• MACABEO, 1 C5 1206, 211 CR3 34, 384 P3 1189 (16)
Detective Hayes and Officer Raymond of the Torrance Police Department were on routine patrol at 1:40 a.m. in a dark, residential neighborhood. When they saw defendant on a bicycle roll through a stop sign, they activated their overhead lights and stopped him.
After inquiring about defendant’s probation status, Hayes asked if defendant had “any problem with me taking stuff out of your pockets,” and defendant said “go ahead.”
Hayes removed a number of items, including defendant’s phone. Hayes gave it to Officer Raymond. Defendant was never asked for permission to activate the phone or examine its contents. After five to 10 minutes, Raymond told Hayes that he had found no suspicious text messages on defendant’s phone, but that the picture folder contained images of underaged girls. Defendant was then arrested for possession of child porn.
Defendant moved to suppress. The court denied the motion. The Court of Appeal affirmed. But the California Supreme Court reverses.
In People v. Diaz (2011) 51 Cal.4th 84 (Diaz), we held that, incident to a custodial arrest, police may search through data on a defendant’s cellular phone without obtaining a warrant. The United States Supreme Court subsequently held to the contrary in Riley v. California (2014) 573 U.S. __ [134 S.Ct. 2473] (Riley).
Under Riley, the “ordinary justifications for searches incident to arrest are to secure weapons, prevent escape, and preserve evidence of crime. These apply with less force in the context of cell phone data. With respect to officer safety, ‘[o]nce an officer has secured a phone and eliminated any potential physical threats . . . data on the phone can endanger no one.’ (Id. at p. __ [134 S.Ct. at p. 2485].)”
The People argued that the officers here relied in good faith upon Diaz. But the court held that even under Diaz, this would not have been a proper search.
The Court concludes:
So, the posture of our case is this. First, the phone search was conducted without a warrant and was improper unless justified by an exception to the warrant requirement. Second, defendant was not on probation, so the search could not be based on that nonexistent status. Third, the People concede that defendant did not consent to the search of his phone. Fourth, the search did not qualify as incident to arrest under the Fourth Amendment. Fifth, under Riley, even if defendant had been properly arrested, a warrant was required to search the phone.
“Do It Yourself” Suppression Motion Was a Losing Game of “Hide and Seek”
- Quick, 5 CA5 1006, 210 CR3 256 (16)
Def. was pulled over by Atascadero police officer for bad taillight. Def. said that he had recently rewired the car and may have incorrectly connected the wires. Off. noticed that Def’s pupils were constricted, he was exhibiting facial tremors, and open sores on his face. These were symptoms of a person under the influence of a controlled substance. Def. admitted using Percocet and marijuana earlier in the day.
He was ordered out of the car for field sobriety tests. Knowing “his goose was cooked” if searched (fowl language courtesy of the court), Def. took off his jacket and threw it in the car, rolled up the window, tossed in his keys, locked the door and closed it.
Def. failed the FSTs. His car was blocking a driveway so it was ordered towed. An inventory search turned up 25.9 grams of methamphetamine (259 to 518 single doses) in the jacket pocket, two meth pipes, and a Taser.
Def. moved to suppress, contending that the search was invalid as both an inventory search and a search incident to arrest. Suppression motion denied.
The Court of Appeal, per Yegan, J., affirmed.
The court held it was a valid inventory search. The inventory officer testified that …
… the sole purpose of the impound search was to inventory what was in the vehicle and to verify that nothing was missing when the vehicle was returned to appellant. Vehicle Code section 22651 authorized the vehicle impound. (See People v. Aguilar (1991) 228 Cal.App.3d 1049, 1053 [court focuses on the purpose of the impound rather than the purpose of the inventory].) When a vehicle is lawfully impounded, an inventory search pursuant to an established, standardized procedure does not violate the Fourth Amendment. (South Dakota v. Opperman, supra, 428 U.S. at pp. 371-375; People v. Nottoli (2011) 199 Cal.App.4th 531, 545-546; People v. Evans (2011) 200 Cal.App.4th 735, 743, fn. 5.)
In the alternative, the court also held that the search was valid incident to arrest. Def. argued that under Arizona v. Gant (2009) 556 U.S. 332, the search was unreasonable because the officers had no reason to believe that evidence relevant to the arrest for driving under the influence of a controlled substance would be found in the vehicle.
Appellant admitted using Percocet and marijuana earlier in the day and was under the influence of a controlled substance when driving. When he stepped out of the vehicle to perform the field sobriety tests, he threw his jacket and keys into the car, rolled up the window, and locked and shut the door. Officer Chesson thought it was “odd” behavior but consistent with what someone driving under the influence would do if trying to hide drugs. In accordance with Gant, “the focus of the inquiry is entirely upon the nature of the offense of arrest, rather than the particular facts of the case. [Citation.]” (People v. Evans, supra, 200 Cal.App.4th at p. 748.) “[W]hen a driver is arrested for driving under the influence, or being under the influence, it will generally be reasonable for an officer to believe evidence related to that crime might be found in the vehicle. [Citations.] It is certainly logical and reasonable to expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily be contained in the intoxicated driver’s car.” (Id., at p. 750.) The trial court did not err in finding that the search was reasonable and incident to the arrest for driving under the influence of a controlled substance. (Ibid.; People v. Nottoli, supra, 199 Cal.App.4th at p. 553.) A person arrested for driving under the influence may not defeat a “search incident to arrest” by locking incriminating evidence inside his vehicle. As indicated, it is a crime to do so.
The court made it plain:
The interaction between a peace officer and a person suspected of committing a crime is not a game… Knowing that his “goose was cooked” if the officer conducted a search, appellant attempted what was tantamount to a “do it yourself” suppression motion…This was a game of “hide and seek” which he was bound to lose. It was a sophomoric attempt to thwart the lawful seizure of evidence and a crime itself, i.e., a willful obstructing of a peace officer. (Pen. Code, § 148, subd. (a)(1).) A person detained for investigation has no constitutional right to dispose of evidence. (People v. Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6; People v. Maddox (1956) 46 Cal.2d 301, 306.)