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The People v. Phil Douglas Reese

September 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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