People v. Macabeo

• Decision Date: 05 December 2016
• Docket Number: S221852
• Citation: 211 Cal.Rptr.3d 34,384 P.3d 1189,1 Cal.5th 1206
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Paul MACABEO, Defendant and Appellant.

1 Cal.5th 1206
384 P.3d 1189
211 Cal.Rptr.3d 34

The PEOPLE, Plaintiff and Respondent,
v.
Paul MACABEO, Defendant and Appellant.

S221852

Supreme Court of California

Filed December 5, 2016

Bird & Bird, Karen Hunter Bird, Torrance; Samuelson Law, Technology & Public Policy Clinic, Catherine Crump and Charles D. Weisselberg for Defendant and Appellant.

Peter Bibring, Catherine Wagner, Michael T. Risher and David Blair-Loy, San Francisco, for ACLU Foundation of Southern California, ACLU Foundation of Northern California and ACLU Foundation of San Diego and Imperial Counties as Amici Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Edward C. Dumont, State Solicitor General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Michael R. Johnsen and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

California Appellate Law Group, Myron Moskovitz and Ben Feuer, San Francisco, as Amici Curiae.

Corrigan, J.

1 Cal.5th 1210

In People v. Diaz (2011) 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (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, 189 L.Ed.2d 430 (Riley ). We conclude the warrantless search of defendant Paul Macabeo's phone would not have been proper even under our decision in Diaz , and a reasonably well-trained officer would have so known. Under these circumstances, the search violated the Fourth Amendment and the good faith exception to the exclusionary rule does not apply. We reverse the Court of Appeal's contrary judgment.

I. FACTS AND PROCEDURE¹

Detective Hayes and Officer Raymond of the Torrance Police Department were on routine patrol at 1:40 a.m. in a dark,

211 Cal.Rptr.3d 37

residential neighborhood. When they saw defendant on a bicycle 20 feet ahead of them, there were few, if any, cars on the street. Defendant was not riding erratically, nor did he appear to

1 Cal.5th 1211

be trying to evade them. Following with their headlights off for a distance of 50 to 75 feet, they saw him approach an intersection and roll through a stop sign, an infraction under Vehicle Code section 22450. The officers activated their overhead lights and stopped him.

Hayes initially spoke to defendant as he stood astride his bicycle. He asked defendant's name, where he was coming from and where he was going, whether he was on probation, for what offense, when he would be discharged, when he had last been arrested, and the name of his probation officer. No mention was made of the traffic infraction. Defendant answered all the questions without objection. His statements about his probationary status were somewhat confused. He initially said that he was on probation for possession of a controlled substance. When asked when he would be discharged from probation, he replied he was not sure, then reported his case had already been dismissed and he had no probation officer. The officers did not check to see if he was actually on probation, or whether any probation he might have been on included a search condition.

Hayes told defendant to walk toward the police car, put his hands up, and spread his feet. Defendant told the officers he had nothing illegal on his person. Hayes then asked if defendant had "any problem with me taking

384 P.3d 1192

stuff out of your pockets," and defendant said "go ahead." Hayes removed a number of items, including defendant's phone. Hayes continued the questioning, asking when defendant had last used drugs, how he had ingested them, whether he possessed any needles, or had any outstanding warrants or unpaid parking tickets. Hayes asked who he lived with, whether he was working, how he supported himself, and what else he had ever been arrested for. Defendant was then told to sit down on the curb with his ankles crossed. Hayes told him that he was going to check "that you're being honest with me tonight," and asked where he had gotten the bike. Told the bike belonged to defendant's girlfriend, Hayes asked for the girlfriend's name and address.

Hayes directed defendant to take his shoes off one at a time and hand each over to him. Finally, after what the transcript described as a "long silence," defendant was told to put his hands on his head. Defendant asked twice if he was being arrested. Hayes replied, "I'll explain everything in a second. Do not stand up; you don't want to do that," whereupon the recording ends.

At the suppression hearing, Hayes characterized the interrogation as "just basic questions that I usually ask on a stop." He said that before asking to empty Mr. Macabeo's pockets, he had conducted a patdown search because defendant was acting "fidgety." He did not testify that the patdown revealed anything suspicious. After taking defendant's phone, Hayes gave it to Officer Raymond. Defendant was never asked for permission to activate the phone or

1 Cal.5th 1212

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. The parties stipulated that possession of the photos was a violation of Penal Code section 311.11, subdivision (a).

Hayes repeatedly testified that he based his decision to search Mr. Macabeo on defendant's probationary status and on his

211 Cal.Rptr.3d 38

belief that defendant's consent to remove items from his pockets constituted consent to examine the contents of the seized phone. Hayes admitted that after defendant was arrested, he checked the computer in his patrol car and learned that defendant had not been on probation for several months.

At the preliminary hearing, defendant moved to suppress the evidence found on his phone, arguing the search resulted from an unduly prolonged and unjustified detention. The trial court denied the motion, accepting the prosecutor's argument that because defendant could have been arrested for failing to stop at a stop sign, he was lawfully searched incident to arrest, justifying the phone search under the existing authority of Diaz, supra, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501.

The Court of Appeal affirmed. Although it acknowledged that Diaz 's reasoning was subsequently repudiated in Riley, supra, 573 U.S. ––––, 134 S.Ct. 2473, the court concluded the good faith exception applied because Diaz was controlling law at the time and officers could reasonably rely on it to justify the search.

II. DISCUSSION

A. Search Incident to Arrest

"In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards." (People v. Troyer (2011) 51 Cal.4th 599, 605, 120 Cal.Rptr.3d 770, 246 P.3d 901 ; see Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223, 158 Cal.Rptr.3d 261, 302 P.3d 574.) " ‘ "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." ’ " (People v. Suff (2014) 58 Cal.4th 1013, 1053, 171 Cal.Rptr.3d 130, 324 P.3d 1 ; see People v. Tully (2012) 54 Cal.4th 952, 979, 145 Cal.Rptr.3d 146, 282 P.3d 173.)

"The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures." (

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People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365, 178 Cal.Rptr.3d 185, 334 P.3d 573.) " ‘[T]he ultimate touchstone of the Fourth Amendment is "reasonableness." ’ [Citation.] Our cases have determined that ‘[w]here a

384 P.3d 1193

search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant.’ " (Riley , supra , 573 U.S. at p. ––––, 134 S.Ct. at p. 2482, quoting Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564.) "In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." (Riley , at p. ––––, 134 S.Ct. at p. 2482.) The burden is on the People to establish an exception applies. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 ; People v. Schmitz (2012) 55 Cal.4th 909, 933, 149 Cal.Rptr.3d 640, 288 P.3d 1259.)

One such exception is a search incident...