1 Filed 10/29/14 Kennedy v. Super. Ct. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

DWIGHT COREY KENNEDY, Petitioner,

v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. A140199

(Alameda County Super. Ct. No. H53381)

Petitioner Dwight Corey Kennedy challeng es a number of warrantless searches and seizures that took place after he was arre sted for driving on a suspended license. He
contends that warrantless searches of his ve hicle and cell phone we re unlawful, and he argues that a protective sweep of his home before a search warrant issued was not justified by officer safety or exigent circumstances.
We conclude that the odor of unburned marijuana furnished probable cause to search petitioner’s vehicle under the automob ile exception to the warrant requirement. We also conclude that, although the United States Supreme Court has since held that police generally may not search the cont ents of a cell phone without a warrant ( Riley v. California (2014) 573 U.S. __, __ [1 34 S.Ct. 2473, 2485] ( Riley )), the search in this case was conducted in objectively reasonable re liance on binding California precedent in effect at the time. Conseque ntly, the evidence se ized from the cell phon e falls within the2 good faith exception to the exclusionary rule. In add ition, because there was probable cause to support the issuance of a search wa rrant for petitioner’s residence even without considering evidence uncove red during the warrantless protective sweep of that residence, it is unnecessary to consider whether officers acte d lawfully in conducting the warrantless sweep. Accordi ngly, we deny the petition.
F ACTUAL AND P ROCEDURAL B ACKGROUND Procedural History The Alameda County Dist rict Attorney filed a seven-count information in February 2013 char ging petitioner with possession of methamphetamine while armed with a loaded gun (Health & Saf. Code , § 11370.1, subd. (a)), possession of methamphetamine for sale (Health & Saf. C ode, § 11378), two counts of the sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), two counts of possession of marijuana for sale (Health & Saf. Code, § 11359), and cultivation of marijuana (Health & Saf. Code, § 11358). The first five coun ts of the information arose
from events that occu rred on August 5, 2011, while counts six and seven arose from events taking place on March 29, 2012. After the information was filed, petiti oner moved to suppress evidence seized during warrantless searches and se izures that took place in Au gust 2011 and March 2012. The trial court denied the suppression motion. Petitioner filed a writ petition in this court challenging the denial of his suppression motion. The writ petition challe nges the denial only as it relates to
warrantless searches and seizures that occurred in August 2011. We issued a stay as well as an order to show cause why the petition sh ould not be granted. While the petition was pending, we directed the parties to subm it supplemental briefing on the effect of the decision of the United States Supreme Court in Riley, supra, 134 S.Ct. 2473, which addresses whether warrantless cell phone search es incident to an arrest are lawful.
Facts On August 5, 2011, ataround 7:30 p.m., Alamed a County Sheriff’s Deputy Michael Dalisay saw petitioner drive into the park ing lot of a liquor store in San Leandro.3 There was no one else in the car with petitioner. Petitioner pa rked in front of the store. His car occupied two parking spaces in th e store’s parking lot. Deputy Dalisay recognized petitioner from two pr evious encounters in which petitioner had been arrested. The deputy recalled that one of the previous encounters occurred earlier in 2011. Deputy Dalisay knew that petitioner’s criminal behavi or consisted of driving with a suspended license and reckless driving, but he did not know why petitioner’s license had been suspended. Before making any contact with petitioner, Deputy Dalisay checked to see if petitioner had a suspended license by contacting dispatch. Th e deputy had no reason to believe petitioner was armed or that he was involved in any drug -related activity. Deputy Dalisay and another officer, Se rgeant Schuler, waited until petitioner left the liquor store before approachin g him. Sergeant Schuler walked to the driver’s side of the vehicle as petitioner opened the door while Deputy Dalisay approached from the passenger side. Deputy Dalisay smelled a “very strong odor” of unburned marijuana coming from the inside of petitioner’s vehicl e. The sergeant spoke first and asked petitioner for his driver’s license. Petitioner was upset and proteste d that he had never
been arrested before. After further discu ssion and another request for petitioner’s license, petitioner produced a California identification card but not a driver’s license. Petitioner’s
identification showed that he resided at 573 Empire Street in San Lorenzo (hereafter “573 Empire”). It was later determ ined that 573 Empire was the home of petitioner’s mother,
Lisa Romero. Sergeant Schuler placed petitioner in handcuffs. The deputy confirmed that petitioner’s license was suspende d and told petitioner that he was under arrest for driving on a suspended license in violation of Vehi cle Code section 14601.1. Petitioner was in
handcuffs for about five minutes be fore being placed under arrest. The officers performed a search of petitione r’s vehicle. They found packages of marijuana in a storage compartment located in the driver’s door as well as a cell phone in the same area. The marijuana was packaged in two clear ba ggies that were tied at the top. One baggie contained about two grams of marijuana while the other contained 15 grams. The officers also found empty Zipl oc baggies in the trunk. The vehicle’s4 registration, which was recovere d during the search, revealed that the car was registered to petitioner’s mother at 573 Empire. Deputy Dalisay claimed there were two gr ounds for conducting the vehicle search. First, he believed there was probable cause to search based upon the strong smell of marijuana emanating from the interior. Se cond, he testified that the search was conducted to inventory the vehicle’s contents . Deputy Dalisay stated that the sheriff’s department has a written policy concerning i nventory procedures a nd that he had been trained in that process. He believed the ve hicle was parked illegally because it occupied two spaces. He felt it was n ecessary to impound and tow the vehicle because it was purportedly parked illegally and because th ere was no one else available to take possession of the car. He also testified that the car was parked in a high crime area and
that he was concerned the car or its contents wo uld be at risk of theft or vandalism if left at the liquor store. Deputy Dalisay acknow ledged that no attempt had been made to contact the vehicle’s owner, Rome ro, before it was towed. Following petitioner’s arrest for driv ing with a suspende d license, officers conducted a search of his person. 1 They recovered a cell phone from his pants pocket as well as $5,941 in cash. Petitioner claimed he had earned the cash while working for a moving company. A few minutes after retr ieving the cell phone, Deputy Dalisay began looking at its contents. One th ing that caught his attention was a series of text messages from the previous day. One text message was from someone identified as “Rooser” and

1 The precise order in which events tran spired after the deputy first observed petitioner is not entirely clear from the testim ony presented at the suppression hearing. According to a statement made by defense co unsel at the suppression hearing, officers first arrested petitioner for driv ing on a suspended license, then searched the vehicle, and then searched his person. This sequence is consistent with the deputy’s testimony and does not appear to be disputed.5 read, “I am going to need a [whole one] in a min.” 2 A responsive text message read, “I
will be there in a min.” Deputy Dalisay knew from hi s experience in law enforcem ent that a “whole one”
on the street refers to one ounce of an illicit drug. He concluded that the phone recovered from petitioner served as the means for communicating with potential buyers. Deputy Dalisay testified that he had been involved in ove r 100 marijuana sales cases in the seven years he had been in th e sheriff’s department. Petitioner requested on several occasions to call his mother at her residence. He also asked if he could call his mother from ja il. Deputy Dalisay did not allow him to call
because he was concerned thatevidence of drug sales coul d be discarded quickly if someone at the residence were alerted to pe titioner’s arrest. Petitioner appeared nervous and agitated when he was denied the right to call his mother. Based upon his past experience, Deputy Dalisay believed there wo uld be further evidence relating to drug sales at a suspected drug trafficker’s reside nce, including more drugs, money, and items
such as scales. In discussions with other officers at the liquor store where petitioner was arrested, Deputy Dalisay concluded there was probable cause to obtain a search warrant for 573 Empire. Nevertheless, even before a search warrant had been prepared, Deputy Dalisay
and other officers drove to the mother’s ho use in San Lorenzo with the intention of searching the residence for evidence of drug sales. He explained that there were two reasons he went to 573 Empire before ob taining a search warrant. First, he was concerned that petitioner might have access to a phone and direct someone to dispose of
evidence at that address before a search warrant could be obt ained. Second, the time and trouble of securing a search warrant at night could be avoided if th e owner of 573 Empire would give consent to s earch the residence.

2 The transcript actually refers to a “hole-in -one” but the transcription appears to be incorrect. Based upon the context of the te stimony as well as other references in the record to the content of the text message, it is apparent the text message referred to a “whole one” and not to a “hole-in-one.”6 Upon arriving at 573 Empire, Deputy Da lisay observed two cars parked outside the residence. Petitioner’s mother, Romero, an swered the door after officers knocked and
announced themselves as “Sheri ff’s Office.” Romero came outside and locked the door
behind her. When she was aske d if petitioner lived with he r, she initially said yes but then paused and gave an equivocal respons e, saying, “He comes and goes.” Deputy Dalisay asked Romero if anyone else was in the house. She did not give a clear answer
but instead said she did not think so. She a voided eye contact with the deputy during the exchange. Romero denied cons ent to search the house. Deputy Dalisay testified th at he had several concerns about the situation. He feared there could be weapons in the house or that somebody in the residence might destroy evidence. He did not know whether anyon e else was in the house and did not hear any noises from inside, but he felt that Romero’s actions were suspicious. Among other things, the presence of multiple vehicl es at the residence, Romero’s ambiguous responses, and her decision to lock the door behind her before talking with sheriff’s deputies caused him concern. The officers conducted a protective sweep of the residence. The stated purpose of the sweep was to ch eck the interior solely for persons th at might pose a threat to officers once they had a signed search warrant for th e residence. While Deputy Dalisay was inside the residence, Romero pointed out petitioner’s room, which was locked. Romero gave the deputy a key to the room and he ente red. Inside the room, Deputy Dalisay saw a black pistol lying on a pillo w on the bed. He rendered the gun safe by removing the magazine and locking the slide but otherwise le ft the gun where he found it. He was in
the house less than five minutes and did no t look in any containers or underneath anything during the protective sweep. It was only after Deputy Dalisay conducted the protective sweep that a detective left to prepare a search warrant. As suppor t for the search warrant, the detective recited the evidence recovered from pe titioner, including the cash a nd the text message found on his cell phone, as well as the evidence r ecovered from the vehicle, including the7 marijuana and the empty Ziploc bags. The se arch warrant also recited the fact that officers had found a gun in petiti oner’s bedroom at 573 Empire. A search warrant for 573 Empire was i ssued around midnight. A search of the residence pursuant to the warrant found me thamphetamine, ecstasy, a scale, a gun, two mature marijuana plants, and a large bag co ntaining marijuana, among other items. The evidence seized at 573 Empire supported th e first five counts of the seven-count information against petitioner.
D ISCUSSION 1. Standard of Review “In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or impl ied, if they are supported by substantial evidence. [Citation.] We exercise our inde pendent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.” ( People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
2. Initial Detention
Petitioner contends he was handcuffed at the outset of his interaction with the sheriff’s deputies without any obj ective justification for the restraint. He claims there were no specific, articulable, objective facts th at would cause an officer to suspect he was engaged in any criminal ac tivity. Notably, petitioner does not challenge the initial request for identification—wh ich preceded the handcuffing —other than to make a belated and legally unsupported claim in hi s reply brief that he complied with the
“unlawful demand for identification.”
The Fourth Amendment is not implicated when an officer asks to see an individual’s identification card. ( People v. Leath (2013) 217 Cal.App.4th 344, 353.) It is only when the totality of th e circumstances establish that the individual is not free to
leave that the encounte r is transformed into a detention. (See ibid. ) In this case, while there may be grounds to believe that petitioner did not feel free to leave when first asked for his driver’s license, petitioner does not make a factual or legal argument to support a claim that the initial request fo r identification amounted to an illegal detention. In ruling8 against petitioner, the trial court impliedly rejected the contention that petitioner was unlawfully detained wh en the deputies first encountered him. Petitioner has provided no reason for us to rej ect that conclusion. At the point petitioner was placed in handcu ffs, he had failed to produce a driver’s license despite his apparent intent to driv e away, and Deputy Dalisay had smelled a very strong odor of marijuana eman ating from petitioner’s vehicle. Under the circumstances, the deputies were justified in detainin g petitioner to investigate further. (See People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059–1060 ( Strasburg ).) We agree with petitioner that there appears to have been no justification for being placed in handcuffs while the deputies waited for dispatch to confirm the status of petitioner’s driver’s license. The record does not suggest the deputies had any reason to believe petitioner was armed or dangerous. Nevertheless, petitioner has not established that any subsequently discove red evidence was the produc t of his handcuffing. The deputies did not conduct the search of petitione r’s vehicle or the search of his person until after he was lawfully placed under arrestfor driving with a suspended license. Consequently, even if the handcuffing amounted to a co nstitutional violation, its connection to any evidence reco vered from petitioner, the vehicle, or his residence is too attenuated to apply the exclusionary rule to that evidence. ( People v. Durant (2012) 205 Cal.App.4th 57, 65.) Therefore, the allegedly illegal handcu ffing of petitioner does not support suppressing evidence obtained afte r he was lawfully placed under arrest.
3. Search of Petitioner’s Vehicle
Petitioner contends the search of his vehicl e was illegal. He first argues it was not
a valid search incident to arrest under Arizona v. Gant (2009) 556 U.S. 332 ( Gant ), in
which the United States Supreme Court held that an arrest for a traffic violation generally does not justify a search of an arrestee’s ve hicle absent genuine safety or evidentiary concerns. ( Id. at pp. 346–347.) We agree with petitioner that, without more, merely being arrested for driving with a suspended lic ense did not justify a search of the vehicle incident to petitioner’s arrest. The Attorney General does not dispute this conclusion.9 Petitioner next contends the “supposed” smell of marijuana did not constitute probable cause to support a warra ntless search of the vehicle. Finally, he argues that the warrantless search was not justif ied as an inventory search. As explained in more detail below, we conclude that the odor of unburned marijuana provided probable cau se for a warrantless search of the vehicle. Before addressing the legal support for this conclusi on, we simply note thatwe are bound by the trial court’s implied finding that Deputy Dalisay detected a very strong smell of marijuana emanating from the vehicle. A lthough petitioner seems to question whether the deputy could actually smell marijuana in light of the small amount that was recovered from the vehicle, the deputy’s testimony cons titutes substantial evid ence supporting the implied finding. (See People v. Lenart, supra, 32 Cal.4th at p. 1119.)
A. Probable Cause “The Fourth Amendment generally requir es police to secure a warrant before conducting a search.” (Maryland v. Dyson (1999) 527 U.S. 465, 466.) As recognized by the United States Supreme Cour t as early as 1925, “there is an exception to this requirement for searches of vehicles.” ( Ibid. ) Under established precedent, “the ‘automobile exception’ has no separa te exigency requirement.” ( Ibid. ) “ ‘If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to sear ch the vehicle without more.’ ” ( Id. at p. 467.) The decisions that uphold warrantless searches under th e automobile exception do not distinguish between vehicles that have been stopped on the highway and those parked at the curb. (See People v. Superior Court ( Overland ) (1988) 203 Cal.App.3d 1114, 1119.) Consequently, “the dispositive inquiry in a motion to suppre ss evidence found in
an auto search is whether the objective facts demonstrat e the ‘officers ha[d] probable cause to believe that the vehicle contain[ed] contraband.’ ” ( Ibid. ) If probable cause exists, the officers may conduc t a thorough warrantless se arch of the vehicle. ( United
States v. Ross (1982) 456 U.S. 798, 825.) The prob able cause standard “requires only a probability or substantial chan ce of criminal activity, not an actual showing of such activity.” ( Illinois v. Gates (1983) 462 U.S. 213, 243, fn. 13.)10 “California courts have concluded the odo r of unburned mariju ana . . . may furnish probable cause to search a vehicle under the automobile excep tion to the warrant requirement.” ( People v. Waxler (2014) 224 Cal.App.4th 712, 719 ( Waxler); see Strasburg, supra, 148 Cal.App.4th at p. 1059.) U nder established California law, the deputies in this case had probable cause to search petitioner’s vehicle as a result of detecting a strong odor of marijuana. Petiti oner advances a number of arguments why we should not apply this longstandi ng precedent in his case. His arguments lack merit, as we explain. Petitioner first suggests the automobile exception should not apply here because his vehicle was not “readily mobile.” Presum ably, petitioner’s point is that the vehicle
was not mobile because there was no one else to drive the vehicle away after he was placed under arrest. The contention is meritless. Ready mobility is not the sole basis for the exception to the warrant requirement. ( California v. Carney (1985) 471 U.S. 386, 390. ) The exception is also based upon a le sser expectation of privacy in one’s vehicle as opposed to one’s home. ( Id. at p. 391.) Further, the a pplication of the automobile exception “is not contingent upon whether the particular automobile could actually be moved at the time of the search.” ( People v. Superior Court ( Overland ), supra, 203 Cal.App.3d at p. 1118.) Petitioner next argues that the odor of marijuana does not pr ovide probable cause for a warrantless vehicle search in light of the recent “decriminalization” of the possession of small amounts of marijuana. U nder Health and Safety Code section 11357, subdivision (b), the possession of 28.5 grams or less of marijuana is punishable as an infraction. A person who possesses more th an 28.5 grams of marijuana is guilty of a misdemeanor. (Health & Saf. Code, § 11357, subd. (c).) Petitioner also points out that certain individuals who transport or process marijuana intended for personal medical use11 may be immune from prosecution for drug-related offenses. 3 (See People v. Mentch (2008) 45 Cal.4th 274, 291.) Therefore, according to petitioner, the mere fact that officers detect the odor of marijuana does not provide probable cause to be lieve that contraband is present or that a
crime has been committed. Petitioner relies in part upon a decision of the Supreme
Judicial Court of Massachusetts in Commonwealth v. Cruz (2001) 459 Mass. 459 ( Cruz ).
In Cruz, the Massachusetts court conc luded that the odor of burned marijuana alone did not justify a warrantless vehicle search becau se the state had changed the possession of one ounce or less of marijuana from a criminal to a civil violation. ( Id. at pp. 471–472.)
The court reasoned that the mere smell of mar ijuana did not give rise to suspicion of a “criminal offense.” ( Id. at p. 469.)
California courts have considered and rejected petitioner’s claims. In Strasburg,

supra, 148 Cal.App.4th at pages 1059 to 1060, the court rejected the notion that probable cause for a search is lacking when marijuana odor is pres ent and the defendant possesses a physician’s recommendation for medical mar ijuana or a state-issu ed medical marijuana
card. The court reasoned that the medical marijuana laws provide a “limited immunity— not a shield from reasonable investigation.” ( Id. at p. 1060.) An officer with probable
cause to search is entitled to “determine whether the subject of the investigation is in fact possessing the marijuana for personal medical ne eds, and is adhering to the eight-ounce limit on possession.” ( Ibid. )
In Waxler, supra, 224 Cal.App.4th at pa ge 725, the court held that “[t]he automobile exception is not limite d to situations where the o fficer smells or sees more than 28.5 grams of marijuan a in the vehicle [citation]; th e observation of any amount of marijuana . . . establishes probable cause to s earch pursuant to the auto mobile exception.”
The Waxler court specifically declined to fo llow the Massachusetts court in Cruz and

3 In this case, Deputy Dalisay testified th at he could not recall asking petitioner whether he used marijuana for medical purpose s. There is no evid ence in the record suggesting that petitioner had a state-issued medical marijuana card or a physician’s recommendation for medical marijuana.12 explained its reasoning as follows: “ Cruz does not apply here for at least two reasons. First, in contrast to Massachusetts, possessi on of up to an ounce of nonmedical marijuana in California is a ‘crime.’ (Pen. Code, § 16.) Second, neither the California Supreme Court nor the United States Supreme Court has limited the automobile exception to situations where the defendant possesses a ‘ criminal amount of contraband.’ ” ( Waxler
, supra, at p. 723.) Petitioner has presented no co mpelling grounds for this court to depart from the holdings in Strasburg or Waxler

. Petitioner also relies on People v. Torres (2012) 205 Cal. App.4th 989 and People
v. Hua (2008) 158 Cal.App.4th 1027. Hi s reliance is misplaced. In People v. Hua, the court held that officers could not enter an ap artment without a warrant even though they smelled burned marijuana and had observed an occupant of the apartment smoking what appeared to be a marijuana cigarette. ( People v. Hua, supra, at pp. 1033–1034.) Likewise, in People v. Torres, the court held that officers lack ed probable cause to enter a
hotel room without a warrant based si mply on the smell of marijuana. ( People v. Torres,

supra, at p. 992.) As the court explained in Waxler, supra, at page 725: “Neither Hua

nor Torres assists appellant because those cases concerned warrantless entry into a dwelling and the application of the exigent circumstances doctrine to minor, nonjailable offenses. ‘The automobile exception to the warrant requirement does not require a showing of exigent circumstan ces.’ ” For purposes of a Fourth Amendment analysis, physical entry into the home is fundamentally different from the search of a vehicle. ( Ibid. ) Finally, petitioner contends that there is no “plain smell” ex ception to the warrant requirement akin to the “pla in view” exception. (See Robey v. Superior Court (2013) 56 Cal.4th 1218, 1244 (conc. opn. of Liu, J .) [describing plain view doctrine as one allowing officer to seize incr iminating object in plain view ].) As petitioner correctly observes, in Robey v. Superior Court, supra, 56 Cal.4th at page 1222, our Supreme Court specifically declined to address whether there is a “plain smell” ex ception to the warrant requirement

. Regardless of whether the “plain smell” of contraband generally justifies a warrantless search, the issue in this case is limited to the context of a vehicle search,13 where the law is settled. In a concurring opinion in Robey v. Superior Court, Justice Goodwin Liu expressed the view that the sme ll of contraband does not supply the same justification for a seizure as th e observation of contraband. ( Id. at p. 1253.) Nevertheless, Justice Liu clarified that his c oncerns about a “plain smell” doctrine “cast no doubt on the settled propos ition that the smell of marijuana can establish probable cause to search and, in the context of an automobile search or exigent circumstances, can provide a sufficient basis to pr oceed without a warrant.” ( Id. at p. 1254, italics added.) Here, of course, we are concerned with a sear ch justified by the au tomobile exception to the warrant requirement. Even if we were to reach the issue of whether there is a generalized “plain smell” exception to the warrant requirement, there is no reason to
believe that our resolution of that issu e would have any be aring upon longstanding precedent establishing that the smell of mar ijuana supplies probable cause to search a
vehicle. Accordingly, we conclude the search of the vehicle was lawful because the strong smell of unburned marijuana provided probable cause for the search. B. Inventory Search Petitioner argues that the vehicle search wa s not justified as an inventory search. We tend to agree with petitioner that there are many problematic aspects to the claim that the deputies impounded the vehicle for purpose s of an inventory search. Among other things, deputies conducted a search of the ve hicle apparently before even learning the identity of the registered owne r, who lived nearby. In additi on, one of the main reasons the deputy chose to impound the vehicle was because it wa s purportedly parked illegally across two spaces in a private parking lot. Yet, the law relied upon by the deputy does not even apply to a vehicle parked in a priv ate lot. (See Veh. Code, § 21113, subd. (a) [addressing vehicles parked at public facilitie s such as parks and sc hools].) Further, even if the car was parked in a high crime ar ea—a fact that was not elicited until the prosecutor asked leading questions of the depu ty upon redirect ex amination—the deputy
would still need to follow standa rd procedures to decide whet her to impound the vehicle.14 Here, there was no effort to set forth any such standard procedures or establish that the deputy complied with those procedures. Nevertheless, because we conclude the search was lawful under the automobile exception to the warrant requirement, we need not resolve these issues.
4. Search of Cell Phone Contents Petitioner argues that the warrantless search of his cell phone was illegal. He primarily argues that there was no reason to believe that the phone would contain any evidence bearing upon the crime for which he was arrested.
After we issued an order to show cause in this case , the United States Supreme Court held that, absent an emergency, law enforcement must secure a warrant before searching the digital contents of a cell phone. ( Riley, supra, 134 S.Ct. at p. 2485.) We permitted the parties to file supplemental briefs addressing the effect on this case, if any, of the United States Supreme Court’s decision in Riley

. After considering the parties’ suppl emental briefs, we reach the following conclusions, which we expound upon below. First, the decision in Riley is retroactive. Second, notwithstanding our conclusion that Riley is retroactive, the evidence retrieved from the phone is properly considered under the good faith exception to the exclusionary rule. The exception applies b ecause the search was conduc ted in objectiv ely reasonable reliance on binding California prec edent in effect at the time, People v. Diaz (2011) 51 Cal.4th 84 ( Diaz ). We begin with the retroactivity issue because we can disregard Riley if it does not apply retroactively. Neither party directly addressed the issue but we will assume the Attorney General concedes th at the decision is retroactive in light of the fact the supplemental brief submitted by the Attorn ey General focuses on the good faith exception to the exclusionary rule. Plainly, there would be no need to fall back on the good faith exception to th e exclusionary rule if Riley were inapplicable. Further, United States Supreme Court decisions construi ng the Fourth Amendment are applied retroactively to all cases in which a convictio n is not yet final as of the date of the decision. ( United States v. Johnson (1982) 457 U.S. 537, 562.) The high court adopted15 the view “that newly announced rules of co nstitutional criminal procedure must apply ‘retroactively to all cases, state or federal, pend ing on direct review or not yet final, with no exception.’ ” ( Davis v. United States (2011) __ U.S. __, __ [131 S.Ct 24 19, 2430] ( Davis ).) Accordingly, we conclude that the holding in Riley is retroactive. (See United States v. Spears (N.D.Tex., Jul. 14, 2014, No. 4: 14–cr–82–O) 2014 U.S.Dist. Lexis 94968 [holding that Riley applies retroactively].)
Under Riley, the warrantless search of the cell ph one was unlawful. However, this conclusion does not end the inquiry because “the retroactive applicati on of a new rule of
substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question.” ( Davis, supra, 131 S.Ct. at p. 2431.) The question of whether to suppress the evidence tu rns on the application of the exclusionary rule and the good faith ex ception to that rule. The exclusionary rule generally forbids th e use of improperly obtained evidence at trial. ( Herring v. United States (2009) 555 U.S. 135, 139 .) The exclusionary rule “operates as a ‘judicially created remedy de signed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ ” ( United States v. Leon (1984) 468 U.S. 897, 906 ( Leon ).) In Leon, the United States Supreme Court he ld that when an officer reli es in good faith on a search
warrant that is later determined to be invali d the exclusionary rule does not apply. ( Id. at p. 922.) The court reasoned that suppressing the evidence would not serve the purpose of the exclusionary rule in deterring poli ce misconduct because there is no police misconduct and thus nothing to deter when the officer relies in good faith on the issuance of a search warrant. ( Id. at pp. 920–921.)
In Davis, supra, 131 S.Ct. 2419, the United States Supreme Court extended the
Leon good faith exception to search es performed in accordan ce with a binding decision of an appellate court. The court held “tha t searches conducted in objectively reasonable reliance on binding appellate precedent are no t subject to the exclusionary rule.” ( Id. at pp. 2423–2424.)16 Here, at the time the vehicle search was conducted, the search was authorized by the California Supreme Court decision in Diaz, supra, 51 Cal.4th 84. In Diaz, our Supreme Court held that a warrantless search of the digital contents of a cell phone is lawful when the search is perform ed incident to an arrest. ( Id. at p. 101.) Although Diaz is no longer good law in light of the Un ited States Supreme Court’s decision in Riley, it was binding precedent in California at the time of the search in this case. Deputy Dalisay acted in objectively reasonable reliance on Diaz in conducting the search. Consequently, the good faith exception preclud es application of the exclusionary rule that would otherwise result in the suppression of the evidence recove red from the phone. Petitioner contends the good faith exceptio n is inapplicable because there is no evidence that Deputy Da lisay actually relied on Diaz . He reasons that Deputy Dalisay “must have actually known of the precedent and subjectively relied on it” and that it is not enough “simply that the precedent was on the books.” We disagree. The United States Supreme Court has clarified that, in applying the good faith exception, “[t]he pertinent analysis of deterre nce and culpability is objective, not an ‘inquiry into the subjective awareness of arresting officers . . . .’ ” ( Herring v. United States, supra, 555 U.S. at p. 145.) The “ ‘good-faith inquir y is confined to the objectively ascertainable question whether a reasonably well trained offi cer would have known that the search was illegal’ in light of ‘all of the circumstances.’ ” ( Ibid. ) Objective reasonableness turns on
“the state of the law at the time of the investigation in question.” ( United States v. Lopez (D.Del. 2013) 951 F.Supp.2d 657, 669.) Co nsequently, Deputy’s Dalisay’s subjective understanding of the la w is irrelevant. Petitioner also argues that the good faith exception is inapplicable here because Deputy’s Dalisay’s actions, taken as a whole, were culpable. He co ntends that evidence exclusion is appropriate when the “police ex hibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights . . . .” ( Davis, supra, 131 S.Ct. at p. 2438.) According to petitioner, because the deputies illegally handcuffed him and illegally searched his home without a warrant, th ey should not be re warded by allowing17 the evidence seized from the ce ll phone to be admitted under the good faith exception to the exclusionary rule. We are not persuaded that purported ly reckless law enforcement behavior unrelated to the challenged search bears upon the applicability of the good faith exception. The allegedly culp able conduct that petitioner c ites occurred independently of the cell phone search. The cell phone search itself was performed in strict compliance
with Diaz. Petitioner fails to cite any authority for the proposition that the good faith exception to the exclusionary ru le is inapplicable to a search that is conducted in objectively reasonable reliance on existing law simply because another, separate search
or seizure runs afoul of the Fourth Amendm ent. Moreover, in urging that we reject application of the good faith ex ception on the ground that th e law enforcement officers in this case acted in a culpable and reckless manner, petitioner is essentially asking this court to reject the trial court’s implied find ing that the deputies’ actions were reasonable
under the circumstances. As a further argument for rejecting ap plication of the good faith exception, petitioner contends that Diaz did not authorize the search of a cell phone’s contents in a case such as this one, when an arrest is made for driving on a suspended license.
Petitioner relies on the United States Supreme Court’s decision in Gant, supra, 556 U.S. at page 335, in which the court held that offi cers may not search a vehicle incident to an
arrest unless “it is reasonable to believe that evidence of the offense of arrest might be
found in the vehicle.” Gant was decided two years before our Supreme Court decided
Diaz. Petitioner interprets Gant broadly to suggest that office rs cannot search an object
incident to an arrest unless it is reasonable to believe th e object or its contents would
contain some evidence of the offense fo r which the person is arrested. Here, notwithstanding the fact that Diaz was the controlling precedent in California at the time, petitioner argues that the cell phone search was unlawful under Gant because there was no reason to believe that his cell phone cont ained any evidence bearing upon his arrest for driving with a suspended li cense. Petitioner goes so far as to claim that the majority
in Diaz “made no mention of th e then relatively recent Gant decision because it had no18 occasion to determine whether the warrantless search of the digital contents of a cell phone was permissible if the arrestee’s offe nse was a mere traffic violation where no ‘offense-related evidence’ could reasonably be expected to be f ound on the phone.”
Petitioner is mistaken as to the scope of Gant and is simply wrong concerning whether
the Diaz court mentioned Gant and took its holding in to consideration.
Gant is limited to the circumstance of the search of a vehicle incident to an arrest. ( Gant, supra, 556 U.S. at p. 343; see United States v. Wurie (1st Cir. 2013) 728 F.3d 1, 7, fn. 6 [rule in Gant limited to vehicle context].) The de cision does not apply to the search
of the arrestee’s person incident to arrest. Our Supr eme Court expressly acknowledged
this distinction in Diaz , in which the court stated the rule in Gant and then observed,

“ Gant is not otherwise relevant here, as it i nvolved a search of the area within an
arrestee’s immediate contro l [e.g., a vehicle], not of the arrestee’s person.” ( Diaz, supra, 51 Cal.4th at p. 96, fn. 9.) In this case, as in Diaz, the search incident to arrest involved a search of the arrestee’s person. The cell phone at issue he re was found in petitione r’s pocket. The trial court was careful to distinguish between the cell phone found in petitioner’s vehicle— which was not searched—and the cell phone found in petitioner’s pocket. The trial court observed that, under Gant, the cell phone found in the ve hicle could not be searched without a warrant, but that under Diaz the cell phone recovered from petitioner’s person was subject to search, without regard to wh ether the deputy reason ably believed that it
contained evidence related to the offens e for which petitioner was arrested. The distinction made by the trial c ourt was consistent with the st ate of the law at the time.
Under Diaz, the search of the cell phone recove red from petitioner’s pocket was lawful. We conclude that application of the good faith exception to th e exclusionary rule precludes suppression of the evidence recove red from petitioner’s cell phone. The Court of Appeal for the Second District, Divisi on Five, reached a similar conclusion in People
v. Macabeo (2014) 229 Cal.App.4th 486, in which the court held that Riley has retroactive application but also conclude d that the good faith exception to the19 exclusionary rule applied to a cell phone search conducted in reliance on Diaz. 4 ( Id. at pp. 494–495.) The Macabeo court rejected the contention that Diaz limited the search of a cell phone found on an arrestee ’s person to evidence of th e crime for which the arrest was made. ( Id. at p. 496.) The court also held th at an officer’s reliance on existing case law can be presumed, and it rebuffed the su ggestion that a prosecutor must present evidence that an officer actually relied on a particular appellate decision. ( Id. at p. 497.)
5. Warrantless “Protective Sweep” of Residence
Petitioner contends that the warrantless se arch of his home was unlawful. He argues there was no legal basis to conduct a “p rotective sweep” of the residence before securing a search warrant, and he disputes whether there were any exigent circumstances justifying a warrantless search to prev ent the destructi on of evidence. We have serious concerns about the pr opriety of the warrantless search of the residence. We are aware of no legal aut hority that would permit a protective sweep
incident to an arrest at a location far rem oved from where the arrestis actually made. Further, despite the claim that an exigent circumstances search was justified by the fear that evidence might be destroyed, no attemp t was made to seize evidence that might actually be destroyed before a warrant could be obtained. As we explain, notwithstanding our concerns about the warrantless search, we need not reach the issue of whether the protective sweep was lawful becaus e the subsequent search of the residence pursuant to a warrant was valid even withou t considering evidence recovered during the
warrantless search. “It has long been established that even if a criminal investigation involved some illegal conduct, courts will admit evidence derived from an ‘inde pendent source.’ ” ( People v. Weiss (1999) 20 Cal.4th 1073, 1077.) “ ‘The independent source doctrine
allows admission of evidence that has been discovered by means wholly independent of any constitutional viol ation. . . .’ ” ( Ibid. ) “If, after some illeg al conduct, the police obtain a search warrant they would have so ught without that conduct, and none of the

4 The published decision in People v. Macabeo, supra, 229 Cal.App.4th 486, was filed September 3, 2014, and is not yet final as of the filing of this opinion.20 supporting documents cites information derive d from that conduct, application of the doctrine is relatively easy: The court need not suppress evidence found in the resulting search.” ( Id. at p. 1078.) Where, as here, “the affidavit supporting a search warrant contains both information obtained by unlawful conduct as well as unt ainted information, a two prong-test applies to justify applica tion of the independent source doctrine.” ( People v. Robinson (2012) 208 Cal.App.4th 232, 241. ) “First, the affidavit, excised of any illegally-obtained information, must be sufficient to establish probable cause. [Citation.] Second, the eviden ce must support a finding that ‘the police subjectively would have sought the warrant even without th e illegal conduct.’ ” ( Ibid. ) Here, the affidavit supporting the search warrant described the circumstances of petitioner’s arrest and the evidence rec overed from the vehicle and petitioner’s cell phone. It also mentioned the warrantless sweep, which the affidavit described as a “freeze . . . pending a search warrant.” The af fidavit described the interior layout of the home and the discovery of the handg un on the bed in petitioner’s room. If the affidavit supporting the search warrant is excised of any mention of the warrantless entry—which yielde d evidence of a handgun fo und in petitioner’s room—the affidavit still establishes probable cause fo r the issuance of a search warrant. As described above, petitioner was arrested in possession of numer ous indicia of drug trafficking—most notably, separately packag ed marijuana, a large amount of cash, and cell phone messages suggesting a recent sale. The facts that petitioner was arrested with such a large amount of currency and that his car had a very strong odor of marijuana supported the inference that additional eviden ce of drug traffick ing existed and would likely be found at his residence. Deputy Dalis ay testified that it was his experience that further evidence of drug sales could be found at a suspected drug trafficker’s residence. Thus, even without mention of the protec tive sweep and the handgun, the affidavit adequately provided probable ca use to search the home. (See People v. Cleland (1990) 225 Cal.App.3d 388, 392–393 [seizure of ba ggies of marijuana p ackaged for sale from defendant’s person plus office r’s opinion that additional contraband would likely be found at defendant’s residence justifie d warrant for search of residence].)21 Further, the evidence suppo rts the conclusion that the police would have sought
the search warrant even withou t the warrantless entry. The affidavit itself describes the sweep as a “freeze” designed to isolate and contain the premises while the officers obtained a search warrant. Moreover, Deputy Dalisay testified that officers intended to conduct the sweep only after petitioner’s mother refused c onsent to search, and only to
secure the scene until a s earch warrant issued. Petitioner argues that the warrant was notsupported by probable cause because there was nothing to connect petitioner’s residen ce to drug sales. We disagree. In the case of persons suspected of being drug deal ers, California case law supports the notion that additional evidence is likely to be found where the dealer lives. (See People v. Pressey (2002) 102 Cal.App.4th 1178 , 1184.) Petitioner relies on Pressey, which
declined to extend this principle to users of illegal drugs. ( Id. at p. 1190.) In Pressey, the court held that “probable cause to search the residence of someone suspected of using illegal drugs requires more than an opinion or inference, av ailable in every case, that drugs are likely to be present.” ( Ibid. , italics added.) The c ourt distinguished cases involving drug traffickers from those involving pe rsons simply suspected of being drug

users. ( Id. at pp. 1188–1189.) In this case, petitioner was suspected of be ing a drug trafficker, not just a user of drugs. The text messages found on his ph one suggested that petitioner had conducted a sale just the day before the search. Under th e circumstances, there was probable cause to
believe that additional eviden ce of drug trafficking could be found at his residence. Because the affidavit in support of the search warrant supplied probable cause for
the search even with out the evidence obtained from the warrantless sweep, we conclude that the search of the residence pursuant to the warrant was lawful. There is no basis to suppress evidence obtained during that search. As a final matter, we note that eviden ce of the handgun found in petitioner’s room—which was originally discovered du ring the protective sweep—would have been found during the subsequent, lawful search co nducted pursuant to a warrant. Even if we were to conclude that the protective sweep was unlawful, evidence of the handgun is22 admissible under the “inevitable discovery ” doctrine because it would have been discovered through lawful means. (See People v. Hughston (2008) 168 Cal.App.4th 1062, 1071–1072.)
D ISPOSITION The petition is denied. The stay previous ly issued by this court is dissolved.23 _________________________ McGuiness, P.J.

We concur:

_________________________ Siggins, J.

_________________________ Jenkins, J.