People v. DIAZ
| Decision Date | 28 October 2008 |
| Docket Number | No. B203034.,B203034. |
| Citation | 81 Cal.Rptr.3d 215 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Gregory DIAZ, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Background: Defendant pleaded guilty in the Superior Court, Ventura County, No. 2007015733, Kevin J. McGee, J., to transportation of a controlled substance. He appealed.
Holding: The Court of Appeal, Perren, J., held that elapsed time of approximately 90 minutes between defendant's arrest and law enforcement officer's search of defendant's cell phone did not render the search an invalid search incident to arrest.
Affirmed.
Lyn A. Woodward, under appointment by the Court of Appeal, Pacific Grove, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Victoria B. Wilson, Supervising
Deputy Attorneys General, for Plaintiff and Respondent.
A cell phone is seized from the person of an arrestee approximately one hour after he is transported to the police station. About 30 minutes later, while the arrestee is being interrogated, the arresting officer accesses the phone's text message folder and retrieves an incriminating message. We hold the officer's actions are lawful under the Fourth Amendment of the United States Constitution as a valid search incident to arrest.
Gregory Diaz appeals the judgment entered after he pled guilty to transportation of a controlled substance, Ecstacy (Health & Saf.Code, § 11379, subd. (a).) The trial court suspended imposition of sentence and placed him on three years formal probation. Diaz entered his plea after the court denied his motion to suppress evidence of a text message retrieved from his cell phone, which was searched approximately 90 minutes after his arrest, and his ensuing statements made when questioned about that message. He contends that the delayed warrantless search of his cell phone violated the Fourth Amendment because the phone was a “possession[ ] within an arrestee's immediate control,” instead of an item “spacially limited to the person of the arrestee,” as those terms are defined by United States v. Chadwick (1977) 433 U.S. 1, 16, footnote 10, 97 S.Ct. 2476, 53 L.Ed.2d 538, and United States v. Edwards (1974) 415 U.S. 800, 810, 94 S.Ct. 1234, 39 L.Ed.2d 771. We conclude that the cell phone was immediately associated with Diaz's person at the time of his arrest, and was therefore properly subjected to a delayed warrantless search. Accordingly, we affirm.
At 2:50 p.m. on April 25, 2007, Diaz participated in a controlled buy of six Ecstacy pills. Diaz drove Lorenzo Hampton to the location in Thousand Oaks, and waited while Hampton and a confidential informant conducted the transaction in the back seat of his car. Diaz and Hampton were arrested shortly thereafter. When Diaz was searched at the scene, a small amount of marijuana was recovered from his back pocket. Diaz also had a cell phone in his possession, but it was not seized at that time.
Diaz was transported to the East County Sheriff's Station. At approximately 4:00 p.m., Diaz's cell phone was seized from his person and placed with the other evidence that had been collected. At 4:18 p.m., Diaz was interviewed by Detective Victor Fazio of the Ventura County Sheriff's Department. Diaz waived his Miranda 1 rights and denied any involvement in the incident. At about 4:23 p.m., and while Diaz was still being interrogated, Detective Fazio retrieved Diaz's cell phone, searched the text message folder, and found a recent message addressed to Hampton stating “6 4 80.” Based on his training and experience, the detective believed that this message referred to 6 Ecstacy pills for the price of $80. Diaz admitted his participation in the crime when confronted with this information.
Diaz pled not guilty to the charge of selling a controlled substance and moved to suppress the text message and his statements in response thereto pursuant to Penal Code section 1538.5. The trial court found that the cell phone was properly searched incident to Diaz's arrest, and denied the motion. In rejecting Diaz's argument that cell phones are akin to computers and should be excluded from the search-incident-to-arrest exception to the warrant requirement, the trial court reasoned as follows:
The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. Searches conducted without a warrant are “ ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’ ” ( Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854.) One such exception applies to searches incident to an arrest. The exception provides that “it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.” ( Chimel v. California (1969) 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685.) The police may also search “the arrestee's person” and the area “ ‘within his immediate control’ ” to remove weapons and secure evidence. ( Ibid.)
Diaz does not dispute that his cell phone was properly seized incident to his arrest and that the police could have searched it contemporaneous with the arrest. (See United States v. Robinson (1973) 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 []; New York v. Belton (1981) 453 U.S. 454, 460-461, 101 S.Ct. 2860, 69 L.Ed.2d 768 [].) He contends, however, that the search of his cell phone approximately 90 minutes after his arrest violated the Fourth Amendment's requirement that a warrant be obtained for delayed searches of “possessions within an arrestee's immediate control.” ( United States v. Chadwick, supra, 433 U.S. at p. 16, fn. 10, 97 S.Ct. 2476.) While he acknowledges that items “immediately associated with the person of the arrestee” are properly subject to delayed warrantless searches ( id., at p. 15, 97 S.Ct. 2476; see also United States v. Edwards, supra, 415 U.S. at pp. 801-803, 94 S.Ct. 1234), he argues that cell phones should be afforded greater constitutional protection than other items an arrestee might carry on his or her person, such as wallets, letters, or address books, because they “have the capacity to store tremendous quantities of personal information.” He also asserts that cell phones should be characterized differently from other items associated with the person of an arrestee because they are “no more likely to be inside a person's pocket than inside a briefcase, backpack, or purse, or on a car seat or table, or plugged into a power source, or stashed inside any manner of separate bags or carrying containers.” We are not persuaded.
In United States v. Edwards, the court upheld the warrantless search of clothing that was seized from an arrestee approximately 10 hours after his arrest. (415 U.S. at pp. 801-802, 94 S.Ct. 1234.) The court reasoned that “once [an] accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.” ( Id., at p. 807, 94 S.Ct. 1234.) Subsequently, in United States v. Chadwick, the court invalidated the delayed search of a locked footlocker seized at the time of arrest. In so holding, the court concluded that “[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee...
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