Trial court: San Mateo County Superior Court Trial judge: Hon. Lisa A. Novak (San Mateo County Super. Ct. No. SC069718)
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
Appellant Erik Rangel pled no contest to aggravated assault and active participation in a criminal street gang, and admitted a great bodily injury allegation in connection with the assault count. (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (a), and former § 12022.7, subd. (a).)*fn1 He argues that the charges stemmed from a search of the text messages in his cell phone, the search was unlawful because it was outside the scope of a warrant and his consent, and his motion to suppress under section 1538.5 should have been granted. We conclude that the phone was seized and searched under a valid warrant and that the motion was properly denied, regardless of the scope of his consent.
The district attorney filed an information charging appellant with attempted murder, aggravated assault, battery causing serious bodily injury, and active participation in a criminal street gang, along with various allegations for weapon use and the infliction of great bodily injury. (§§ 664/187, 245, subd. (a)(1), 243, subd. (d), 186.22, subd. (a), and former §§ 12022, subd. (b)(1)*fn2 , 12022.7, subd. (a).) Appellant filed a motion to suppress evidence of text messages found on his cell phone, which was seized when officers executed a search warrant at the house where he lived. (§ 1538.5.)
The following evidence was adduced at the suppression hearing:
A man was beaten and possibly stabbed in a San Mateo park. San Mateo Police Detective Dutto was assigned to lead the investigation of the crime, which was thought to be gang related. Appellant was identified as a suspect, and a magistrate issued a warrant for his arrest and a search warrant for the house where he lived.
The search warrant authorized the seizure of stabbing instruments, items containing stains or traces of human blood, and "Any and all items which would constitute items commonly known as 'Gang Indicia,' such as items and paraphernalia that would tend to demonstrate the subject[']s on-going gang affiliation including but not limited to graffiti, notebooks, photographs, sketches, poetry, and red clothing. . . . Gang related paraphernalia typically retained by gang members can also appear in other forms, including but not limited to, newspapers, artwork, compact disks, audio and videocassette, cameras, undeveloped film, address books, telephone lists, graffiti collections, and magazines."
Police officers executed the search warrant and found appellant in his bedroom. He was arrested and transported to the police station for an interview. The officers searched appellant's bedroom and seized a number of items, including a cell phone that was on his dresser and had been within his reach when they entered the room. The phone was a "smartphone," i.e., a cellular phone "that has the ability to store data, photographs, [and] videos."
Appellant agreed to speak with Detective Dutto after being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436. When asked for his telephone number, appellant said his cell phone had been disconnected. Appellant told Dutto that he was with his girlfriend Vanessa on the night of the assault, but claimed that he did not know Vanessa's last name. The following exchange ensued: "[Dutto]: Well, here, help me help you. I know you know your girlfriend's last name. If that's who you were with, that's somebody I can call and confirm that. You know what I mean? [¶] [Appellant]: Uh huh. [¶] [Dutto]: So what's her last name? [¶] [Appellant]: I don't know really. [¶] [Dutto]: What's her number? [¶] [Appellant]: Don't have it. [¶] [Dutto]: You don't have your girlfriend's number? [¶] [Appellant]: I have it but in my phone. I don't remember it. [¶] [Dutto]: It's in your phone? So how do you call her if your phone's disconnected? [¶] [Appellant]: From the house. [¶] [Dutto]: You just look it up in your phone? [¶] [Appellant]: Yeah. [¶] [Dutto]: Is it under Nessa in your phone? [¶] [Appellant]: Huh uh. Vanessa. [¶] [Dutto]: Vanessa. Do you give me permission to look in your phone so I can get her phone number? [¶] [Appellant]: There's personal stuff in there. If you want I can call her and tell her. [¶] [Dutto]: It helps more if I can do it. You know what I mean? Then it makes it look, you know, a little more forthcoming. So could I look in your phone to get her phone number to call her to confirm that's where you were? [¶] [Appellant]: Yeah." Appellant did not tell Dutto he could only look in the contacts or directory section of the phone to find Vanessa's number.
After the interview, Detective Dutto obtained the cell phone that had been seized from appellant's bedroom so he could find Vanessa's telephone number and track down evidence about appellant's alibi. Dutto turned on the phone and saw the word "Pesado," which he recognized as appellant's nickname. He clicked on a file that showed a list of text messages and read a text conversation with "Nessa" that appeared to link appellant to the assault. Dutto then read all the other text message conversations that he could find in the phone, and concluded that two of them were related to the case. After reading the text messages, which he had located within a minute of turning on the phone, Dutto went to the phone's contacts list and began looking for names that had been mentioned during the investigation and appellant's interview.
Detective Dutto had examined hundreds of cell phones in the course of his duties and knew that text messages sometimes contained phone numbers. In this particular phone, he could retrieve the contact information for Nessa by clicking the cursor over her name as it appeared in the text message. Dutto did not remember whether he obtained Nessa's telephone number from the text message itself or by going to the contacts list, but he knew he did not need to read the content of the text messages to obtain her number.
Defense counsel argued that evidence of the text messages should be suppressed because the cell phone was outside the scope of the search warrant. He additionally asserted that when appellant consented to Dutto's searching the phone for Vanessa's number, that consent was necessarily limited to the contacts list and did not allow Dutto to read the substance of his text messages. The prosecutor responded that (1) the warrant's reference to telephone lists and gang indicia encompassed the cell phone and authorized its seizure and search; (2) appellant's consent to the search of his phone was not limited to any particular data on the phone and extended to text messages; and (3) Dutto was authorized to read the text messages as a search incident to a lawful arrest.
The trial court denied the motion to suppress. It concluded that the term "telephone lists," as used in the search warrant, encompassed the seizure of a cell phone because cell phones contain telephone lists. It also found that appellant had consented to Detective Dutto's search of the phone. The court did ...