gonzal es's instructions to get out of the car. After Gonzales handcuffed Raoult, Raoult told Gonzal es that he "had dope on him." Gonzales found baggies that held about 10 grams of methamphetamine in Raoult's pocket. Gonzales searched Raoult's car and found a backpack with a camera inside. He searched through the camer a's digital storage and found three videos of Raoult's 15- year-old female passenger performing sexual act s. Gonzales also searched Raoult's cell phone, but found nothing incriminating. In July 2013, Ra oult moved to suppress eviden ce found in his "Nikon Coolpix Camera" and in his cell phone. (§ 15 38.5.) The trial court heard the motion to suppress in December 2013, about six months before the United States Supreme Court decided Riley , supra , __ U.S.__ [134 S.Ct. 2473]. Gonzales testified that, in his expe rience, it is common for drug users and dealers to have photographs of drugs and drug paraph ernalia. He knew Raoult was

2 The trial court took judicial notice of Raou lt's probation terms and read them into the record. The terms are not include d in the clerk's transcript.3 subject only to a specific search term "[f]or controlled substa nces." He was not aware of any general search term or st olen property search term. 3 The trial court denied the motion to suppress. It relied on then-current California precedent that held that searches of cell phones incident to lawful arrest do not violate the Fourth Amendment. ( People v. Diaz (2011) 51 Cal.4th 84, 93; People v. Nottoli (2011) 199 Cal.App. 4th 531, 557-558.)
DISCUSSION The Fourth Amendment protects against unreasonable searches and seizures. Generally, a nonconsensual search is only reasonable if it is made pursuant to a warrant. ( Riley , supra , __ U.S.__ [134 S.Ct. 2473, 2482 ].) But warrantless searches may be reasonable under established exceptions. ( Ibid. ) One such exception is a search incident to lawful arrest. ( Ibid. ) It allows officers to sear ch (1) an arrestee's person and the area within his or her immediate contro l to protect officer safety and preserve evidence ( id. at p. 2483; Chimel v. California (1969) 395 U.S. 752, 762-763); and (2) the passenger compartment of an arrestee's vehicl e when it is reasonable to believe evidence relevant to the crime of arrest might be f ound there, for the sole purpose of gathering evidence ( Riley , at p. __ [at pp. 2484, 2492]; Arizona v. Gant (2009) 556 U.S. 332, 350). Gonzales reasonably believed th at evidence of drug possess ion might be found in the camera's digital storage because drug users and dealers comm only photograph their drugs and paraphernalia. When Gonzales arrested Raoult, California law held that the scope of a search incident to lawful arrest extends to the contents of the arrestee's cell phone, whether the phone is on their pe rson or in their vehicle. ( People v. Diaz , supra , 51 Cal.4th 84, 93 [the warrantless s earch of a cell phone within arrestee's immediate control does not violate the Fourth Amendment when incident to lawful arrest]; People v. Nottoli ,

3 The prosecutor asserted that Raoult was also subject to a general search term as a condition of a supervised release program, but conceded that was "irrelevant for the purposes of this motion since the officer didn't know that." The trial court agreed it was irrelevant.4 supra , 199 Cal.App.4th 531, 558 [t he warrantless search of a cell phone in the passenger compartment of the arrestee's vehicle doe s not violate the Fourth Amendment when incident to lawful arrest].) The California's Legislature responded to Diaz and Nottoli by passing a bill that would require a warrant for a search of any portable electronic device, incident to arrest. (Sen. Bill No. 914 (20 11-2012 Reg. Sess.) § 2.) Gove rnor Brown vetoed the bill, explaining that it would "overturn a Califor nia Supreme Court de cision," and "[t]he courts are better suited to re solve the complex and case-s pecific issues relating to constitutional search-and-seizure protections." (Governor Edmund G. Brown, Jr., letter to Cal. Sen., Oct. 9, 2011.) After the hearing on Raoult's moti on to suppress, the United States Supreme Court resolved the issue. It decided th at "the search incident to arrest exception does not apply to cell phones." ( Riley , supra , at p. __ [134 S.Ct. 2473, 2494].) Justice Roberts wrote for the unanimous court: "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant." ( Id. at p. __ [p. 2495].) The co urt refused to extend the Gant exception to cell phones, which would have "allow[ed] a warran tless search of an a rrestee's cell phone whenever it is reasonable to believe that th e phone contains evidence of the crime of arrest." ( Riley , at p. __ [p. 2492].) It decided that proposal "would prove no practical limit at all when it comes to cell phone searches." ( Ibid .) The court reasoned, "It would be a particularly inexperienced or unimagi native law enforcement officer who could not come up with several reasons to suppose eviden ce of just about any crime could be found on a cell phone." ( Ibid .) Riley was concerned that "a cell phone s earch would typically expose to the government far more than the most exhaustive search of a house." ( Riley , supra , __ U.S.__ [134 S.Ct. 2473, 2491.) An argument can be made that the digital storage of a camera and the digital storage of a cell phone are similar for purposes of the Fourth Amendment, but the argument is not supported by this record. Some digital cameras may have the capabilities of a smartphone, but there is no evidence that Raoult's camera did.5 There is no evidence of its capa bilities at all, except that it st ored video footage. Nothing in the record establishes that the camera held "a cache of sensitive personal information" of the scope that supported the Riley court's protection of a cell phone. ( Riley , supra , __ U.S.__ [134 S.Ct. 2473, 2490; id. at pp. 2489-2490, 2493].) The Riley court observed that "[t]he sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions" ( id. at p. __ [p. 2489]), but there is no evidence that Ra oult's photographs and videos were thus labeled. Riley does not extend to protect Raoult's camera on this record. Because the search was justified incide nt to lawful arrest, we do not reach the question whether Raoult consented to a warra ntless search of his person and property for "controlled substances including marijuana and related paraphernalia" as a term of his probation. Even if the search was unlawful under Riley , the evidence would not be subject to exclusion. "[T]he sole purpose of the exclusionary rule is to deter misconduct by law enforcement." ( Davis v. United States (2011) __ U.S. __ [ 131 S.Ct. 2419, 2432].) Exclusion is not a personal right designed to re dress injury; rather, it is a sanction to deter future violations. ( Id. at p. __ [pp. 2433-2434].) Thus , the exclusionary rule does not apply when police conduct a search in ob jectively reasonable reliance on binding appellate precedent that is later overturned. ( Id. at p. __ [pp. 2423-2424].) Officer Gonzales searched the cell phone and ca mera in objectively reasonable reliance on Diaz and Nottoli . The trial court reasonably relied on the same authority. Raoult argues that Gonzales could not reasonably rely on Diaz and Nottoli because they were uncertain and non- binding. He points out that the Diaz court was divided, Diaz and Nottoli were not long-standing, neither case involved a digital camera, both relied on authority that pr eceded modern technology, and Diaz anticipated that the United States Supreme Court would "reevalu ate" its precedent in light of "modern technology." ( People v. Diaz , supra , 51 Cal.4th 84, 101.) But Gonzales was bound by Diaz and Nottoli , the holdings of which were sufficiently clear to trigger legislative respon se. As the Legislative Counsel's Digest of6 Senate Bill No. 914 (201 1 Reg. Sess.) explained, "Existi ng case law authorizes arresting officers, without a warrant, to conduct a search incident to a lawful arrest, including to search the contents of a cellular telephone taken from a suspect duri ng an arrest." If it authorized officers to search th e digital contents of a phone, it authorized them to search the digital contents of a camera, which are fa r less sensitive. And Gonzales could not be expected to question the veracity of Diaz and Nottoli . The United States Supreme Court expresses a "general preference to provid e clear guidance to law enforcement through categorical rules." ( Riley , supra , __ U.S. __ [134 S.Ct. 2473 , 2491].) "[I]f police are to have workable rules, the balanc ing of the competing interests . . . 'must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.'" ( Michigan v. Summers (1981) 452 U.S. 692, 70 5, fn. 19.) Gonzales reasonably relied on categorical binding precedent. The evidence he found is not subject to exclusion.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.7 Kevin G. DeNoce, Judge
Superior Court County of Ventura

________________ ______________

Stephen P. Lipson, Public Defende r, Michael C. McMahon, Chief Deputy, William Quest, Senior Deputy Public Defender, for Defenda nt and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Ge neral, Margaret E. Maxwell, Supervising Deputy Attorney General, Tanna z Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.