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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 challenges a number of warrantless searches 

and seizures that took place after he was arrested for driving on a suspended license. He 

contends that warrantless searches of his vehicle and cell phone were 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 automobile 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 contents of a cell phone without a warrant (Riley v. 

California (2014) 573 U.S. __, __ [134 S.Ct. 2473, 2485] (Riley)), the search in this case 

was conducted in objectively reasonable reliance on binding California precedent in 

effect at the time. Consequently, the evidence seized from the cell phone falls within the 
2

good faith exception to the exclusionary rule. In addition, because there was probable 

cause to support the issuance of a search warrant for petitioner’s residence even without 

considering evidence uncovered during the warrantless protective sweep of that 

residence, it is unnecessary to consider whether officers acted lawfully in conducting the 

warrantless sweep. Accordingly, we deny the petition. 

FACTUAL AND PROCEDURAL BACKGROUND

Procedural History 

 The Alameda County District Attorney filed a seven-count information in 

February 2013 charging 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. Code, § 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 counts of the information arose 

from events that occurred on August 5, 2011, while counts six and seven arose from 

events taking place on March 29, 2012. 

 After the information was filed, petitioner moved to suppress evidence seized 

during warrantless searches and seizures that took place in August 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 challenges 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 should not be granted. While the petition was 

pending, we directed the parties to submit 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 searches incident to an arrest are lawful.

Facts 

 On August 5, 2011, at around 7:30 p.m., Alameda County Sheriff’s Deputy 

Michael Dalisay saw petitioner drive into the parking lot of a liquor store in San Leandro. 
3

There was no one else in the car with petitioner. Petitioner parked in front of the store. 

His car occupied two parking spaces in the store’s parking lot. Deputy Dalisay 

recognized petitioner from two previous 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 behavior 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. The deputy had no reason to 

believe petitioner was armed or that he was involved in any drug-related activity. 

 Deputy Dalisay and another officer, Sergeant Schuler, waited until petitioner left 

the liquor store before approaching 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 vehicle. The sergeant spoke first and asked 

petitioner for his driver’s license. Petitioner was upset and protested that he had never 

been arrested before. After further discussion 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 determined 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 suspended and told petitioner that he was under arrest for driving 

on a suspended license in violation of Vehicle Code section 14601.1. Petitioner was in 

handcuffs for about five minutes before being placed under arrest. 

 The officers performed a search of petitioner’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 baggies 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 Ziploc baggies in the trunk. The vehicle’s 
4

registration, which was recovered during the search, revealed that the car was registered 

to petitioner’s mother at 573 Empire. 

 Deputy Dalisay claimed there were two grounds 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. Second, 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 inventory procedures and that he had been 

trained in that process. He believed the vehicle was parked illegally because it occupied 

two spaces. He felt it was necessary to impound and tow the vehicle because it was 

purportedly parked illegally and because there 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 would be at risk of theft or vandalism if left 

at the liquor store. Deputy Dalisay acknowledged that no attempt had been made to 

contact the vehicle’s owner, Romero, before it was towed. 

 Following petitioner’s arrest for driving with a suspended 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 retrieving the cell phone, Deputy Dalisay began 

looking at its contents. One thing 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 transpired after the deputy first observed 

petitioner is not entirely clear from the testimony presented at the suppression hearing. 

According to a statement made by defense counsel at the suppression hearing, officers 

first arrested petitioner for driving 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 his experience in law enforcement 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 over 100 marijuana sales cases in the seven 

years he had been in the 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 jail. Deputy Dalisay did not allow him to call 

because he was concerned that evidence of drug sales could be discarded quickly if 

someone at the residence were alerted to petitioner’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 would be further evidence relating to drug 

sales at a suspected drug trafficker’s residence, 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 house 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 obtaining 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 obtained. Second, the time and 

trouble of securing a search warrant at night could be avoided if the owner of 573 Empire 

would give consent to search 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 testimony 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 Dalisay observed two cars parked outside 

the residence. Petitioner’s mother, Romero, answered the door after officers knocked and 

announced themselves as “Sheriff’s Office.” Romero came outside and locked the door 

behind her. When she was asked if petitioner lived with her, she initially said yes but 

then paused and gave an equivocal response, 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 avoided eye contact with the deputy during the 

exchange. Romero denied consent to search the house. 

 Deputy Dalisay testified that 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 anyone 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 vehicles 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 check the interior solely for persons that might pose a threat to officers 

once they had a signed search warrant for the 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 entered. Inside the room, Deputy Dalisay saw a 

black pistol lying on a pillow on the bed. He rendered the gun safe by removing the 

magazine and locking the slide but otherwise left the gun where he found it. He was in 

the house less than five minutes and did not 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 support for the search warrant, the detective recited 

the evidence recovered from petitioner, including the cash and the text message found on 

his cell phone, as well as the evidence recovered from the vehicle, including the 
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marijuana and the empty Ziploc bags. The search warrant also recited the fact that 

officers had found a gun in petitioner’s bedroom at 573 Empire. 

 A search warrant for 573 Empire was issued around midnight. A search of the 

residence pursuant to the warrant found methamphetamine, ecstasy, a scale, a gun, two 

mature marijuana plants, and a large bag containing marijuana, among other items. The 

evidence seized at 573 Empire supported the first five counts of the seven-count 

information against petitioner. 

DISCUSSION

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 implied, if they are supported by substantial 

evidence. [Citation.] We exercise our independent 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 objective justification for the restraint. He claims there 

were no specific, articulable, objective facts that would cause an officer to suspect he was 

engaged in any criminal activity. Notably, petitioner does not challenge the initial 

request for identification—which preceded the handcuffing—other than to make a 

belated and legally unsupported claim in his 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 the circumstances establish that the individual is not free to 

leave that the encounter 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 for identification amounted to an illegal detention. In ruling 
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against petitioner, the trial court impliedly rejected the contention that petitioner was 

unlawfully detained when the deputies first encountered him. Petitioner has provided no 

reason for us to reject that conclusion. 

 At the point petitioner was placed in handcuffs, he had failed to produce a driver’s 

license despite his apparent intent to drive away, and Deputy Dalisay had smelled a very 

strong odor of marijuana emanating from petitioner’s vehicle. Under the circumstances, 

the deputies were justified in detaining 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 discovered evidence was the product of his handcuffing. The 

deputies did not conduct the search of petitioner’s vehicle or the search of his person until 

after he was lawfully placed under arrest for driving with a suspended license. 

Consequently, even if the handcuffing amounted to a constitutional violation, its 

connection to any evidence recovered 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 handcuffing of petitioner does 

not support suppressing evidence obtained after he was lawfully placed under arrest. 

3. Search of Petitioner’s Vehicle 

Petitioner contends the search of his vehicle 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 vehicle 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 license 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 warrantless search of the vehicle. Finally, he argues that the 

warrantless search was not justified as an inventory search. 

 As explained in more detail below, we conclude that the odor of unburned 

marijuana provided probable cause for a warrantless search of the vehicle. Before 

addressing the legal support for this conclusion, we simply note that we are bound by the 

trial court’s implied finding that Deputy Dalisay detected a very strong smell of 

marijuana emanating from the vehicle. Although 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 constitutes substantial evidence supporting the 

implied finding. (See People v. Lenart, supra, 32 Cal.4th at p. 1119.) 

 A. Probable Cause 

 “The Fourth Amendment generally requires 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 Court as early as 1925, “there is an exception to this 

requirement for searches of vehicles.” (Ibid.) Under established precedent, “the 

‘automobile exception’ has no separate exigency requirement.” (Ibid.) “ ‘If a car is 

readily mobile and probable cause exists to believe it contains contraband, the Fourth 

Amendment . . . permits police to search the vehicle without more.’ ” (Id. at p. 467.) 

 The decisions that uphold warrantless searches under the 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 suppress evidence found in 

an auto search is whether the objective facts demonstrate the ‘officers ha[d] probable 

cause to believe that the vehicle contain[ed] contraband.’ ” (Ibid.) If probable cause 

exists, the officers may conduct a thorough warrantless search of the vehicle. (United 

States v. Ross (1982) 456 U.S. 798, 825.) The probable cause standard “requires only a 

probability or substantial chance 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 odor of unburned marijuana . . . may furnish 

probable cause to search a vehicle under the automobile exception 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.) Under 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. Petitioner advances a number of arguments why we 

should not apply this longstanding 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.” Presumably, 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 lesser expectation of privacy in one’s vehicle 

as opposed to one’s home. (Id. at p. 391.) Further, the application 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 provide probable cause 

for a warrantless vehicle search in light of the recent “decriminalization” of the 

possession of small amounts of marijuana. Under 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 than 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 use 
11

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 believe 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 concluded that the odor of burned marijuana alone did 

not justify a warrantless vehicle search because 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 marijuana 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 present and the defendant possesses 

a physician’s recommendation for medical marijuana or a state-issued 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 needs, and is adhering to the eight-ounce 

limit on possession.” (Ibid.) 

 In Waxler, supra, 224 Cal.App.4th at page 725, the court held that “[t]he 

automobile exception is not limited to situations where the officer smells or sees more 

than 28.5 grams of marijuana in the vehicle [citation]; the observation of any amount of 

marijuana . . . establishes probable cause to search pursuant to the automobile exception.” 

The Waxler court specifically declined to follow the Massachusetts court in Cruz and 

 3

In this case, Deputy Dalisay testified that he could not recall asking petitioner 

whether he used marijuana for medical purposes. There is no evidence in the record 

suggesting that petitioner had a state-issued medical marijuana card or a physician’s 

recommendation for medical marijuana. 
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explained its reasoning as follows: “Cruz does not apply here for at least two reasons. 

First, in contrast to Massachusetts, possession 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 compelling 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. His reliance is misplaced. In People v. Hua, the 

court held that officers could not enter an apartment 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 lacked probable cause to enter a 

hotel room without a warrant based simply 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 circumstances.’ ” 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” exception to the warrant 

requirement akin to the “plain 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 incriminating 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” exception 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 smell of contraband does not supply the same 

justification for a seizure as the observation of contraband. (Id. at p. 1253.) 

Nevertheless, Justice Liu clarified that his concerns about a “plain smell” doctrine “cast 

no doubt on the settled proposition 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 proceed without a warrant.” (Id. at p. 1254, italics added.) 

Here, of course, we are concerned with a search justified by the automobile 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 issue would have any bearing upon longstanding 

precedent establishing that the smell of marijuana 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 was 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 purposes of an inventory search. Among other 

things, deputies conducted a search of the vehicle apparently before even learning the 

identity of the registered owner, who lived nearby. In addition, one of the main reasons 

the deputy chose to impound the vehicle was because it was 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 private lot. (See Veh. Code, § 21113, subd. (a) 

[addressing vehicles parked at public facilities such as parks and schools].) Further, even 

if the car was parked in a high crime area—a fact that was not elicited until the 

prosecutor asked leading questions of the deputy upon redirect examination—the deputy 

would still need to follow standard procedures to decide whether 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’ supplemental 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 because the search was conducted in objectively reasonable 

reliance on binding California precedent 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 that the decision is retroactive in light of the fact the 

supplemental brief submitted by the Attorney 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 the exclusionary rule if Riley were inapplicable. Further, United 

States Supreme Court decisions construing the Fourth Amendment are applied 

retroactively to all cases in which a conviction is not yet final as of the date of the 

decision. (United States v. Johnson (1982) 457 U.S. 537, 562.) The high court adopted 
15

the view “that newly announced rules of constitutional criminal procedure must apply 

‘retroactively to all cases, state or federal, pending on direct review or not yet final, with 

no exception.’ ” (Davis v. United States (2011) __ U.S. __, __ [131 S.Ct 2419, 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 phone was unlawful. However, this 

conclusion does not end the inquiry because “the retroactive application 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 turns on the application of the exclusionary 

rule and the good faith exception to that rule. 

 The exclusionary rule generally forbids the 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 designed 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 held that when an officer relies in good faith on a search 

warrant that is later determined to be invalid 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 police 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 searches performed in accordance with a binding decision 

of an appellate court. The court held “that searches conducted in objectively reasonable 

reliance on binding appellate precedent are not 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 performed incident to an arrest. (Id. at p. 101.) Although Diaz 

is no longer good law in light of the United 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 precludes application of the exclusionary rule that would 

otherwise result in the suppression of the evidence recovered from the phone. 

 Petitioner contends the good faith exception is inapplicable because there is no 

evidence that Deputy Dalisay 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 deterrence 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 inquiry is confined to the objectively ascertainable 

question whether a reasonably well trained officer 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.) Consequently, Deputy’s Dalisay’s subjective 

understanding of the law 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 contends that evidence 

exclusion is appropriate when the “police exhibit ‘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, they should not be rewarded by allowing 
17

the evidence seized from the cell phone to be admitted under the good faith exception to 

the exclusionary rule. 

 We are not persuaded that purportedly reckless law enforcement behavior 

unrelated to the challenged search bears upon the applicability of the good faith 

exception. The allegedly culpable conduct that petitioner cites 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 rule 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 Amendment. Moreover, in urging that we reject 

application of the good faith exception on the ground that the 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 finding that the deputies’ actions were reasonable 

under the circumstances. 

 As a further argument for rejecting application 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 officers 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 officers cannot search an object 

incident to an arrest unless it is reasonable to believe the object or its contents would 

contain some evidence of the offense for 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 contained any evidence bearing upon his arrest 

for driving with a suspended license. Petitioner goes so far as to claim that the majority 

in Diaz “made no mention of the then relatively recent Gant decision because it had no 
18

occasion to determine whether the warrantless search of the digital contents of a cell 

phone was permissible if the arrestee’s offense was a mere traffic violation where no 

‘offense-related evidence’ could reasonably be expected to be found 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 into 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 decision does not apply to the search 

of the arrestee’s person incident to arrest. Our Supreme 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 involved a search of the area within an 

arrestee’s immediate control [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 here was found in petitioner’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 vehicle 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 whether the deputy reasonably believed that it 

contained evidence related to the offense for which petitioner was arrested. The 

distinction made by the trial court was consistent with the state of the law at the time. 

Under Diaz, the search of the cell phone recovered from petitioner’s pocket was lawful. 

 We conclude that application of the good faith exception to the exclusionary rule 

precludes suppression of the evidence recovered from petitioner’s cell phone. The Court 

of Appeal for the Second District, Division 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 concluded that the good faith exception to the 
19

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 the crime for which the arrest 

was made. (Id. at p. 496.) The court also held that an officer’s reliance on existing case 

law can be presumed, and it rebuffed the suggestion 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 search of his home was unlawful. He 

argues there was no legal basis to conduct a “protective sweep” of the residence before 

securing a search warrant, and he disputes whether there were any exigent circumstances 

justifying a warrantless search to prevent the destruction of evidence. 

 We have serious concerns about the propriety of the warrantless search of the 

residence. We are aware of no legal authority that would permit a protective sweep 

incident to an arrest at a location far removed from where the arrest is actually made. 

Further, despite the claim that an exigent circumstances search was justified by the fear 

that evidence might be destroyed, no attempt 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 because the subsequent search of the residence 

pursuant to a warrant was valid even without 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 ‘independent 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 violation. . . .’ ” (Ibid.) “If, after some illegal conduct, the police 

obtain a search warrant they would have sought 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 derived 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 untainted information, 

a two prong-test applies to justify application 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 evidence must support a finding that ‘the police subjectively 

would have sought the warrant even without the illegal conduct.’ ” (Ibid.) 

 Here, the affidavit supporting the search warrant described the circumstances of 

petitioner’s arrest and the evidence recovered 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 affidavit described the interior layout of the 

home and the discovery of the handgun on the bed in petitioner’s room. 

 If the affidavit supporting the search warrant is excised of any mention of the 

warrantless entry—which yielded evidence of a handgun found in petitioner’s room—the 

affidavit still establishes probable cause for the issuance of a search warrant. As 

described above, petitioner was arrested in possession of numerous indicia of drug 

trafficking—most notably, separately packaged 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 evidence of drug trafficking existed and would 

likely be found at his residence. Deputy Dalisay 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 protective sweep and the handgun, the affidavit 

adequately provided probable cause to search the home. (See People v. Cleland (1990) 

225 Cal.App.3d 388, 392–393 [seizure of baggies of marijuana packaged for sale from 

defendant’s person plus officer’s opinion that additional contraband would likely be 

found at defendant’s residence justified warrant for search of residence].) 
21

 Further, the evidence supports the conclusion that the police would have sought 

the search warrant even without 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 consent to search, and only to 

secure the scene until a search warrant issued. 

 Petitioner argues that the warrant was not supported by probable cause because 

there was nothing to connect petitioner’s residence to drug sales. We disagree. In the 

case of persons suspected of being drug dealers, 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, available in every case, that 

drugs are likely to be present.” (Ibid., italics added.) The court distinguished cases 

involving drug traffickers from those involving persons simply suspected of being drug 

users. (Id. at pp. 1188–1189.) 

 In this case, petitioner was suspected of being a drug trafficker, not just a user of 

drugs. The text messages found on his phone suggested that petitioner had conducted a 

sale just the day before the search. Under the circumstances, there was probable cause to 

believe that additional evidence 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 without 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 evidence of the handgun found in petitioner’s 

room—which was originally discovered during the protective sweep—would have been 

found during the subsequent, lawful search conducted pursuant to a warrant. Even if we 

were to conclude that the protective sweep was unlawful, evidence of the handgun is 
22

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.) 

DISPOSITION

 The petition is denied. The stay previously issued by this court is dissolved. 
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 _________________________ 

 McGuiness, P.J. 

We concur: 

_________________________ 

Siggins, J. 

_________________________ 

Jenkins, J.