California Court of Appeals, First District, Second Division
Superior Court of the City and County of San Francisco No. 214120 Honorable Jerome T. Benson Trial Judge
Attorneys for Defendant and Appellant: Kathryn Seligman, under appointment by the Court of Appeal.
Attorney for Plaintiff and Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Leif M. Dautch, Deputy Attorney General.
Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Lorenzo Barnes entered pleas of guilty to two counts of second degree robbery while personally armed with a firearm, and one count of being a past convicted felon in possession of a firearm. Defendant was sentenced to state prison for an aggregate term of 13 years and eight months. The sole issue he presents for decision on this appeal is whether the Fourth Amendment is violated when police use the Global Positioning System (GPS) to locate a stolen cell phone and detain the thief. Our answer is the same as that of the trial court—there is no Fourth Amendment violation when the information generated by the GPS, with the owner’s consent, is only a part of the objective reasons leading to the decision to detain. Accordingly, there was no error in the denial of defendant’s suppression motion, and we affirm the judgment of his conviction.
The salient details are not in dispute.
Shortly after midnight on November 5, 2009, Charles Parce and Carolyn Fey were walking near Fort Mason in San Francisco when a Black male approached them, brandished a handgun, and demanded their belongs. Parce handed over his wallet, but Fey ran across the street and threw her turquoise Prada handbag under a parked car. The gunman retrieved the purse and fled on foot. Parce and Fey described the gunman as wearing blue jeans, a white T-shirt underneath a black hooded sweatshirt, and white shoes. Fey told police that her wallet and a “Palm Pre smart phone” were in her handbag.
Before Parce and Fey were taken to a police station, Fey advised the officers that her cell phone “had GPS on it.” Officer Zeltser “contacted Sprint PCS and spoke to their corporate security people, who stated that if Fey would sign a release form, ... they would be able to ping the cell phone.” “[T]he way they explained it to me was that they would send a signal to the phone... they described it as ‘pinging it, ’ that they could then basically find a general location within 15 yards or 15 meters of where the phone was.” Sprint faxed the release form to the police station, Fey completed it, and it was then faxed back to Sprint. Zeltser testified that “I asked them to ping the cell phone; they... advised me that it was... stationary at 16th and Mission Street.” This was approximately 45 minutes after the robbery.
Zeltser “turned the phone over to Officer Hamilton” to continue speaking with Sprint, and then he and another officer left to go to “the location to see if we could locate the suspect.” En route, Zeltser heard Hamilton report that “the ping was still coming from 16th and Mission, ” and then “between 16th and 17th and Mission.”
Meanwhile, Officers Clifford and Tannenbaum, having received a broadcast as to the first location, observed defendant on foot at 16th and Mission. Zeltser testified that Tannenbaum reported being at 15th and Mission, and that “a person matching the description... had gotten into a vehicle and was driving down Mission Street.” “As the vehicle was stopped at a red light at 15th and Mission, ” “[w]e repinged the cell phone and it came back 15th and Mission; at which point I... raced over to assist him, because he advised that he was going to initiate a traffic stop.” Officers Clifford and Tannenbaum were “updated” with the results of the continued pinging, i.e., that “the ping was moving towards the north.”
Officer Zeltser arrived on the scene, which was at 13th and Mission, just as Tannenbaum had “initiated the traffic stop” and “was contacting Mr. Barnes.” Zeltser testified: “As I approached, I had my flashlight out; I looked in the rear seat of the vehicle and I noticed a purse that matched the description [of the one] that was taken in the robbery” on the rear seat of the vehicle that defendant was driving. On the front seat Zeltser saw the cell phone. This was approximately an hour after the robbery.
Officer Clifford testified to what happened once the stop was made: “[W]e asked him... if he was on probation... [¶] And then there was a comment that was made by the person driving the vehicle. I think he said something about a gun. And then my partner asked him out of the car. And that’s when I walked around and we both immediately noticed a gun in his waistband.” Clifford also noticed the handbag, which he vividly described as “one of those purses you probably [could] see from a mile away, it’s so bright, the color.”
Fey was brought to the scene and identified defendant as the robber. Later, take back to the police station, she identified ...