IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
September 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PHIL DOUGLAS REESE, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 085168)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Reese CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the denial of his motion to suppress evidence, a jury found defendant Phil Douglas Reese, Jr., guilty of possessing child pornography. The trial court sentenced him to three years in prison.
Defendant appeals, contending the court erred in denying the motion to suppress because the traffic stop that led to the discovery of the child pornography on his laptop computer was pretextual and therefore invalid. Additionally, defendant argues the evidence should have been suppressed because the Supreme Court's decision in Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d 485], which was decided after the search of his vehicle, applies retroactively, rendering the search in violation of the Fourth Amendment.
We conclude defendant forfeited his argument pertaining to the validity of the traffic stop by failing to raise it in the trial court. Additionally, we conclude the officers reasonably relied on binding precedent when they searched defendant's vehicle and laptop incident to his arrest; accordingly, under the United States Supreme Court's recent decision in Davis v. United States (2011) 564 U.S. ___ [180 L.Ed.2d 285] (Davis), the exclusionary rule does not apply to the evidence against defendant. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 2008, West Sacramento Police Officers Labin Wilson, Anthony Herrera, and Kenneth Fellows were patrolling an area that had ongoing problems with prostitution. The officers were in an unmarked car. At 11:45 p.m., the officers saw a white pickup, driven by defendant, pull into a convenience store parking lot and "[s]lowly roll up next to" a "known prostitute." Defendant's vehicle "might have stopped for a brief moment," then he drove out of the parking lot. The officers followed defendant and pulled him over when he "failed to come to a complete stop at the stop sign."
Officer Wilson told defendant that they pulled him over for failing to stop at a stop sign. The officer also asked defendant why he had pulled into the convenience store parking lot, and defendant explained that he thought about getting a drink at the store, but decided not to "because he was almost home to his mom's house." Officer Wilson then asked defendant if he was on probation or parole or had been arrested. Defendant said he had been arrested for "an internet thing" and "providing something to a minor." Officer Wilson asked defendant if he was a registered sex offender. Defendant said he was and provided the officer with his registrant card.
Officer Wilson performed a computer check of defendant's record and learned defendant had an outstanding arrest warrant for check fraud. The officer then asked defendant to exit his vehicle and placed him under arrest. The officers called another vehicle to transport defendant, who waited in handcuffs next to their vehicle.
After the officers arrested and handcuffed defendant, they searched his vehicle. On the driver's side of the truck, Officer Herrera located a bag of marijuana. "[R]ight in the center of the back seat[,] [sic]" Officer Wilson located a laptop computer, which was open about two inches, with the power already turned on. Officer Wilson checked the laptop's contents by going "into some of the documents," which revealed thumbnail images with titles "talking about juveniles" performing sexual acts. Officer Wilson testified he believed the files to be child pornography.
When questioned about whether defendant was "searchable," Officer Wilson stated "[a]t the point when [defendant] was arrested, he was searchable." Officer Wilson also testified he was trained to understand "computers, cell phones, that kind of stuff, are now where people keep items that . . . they would have kept in their briefcase, for example. Therefore, the case law had opened up those forms of media to incident to arrest searches."
Officer Wilson called Sergeant Jason Winger, his supervisor, about the situation and took the laptop to Sergeant Winger at the police department. Sergeant Winger opened the files thought to contain child pornography and confirmed that "appeared" to be the case. Sergeant Winger had a search warrant for defendant's home and laptop prepared and approved by a judge. Police searched defendant's apartment, where they found various media storage devices including 18 "Triple X VHS and CD, DVD containers."
In the trial court, defendant moved to suppress evidence of the child pornography found on his laptop on the grounds the search of his truck was not authorized because he was away from his vehicle when the police searched it. Further, defendant argued searching the laptop was "not for evidence of the crime of arrest." The trial court denied the motion.
On appeal, defendant contends the trial court erred in denying his motion to suppress because: (1) the traffic stop was "pretextual and lacked a reasonable objective basis"; (2) the Supreme Court's 2009 decision in Gant applies retroactively,*fn1 rendering the search of his vehicle and laptop in violation of the Fourth Amendment (thus, though not explicitly argued by defendant, requiring application of the exclusionary rule);*fn2 and (3) the search of the laptop was impermissible because "law enforcement had neither probable cause nor any expectation whatever of finding evidence in the laptop related to their arrest of [him]."
As we will explain, defendant did not contest the validity of the traffic stop in the trial court; therefore, that claim is forfeited. Moreover, the Supreme Court recently held that "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." (Davis, supra, 564 U.S. at p. ___ [180 L.Ed.2d at p. 297].) Because the officers' search of defendant's vehicle and laptop reflected "reasonable reliance on binding precedent," we affirm the trial court's denial of defendant's motion to suppress evidence because the exclusionary rule does not apply.
With regard to defendant's claim as to the validity of the traffic stop, "a motion to test the validity of a search or seizure must be raised in the superior court to preserve the point for review on appeal. [Citations.] . . . [A] [d]efendant, therefore, cannot now challenge the validity of the search since he failed to preserve the issue either by proper objection at trial or by pretrial motion." (People v. Miranda (1987) 44 Cal.3d 57, 80-81, overruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Further, "if defendants have a specific argument other than the lack of a warrant as to why a warrantless search or seizure was unreasonable, they must specify that argument as part of their motion to suppress and give the prosecution an opportunity to offer evidence on the point." (People v. Williams (1999) 20 Cal.4th 119, 130.) Defendant never argued the traffic stop was invalid at any point before the trial court, including in his motion to suppress. The validity of the traffic stop is therefore not an issue that this court need consider further.
The United States Supreme Court recently decided Davis, supra, 564 U.S. at p. 285 [180 L.Ed.2d at p. 285], the relevant facts of which are similar to those here. In Davis, a traffic stop resulted in the police arresting the driver and passenger. (Davis, at p. ___ [180 L.Ed.2d at p. 292].) After the driver and passenger were arrested and placed in the back of separate patrol cars, the officers searched the car and discovered a revolver in the passenger compartment. (Ibid.) The revolver belonged to the passenger, Davis, a convicted felon. (Id. at p. ___ [180 L.Ed.2d at pp. 292-293].) At trial, Davis moved to suppress the evidence of the revolver, but "[t]he District Court denied the motion, and Davis was convicted on the firearms charge." (Id. at p. ___ [180 L.Ed.2d at p. 293].) Davis appealed. (Ibid.)
While Davis's appeal was pending, the Supreme Court decided Gant, in which the court adopted a new rule for automobile searches incident to arrest: "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (Arizona v. Gant, supra, 556 U.S. at p. ___ [173 L.Ed.2d at p. 501].) The law at the time of Davis's arrest and search of his vehicle, however, was the Supreme Court's ruling in New York v. Belton (1981) 453 U.S. 454, 460, footnotes omitted [69 L.Ed.2d 768, 774-775, footnotes omitted] which held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. [¶] [T]he police may also examine the contents of any containers found within the passenger compartment." (See Davis, supra, 564 U.S. at p. ___ [180 L.Ed.2d at p. 291].) The Eleventh Circuit, in which Davis was tried, "had long read Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants." (Davis, at p. ___ [180 L.Ed.2d at p. 293], citing U.S. v. Gonzalez (1996) 71 F.3d 819, 822, 824-827.)
On appeal, Davis sought to retroactively apply the holding in Gant because he was not "'within reaching distance of the passenger compartment at the time of the search,'" rendering the search in violation of the Fourth Amendment and the exclusionary rule applicable to the revolver. (Davis, supra, 564 U.S. at p. ___ [180 L.Ed.2d at p. 292].) Though acknowledging Gant applied retroactively, resulting in the search being in violation of the Fourth Amendment, the Supreme Court refused to apply the exclusionary rule, holding that "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." (Davis, at p. ___ [180 L.Ed.2d at p. 297].) Because the officers undisputedly conformed with the "binding precedent" set forth in the Gonzalez court's interpretation of Belton when they searched the car, the exclusionary rule did not apply to the revolver, even though it was discovered in a search that violated the Fourth Amendment. (Davis, at p. ___ [180 L.Ed.2d at pp. 295-297].)
Returning to the facts of this case, the officers arrested defendant and searched his car on August 29, 2008, before the Gant decision in 2009. So, "binding precedent" at the time the arrest and search occurred was, just as in Davis, articulated in the Supreme Court's holding in Belton. At the time, binding precedent in California interpreted the conditions for a vehicle search under the "bright-line" reading of Belton as follows: "The search [of a vehicle] is permitted even after an arrestee has been removed from the vehicle and restrained." (People v. Mitchell (1995) 36 Cal.App.4th 672, 674.)
The officers here, like those in Davis, reasonably relied on "binding precedent" when they searched defendant's vehicle. Officers arrested defendant pursuant to an outstanding arrest warrant for check fraud. Officers handcuffed defendant and then searched the passenger compartment of defendant's vehicle "after [the] arrestee ha[d] been removed from the vehicle and restrained." (People v. Mitchell, supra, 36 Cal.App.4th at p. 674.) In fact, Officer Wilson said during his testimony "[a]t the point when [defendant] was arrested, he was searchable," demonstrating knowledge of the California interpretation of Belton. Because the officers' search of defendant's vehicle was in compliance with California's interpretation of Belton and Officer Wilson's testimony indicates knowledge of that interpretation, we conclude the search was "conducted in reasonable reliance on binding precedent." (Davis, supra, 556 U.S. at p. ___ [180 L.Ed.2d at p. 297].)
The next inquiry is whether the officers had the authority to search defendant's laptop on which the child pornography was discovered. More specifically, we must decide if the officers reasonably relied on "binding precedent" with respect to their authority to search containers under Belton, which provides that "the police may . . . examine the contents of any container found within the passenger compartment." (New York v. Belton, supra, 453 U.S. at p. 460 [69 L.Ed.2d at p. 775]; Davis, supra, 556 U.S. at p. ___ [180 L.Ed.2d at p. 297].)
Belton defined a "container" as "any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like." (New York v. Belton, supra, 453 U.S. at p. 461, fn. 4. [69 L.Ed.2d at p. 775, fn. 4].) The Fourth District Court of Appeal has held a "laptop computer . . . amounts to an electronic container capable of storing data similar in kind to the documents stored in an ordinary filing cabinet," noting "[w]e perceive no reasonable basis to distinguish between records stored electronically on [a] laptop and documents placed in a filing cabinet." (People v. Balint (2006) 138 Cal.App.4th 200, 209.) We therefore conclude, just as a file box containing documents is an "object capable of holding another object," the officers here could have reasonably believed a laptop qualified as a container under Belton.
Officer Wilson indicated in his testimony that he was trained that "computers, cell phones, that kind of stuff, are now where people keep items that . . . they would have kept in their briefcase, for example. Therefore, the case law had opened up those forms of media to incident to arrest searches." The training to which Officer Wilson referred is in harmony with our interpretation of Balint, set forth above. Thus, it was with "reasonable reliance" on that case law, or "binding precedent," that Officer Wilson searched defendant's laptop incident to his arrest. (Davis, supra, 556 U.S. at p. ___ [180 L.Ed.2d at pp. 297, 302].) It is of no consequence the search of the laptop may have been unrelated to the crime for which defendant was arrested because under Belton a "lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have." (New York v. Belton, supra, 453 U.S. at p. 461 [69 L.Ed.2d at p. 775].)
Though defendant correctly asserts that Gant applies retroactively and renders the search of his pickup and laptop in violation of the Fourth Amendment, the officers conducted the search "in reliance on binding precedent," precluding the application of the exclusionary rule here. (Davis, supra, 556 U.S. at p. ___ [180 L.Ed.2d at pp. 297, 302].) Consequently, the trial court did not err in denying the motion to suppress.
The judgment is affirmed.
We concur: BUTZ , J. DUARTE , J.