California Court of Appeals, Second District, Fifth Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from an order of the Superior Court of Los Angeles County, No. YA084963 of Los Angeles, Mark Arnold, Judge.
[Copyrighted Material Omitted]
Karen Hunter Bird for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Victoria B. Wilson, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Paul Macabeo (defendant) appeals from the trial court’s order denying his motion to suppress evidence. He contends that the trial court erred when it found that the search of his cell phone incident to a stop for a minor traffic violation did not violate the Fourth Amendment prohibition against unlawful searches and seizures. The United States Supreme Court, in overruling People v. Diaz (2011) 51 Cal.4th 84 [119 Cal.Rptr.3d 105, 244 P.3d 501] (Diaz), and while this case was on appeal, held that absent an emergency, law enforcement must secure a warrant before searching the digital content of a cell phone incident to an arrest. (Riley v. California (2014)
573 U.S. __ [189 L.Ed.2d 430, 134 S.Ct. 2473] (Riley).) We hold that because Diaz was applicable at the time of the search, the officers’ conduct in searching the cell phone was in good faith and therefore the failure to exclude the evidence from the cell phone was not reversible error.
On July 19, 2012, City of Torrance Police Detective Craig Hayes was patrolling in a police vehicle with his partner, Officer Raymond, near 17200
Gramercy Place and Artesia Boulevard in Torrance. At approximately 1:40 a.m., Detective Hayes observed defendant riding a bicycle directly in front of the police vehicle. At the intersection of Gramercy Place and Artesia Boulevard, defendant “rolled right through [a stop sign] without slowing down or making a full stop before making an eastbound [left] turn on Artesia” in violation of Vehicle Code section 22450, subdivision (a).
The police officers stopped defendant, and Detective Hayes exited his vehicle and approached defendant who was straddling his bicycle. The detective asked defendant from where he was coming, and defendant gave him an address. He next asked defendant if he was on probation or parole, and defendant told him that he was on probation for “methamphetamine.” But defendant did not remember the identity of his probation officer. When Detective Hayes asked defendant whether his probation had been discharged, defendant initially stated, “I’ve already dismissed my case.” Detective Hayes repeated the question, and defendant stated that he was “not sure.” Defendant also told the detective that he had been on probation for “a couple of years.”
After defendant told Detective Hayes that he did not have anything illegal in his possession, the detective initiated a pat down search and then asked defendant for consent to search his pockets. In response, defendant said “yeah, sure.” Detective Hayes removed various items from defendant’s pockets, including a cell phone, and handed the items to Officer Raymond.
When Detective Hayes finished searching defendant’s pockets, he directed defendant to sit on the curb in front of his patrol vehicle and cross his ankles. The detective spoke to defendant “for a while” and then noticed Officer Raymond signaling to him. Detective Hayes told defendant to remain seated on the curb and walked over to his partner’s location. Officer Raymond informed the detective that there were no text messages in defendant’s phone concerning narcotics, but he had found a picture folder on the phone that contained pictures of young girls under the age of 18 engaged in sexual activity. Possession or control of such pictures was a violation of Penal Code section 311.11, subdivision (a). Detective Hayes returned to ...