PEOPLE v. MACABEO

Appellant’s Opening Brief on the Merits

Cal.April 10, 2015

Case No. S221852 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THESTATE OF CALIFORNIA, SUPREME COURT Plaintiff and Respondent, F | PAUL MACABEO, Defendant and Appellant. APR 10 2015 FrankA. McGuire Clerk e n Deputy After a Decision of the Court of Appeal, Second Appellate District, Division Five, Case No. B248316, from Superior Court of California, - County of Los Angeles, Case No. YA084963, Hon. Mark Arnold APPELLANT’S OPENING BRIEF ON THE MERITS Karen Hunter Bird State Bar # 119890 Bird & Bird, A Law Corporation 3424 Carson Street, Suite 460 Torrance, CA 90503 Tel: (310) 371-7711 Fax: (310) 371-7733 hb@birdandbirdlaw.com On the Brief: Bronwen Tomb Jonathan Unikowski Law Student Interns Catherine Crump State Bar # 237438 Charles D. Weisselberg State Bar # 105015 Samuelson Law, Technology & Public Policy Clinic University of California, Berkeley School ofLaw Berkeley, CA 94720-7200 Tel: (510) 643-4800 Fax: (510) 643-4625 ccrump@law.berkeley.edu Attorneys for PAUL MACABEO TABLE OF CONTENTS TABLE OF AUTHORITIES20... ceeeeccccccssssssssessecessvscaccaseracssessvstseeeseneaeseas iv TABLE OF EXHIBITSou... ceesseeccsescecstesesesescsnscscscsvecssescseacsstevsrenesecens xi STATEMENTOF APPEALABILITY.........ccccccccscsccescssssscesesesesesesecans ] ISSUES PRESENTED 00.0... cceccescesssesesessescseseasscevaracacscarssescscsvsvevevensnsaeaves 1 STATEMENTOF THE CASE..0..cccccccsccssscsescscenesensesscsesssnsseneeceesestsacenans 2 STATEMENTOF FACTS......cccseccscsssssssesescsesesresssessssscavsucusvsneccsescaneaeecaes 4 A. The Traffic Stop and Terry Frisk.........cccccesesssecccecseseseees 4 B The Cell Phone Search ..........ccccececccsssssssscscssssssveveseversecseee 6 C. Mr. Macabeo’s Arrest... ccscscescssssccessnestsesssvscsessscsesssesenes 6 D Proceedings in the Superior Court...eessesssesseeeeecene 6 E. First Trip to the Court ofAppeal and Subsequent Superior Court Hearing ........cceccccsceeccscessesssecsseseescsvsseveses 8 F. Second Trip to the Court of Appeal .......cc ca9 ARGUMEDNT...0....ccccceccsessssessesesesesesesssesesescscseavssssteasssassssecsessasseceseeaseuacaeas 12 I. THE WARRANTLESS SEARCH OF MR. MACABEO’S CELL PHONE VIOLATED THE FOURTH AMENDMENT...... 14 A. B. Warrantless Searches Are Presumptively Unreasonable..... 15 The Warrantless Search of Mr. Macabeo’s Cell Phone Was Not a Valid Search Incident to a Custodial Arrest Because No Arrest Had Occurred or Was Underway......... 16 1. Officers may only conducta search incidentto arrest wherethere has been an arrest or one is underway .. 17 2. The warrantless search of Mr. Macabeo’scell phone cannot be upheld as a search incidentto arrest because he wasneither arrested nor wasan arrest UNGOrWay ooo. eseseccessccescescsesesccsessesesssecencsssessssstatsnees 23 C. This Court Should Not Extend the Search Incidentto Arrest Warrant Exception to Searches Where NoArrest Has Occurred or Is Underway...........cc.ccccessesssserescsssssseseese 28 1. The scope ofthe search incidentto arrest exception must be determinedin light of the justifications POF it ees eescscesesececececereeesesecesscsccavsesssssesessvssssscseseeeners 29 2. The rationales for the warrant exception do not justify searches based upon probable cause where, as here, no arrest was completed OF UNGETWAYo0..ceeeceecteesecscecssercceersssseesseesvrensvaserens 32 3. Assessing whether a custodial arrest has occurred oris underwaypriorto a searchis critical to determining the reasonableness of the search..........ccs37 4, Creating a new “search incident to probable cause” exception would erase established limits on the authority to search, and erodetheprivacy rights of millions of Califormians............ccccccssesesseescesereees 40 IL. THE EVIDENCE OBTAINED THROUGH THE UNCONSTITUTIONAL SEARCH OF MR. MACABEO’S CELL PHONEIS NOT ADMISSIBLE UNDER THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARYRULE........0ccccccee 47 A. The Davis Good Faith Exception Is Narrow and Applies Only When Officers Conduct a Searchin Objectively Reasonable Reliance on Binding Appellate Precedent... 48 B. Binding Appellate Precedent Did Not Authorize the Officers to Search Mr. Macabeo’s Cell Phone..........0...... 50 CONCLUSION o.oo. ceseseceeeesesesesereessaressesesesususaesessesensnsescsescasseessanseanae 54 CERTIFICATION OF WORD COUNTeececsccccccceeseeceeeeeeoeeeoecccc 55 ii ADDENDUM(Transcript of the Recording of the Police Encounter)..... 56 PROOF OF SERVICE BY EXPEDITED DELIVERY........cccceeeseeeee: 63 til TABLE OF AUTHORITIES Cases Acevedo vy. California (1991) 500 U.S. 565 {111 S.Ct. 1982, 114 D.Ed.2d 619) ooocsesscesccsssscsessessecerssensses 41 Arizona v. Gant (2009) 556 U.S. 332 [129 S.Ct. 1710, 173 L.Ed.2d 485) oo.cccsccssscsessseecssrssecsnens passim Ashcroft v, al-Kidd (2011)___ U.S. __. [131 S.Ct. 2074, 179 L.Ed.2d 1149]occccccscesecscsccsecsscesvecseseess 38 Atwaterv. Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549]oeecsssessssesssecesens 11, 25,42 Bailey v. United States (2013) ___ U.S. __ [133 S.Ct. 1031, 185 L.Ed.2d 19]cccccesscsssescsssrecsecsevsssssseceseress 29 Belote v. State (Md. 2009) 981 A.2d 1247 ooo ccscccccssscsceseseecosesessseceeces 35 Berkemer v. McCarty (1984) 468 U.S. 420 (104 S.Ct. 3138, 82 L.Ed.2d 317]cccccssesccscsccescensesescecsecseseuececes 24 Brendlin v. California (2007) 551 U.S. 249 [127 S.Ct. 2400, 168 L.Ed.2d 132] uo.cccccccsscsecescssecsseserereseseeevece 39 Chimel v. California (1969) 395 U.S. 752 [89 S.Ct. 2034, 23 L.Ed.2d 685]... cecccscssesececesssesessaeeces 16, 17,21, 30 Commonwealth v. Craan (Mass. 2014) 13 N.E.3d 569.0... .ccccccccccsscsseccsecee 22 Commonwealthv. Shiflet (Pa. 1995) 670 A.2d 128 vu... .ecsssssscsscsesceccccescees 35 Commonwealth v. Washington (Mass. 2007) 869 N.E.2d 605 ......0.00... 35,40 Cupp v. Murphy (1973) 412 US. 291 [93 S.Ct. 2000, 36 L.Ed.2d 900) 0... ceccsssssssesessceseeseceersessescserssaens 19 Davis v. United States (2001) 564 U.S. ___ [131 S.Ct. 2419, 180 L.Ed.2d 285) ooo.ccsscssceseeccscessceevens passim Devenpeck v. Alford (2004) 543 US. 146 [125 S.Ct. 588, 160 L.Bd.2d 537] ooo. ccccsecescsssssssecsccccecensesasssscecseseeses 39 iv Florida vy. Jardines (2013) __ U.S. __ [133 S.Ct. 1409, 185 L.Bd.2d 495]ccccsssssscssecsccssecesecssecens 37, 38,39 Gustafson v. Florida (1973) 414 U.S. 260 [94 S.Ct. 488, 38 L.Ed.2d 456] oo.ccesccccscscsssesesccsrescsscssceussstecccaveesees 17 Hayes y. Florida (1985) 470 US. 811 {105 S.Ct. 1643, 84 L.Ed.2d 705] ou... cecscccsscscscscscsecsssscecssesvssereesesseseese 25 Heien v. North Carolina (2014) __ U.S. __ [135 S.Ct. 530, 190 L.Ed.2d 475]ccccssessscssccsccsscesccssesesssceseseesees 45 Illinois v. Krull (1987) 480 U.S. 340 (107 S.Ct. 1160, 94 L.Ed.2d 364)oecccsescessesesesseesssssssssssseseseaeaes 49 In re Arturo D. (2002) 27 Cal.4th 60 [115 Cal. Rptr. 2d 581, 38 P.3d 433)oocescsesscsssorereveceseseseseseens 4] In re Jonathan M. (1981) 117 Cal.App.3d 530 [172 Cal.Rptr. 833)oeeccsssscssesescsesssesseeeescssvsssuesesesevacessssnseeanecs 22 In re Lennies H. (2005) 126 CalApp4th 1232 [25 Cal.Rptr.3d 13) oo.cceseseceessseseseesesecseerscesessssssseravanasarseacensanens 22 Johnson v. United States (1948) 333 U.S. 10 [68 S.Ct. 367, 92 L.Ed. 436) oo... ccccecccsscccsesesssssesesessecscsseresesecseesecaverees 16 Katz v. United States (1967) 389 U.S. 347 [88 S.Ct. 507, 19 L.Ed.2d 576)... csccccesssscsssssssesesesssesesesescaecesesesesereeenses 15 Kaupp v. Texas (2003) 538 U.S. 626 [123 S.Ct. 1843, 155 L.Ed.2d 814]oceeececcescesecnccsseseseeeees 23,25 Knowles v. Iowa (1998) 525 U.S. 113 [119 S.Ct. 484, 142 L.Ed.2d 492)occcececcsscsessscssesscessesees passim Mappv. Ohio (1961) 367 U.S. 643 [B1 S.Ct. 1684, 6 L-Ed.2d 1081] ...ccccecsccscscccsscccssseseccessssesssecerececsussesecesee 21 Maryland v. King (2013)__ U.S. __ [133 S.Ct. 1958, 186 L.Ed.2d Uo...ceeccescaceseseseceseseecesvsnenss 34 McDonald v. United States (1948) 335 U.S. 451 [69 S.Ct. 191, 93 L.Ed. 153)eesceesssssssesssesessesecesserscscsestesassesesaeees 15 Nix v. Williams (1984) 467 U.S. 431 [104 S.Ct. 2501, 81 L.Ed.2d 377]oeccccccesssesscssssestsesscsssssssevecevavenes 46 People v. Adams (1985) 175 Cal.App.3d 855 [221 CalRptr. 298) oo... ccccccsssescssssssssessssceessessscscsccscecsscscaviccesrevavavavaravenes 22 People v. Avila (1997) 58 Cal.App.4th 1069 [68 CalRptr.2d 432] ooccecsssesssesssssssnssessesesnscseessversessecerassssrssesesseeses 22 People v. Celis (2004) 33 Cal.4th 667 [16 Cal. Rptr. 3d 85, 93 P.3d 1027)...cccecseseeeeeeee 23,25, 26, 39 People v. Chiagles (N.Y. 1923) 142 N.E. 583 w..ecccccccscscscssecssesrsrereserereees 19 People v. Diaz (2011) 51 Cal.4th 84 [119 Cal.Rptr.3d 105, 244 P.3d 501)...ccececseeeeesesestssecsrerens passim People v. Evans (N.Y. 1977) 371 N.E.2d 528 voicecccsccccsscececeeseeee 22,27, 36 People v. Fay (1986) 184 Cal.App.3d 882 (229 Cal.Rptr. 291) osiscceeerecscssssereccsesecessesssesensnarseseescsnscssscsusnsessees 22 People v. Gonzales (1989) 216 Cal.App.3d 1185 [265 CalRptr. 507]... ccccecsssssssesssscssccscscsesssessceevecsecravarausnavavressasaetaces 22 People v. Limon (1993) 17 Cal.App.4th 524 [21 Cal .Rptr.2d 397] ooesseseseeeeseseessesessesescssssesseverssetsssssseseseseseseses 22 People v. Macabeo (2014) 229 Cal.App.4th 486 [177 CalRptr.3d 311) uo...cecccscccsesscscssssssssscescssessesevaseeutssarsreceerss passim People v. Marshall (1968) 69 Cal.2d 51 [69 Cal.Rptr. 585, 442 P.2d 665]...cccccscsecserssesererssecesesesnsssseesesees 21 People v. McKay (2002) 27 Cal.4th 601 [117 Cal. Rptr. 2d 236, 41 P.3d 59]oeccesceesstssssstatscsterererens 11,27 People v. Mims (1992) 9 Cal.App.4th 1244 [12 Cal Rptr.2d 335) oo...eesesesesecseenssssssessssassessssecsnesseessseusveees 22 People v. Redd (2010) 48 Cal.4th 691 [108 CalRptr.3d 192,229 P.3d LOL)weesccsteesessceteceeees 21, 26, 46 People v. Reid (2014) 24 N.Y .3d 615 [26 N.E.3d 237] oo. eesecessseceesererercseneeseeesssscsuscsssessateesenssessessevesaterseenseaes 36 vi People v. Schmitz (2012) 55 Cal.4th 909 [149 Cal.Rptr.3d 640, 288 P.3d 1259) oo...ceesccsssseesesescseretsteserssees 16 People v. Simon (1955) 45 Cal.2d 645 [290 P.2d S31] oe eeeeccesscscscesscensecesesassscseesescscsecarsussecsssavsaveseesereatesees 21,43 People v. Souza (1994) 9 Cal.4th 224 [36 CalRptr.2d 569, 885 P.2d 982]...ccccsescscsstscssvecsventseseseeeseees 24 People v. Thompson (2010) 49 Cal.4th 79 [109 CalRptr.3d 549, 231 P.3d 289] ooo. ccccccessssessescsecersveseceserenes 41 People v. Willis (2002) 28 Cal.4th 22 [120 Cal.Rptr.2d 105, 46 P.3d 898]... ccesccsssscccscessstsscecssscarsvecseeseee 48 People v. Zamudio (2008) 43 Cal.4th 327 (75 CalRptr.3d 289, 181 P.3d 105]...ccc ccesesssscssssescecccsesssestscecererese 39 Rawlings v. Kentucky (1980) 448 U.S. 98 [100 S.Ct. 2556, 65 L.Ed.2d 633] uo....cccccccessssrsscrsrseseneees 20, 21, 22, 26 Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430) ooo.ccceeecescesseteassecssseeners passim Smith v. Ohio (1990) 494 U.S. 541 [110 S.Ct. 1288, 108 L.Ed.2d 464] oo.cceccecssetsscesseenseeee: 16, 28 State v. Taylor (Ariz. Ct. App. 1990) 808 P.2d 324 ooeccsssseeescrsers 35 Terry v. Ohio (1968) 392 US. 1 [88 S.Ct. 1868, 20 L-Ed.2d 889] oo...ccescccsesssscesesssesseeseeseesecees passim Trupiano v. United States (1948) 334 U.S. 699 [68 S.Ct. 1229, 92 L.Ed. 1663) oo... ccccccccceesssereessssssesscscesvevsssrasessaeers 17 United States v. Benton (9th Cir. 2011) 407 Fed. Appx. 218 oo... 22 United States v. Chadwick (1977) 433 U.S. 1 [97 S.Ct. 2476, 53 L.Ed.2d 538) oo... ccccsccescsecssscesessssssssccssesesseseecevens 51 United States v. Jackson (7th Cir. 2004) 377 F.3d 715 oo. cccsscsccesees. 22, 34 United States v. Jeffers (1951) 342 U.S. 48 [72 S.Ct. 93, 96 LE. 59]occccscscnssereseceecarsscecasersseesssavscsvsessavars 16 vii United States v. King (ND. Cal. 2008) 560 F. Supp. 2d 906... 22 United States v. Leon (1984) 468 U.S. 897 [104 S.Ct. 3405, 82 L.Ed.2d 677) 00.0.0 ccc ccceeccsccecsceesssccetenecsscsecscesssees 49 United States v. Myers (3d Cir. 2002) 308 F.3d 251 oo...ce scccceeeeeeees 30 United States v. Powell (D.C. Cir. 2007) 483 F.3d 836 wou...ecceeeees 22 United States v. Rabinowitz (1950) 339 U.S. 56 [70 S.Ct. 430, 94 L.Ed. 653] oo... eceesenecesscsseccssecssecsessereseserseesares 17 United States v. Robinson (1973) 414 US. 218 [94 S.Ct. 467, 38 L.Ed.2d 427] oc. ccccccsssessesesecssesssasesecssaresaseneees passim Virginia v. Moore (2008) 553 U.S. 164 [128 S.Ct. 1898, 170 L.Ed.2d 559] oo... ecccccsscssecessessecverereserarerssereees 27 Weeks v. United States (1914) 232 U.S. 383 (34 S.Ct. 341, 58 L.Ed. 652]occccecceccsseeesesesesssssesssssseverasereverevenes 48 Whren v. United States (1996) 517 U.S. 806 [116 S.Ct. 1769, 135 L.Ed.2d 89) oo... cccccsccesesscssersescsscsesesessseneees 38, 42 Wilson v. Superior Court (1983) 34 Cal.3d 777 {195 CalRptr. 671, 670 P.2d 325] ..ccssscessscesesccscssssescsvecsearscseesseees 23 Wong Sun v. United States (1963) 371 U'S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441) ooocccecsccccessseseessessensotsrsvenseseresescesees 15 Statutes Health and Safety Code section 11364. o...ccsessssssessseseseseesetescrseneeeas 2,7 Penal Code section 16.0........cccscccsessseseeessesscsescseececeresessscsesscanssnsnscenseacecnvens 27 Penal Code section 311.11eeeesesescecesereteesesssesecesceneseceeseesesnens passim Penal Code Section 647 ........cccccccsscsesssseeccssseseecsssccessscesesessccsesevencececusesceeess 41 Penal Code section 836...........ccsssssssscssersessesessesessesvsntvsrsesscssevsecsavestesserseans 27 Penal Code section 841 oo...cc cccccscsssevssssscssesesecsseesecscccssensvessseessnsecesaseers 24 Penal Code section 853.5 ........cccccscssssesecssecsessseeecccecesecscscoarcsenscensvanssesenenes 27 Vili Penal Code section 1203.1 voc... eecceeesscsccssececessnssececessuscseresesescreceseecersees 7 Penal Code section 1538.5 .......cccescsccsscssssssssscsessssserssecerecsrecesuessrensees 1,2, 54 Vehicle Code section 21202 o.0......cececcsssssssssseseescserseessevssecesavactessvsecetacaees 41 Vehicle Code section 21955 ........eccecccccsessssssssesescsssessccssssesssstscsessecasasaearacees 41 Vehicle Code section 22450 ooo... eesssssssssesesessssssescsesesenssetsenssstsssssseavevers 27 Vehicle Code section 23123 oo... .ceecsccesesessssesceseseseetesseesecsscnssevsvevavacarseeces 41 Vehicle Code section 400001 0... .cecsccsesssssscsesscsesesesessevsvscsccreserenecsrecaraee 27 Vehicle Code section 42001 o.....eececcccescsessseseseseseesessescecsscsseecararseacaseseees 27 Court Rules Rule of Court 8.304 oo... cceeccesssssscscssesssecseseesesesssceseseesscstssseccessessssessssceesnsceas I Other Authorities 4 Blackstone, Commentaries (4th ed. 1770) p. 286.......0....cccccseceeceseeeeeee 18 Alameda County District Attorney’s Office, Point of View: Arrests (Spring 2009) oo...ceceaeeseeceessecevesssnsseeseneuceaseatssseesssaverseutensesesessaes 25 Brief for Petitioner, Rawlings v. Kentucky, 1980 U.S. S. Ct. Briefs LEXIS 22D ooececcccssccccseccsecssecsascosecoscacccsvansaecesserssesarssccsserstsenssseasaceseusuucsssevsucences 21 California Departmentof Justice, California Peace Officers Legal Sourcebook (rev. Jam. 2014) ....cccceccccsssssessescescesceesenssssvscesecssessvavenesavanaee 25 Eith and Durose, Contacts between Police and the Public, 2008 (Oct. 2011) occ44,45 Judicial Council of Cal., 2014 Court Statistics Report: Statewide Caseload Trends oo. ccccccssccssssecessseeeserersssesesteassesesssaesceesesesssseseacscscatisesesacars 44 Kamala Harris, Attorney General of California, Inaugural Address 00.0... eecesecesecseseessseneesscransvaceceseees 46 ix Langton and Durose, Police Behavior during Traffic and Street Stops, 2011 (Sept. 2013) .......... 45 Logan, An Exception Swallows a Rule: Police Authority To Search Incident to Arrest (2001) 19 Yale Law & Policy Rev. 381 oo...ceseseeceees 18 Moskovitz, A Rule In Search ofA Reason: An Empirical Reexamination of Chimel and Belton (2002) 2002 Wisconsin L. Rev. 657 ......ccccccccccsceceee 25 Perkins, The LawofArrest (1940) 25 Iowa L.Rev. 201 .0....cccccccccssecsssseses 18 Tyler and Huo,Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002) .0......cccccccssscesssesssscecssssecccssessecesscsscsusseresereres 45 U.S. Census Bureau, State & County QuickFacts, California ..0....eee44 TABLE OF EXHIBITS People’s Exhibit No. 1 (Transcript of the Recording of the Police Encounter) ..........cccccccessccsssscssssesscceccsaseacecerenesensceresaes3,5, 6, 27, 57 xi STATEMENT OF APPEALABILITY Thetrial court denied Appellant Paul Macabeo’s motion pursuantto Penal Code section 1538.5 to exclude evidence from an illegal search. Mr. Macabeothen pied nolo contendere to a violation of Penal Code section 311.11, subdivision (a), and was placed on probation. Mr. Macabeo’s Notice of Appeal specified that he was appealing the denial of his suppression motion and, pursuant to Rule of Court 8.304, subdivision (b)(4), the trial court’s ruling is appealable without the necessity of a certificate of probable cause. ISSUES PRESENTED Officers saw Mr. Macabeoride his bicycle through a stopsign late at night, and pulled him over for a possible traffic infraction. Oneofficer questioned andfrisked Mr. Macabeo. A secondofficer searched Mr. Macabeo’s cell phone and found sexually explicit photographsofgirls under the age of 18, for which Mr. Macabeo wasthen arrested. The lower courts upheld the cell phone search as incident to Mr. Macabeo’s arrest. The issues before this Court are: (1) Does the “search incidentto arrest” exception to the warrant requirementpermit officers to conduct full custodial searches based solely on the fact that they have probable cause for a minortraffic infraction, or must an actualarrest have occurred or be underway? (2) Does the good faith exception to the exclusionary rule, as articulated in Davis v. United States (2001) 564 U.S.___[131 S.Ct. 2419, 180 L.Ed.2d 285], permit the prosecution to rely on evidenceit obtained through what it has conceded was an unconstitutional search of Mr. Macabeo’s cell phone? STATEMENT OF THE CASE On July 19, 2012, the District Attorney filed a complaint, charging Mr. Macabeo with possession of matter depicting a minor engaging in sexual conductin violation of Penal Codesection 311.11, subdivision (a), and possession of a smoking devicein violation of Health and Safety Code section 11364.1, subdivision (a)(1).' (LCT 18.) Police officers discovered the evidencethatled to the first charge by searching Mr. Macabeo’scell phone, which they took from him after he “rolied” througha stop sign late at night onhis bicycle. (1CT 52:12-16, 60:13-25, 79:1-13.) Mr. Macabeo moved to suppress the evidence gathered through the search ofhis cell phone, pursuant to Penal Code section 1538.5. (1CT 20.) During a preliminary hearing that served as a hearing on the suppression motion, the court heard the testimony of Torrance Police Department Detective Hayes. (1CT 50:1-88:18.) Detective Hayes was the ' Health and Safety Code section 11364.1 was repealed effective January 1, 2015, although it was substantially re-codified at section 11364. * The clerk’s transcript and the reporter’s transcript are in two volumes, officer who made contact with Mr. Macabeo. (1CT 53:9-12.) His testimony, aided by a transcription of the recording of Mr. Macabeo’s initial contact with officers, which wasalso entered into evidence, provided the factual basis for the suppression motion. (1CT 58:6-15; the transcription is included at 1CT 112-117, and is appended tothis Brief.) Theparties also stipulated that Detective Hayes” partner, Officer Raymond,activated and searched Mr. Macabeo’s phone. (1 CT 89:7-12.) The court denied Mr. Macabeo’s suppression motion. (1CT 104:23, 108:27-28.) The District Attorney did not pursue the smoking device charge and subsequentlyfiled a one-count informationalleging the violation of Penal Code section 311.11(a). (ACT 109:21-110:2, 122.) Mr. Macabeo pleaded nolo contendere, and received five years of probation. (1CT 127-130.) He appealed the denial of the suppression motion, which the Court of Appealaffirmed. (1CT 131, 2CT 58, People v. Macabeo (2014) 229 Cal.App.4th 486 [177 Cal.Rptr.3d 311]. * Asset forth on pages8-9,infra, the Court of Appealatfirst remanded the case for procedural reasons. Mr. Macabeo’splea wasset aside and here- filed his suppression motion, which the Superior Court denied on thebasis of the evidence introducedat the preliminary hearing. Afterwards, Mr. Macabeore-entered his plea and filed a new notice of appeal. The Court of Appeal then decided the case on the merits. STATEMENT OF FACTS A. The Traffic Stop and Terry Frisk In the early morning hours of Thursday, July 19, 2012, Detective Hayes and Officer Raymond of the Torrance Police Department were on patrol in a markedpolice car. (1CT 50:23-26, $1:6-21, 64:15-21.) At about 1:40 a.m., they saw Paul Macabeoriding a bicycle near the intersection of Artesia Boulevard and Gramercy Place in Torrance. (1CT 51:15-52:7.) As Detective Hayestestified at the preliminary hearing, Mr. Macabeo was riding at a normal speed, 5 to 10 miles per hour, and there were few—if any—other vehicles on the road. (1CT 65:1-22.) The officers followed him for about 50 to 75 feet with their headlights off. (1CT 64:22-25, 65:26-28, 69:2-13.) Detective Hayes said that they saw Mr. Macabeoride through a stop sign without stopping. (1CT 52:12-16.) The officers then activated their lights and pulled Mr. Macabeo overfor violating Vehicle Code section 22450 (failure to stop at a stop sign). (1CT 53:2-5, 67:28-68:1.) Detective Hayestestified that he intended to give Mr. Macabeoeither a verbal warning or a citation requiring a promise to appearlater in court. (1CT 80:27-81:13.) Duringthe traffic stop, Mr. Macabeo complied with all of the officers’ commands and answeredtheir questions. Whenthe officers activated their lights, Mr. Macabeopulled his bike to the curb. (1CT 68:17- 19.) As the transcript of the encounter shows, Mr. Macabeoidentified himself, and explained that he was on his way to an AM/PM market. (1CT 113.) Detective Hayes asked Mr. Macabeo whether he wason probation. (1CT 113.) Mr. Macabeofirst replied that he was, but thenclarified that his case had already been dismissed, he did not have a probation officer, and his last arrest had taken place several years earlier. (ICT 113-114.) Detective Hayes said that he would check Mr. Macabeo’sarresthistory. (1CT 116.) As Detective Hayes later confirmed from the computerin the patrol car, Mr. Macabeo’s felony probation had ended a few monthsearlier in April of 2012. (ICT 73:7-11, 86:28-87:8.) While questioning Mr. Macabeo, Detective Hayes instructed him to keep his hands away from his waist and pockets, and thoughtthat Mr. Macabeo “wasreally fidgety.” (1CT 59:13-20.) As a result, Detective Hayes conducted a pat down of Mr. Macabeo,and asked him if he had anything illegal on him,including any weapons. (1CT 59:13-26.) Mr. Macabeosaid that he did not. (ICT 59:13-26, 114-115.) Officer Hayes then asked, “[y]ou have no problem metaking stuff out of your pockets?” and Mr. Macabeoreplied,“[nJo, go ahead.” (1CT 115.) Detective Hayes took several items from Mr. Macabeo’s pockets, including Mr. Macabeo’s cell phone, which he then handedto his partner, Officer Raymond. (1CT 60:13-61:2.) Detective Hayes sat Mr. Macabeoonthe curb and continued speaking with him for about 5 to 10 minutes while Officer Raymond searched the phone. (1CT 61:15-62:16, 77:15-22.) B. The Cell Phone Search Neither Detective Hayes nor Officer Raymond asked Mr. Macabeo for consent to search the contents of his phone. (1CT 76:19-77:13.) Nevertheless, while Detective Hayes questioned Mr. Macabeo, Officer Raymondsearched the phone. (1CT 60:22-27, 77:14-22.) Some time later, Detective Hayes looked up and saw Officer Raymondgesturing to him. (1CT 61:27-62:3.) Officer Raymondtold Detective Hayes that the phone did not contain any drug-relatedtext messages,but there was a folder with sexually explicit photographsofgirls under the age of 18. (1CT 62:7-24.) Cc. Mr. Macabeo’s Arrest Officer Hayes returned to Mr. Macabeoandtold him to put both of his hands on his head. (1CT 117.) Mr. Macabeo asked, “[w]hy am I being arrested? Am I being arrested?” (ICT 117.) Officer Hayesreplied, “I'll explain everything in a second. Do notstand up; you don’t want to do that.” (1CT 117.) The officers handcuffed Mr. Macabeo andread him his Mirandarights. (LCT 79:11-16.) It was only then that Detective Hayes used the computer in his patrol car and confirmed that Mr. Macabeo was no longer on felony probation. (1CT 86:20-87:8.) D. Proceedings in the Superior Court On July 19, 2012, the District Attorney charged Mr. Macabeo with possession of matter depicting a minor engaging in sexual conductin violation of Penal Code section 311.11(a), and possession of a smoking device in violation of Health and Safety Code section 11364.1(a)(1). (ICT 18.) Mr. Macabeowasneither arrested nor charged with failing to stop at a stop sign. On August 17, 2012, Mr. Macabeo movedto suppress the evidence derived from the search ofhis cell phone, whichthetrial court denied. (1CT 104:23, 108:27-28.) The court stated that it was “not looking at this as a probation search”andthat “if this is a probation search,it’s an unlawful probation search.” (1CT 89:20-21, 90:11-13.) As the judge pointed out, even if Mr. Macabeo hadsaid he wason probation,“[a]ll persons who are on probation do not necessarily have a search and seizure condition. [] I haven’t heard any testimony about whether the defendant had a search and seizure condition.” (1CT 90:5-9.) “Correct,” replied the Deputy District Attorney. (1CT 90:10.)* The court also declined to characterize the search as a consentsearch, stating that “[c]onsentis not relevant to my analysis.” (1CT 103:2.) Instead, the court concluded that the search was permissible because Mr. Macabeocould have been arrested, even though he wasnotarrested at the time of the search: * Penal Codesection 1203.1, subdivision (a), provides a sentencing court with discretion to set the terms and conditions of probation. He could have beenarrested for failing to stop at the stop sign. The fact that the officer didn’t dothat is irrelevant becauseit is the objective state of the case, not the subjective state of mind ofthe officer. Since the defendant could have been arrested, he could also have been subjected to a search incident to a lawfularrest. (1CT 102:18-24.) Finally, the judge concludedthat the California Supreme Court’s decision in People v. Diaz (2011) 51 Cal.4th 84 [119 Cal-Rptr.3d 105, 244 P.3d 501] held that cell phones were amongthe itemsthat could be searched incidentto arrest.” (ICT 103:12-16, 104:8-18.) On October 18, 2012, the District Attorney filed an information alleging only the count of possession of matter depicting a minor engaging in sexual conductin violation of Penal Codesection 311.11(a), to which Mr. Macabeopleaded nolo contendere. (1CT 122, 127-130.) He was sentenced to 36 daysin jail (which he had already served), and five years of formal probation. (1CT 127-130.) The court stayed most of the terms and conditions of probation during the pendency of appeal. (1CT 129.) Mr. Macabeofiled a notice of appeal. (1CT 131.) E. First Trip to the Court of Appeal and Subsequent Superior Court Hearing On January 3, 2013, the Court of Appeal entered an order requiring the parties to brief whether Mr. Macabeo wasentitled to challenge the order denying suppression given that he hadnotlitigated that issue beyond the > The United States Supreme Court had notyet issuedits contrary decision in Riley v. California (2014) U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430]. preliminary hearing.° (See Docket, People v. Macabeo, No. B245511.) Mr. Macabeofiled a notice of abandonmentof appeal, and on December3, 2012, the Court of Appeal dismissed the case. (2CT 18, 22-23.) After remittitur, the court set aside Mr. Macabeo’splea andhere- filed his suppression motion, which the Superior Court denied on the basis of the evidence introducedat the preliminary hearing. (2CT 25, 33, 35, 42, 55.) Mr. Macabeothenre-entered his plea, and filed a second notice of appeal. (2CT 55-58.) F. Second Trip te the Court of Appeal While Mr. Macabeo’s case was pending before the Court of Appeal, but after it had been fully briefed and argued, the Supreme Court issued its decision in Riley v. California (2014) __ U.S. ___ [134 S.Ct. 2473, 189 L.Ed.2d 430]. In Riley, the Supreme Court held that “the search incident to arrest exception does not apply to cell phones”(id., 134 S.Ct. at p. 2494), andthat “officers must generally secure a warrant before conducting such a search”(id. at p. 2485). As the prosecution concededin letter brief, “the warrantless search of [Mr. Macabeo]’s cell phone incident to arrest has turned out to be unlawful under Riley.” (Victoria B. Wilson, Supervising ® Thetrial court, defense counsel, and prosecution wereall under the erroneous impression that because the preliminary hearing had occurred before the same judge ultimately assigned to the case, and becausethat judge had already ruled on the suppression motion, there was no need to re- litigate suppression at a later stage of the proceeding. (2CT 31.) Deputy Attorney General, Letter to California Court of Appeal, People v. Macabeo, No. B248316, July 7, 2014, p. 1.) The prosecution nonetheless argued that the search was permissible under the good faith exception to the exclusionary rule. (/d. at p. 2.) On September3, 2014, the Court of Appeal affirmedthetrial court’s denial of Mr. Macabeo’s suppression motion in a published decision, People v. Macabeo (2014) 229 Cal.App.4th 486 [177 Cal.Rptr.3d 311]. The Court of Appeal recognized that Mr. Macabeo wasnot arrested until after officers searched his cell phone and found pictures. As the Court recounted, Detective Hayes “directed [Mr. Macabeo]to sit on the curb” while Officer Raymond searched his phone.(/d.at p. 489.) Officer Raymond called over Detective Hayes, and “informed the detective that there were no text messages on defendant’s phone concerming narcotics, but he had found a picture folder” containing images that violated Penal Code section 311.11(a). bid.) At that point, “Detective Hayes returned to defendant’s location and placed him underarrest.” (/bid.) In upholding the cell phone search as incidentto that arrest, the Court quoted extensively from the trial court’s ruling at the preliminary hearing, including the judge’s conclusion that Mr. Macabeo“could have been arrested for failing to stop at the stop sign.” (/d. at p. 491.) “The factthat the officer didn’t do that is irrelevant. .. .” (Jbid.) 10 The Court next rejected the argumentthat the officers violated Mr. Macabeo’s Fourth Amendmentrights because they searched him incident to an infraction for which he could not have been arrested under state law. (/d. at p. 494.) The Court said that this argument was foreclosed by the United States Supreme Court’s decision in Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [121 S.Ct. 1536, 149 L.Ed.2d 549], as well as this Court’s decision in People v. McKay (2002) 27 Cal.4th 601, 607 [117 Cal. Rptr. 2d 236, 41 P.3d 59]. (Macabeo, supra, 229 Cal.App.4th at pp. 492- 94.) The Court of Appeal acknowledged that in Riley the United States Supreme Court had held that, absent an emergency, officers must obtain a warrant to search the digital content of a cell phone incidentto arrest. (Id. at p. 488.) However, it concluded that the good faith exception to the exclusionary rule permitted admission of the evidence anyway because “at the time Officer Raymondsearchedthe cell phone, the search was authorized by the California Supreme Court decision in Diaz.” (/d. at p. 496.) On October 14, 2014, Mr. Macabeofiled his petition for review, which was granted on November 25, 2015. 1] ARGUMENT After stopping Mr. Macabeoforriding his bicycle through a stop sign on an empty streetlate at night, officers temporarily detained him and then searchedhis cell phone without a warrant. The lower courts incorrectly upheld the search as incident to arrest on the basis that the officers had probable cause to believe that Mr. Macabeo had committed a traffic infraction. But this expansive reading of the scope of the search incidentto arrest exception is out of step with the United States Supreme Court’s insistence that the exception be interpreted in keeping with its underlying justifications. The search incident to arrest exception is predicated on an arrestee’s reduced expectation of privacy, and is justified to protect officer safety from the dangerthat “flows from the fact of the arrest” (United States v. Robinson (1973) 414 U.S. 218, 234 fn. 5 [94 S.Ct. 467, 38 L.Ed.2d 427]), as well as to prevent suspects from concealing or destroying evidence needed for prosecution. The objective evidence showsthat at the time of the search, Mr. Macabeo had not been arrested, nor was any arrest underway. Absent an arrest, Mr. Macabeo did not have the reduced expectation of privacy associated with being an arrestee, and the search ofhis cell phone cannot be justified as necessary to protect officer safety or preserve evidence.Instead, the officers detained him and conducted an exploratory search ofhis cell phone, which turned up evidenceof an unrelated crime for which 12 Mr. Macabeowasthen arrested. This was not a search incident to a lawful arrest; it was an arrest incident to an unlawful search.. Moreover,recasting the search incident to arrest exception into one that permits full custodial searches merely on probable causeto believe that any infraction has been committed would vastly expand the universe of police-citizen encounters that could trigger a full custodial search. Over 5 million infractions are recorded each year in California—4 times the numberof felonies and misdemeanors combined—averaging morethan 1 infraction for every 8 residents. (See infra, footnote 21, page 44.) The prosecution’s proposed expansion would potentially infringe the privacy of millions of Californians and undermineefforts to build trust between law enforcementofficers and the communities they serve. Finally, contrary to the conclusion of the Court of Appeal, the good faith exception to the exclusionary rule as articulated in Davis v. United States (2001) 564 U.S. [131 S.Ct. 2419, 180 L.Ed.2d 285] does not permit the prosecution to rely on the evidenceit found on Mr. Macabeo’s cell phone. (Macabeo, supra, 229 Cal.App.4th at p. 496.) In Davis, the United States Supreme Court held that the exclusionary rule does not apply to “searches conducted in objectively reasonable reliance on binding appellate precedent.” (Davis, supra, 131 S.Ct. at pp. 2423-2424.) Although the Court of Appeal held that this Court’s decision in People v. Diaz (2011) 51 Cal.4th 84 [119 Cal-Rptr.3d 105, 244 P.3d 501] constituted binding 13 appellate precedent, this conclusionis incorrect because Diaz involved a valid search incident to arrest, but there was no valid search incident to arrest here. Moreover, even if this Court now expandsthe search incidentto arrest doctrine to permit a search pursuantto a future or hypotheticalarrest, Diaz would not have been binding judicial precedent prior to that expansion. L THE WARRANTLESS SEARCH OF MR. MACABEO’S CELL PHONE VIOLATED THE FOURTH AMENDMENT. In concluding that the officers conducted a search incident to an arrest, the courts belowincorrectly held that probable cause of a law violation is sufficientto trigger the search incident to arrest exception. Warrantless searches are presumptively unreasonable, and exceptionsto the warrant requirement are to be narrowly drawn. The exception for searches incident to arrest comesinto play when an individual is restrainedto initiate a criminal prosecution, but it is inapplicable here because Mr. Macabeo was not underarrest for prosecution onthe traffic offense when his phone was searched. In trio of recent cases, the U.S. Supreme Court has emphasized that the contours of the search incident to arrest exception must be tethered to the justifications forit. (Knowles v. Iowa (1998) 525 U.S. 113 [119 S.Ct. 484, 142 L.Ed.2d 492]; Arizona v. Gant (2009) 556 U.S. 332 [129 S.Ct. 1710, 173 L.Ed.2d 485]; Riley v. California (2014) __ U.S. __ [134 S.Ct. 14 2473, 189 L.Ed.2d 430].) Extending this warrant exception to searchesthat lack arrests would sever the exception from its underlyingrationales. Further, contrary to the lower courts’ suggestions, determining whether Mr. Macabeo was undercustodialarrest at the time of the search is determined objectively. There is no reason to recast this warrant exception into one based upon a hypothetical and not an actualarrest. Accepting the prosecution’s invitation to expand this warrant exception would greatly increase the numberoffull custodial searches, erode privacy, and damage relationships between officers and communities. A. Warrantless Searches are Presumptively Unreasonable. Searches conducted without warrants “are per se unreasonable under the Fourth Amendment.” (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 19 L.Ed.2d 576].) Warrants ensure that probable causeis evaluated with “the deliberate, impartial judgment of a judicial officer.” (Wong Sun v. United States (1963) 371 U.S. 471, 481 [83 S.Ct. 407, 9 L.Ed.2d 441].) The privacy that the Amendmentprotectsis “too precious to entrust to the discretion of those whosejob is the detection of crime and the arrest of criminals.” (McDonald v. United States (1948) 335 U.S. 451, 455- 456 [69 S.Ct. 191, 93 L.Ed. 153].) A search “undertaken by law enforcementofficials to discover evidence of criminal wrongdoing”generally requires a warrant. (Riley v. California, supra, 134 S.Ct. at 2382 [quoting Vernonia School Dist. 47] v. 15 Acton (1995) 515 U.S. 646, 653 [115 S.Ct. 2386, 132 L-Ed.2d 564]].) A search is reasonable “only ifit falls within a specific exception to the warrant requirement.” (Ibid. [citing Kentucky v. King (2011)__ U.S. __ [131 S.Ct. 1849, 1856-1857, 179 L-Ed.2d 865]; see also People v. Schmitz (2012) 55 Cal.4th 909, 916 [149 Cal.Rptr.3d 640, 288 P.3d 1259][a warrantless search is unreasonable“unlessit is conducted pursuantto one of the few narrowly drawn exceptions”].) “The burden is on those seeking [an] exemption [from the requirement] to show the needforit.” (Chimelv. California (1969) 395 U.S. 752, 762 [89 S.Ct. 2034, 23 L.Ed.2d 685] [quoting United States v. Jeffers (1951) 342 U.S. 48, 51 [72 S.Ct. 93, 96 L.Ed. 59]}.) B. The Warrantless Search of Mr. Macabeo’s Cell Phone WasNota Valid Search Incident to a Custodial Arrest Because No Arrest Had Occurred or Was Underway. Mr. Macabeowasneither underarrest for the traffic infraction, nor washis arrest underway, when officers searched his phone for evidence of crime. After the search, officers arrested Mr. Macabeo based on what they discovered onhis cell phone. But “justify[ing] the arrest by the search and at the same time .. . the search bythearrest . . . will not do.” (Johnsonv. United States (1948) 333 U.S. 10, 16-17 [68 S.Ct. 367, 92 L.Ed. 436]; see also Smith v. Ohio (1990) 494 U.S. 541, 543 [110 S.Ct. 1288, 108 L-Ed.2d 464], per curiam [the exception for incident searches “does not permit the 16 police to search any citizen without a warrant or probable causeso long as an arrest immediately follows”’].) 1. Officers may only conduct a search incident to arrest where there has been an arrestor oneis underway. Theability of officers to conduct a search incident to arrestis “strictly limited.” (Chimel, supra, 395 U.S.at p. 759 [quoting Trupianov. United States (1948) 334 U.S. 699, 708 [68 S.Ct. 1229, 92 L.Ed. 1663].) Police may conducta warrantless search of an individual pursuantto “a lawful custodial arrest.” (United States v. Robinson (1973) 414 U.S. 218, 235 [94 S.Ct. 467, 38 L.Ed.2d 427].) The authority to search is categorical, and does not require an individualized basis to believe that a suspectis armed or possesses contraband: if a suspectis arrested, “a search incident to the arrest requires no additional justification.” (Jd. at p. 235.) Because an arrest categorically exempts the search from the warrant requirement, the U.S. Supreme Court has repeatedly emphasizedthat“[i]t is thefact ofthe lawful arrest whichestablishes the authority to search . . . .” (bid., italics added; see also Gustafson v. Florida (1973) 414 US. 260, 266 [94 S.Ct. 488, 38 L.Ed.2d 456] [“it is thefact of custodial arrest whichgives rise to the authority to search,”italics added]; United States v. Rabinowitz (1950) 339 U.S. 56, 60 [70 S.Ct. 430, 94 L.Ed. 653]’ [“a search without warrant ” Overruled in part on another ground in Chimel, supra, 395 U.S.at p. 768. 7 incident to an arrest is dependentinitially on a valid arrest,”italics added]; Knowles v. Iowa, supra, 525 U.S.at pp. 118-119 [a traffic citation is not an arrest and may not support a search].) There is a good reason whythe search incident to arrest exception is tightly bound to the fact of an arrest itself. The essential feature of a custodialarrestis thatit “is the initial stage of a criminal prosecution.It is intended to vindicate society’s interest in having its laws obeyed,andit is inevitably accompanied by future interference with the individual’s freedom of movement,” including taking him orherto the policestation. (Robinson, supra, 414 U.S.at p. 228 [quoting Terry v. Ohio (1968) 392 USS. 1, 26 [88 S.Ct. 1868, 20 L.Ed.2d 889].) For centuries, an arrest has been understood as taking a person into custody to effect a prosecution.® The Court in Robinson drew upon Judge Cardozo’s accountof the historical basis for the authority to search uponarrest: a “[s]earch ofthe person becomes lawful when groundsfor arrest and accusation have been * See Logan, An Exception Swallows a Rule: Police Authority To Search Incident to Arrest (2001) 19 Yale Law & Policy Rev. 381, 428-432 [historical understanding ofarrest “presumedthat the arrestingofficial secured custody in order to effectuate prosecution”); Perkins, The Law of Arrest (1940) 25 Iowa L.Rev. 201, 201 [An arrest“is the taking of another into custody for the actual or purported purpose of bringing the other before a court, body orofficial or of otherwise securing the administration of the law”); 4 Blackstone, Commentaries (4th ed. 1770) p. 286 [an arrest “is the apprehending or restraining of one’s person,in order to be forthcoming to answeran alleged or suspected crime”]. 18 discovered, and the lawis in the act ofsubjecting the body ofthe accusedto its physical dominion.” (Robinson, supra, 414 U.S.at p. 232 [quoting People v. Chiagles (N.Y. 1923) 142 N_E. 583, 584,italics added]; see also Riley, supra, 134 §.Ct. at p. 2488 [quoting Robinson and Chiagles].) Because a custodial arrest begins confinementto effect a criminal prosecution, decisions from the U.S. Supreme Court clearly establish that a seizure short of a full custodial arrest does not support a full search. In Knowles v. Iowa, the defendant was givena citation for speeding. (Knowles, supra, 525 U.S.at p. 114.) After issuing the citation, the officer conducted a full search of Knowles’ car and found contraband, for which Knowles wasarrested and charged. (/bid.) The Court observed thatofficers whoeffect a traffic stop may conduct a “Terry patdown”if they reasonably suspect that a person may be armed and dangerous.(/d. at p. 118 [citing Terry v. Ohio, supra].) But if officers cite a motorist, and do not arrest him or her, they may not conducta full search incidentto arrest. (/d. at pp. 118- 119; see also Cupp v. Murphy (1973) 412 U.S. 291, 296 [93 S.Ct. 2000, 36 L.Ed.2d 900] [holding that while a limited search(collecting fingernail scrapings) was justified to preserve fragile evidence, a full search incident to arrest was not permitted “without a formal arrest and without a warrant’’].) There is only one instance in which the U.S. Supreme Court has upheld a search incident to arrest where an actual search preceded a formal 19 arrest. In Rawlings v. Kentucky, the defendant was present in a residence where police executed a search warrant as part of a narcotics investigation. (Rawlings v. Kentucky (1980) 448 U.S. 98, 100 [100 S.Ct. 2556, 65 L.Ed.2d 633].) Rawlings’ companion dumped thousandsofdollars of narcotics—including 1800 tablets ofLSD—ontoa table, and Rawlings immediately admitted that the drugs were his. (/d. at p. 101.) Officers then searched Rawlings’ person, found cash and a knife, and placed him under what the Court termed “formal arrest.” (/bid.) In upholding the search,the Court observed that officers had probable cause to arrest Rawlings when he admitted the drugs werehis, and “[w]here the formalarrest followed quickly on the heels of the challenged search ofpetitioner’s person, we do not believeit particularly important that the search precededthe arrest rather than vice versa.” (/d. at p. 111.) Given the importantlimits on the ability of officers to claim a search incidentto arrest where noactual arrest has occurred, this sentence in Rawlings should not be stretched too far. Moreover, underthe objective circumstancesofthis case, it is clear that Rawlings’ arrest on charges of narcotics trafficking was in fact underway, and so it did not matter that he was not considered to be under “formal arrest” until secondslater, after his person was searched.” * Indeed, the major parts of Rawlings address otherissues. (See id.at pp. 104-110.) Rawlings did not even raise the timing issue with respect to the search of his person. He contended only that the evidence on his person 20 Although this Court has not had occasion to considerthis phrase in Rawlings, allowing a search where anarrest “followed quickly on[its] heels,” People v. Redd addressed a claim that an officer had seized evidence from a defendantprior to his arrest. (See People v. Redd (2010) 48 Cal.4th 691, 720 [108 Cal.Rptr.3d 192, 229 P.3d 101].)’° This Court unanimously upheld the search in Redd as incidentto arrest based on the trial court’s finding “that the search was conducted during orafter the arrest.” (/d., 48 Cal.4th at p. 721, italics added.)'' Put another way, Redd’s arrest wasat least “underway.”’* (Commonwealth v. Craan (Mass. 2014) 13 was the productof a prior unlawful search. (See Brief for Petitioner, Rawlings v. Kentucky, 1980 U.S.S. Ct. Briefs LEXIS 2222,Briefs LEXIS 2222, at 122-125.) '° Sixty years ago, in People v. Simon, this Court observedthatan officer with probable cause to arrest could searchpriorto the arrest, though the Court also found no probable cause to arrest the defendant in that case. (See People v. Simon (1955) 45 Cal.2d 645, 648-650 [290 P.2d 531].) Simon wasdecided withoutthe benefit of Chimel, Robinson, Rawlings, Riley or— for that matter—Mapp v. Ohio (1961) 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081]. A majority of this Court last cited Simon for this proposition in People v. Marshall (1968) 69 Cal.2d 51, 61 [69 Cal.Rptr. 585, 442 P.2d 665]. '' The Court also held that even if the officer had seized the evidence “before he beganeffecting the arrest,” the evidence wouldinevitably have been discovered. (/bid.) The Court’s use ofthis alternative ground for admissibility also indicates that there is little reason to expand the search incident to arrest exception itself. '? A numberofdecisions from the California Courts of Appealcite, supra, or this phrase in Rawlings. For the mostpart, these cases were decidedprior to the U.S. Supreme Court’s more recent holdings in Knowles v. lowa, Arizona vy. Gant, and Riley v. California. That aside, in several of these cases, one could characterize the search as occurring during an arrest. 21 N.E.3d 569, 575; see also People v. Evans (N.Y. 1977) 371 N.E.2d 528, 531-32 [the search and arrest must be “nearly simultaneous soas to constitute one event” and not “distinct occurrences”’].) Notably,in all of these decisions, the defendants were actually arrested and chargedfor the offenses for which officers had probable cause to arrest. (See In re Jonathan M. (1981) 117 Cal.App.3d 530, 533, 535 [172 Cal.Rptr. 833] [officer had probable cause to arrest for auto theft, search turned up an ignition key, and defendant wasarrestedfor auto theft}; People v. Adams (1985) 175 Cal.App.3d 855, 861-864 [221 Cal.Rptr. 298] [officer had probable causeto arrest for robbery, search uncovered evidence of a robbery, and defendant wasarrested for robbery]; People v. Fay (1986) 184 Cal.App.3d 882, 891-893 [229 Cal.Rptr. 291] [police officers had probable causeto arrest for narcotics offense, search turned upnarcotics, and defendant wasarrested for narcotics offense]; People v. Avila (1997) 58 Cal.App.4th 1069, 1075-1077 [68 Cal-Rptr.2d 432] [same]; People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189-1191 [265 Cal.Rptr. 507] [same]; People v. Mims (1992) 9 Cal.App.4th 1244, 1250-1251 [12 Cal.Rptr.2d 335] [same]; People v. Limon (1993) 17 Cal.App.4th 524, 538 (21 Cal.Rptr.2d 397] [same]; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240 [25 Cal.Rptr.3d 13] [officers had probable causeto arrest for carjacking, search turned up ignition keys, suspect wasarrested for carjacking].) These cases differ from Mr. Macabeo’s in that he was never arrested or charged for the traffic offense for which there was allegedly probable causeto arrest. For decisions in some federal jurisdictions, compare, e.g., United States v. Powell (D.C. Cir. 2007) 483 F.3d 836, 838-840 (en banc) [citing Rawlings and upholding search that precededarrest, but observing that the defendant in Rawlings may have been undercustodialarrestat the time ofhis search] with United States v. Jackson (7th Cir. 2004) 377 F.3d 715, 717 [asking whether defendant wasarrestedprior to the search]; United States v. Benton (9th Cir. 2011) 407 Fed. Appx. 218, 219 [finding no search incidentto arrest where there was noarrestfor the offense at the time ofthe search]; UnitedStates v. King (N.D. Cal. 2008) 560 F. Supp. 2d 906, 919 [search was not contemporaneous with an arrest where the discovery of a gun following a search wasthe impetus for the arrest]. 22 2. The warrantless search of Mr. Macabeo’scell phone cannot be upheld as a search incident to arrest because he was neither arrested nor was an arrest underway. A full search incident to an arrest must be predicated upon thefact of a full custodial arrest, meaning that officers have taken or are in the process of taking a personinto their custody to face criminal charges; an investigative detention under Terry ora traffic stop leadingto a citation will not suffice. Courts apply an objective test to distinguish an arrest from a consensual encounteror an investigative detention. (Kaupp v. Texas (2003) 538 U.S. 626, 632 [123 S.Ct. 1843, 155 L.Ed.2d 814], per curiam [“[t}he test is an objective one”].) “Important to this assessment. . . are the ‘duration, scope and purpose’ofthe stop.” (People v. Celis (2004) 33 Cal.4th 667, 675 [16 Cal. Rptr. 3d 85, 93 P.3d 1027] (quoting Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal.Rptr. 671, 670 P.2d 325].) Viewed objectively, Mr. Macabeo wasdetainedfor investigation of a minor traffic infraction when his phone was searched. The Court ofAppeal properly found that Mr. Macabeo wasnotarrested until after the search. (See Macabeo, supra, 229 Cal.App.4th at p. 489.) Moreover, there is no objective basis to conclude that a custodial arrest was “underway”atthe time of the cell phone search. Terry allows a warrantless forcible stop for a brief on-the-spot investigation upon reasonable articulable suspicion of contemporaneous 23 criminal activity, as well as a protective frisk for officer safety upon reasonable suspicion that the person may have a concealed weapon.(Terry, supra, 392 U.S.at pp. 21, 27; see also People v. Souza (1994) 9 Cal.4th 224, 229-230 [36 Cal.Rptr.2d 569, 885 P.2d 982] [reviewing Terry and later cases].) An ordinary traffic stop “is presumptively temporary and brief”; it is “more analogousto a so-called ‘Terry stop’ . . . than to a formal arrest.” (Berkemer v. McCarty (1984) 468 U.S. 420, 437, 439 [104 S.Ct. 3138, 82 L.Ed.2d 317] [citing Terry, supra].) The officers stopped Mr. Macabeofor a minortraffic infraction and patted him downafter his fidgeting made one officer suspect that he had a weapon. (1CT 59:13-25.) This was a quintessential traffic stop and Terry frisk, not a custodial arrest. The objective circumstances show that priorto the search ofhis cell phone, Mr. Macabeo wasnotin custody to face prosecution onthetraffic infraction. At that point, the officers had all of the facts they needed to establish probable cause for the traffic infraction, but the stop lacked any objective indicia of a custodial arrest. The officers did not tell Mr. Macabeo that he was underarrest. Had the officers arrested Mr. Macabeo before the search, they would presumably have so advised him,as they are trained to do. (See Penal Code section 841 [arresting officers in California “must inform the person to be arrested ofthe intention to arrest him, of the cause 24 ofthe arrest, and the authority to makeit”].)'*? They did not bring Mr. Macabeoto their patrol car in order to transport him to the police station to face the traffic charge; “involuntary transport to a police station” is a hallmark of an arrest. (Kaupp, supra, 538 U.S.at p. 630.)'* Nor did they handcuff Mr. Macabeo.'* Instead, Mr. Macabeo wasseated unsecured '? Beginning at the police academy,officers aretrainedtotell a person when heorshe is underarrest. (See California Commission on Peace Officer Standards and Training, Basic Course Instructor Unit Guide: Learning Domain 15, LawsofArrest (June 1997), at p. 29 [Officers must inform the person to be arrested”of the “cause (or reason) for the arrest,” the “intention of the person makingthe arrest” and the “authority to make the arrest”) [as of April 6, 2015]; see also California Department of Justice, California Peace Officers Legal Sourcebook(rev. Jan. 2014) at p. 2.24b [“Normally, you musttell the arrestee (1) you intend to arrest him or her, (2) the reason for the arrest, and (3) your authority . . .”"]; Alameda County District Attorney’s Office, Point of View: Arrests (Spring 2009), at p. 9 [as of Mar. 23, 2015] [“Officers must notify the person that he is under arrest,” which can be accomplished through “words or conduct”). '4 See also Hayes v. Florida (1985) 470 U.S. 811, 814-815 [105 S.Ct. 1643, 84 L.Ed.2d 705] [removing a suspect from his home andtransporting him to a police station requires a warrant or probable cause]; Atwater v. Lago Vista (2001) 532 U.S. 318, 354-355 [121 S.Ct. 1536, 149 L-Ed.2d 549] [describing, as part.of a “normal custodial arrest,” that Atwater was handcuffed, placed in a squad car, and taken to the police station]. 'S In conducting searchesincidentto arrest, officers are generally trained to handcuff an arrestee prior to searching the area around him orher, including removing occupants from vehicles prior to searching. (See Moskovitz, A Rule In Search ofA Reason: An Empirical Reexamination of Chimel and Belton (2002) 2002 Wisconsin L. Rev. 657, 665, 667, 677.) While the use of handcuffs or other physical restraints may not be determinative (see Celis, supra, 33 Cal.4th at p. 676), the lack of any restraints may-—as here—indicate that a suspectis nof under custodial arrestat the time of a search. 25 at the curb for 5-10 minutes while Detective Hayes talked with him, and Officer Raymondsearched his phone. (1CT 61:15-23, 77:15-22.) His encounter waseven/ess like an arrest than in Celis, supra, where this Court found the defendant was detained under Terry whenofficers stopped him at gunpoint, handcuffed him, and made him sit on the ground for a few minutes while they walked through his house. (Celis, supra, 33 Cal.4th at pp. 674-676.) Underthese circumstances, the Court of Appeal correctly stated that the arrest followed the cell phone search: after Officer Raymond showed Detective Hayes the photographsin the phone, “Detective Hayes returned to defendant’s location and placed him underarrest.” (Macabeo, supra, 229 Cal.App.4th at p. 489.) At that point, Detective Hayes told Mr. Macabeo to place his hands over his head, handcuffed him, and advised him ofhis Miranda rights. (1CT 63:2-10; 79:11-16.) It was only then that Mr. Macabeowastold he was underarrest, and the offense of arrest was possessing the photographs onthe phone,notrolling throughthe stop sign. Moreover, there can be no claim that Mr. Macabeo’s arrest was “underway”whenhis phone wassearched. Unlike Rawlings and Redd, where the searches and arrests were part of a single event and thusofficers werefairly “in the act” of arresting the defendantsatthe time oftheir searches, the circumstances objectively show that Mr. Macabeo wasnotin custodyto initiate prosecutionfor failing to stop at the stop sign. Rather, he 26 wasseated on the curb for up to 10 minutes while Officer Raymond searched his phone. Thetranscript of the stop reports a “long silence” during the search. (1CT 117.) The search and arrest were not “so nearly simultaneousso as to constitute one event,” but were instead “distinct occurrences,” (Evans, supra, 371 N.E.2d at pp. 531-532.) Finally, it is important to note that California law did not even authorize Mr. Macabeo’sarrest for the offense offailing to stop at a stop sign.'® While the officers could in fact have arrested Mr. Macabeoforthat infraction withoutviolating the Fourth Amendment(Virginia v. Moore (2008) 553 U.S. 164, 176 [128 S.Ct. 1598, 170 L.Ed.2d 559]; People v. McKay (2002) 27 Cal.4th 601, 618 [117 Cal. Rptr. 2d 236, 41 P.3d 59]), the officers’ actions in mot arresting Mr. Macabeo wereconsistent with California law. That California law did not authorize Mr. Macabeo’s arrest '® Mr. Macabeoallegedly violated Vehicle Code section 22450, subdivision (a), which requires drivers approaching any stop sign to stop at a limit line. A violation of section 22450 is considered an infraction with a maximum fine of $100 (see Vehicle Code sections 40000.1 and 42001), whichis a “public offense” (Penal Code section 16). Penal Code section 836, subdivision (a)(1), allows an officer to arrest without a warrantifthe officer has probable cause to believe a person has committed a public offense in the officer’s presence. However, this arrest authority is limited. Penal Code section 853.5, subdivision (a), provides that a person may be takeninto custody for an infraction “{o]nly if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprintor fingerprint.” 27 further supports the fair inference that he wasnotinfact undercustodial arrest for the traffic offense at the time of the search. The duration, scope and purpose of Mr. Macabeo’s encounter with the officers shows that he was not under custodial arrest, nor was an arrest underway,at the time of the cell phone search. This Court may not uphold a search simply because “an arrest immediately follows.” (Smith, supra, 494 U.S. at p. 543.) This was patently an arrest that followed an unlawful search, not a search incident to a lawful arrest. C. This Court Should Not Extend the Search Incident to Arrest Warrant Exception to Searches Where No Arrest Has Occurred or Is Underway. The trial court denied Mr. Macabeo’s suppression motion because he “could have been arrested for failing to stop at the stop sign,” a conclusion endorsed by the Court of Appeal. (Macabeo, supra, 229 Cal.App.4th at p. 491.) However, expanding the warrant exception to authorizefull custodial searches wheneverpolice “could”arrest someone would impermissibly “untether the rule” of searches incidentto arrest from the justifications for the warrant exception. (Riley, supra at p. 2485 [quoting Gant, supra, 556 U.S.at p. 343].) Moreover, requiring courts to determine if a custodial arrest was complete or underwayprior to a searchis critical to assessing whether a search was objectively reasonable. And it would avoid the harmsthat the prosecution’s proposed expansion of the warrant 28 exception would cause: erasing carefully established limits on the authority to search, and undermining the community’strustin police. 1. The scope of the search incident to arrest exception must be determinedin light of the justifications for it. In three successive cases in which it refused to expand the search incidentto arrest exception to particular categories of searches,the high court has emphasized that the contours of the warrant exception must be established in light of the rationales for it. (Knowles, supra, 525 U.S.at pp. 115, 117 [declining to approve a “searchincidentto citation” because none of the “underlying rationales for the search incidentto arrest exception is sufficient to justify [a] search in [that] case”]; Gant, supra, 556 U.S.at p. 343 [refusing to authorize a search ofa vehicle incident to arrest wherethe arrestee was already secured, holding that this would “untether the rule from the justifications underlying the . . . exception”]; Riley, supra, 134 S.Ct. at pp. 2484, 2485 [declining to authorize a search of data on cell phone incident to arrest would “untether the rule” from the justifications for it, even though “a mechanical application ofRobinson” might well support the search”].)'” ” See also Bailey v. United States (2013) __ U.S. __ [133 S.Ct. 1031, 1038, 185 L.Ed.2d 19] [declining to expandthe categorical rule allowing officers to detain occupants of a premises during a warrantsearch,stating that “[a]n exception to the Fourth Amendmentrule. . . must not diverge from its purpose and rationale”); United States v. Myers (3d Cir. 2002) 308 F.3d 29 As the U.S. Supreme Court explained in Riley, the search incidentto attest exception rests, on the one hand, upon “the heightened government interests at stake in a volatile arrest situation” and, on the other hand, “an arrestee’s reduced privacy interests upon being takeninto police custody.” (Riley, supra, at p. 2488.) The government’s affirmative interests for the warrant exception were summarized by the high court in Chimelv. California: Whenanarrestis made,it is reasonable for the arresting officer to search the person arrested in order to remove any weaponsthat the latter might seek to use in orderto resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrestitself frustrated. In addition,it is entirely reasonable forthe arresting officer to search for and seize any evidence onthearrestee’s person in order to prevent its concealmentor destruction. (Chimel, supra, 395 U.S. at pp. 762-763; see also Diaz, supra, 51 Cal.4th at p. 90 [describing purposes].) An arrestee’s reduced expectation ofprivacy is also critical to the warrant exception, as Justice Werdegar has explained: The warrantless search ofan arrestee’s person .. . rests on a relatively simple, intuitively correct idea: the police, having lawful custody ofthe individual, necessarily have the authority to search the arrestee’s body and seize anything of importance they find there. Having been lawfully arrested, with his or her person under the custody and controlofthe police, the individual can no longerclaim in full the personalprivacy he or she ordinarily enjoys. (Diaz, supra, 51 Cal.4th at p. 110 (dis. opn. ofWerdegar, J.).) 251, 266 [a search incidentto arrest is only reasonable “whenit is confined to, and controlled by, the circumstances that warrantthe intrusion”). 30 (See also Riley, supra, at p. 2488 [a search ofan arrestee’s person and effects “constitute[s] only minor additional intrusions compared to the substantial governmentauthority exercised in taking [him] into custody”’].) The three recent Supreme Court decisions show how exacting courts must be in determining whetherthe justifications for the search incidentto arrest doctrine support a proposed expansionofthe warrantexception.In Knowles, the Court ruled that officers could not conduct a “search incident to citation” becausepolice issuing traffic tickets are at risk ‘“‘a good deal less than in the case ofa custodialarrest.” (Knowles, supra, 525 U.S.at p. 117-118.) Further, preservation of evidence wasnotat issue because “[o]nce Knowles was stopped for speeding andissueda citation,all the evidence necessary to prosecute that offense had been obtained.”(Id. at p. 118). In Gant, the Justices held that officers could not conducta search of a vehicle where the occupant was already secured “[b]ecause Gant could not have accessedhiscarto retrieve weaponsor evidence at the time ofthe search.” (Gant, supra, 556 U.S.at p. 335.) And in Riley, the Supreme Court ruled that officers cannot search the content of cell phones incident to arrest because “[d]igital data stored on a cell phone cannotitself be used as a weaponto harm anarresting officer or to effectuate the arrestee’s escape,” (Riley, supra, 134 S.Ct. at p. 2485), and destruction of evidence wasnot an issue because once the cell phone is secured,“there is no longer any risk 31 that the arrestee himself will be able to delete incriminating data from the phone”(id. at 2486). 2. Therationales for the warrant exception do notjustify searches based upon probable cause where, as here, no arrest was completed or underway. Noneofthe rationales for the search incident to arrest exception justifies categorically extending the warrant exception to searches where no custodial arrest has been effected or is underway. Expanding the search authority to all stops where there is probable causeto arrestis notjustified for reasons ofofficer safety. A suspect whois taken into custody to answer charges is generally broughtto a police station or other location. As the high court observed in Knowles, “‘a custodial arrest involves “danger to an officer’ because of ‘the extended exposure which follows the taking of a suspect into custody andtransporting him to the 335police station.”” (Knowles, supra, 525 US.at p. 117 [quoting Robinson, supra, 414 U.S. at pp. 234-235].) Moreover, “the danger to the police officerflowsfrom thefact ofthe arrest, andits attendant proximity, stress, and uncertainty, and notfromthe groundsfor arrest.” (Robinson, supra, 414 US.at p. 234,fn. 5, italics added.) Unless a custodial arrest has been 32 effected or is underway, these dangers are present to no greater degree than during anytraffic stop or investigative detention."® Noris a categorical extension of the warrant exception justified by the need to prevent suspects from concealing or destroying evidence. As the Riley Court also held with respect to this justification for a warrant exception for the proposed search ofcell phones, “there remain more targeted ways to address those concerns”in individual cases, such as exigent circumstances. (/d. at p. 2487.) And of course there are many instances, such as in Knowles, where “all the evidence necessary to prosecute that offense ha[s] been obtained” and “the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seems remote.” (Knowles, supra, 525 U.S.at p. 118.) The Court in Knowles thus properly refused theinvitation “to extend [Robinson’s] ‘bright-line rule’ to a situation where the concern forofficer safety is not presentto the same extent and the concern for destruction orloss of evidence is notpresentat all.” (/d. at p. 119.) '8 Officers already have a variety of tools available to them to ensure their ownsafety during traffic stops and other encounters. With reasonable suspicion that an individualis armed, police may conduct a Terry frisk of a person or vehicle. (Knowles, supra, 525 U.S. at pp. 117-118.) To the extent that dangers to officers mayarise in a particular case that are not ameliorated by a Terry frisk, “they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” (Riley, supra, 134 S.Ct. at p. 2486.) 33 In addition, and perhaps mostsignificantly, the basic premiseofthe searchincidentto arrest exception—an arrestee’s reduced expectation of privacy—is wholly absent when an individual is neither underarrest nor in the process of being arrested.It is the fact of arrest, the actual going-into- custody-to-answer-charges, that results in a diminished expectation of privacy. (See Robinson, supra, 414 U.S. at p. 237 (conc. opn. of Powell, J.) [“an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendmentinterest in the privacy of his person”); Marylandv. King (2013) US. ___ [133 S.Ct. 1958, 1978, 186 L.Ed.2d 1] [an individual taken into police custody has a diminished expectation of privacy and maybeintrusively searched].) As Judge Easterbrook ofthe U.S. Court of Appeals for the Seventh Circuit has noted, “Knowles limits Robinson and Gustafson to custodial arrests; it instantiates the principle that the reasonableness of a search depends on whatthe officers actually do, not whatthey might have done.” (United States v. Jackson (7th Cir. 2004) 377 F.3d 715, 717.) Althoughthere is a split of authority, this Court would join others in refusing to authorize searches incident to probable cause. For example, the Maryland Court of Appeals has held, Wherethere is no custodial arrest, . . . the[] underlying rationales for a search incident to an arrest do not exist. An individual who doesnotbelieve that he has been arrested has no need to effect an escape or to harm thepolice officer that has detained him. Moreover, an individual who does not 34 believe that he has been arrested haslittle or no need to destroy evidence and, thus, almostcertainly will not destroy evidence that mightbe in his possession. (Belote v. State (Md. 2009) 981 A.2d 1247, 1252.) Likewise, the Massachusetts Supreme Judicial Court has ruled that “[t]o permit a search incidentto arrest where the suspect is not arrested until muchlater, or is never arrested, would sever this exception completely from its justifications. . . . It would, in effect, create a wholly new exception for a ‘search incident to probable causeto arrest.’ This we decline to do.” (Commonwealth v. Washington (Mass. 2007) 869 N.E.2d 605, 611-612.) Noting that a search incident to arrest is authorized in part because anarrest may create a motivation to use a weaponor destroy evidence, the Arizona Court of Appeals has rejected the application of the search incident to arrest exception “when a personis not taken into custody to be booked for an offense.” (State v. Taylor (Ariz. Ct. App. 1990) 808 P.2d 324, 324.) Moreover,“[w]e are cited no authority for the proposition that police are free to search anyone they chooseto cite for a misdemeanoroffense orthat they could arrest although they do notintend to.” (Id. at p. 325; see also Commonwealth v. Shiflet (Pa. 1995) 670 A.2d 128, 130 [{a] lawful arrest is a precondition to the applicability of the exception”].) The New York Court of Appeals has rejected the rule proposed by the prosecution here in perhapsthe clearest language: 35 To adopt the proposition that the search was valid because there was probable causeto arrest puts the cart before the horse. Anarrestis an essential requisite to a search incident ... Unless and until a person is arrested, a full body search without a warrant or exceptional circumstancesis constitutionally unreasonable. (Evans, supra, 371 N.E.2dat p. 531.) Andas that court said just last year, re-affirming Evans,“[i]t is irrelevant that, because probable cause existed, there cou/d have been anarrest without a search. A search must be incidentto an actual arrest, notjust to probable cause that might haveled to an arrest, but did not.” (Peoplev. Reid (2014) 24 N.Y.3d 615, 619 [26 N.E.3d 237].) These decisions are consistent with the U.S. Supreme Court’s demandthat courts assessing the proper scopeof the search incidentto arrest exception carefully consider the contours of the warrant exception in light ofthe justifications for it; courts should not mechanically apply the exception. As shownhere, allowing officers to search wheneverthere is probable cause to arrest, but neither an actual arrest nor onethatis at least underway, would untether the exception from the justifications forit. Searches incidentto arrest require actual and not hypotheticalarrests. This Court shouldreject the prosecution’s proposed expansion of the warrant exception and reverse the decision below. 36 3. Assessing whether a custodial arrest has occurred or is underwayprior to a searchis critical to determining the reasonableness of the search. Rather thanresttheir decisions on the objective factthat, at the time _ of the search of Mr. Macabeo’s cell phone, Mr. Macabeo had not been arrested to effect his prosecution on a criminal charge, the lower courts instead held that “(t]he fact that the officer didn’t do that is irrelevant” becausethe officer’s “‘subjective state of mind” does not determine the constitutionality of the search. (Macabeo, supra, 229 Cal.App.4that p. 491; 1CT 102:18-24.) But the U.S. Supreme Court has held that the reasonableness of a search may turn on the purposeforit, and whether Mr. Macabeo was undercustodialarrest at the time of the search turned on whether he was held to initiate prosecution on a criminal charge. Further, as Mr. Macabeo hasalready shown,the fact that he was not underarrestat the time of the search is established by the objective circumstances of the encounter. Theofficers’ purposeis central to the question of whethertheir search was reasonable. In Florida v. Jardines, the U.S. Supreme Court considered the Fourth Amendmentimplications ofpolice officers’ visit to the porch of a home with a drug-sniffing dog. (Florida v. Jardines (2013) __US._ [133 S.Ct. 1409, 1413, 185 L.Ed.2d 495].) The Justices _ explained that “whetherthe officer’s conduct was an objectively reasonable search . .. depends upon whetherthe officers had an implied licenseto 37 enter the porch, which in turn depends upon the purpose for which they entered.”(/d. at p. 1417.) “Here, their behavior objectively reveals a purpose to conducta search, which is not what anyone would think he had license to do.” (/bid.) The high court distinguished twoprior cases, Ashcroft v. al-Kidd (2011) ___ U.S. __ [131 S.Ct. 2074, 179 L.Ed.2d 1149] and Whrenv. United States (1996) 517 U.S. 806 [116 S.Ct. 1769, 135 L.Ed.2d 89], which “merely hold that a stop or search that is objectively reasonable is notvitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason.” (Jardines, supra, 133 S.Ct. at p. 1416.) As in Jardines, “whetherthe officer[s’] conduct was an objectively reasonable search”in the first place depends uponthe officers’ purpose. If no arrest for the purposeofinitiating a criminal prosecution was complete or underwayatthe timeofthe cell phone search, then the officers’ conduct was not an objectively reasonable search, since the search incident exception depends on the fact of an arrest. Hadthe officers infact arrested Mr. Macabeoforthe traffic infraction prior to the search of his phone— evenifthe officers’ real motivation for the arrest was to investigate narcotics use—their real motivation would be irrelevant under both Whren and al-Kidd. Likewise, had the officers arrested Mr. Macabeo for a different offense prior to the search, he could not be heard to complain so long as there was probable causeto arrest him for a criminal offense. (See 38 Devenpeckv. Alford (2004) 543 U.S. 146, 153 [125 S.Ct. 588, 160 L-Ed.2d 537] [an officer’s “subjective reason for makingthe arrest need notbe the criminal offense as to which the known facts provide probable cause”].) But here there was no custodial arrest at all prior to or during the search. Jardines reaffirms another basic principle as well: courts determine officers’ purpose by what“their behavior objectively reveals . ..” (Jardines, supra, 133 S.Ct. at p. 1417.) In this way, the task of the courtsis no different than applying objective standardsto distinguish between detentions and arrests (see Celis, supra, 33 Cal.4th at pp. 674-676) or ina myriad of other contexts.'? Mr. Macabeo hasalready shown, supra at pp. 23-28, that the objective facts of his encounter establish that he was not under custodialarrest, nor was his arrest underway,priorto the search of his cell phone. '? Courts also apply an objective standard to decide whetheran officer has seized an individual within the meaning of the Fourth Amendment. (See, e.g., Brendlin v. California (2007) 551 U.S. 249, 254 [127 $.Ct. 2400, 168 L.Ed.2d 132] [A person is seized when “the officer, ‘by means ofphysical force or show ofauthority,’ terminates or restrains his freedom of movement,”citations omitted]; People v. Zamudio (2008) 43 Cal.4th 327, 344 [75 Cal.Rptr.3d 289, 181 P.3d 105] [finding no seizure where there was “no threat or application of force, no intimidating movement, no brandishing of weapons,no blocking of exits, and no commandassociated with the officers’ request that defendant cometo the police station”].) 39 4, Creating a new “search incident to probable cause” exception would erase established limits on the authority to search, and erode the privacy rights of millions of Californians. The prosecution’s proposed search incidentto arrest rule “would sever this exception completely from its justifications” and “create a wholly new exception for a ‘search incident to probable cause to arrest.” (Washington, supra, 869 N.E.2d at pp. 611-612.) This recast warrant exception would have a remarkable impact: it would erase carefully-drawn limits on the powerofpolice to conduct searches during traffic stops and other encounters, infringe the privacy of many ordinary Californians, and undermine efforts to build trust between law enforcementofficers and the communities they serve. If the Court of Appeal’s disruptive holding is allowed to stand, this expanded warrant exception would far eclipse the more modest authority provided under Terry. During an investigative stop, officers may conduct a limited frisk for weapons when they have reasonable andarticulable suspicion that a suspect may be “armed and dangerous.” (Terry, supra, 392 U.S. at p. 27.) If officers who observe the most minorofinfractions are automatically entitled to conduct a full body search, the carefully- delineated limits established by Terry will be erased. Officers could conduct full searches wheneverthere is probable cause to believe that a person has committed an offense such as jaywalking (Vehicle Code section 40 21955); driving while holding a cell phone (Vehicle Code section 23123, subdivision (a)); failing to ride a bicycle “as close as practicable”to the right-hand edge of a road (Vehicle Code 21202, subdivision (a)); or loitering or wandering on another’s property “without visible or lawful business with the owner or occupant” (Penal Code section 647, subdivision (h)). The expanded search incidentto arrest exception would also overshadow the authority to search an automobile on probable cause that the vehicle contains evidence of a crime. (See Acevedov. California (1991) 500 U.S. 565, 569, 579 [111 S.Ct. 1982, 114 L.Ed.2d 619] [automobiles and containers within them may be searched with probable cause]; People v. Thompson (2010) 49 Cal.4th 79, 112 [109 CalRptr.3d 549, 231 P.3d 289] [same].) And, in Zn re Arturo D., this Court upheld the authority to conduct a limited search of a vehicle for registration and identification documents. (/n re Arturo D. (2002) 27 Cal.4th 60, 75-76 [115 Cal. Rptr. 2d 581, 38 P.3d 433].) These decisions will become superfluousif officers have authority to conduct a full search of the driver and the passenger compartment of every vehicle stopped foranytraffic infraction. (See Gant, supra, 556 U.S. at p. 351 [officers may search passenger compartment if arrestee is within reaching distanceat the time of the search].) The requirementof a custodial arrest establishes a crucial limitation on the authority of police to search individuals whom they encounter, as 41 Atwaterv. City ofLago Vista demonstrates. In Atwater, the U.S. Supreme Court heldthat “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (Atwaterv. Lago Vista (2001) 532 U.S. 318, 354 [121 S.Ct. 1536, 149 L.Ed.2d 549].) But as it announcedthat rule, the majority emphasizedthatofficers have an interest in limiting petty-offense arrests, “which carry costs that are simply too great to incur without good reason.” (/d. at p. 352.) This understanding wascritical to overcoming thedissenting justices’ point that “‘[a] custodial arrest exacts an obvioustoll on an individual’s liberty and privacy,” listing—first and foremost—that“{t}he arrestee is subject to a full search of her person and confiscation of her possessions.”(/d. at p. 364 (dis. opn. of O’Connor,J.).) By eliminating the fact of a custodial arrest as the predicate for a search, the prosecution’s proposed rule would reduce the cost and administrative burdens of a search to zero, loosing officers to exact the “obvious toll” of a full custodial search upon millions of California residents. The grave implications of expanding the search incidentto arrest exception are even more apparent in light of Whren v. United States. Whren upheld an arrest and seizure of evidence following a pretextualtraffic stop. (See Whren, supra, 517 U.S.at p. 813.) The prosecution’s theory would open the door to pretextual searches with no review, and none ofthe 42 practical disincentives ofarrest. If officers can conducta full custodial search based only on probable causetoarrest, they will have no incentive to limit a search to situations that genuinely call for a custodial arrest prior to the search. Where a search turns up evidenceofa seriouscrime,officers will be rewarded with the opportunity to make a custodial arrest for the greater charge, and the evidence will be admissible at trial. Where a search fails to turn up any evidence, a suspect will likely not be arrested, and the search will never be subject to scrutiny by a judicial officer as part of a criminal case.” These searches would generate no records, makingit especially difficult for police departments or the public to recognize patterns of bias. This would placeall of the costs and burdens of a warrantless search on the backs of Califomians. The proposed rule would adversely impact many unsuspecting Californians. California logs over five million infractions a year—four times the number of misdemeanors and felonies combined—averaging *° In Simon, supra, this Court suggestedthat “if the person searched is innocent and the search convinces the officer that his reasonablebelief to the contrary is erroneous,it is to the advantage of the person searched not to be arrested.” (Simon, supra, 45 Cal.2d at p. 648.) This Court’s half- century-old suggestion doesnot sufficiently accountfor the violation of the individual’s liberty and privacy interests caused by the search,as reflected in Riley and many other more recent decisions. And the logic of the suggestion would seemingly indicate that we should have no Fourth Amendmentprotectionsatall. 43 more than oneinfraction for every eight residents of the State.*! California does not collect data on arrests for infractions,” but a Bureau ofJustice Statistics report indicates that, nationally, approximately 2.6% of drivers were arrested duringa traffic stop in 2008, 55.4% wereticketed, 26.7% were given warnings, and 15.3% were allowed to proceed without any enforcement action. (See Eith and Durose, Contacts between Police and the Public, 2008 (Oct. 2011),at table 12, p. 9 [as of Mar. 21, 2014].) Five percentofall drivers or vehicles were searched (see id. at table 14, p. 10) and, of those searches, almost half were without consent.”* Under a “search incident to probable cause” exception, the approximately 85% ofdrivers arrested, ticketed or warned would be subject to full custodial searches, as would manyoftheir 7! In Fiscal Year 2012-2013,the last year for which data are reported, there were 260,461 felony and 926,169 misdemeanorfilings in the Superior Courts in California. (See Judicial Council of Cal., 2014 Court Statistics Report: Statewide Caseload Trends, table 7a, p. 112 [“Total Criminal Filings, by County and Case Type”] [as of Mar. 20, 2015].) There were 5,050,151 infractions filed (ibid.) for an estimated 2013 population of 38,431,393. (See U.S. Census Bureau, State & County QuickFacts, Califomia [as of Mar. 24, 2015].) 2 The California Departmentof Justice only maintains data for felony and misdemeanorarrests. (See Cal. Dept. of Justice, CriminalStatistics Reporting Requirements (2014), at p. 8 [as of Mar. 21, 2015].) *3 Searches without consent were conducted in 42.3% of driver-only searches, 40.0% of vehicle-only searches, and 49.2% of searches of both vehicle and driver. (See id. at table 15, p. 10.) 44 vehicles, far more than the 2.6% who now arearrested. Justice Sotomayorhas notedthattraffic stops have “human consequences—including those for communities and for their relationships with the police” (Heien v. North Carolina (2014) _ U.S. ___ [135 S.Ct. 530, 544, 190 L.Ed.2d 475] (dis. opn. of Sotomayor, J.)), and the data support her observations. Even though the majority of traffic stop searches in 2008 were with consent, as many as 79% ofthe searches were perceived as notlegitimate by the individuals who were searched.”* Perceptionsofthe legitimacy of the reasonsfortraffic stops varied by race andorigin.”° Yettrust is essential to effective law enforcement. “The police depend heavily on people’s cooperation in their efforts to control crime.” (Tyler and Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002) p. 200.) California’s top law enforcementofficial recently remarked that “[a]s a career prosecutor, I have always known one central truth: the public and law enforcement need each other to keep our communities safe.” (Kamala Harris, Attorney General of California, Inaugural Address (Jan. 5, 2015) [as of Mar. 20, 2015]. 45 releases/attorney-general-kamala-d-harris-sworn-delivers-inaugural- address> [as of Mar. 21, 2015].) Surely building that trust will become much more difficult undera rule that permits officers to conduct highly- intrusive searches of so many Californians. Finally, it is important to note what will not change by properly confining searches incident to arrest to their traditional and justifiable boundaries. In appropriate instances, the prosecution will still be able to rely upon other case-specific warrant exceptions such as consent(see,e.g., Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [93 S.Ct. 2041, 36 L.Ed.2d 854]) and exigent circumstances(see, e.g., Riley, supra, 134 S.Ct. at p. 2494), as well as the inevitable discovery rule (see,e.g., Redd, supra, 48 Cal.4th at 721; Nix v. Williams (1984) 467 U.S. 431, 444 [104 S.Ct. 2501, 81 L.Ed.2d 377}). Warrantless searches are per se unreasonable, subject to a few narrow exceptions, of which the search incident exceptionis one. But the Supreme Court has consistently held that the search incident exception mustbeinterpreted in light of its underlying justifications, which are predicated on the reduced expectation ofprivacy of arrestees as well as the need to keep officers safe and preserve evidence for prosecution. Not one of these justifications is served where,as here, the officers search someone whois not arrested. Mr. Macabeo was temporarily detained for a minor 46 traffic offense, and the officers took advantageof that fact to conduct an exploratory search of his cell phone, which turned up evidence of an unrelated crime for which he was then arrested. This Court should not endorse such an expansionofthe search incidentdoctrine by holdingthat the merefact that officers have probable cause of a law violationis sufficient to trigger a search incidentto arrest. To do so would untether the warrant exception from its justifications, vastly expand the numberof police-citizen interactionsthat can give rise to full custodial searches, and damagetheprivacy rights of Californians as well as their trust in law enforcement. Il. THE EVIDENCE OBTAINED THROUGH THE UNCONSTITUTIONAL SEARCH OF MR. MACABEO’S CELL PHONE IS NOT ADMISSIBLE UNDER THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARYRULE. The Court of Appeal held that even though Officer Raymond conducted an unconstitutional search of Mr. Macabeo’s cell phone, the evidence they found was admissible under the goodfaith exceptionto the exclusionary rule asarticulated in Davis v. United States (2011) 564 U.S. ___ [131 S.Ct. 2419, 180 L.Ed.2d 285]. (Macabeo, supra, 229 Cal.App.4th at p. 496.) It reasonedthat“at the time Officer Raymondsearchedthecell phone, the search was authorized by the California Supreme Court decision in Diaz....” bid.) The Court of Appeal’s conclusion was grounded on a faulty premise: that the search of Mr. Macabeo’scell phone wasincidentto 47 arrest. Onceit is apparent that there was no valid search incidentto arrest,it follows that Diaz did not specifically authorize the search the officers conducted, and the good faith exception to the exclusionary rule does not apply. Moreover, even if this Court now expandsthe search incident to arrest doctrine to permit a search pursuant to a future or hypothetical arrest, Diaz would not have been binding judicial precedentprior to that expansion of the doctrine. A. The Davis Good Faith Exception is Narrow and Applies Only When Officers Conduct a Search in Objectively Reasonable Reliance on Binding Appellate Precedent. The exclusionary rule is an essential vehicle for effectuating the Fourth Amendment’s guarantees. In Weeks v. United States, the U.S. Supreme Court explained that without it, the Fourth Amendment would be “ofno value” and “might as well be stricken from the Constitution.” ((1914) 232 U.S. 383, 393 [34 S.Ct. 341, 58 L.Ed. 652].) Nonetheless, the mere fact that the governmentviolated the Fourth Amendmentdoesnot mean that evidence will be excluded. The rule must be applied with the understandingthat its “sole purpose . . . is to deter future Fourth Amendmentviolations.” (Davis, supra, 131 S.Ct. at p. 2426; accord People v. Willis (2002) 28 Cal.4th 22, 29-30 [120 Cal.Rptr.2d 105, 46 P.3d 898].) In keeping with this purpose, the U.S. Supreme Court has recognized a good faith exception to the exclusionary rule, which permits the admission of evidence where outside authorities specifically authorized 48 officers’ conduct. (See, e.g., United States v. Leon (1984) 468 U.S. 897, 926 [104 S.Ct. 3405, 82 L.Ed.2d 677] [exempting from exclusion searches based on judicially authorized warrants that were later invalidated]; J/linois v. Krull (1987) 480 U.S. 340, 349-350 [107 S.Ct. 1160, 94 L.Ed.2d 364] [same for searches conductedin reliance on statutes that were later overtumed].) The Court of Appeal relied heavily on Davis, and that caseis particularly instructive here. In Davis, the police conducted a search that Davis himself conceded “fully complied with existing [circuit] precedent.” (Davis, supra, 131 S.Ct. at p. 2426 [internal quotation marks omitted].) While his appeal was pending, the U.S. Supreme Court overruled that precedent. (/bid.) The Court held that the good faith exception to the exclusionary rule permitted admission of the evidence gathered through the search. (/d. at pp. 2423-2424.) It reasoned that, “when binding appellate precedent specifically authorizes a particular police practice,” the “deterrent effect of exclusion in such a case can only be to discouragethe officer from do[ing] his duty.” (/d. at p. 2429 [internal quotation marks omitted].) Because “suppression would do nothing to deter police misconduct,” the Court held that the exclusionary rule does not apply to “searches conducted in objectively reasonable reliance on binding appellate precedent.” (/d. at pp. 2423-2424.) 49 Davis therefore established a narrow exception to the exclusionary Tule: where “binding appellate precedentspecifically authorizes” a course of action, the good faith exception to the exclusionary rule allows the admission of evidence. As demonstrated below, the Court of Appealerred in concluding that Diaz amounted to such precedentin this case. B. Binding Appellate Precedent Did Not Authorize the Officers to Search Mr. Macabeo’s Cell Phone. The Court of Appeal held that the good faith exceptionto the exclusionary rule allowed admission of the evidence the officers found on Mr. Macabeo’scell phone because,in its view, the search was authorized by this Court’s decision in Diaz. (Macabeo, supra, 229 Cal.App.4th at p. 496.) This conclusionis incorrect for two reasons. Most important, the officers did not conduct a valid search incident to an arrest, so Diaz did not authorize the conductthe officers engaged in here. Moreover, evenif this Court now expandsthe searchincident to arrest doctrine to permit a search pursuantto a future or hypothetical arrest, Diaz would not have been binding judicial precedentprior to that expansion of the doctrine. In Diaz, this Court held that conducting a warrantless search of a suspect’s cell phone “after lawfully arresting [him]” wasvalid under the searchincidentto arrest exception to the warrant requirement. (Diaz, supra, 51 Cal.4th at p. 88.) In Diaz, officers listened in as Diaz participated in a sale of Ecstasy to a police informant. (/d. at pp. 88-89.) The officers then 50 arrested him andtransported him to a sheriff’s station, where they seized his cell phone. (/d. at p. 89.) After an interview in which Diaz denied wrongdoing, the officers searched his phone and then used the text messages they foundthereto elicit a confession. (/bid.) The search took place about 90 minutesafter his arrest. (/bid.) After reviewing a number of U.S. Supreme Court cases addressing searches incidentto arrest, this Court concludedthat “the key question in this case is whether defendant’s cell phone was‘personal property . . . immediately associated with [his] person’ .... If it was, then the delayed warrantless search was a valid search incident to defendant’s lawful custodial arrest.” (/d. at p. 93 [quoting United States v. Chadwick (1977) 433 U.S. 1, 15 [97 S.Ct. 2476, 53 L.Ed.2d 538]].) As the passage quoted aboveillustrates, the linchpin of this Court’s decision in Diaz was that the defendant had been subject to a “lawful custodial arrest.” (/bid.) But for the arrest, the Court would not have addressed whetherthe search incident exception allowed for the warrantless search of the defendant’s cell phone. Since Diaz authorized the search of cell phone only incidentto arrest, a police officer searching a cell phone outside of the context of an arrest could not be deemed to have been “specifically authorize(d]” to do so by that decision. (Davis, supra, 131 S.Ct. at p. 2429.) Thus, Diaz cannot serveas the basis for a holding that the good faith exception to the exclusionary rule applies in this case. 51 Even if this Court accepts the prosecution’s invitation to extend the search incidentto arrest exception to encompasssearchesincident to a future or hypotheticalarrest, the good faith exception still does not apply because Diaz would not have been binding judicial precedentpriorto that expansion of the doctrine. As described in Part I, supra at pages 16-28, currently the search incidentto arrest exception to the warrant requirement only authorizes warrantless searches when a person has been arrested or an arrest is underway. It would take a decision by this Court to expand the doctrine to future or hypothetical arrests. But even if this Court makesthat decision, it would be impermissible bootstrapping to then import that understanding of the search incidentto arrest doctrine to Diaz, andto say that Diaz could have directly authorized the search in this case. Thatis a logical impossibility. Only under a drastically more expansive interpretation of the search incident doctrine could Diaz apply to future or hypothetical arrests. But it would then makenosenseto say that Diaz directly authorized the search here, for Diaz’s very application would depend on a doctrinal changethat had not yet been created. In short, this Court should reject the prosecution’s argumentthatthe goodfaith exception to the exclusionary rule applies to the evidencethe police unconstitutionally gathered from Mr. Macabeo’s cell phone. Diazis flatly inapplicable becauseit is a search incidentto arrest case and there was novalid search incidentto arrest of Mr. Macabeo. Furthermore, 52 because it would take an expansion of the search incidentto arrest doctrine to include searches incidentto a future or hypothetical arrest, Diaz could not have directly authorized the search here. Finally, it is important to focus on howthe prosecution is asking this Court to shoehorn this case within the Davis good faith exception. At the time of the search, the officers had not arrested Mr. Macabeo,nor washis arrest underway. The prosecution asks this Court to hypothesize an unauthorizedarrest that the officers did not make,in order to presume reliance on a court decision upon whichthe officers demonstrably did not rely—all so it can use evidence from a searchthat the U.S. Supreme Court has held, and the prosecution concedes, violated the Fourth Amendment. Apart from the sheer gymnastics involved in this maneuver, this conception of goodfaith is at war with good public policy and commonsense,and fails to deter the type of misconduct at which the exclusionary ruleis aimed. Davis provides no basis for the prosecution to benefit from onelast unconstitutional cell phone search. 53 CONCLUSION For all of the foregoing reasons, Appellant Paul Macabeo respectfully asks this Court to reverse the Court of Appeal, to return this case to the trial court with instructions to grant his motion pursuant to Penal Code section 1538.5, and to afford him any additional relief that may be proper andjust. Dated: April 9, 2015 Respectfully submitted, Math Karen Hunter Bird Bird & Bird, A Law Corporation 3424 Carson Street, Suite 460 Torrance, CA 90503 Tel: (310) 371-7711 Fax: (310) 371-7733 hb@birdandbirdlaw.com Onthe Brief: Bronwen Tomb Jonathan Unikowski Law Student Interns Catherine Crump SYS Charles D. veges Samuelson Law, Technology & Public Policy Clinic University of California, Berkeley School of Law Berkeley, CA 94720-7200 Tel: (510) 643-4800 Fax: (510) 643-4625 ecrump@law.berkeley.edu Attorneys for Appellant Paul Macabeo 54 CERTIFICATION OF WORD COUNT Pursuant to Rule 8.204(c)(1), I hereby certify that, according to our word processing software, the word countfor the attached APPELLANT’S OPENING BRIEF ON THE MERITSis 13,615 including footnotes. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Dated: April 9, 2015 at Berkeley, California. Catherine ispe Attorney for Appellant 55 ADDENDUM Transcript of the Recording of the Police Encounter (1CT 112-117) 56 57 beeLSE Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer #2: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: 000113 PEOPLE v. PAUL MACABEO CASE NO.: YA084963 aim TRANSCRIPTION OF INITIAL CONTACT WITH OFFICERS Where we headed? [Inaudible]. AM/PM? Where are we coming from? What's that? Where are we coming from? [Inaudible]. Whereis that at? Right there on 1 uh ... [unintelligible]. 17 double “0” 7? Pardon? No,just don’t reach around in your pockets. 17 double “0” 7? Wilton Place. Wilton Place? What's your name? Paul. Paul what? Macabeo. Noton probation, parole nothing like that? I'm on probation. Page 1 of § 58 Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer #2: Macabeo: Officer #2: Macabeo: Officer: Macabeo: Officer: Macabeo: 000114 For what? Uh ... possession. Of what? Uh controlled substance. Whatcontrolled substance? Huh? Whatcontrolled substance? Uh ... meth. Alright. When do youdischarge?: Uh,I’ve already dismissed my case. Whendid I discharge? Is that what you said? When are you discharged offfrom probation? Oh! Um ... I’m not sure. How long have you been on? Oh ... a couple of years? When’s your lastarrest? Uh ... a couple of years ago [inaudible]. Walk over to me. Turn and face mycar. Put your hands up and spread your feet. Who’s your PO? Uh ... actually I don’t have a PO. Don't have one? You don’t have anything illegal on you right now,right? No. Page 2 of § 59 Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: 000115 quan Nodrugs, weapons, nothing like that? No. You have no problem metaking stuff out of your pockets? No, go ahead. When's thelast time you used, in all honesty? Uh ... last year. Last year? {inaudible]. How are you ~ how were you doing it? How was I doing what? The meth? Smoking, snorting what? Oh. I was [inaudible]. Smoking? So you're not gonna have any needles on you — nothingstupid? No. You don’t have any warrants or unpaidtickets or anything like that that you know of, right? No. No? Who doyoulive with? Grandma. Your grandmother? Whatare you doing for work right now? I’m unemployed. Page 3 of 5 60 Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: Macabeo: Officer: : 000116 Unemployed? So what do you do for money? Chines I {inaudible} unemployment. . Unemployment? What else have you been arrested for? Pretty much that... That doesn’t answer my questionat all, man. What's pretty much that? Whatelse? Mostly possession and uh ... probation violations. How did you violate? I had couple [unintelligible]. Take a seat here for me. What's your name? Paul Macabeo {unintelligible}. Cross your anklesin front of you. [police code given in low tone.] Alright, the only reason I was asking about your arrest history, - Yeah. Is because I’m gonna check it and I’m gonna find out whatit is. Oh,okay. I just wanna know that you're being honest with me tonight. That's all. Yeah finaudible]. So, no other surprises anything like that? I was arrested for possession,petty theft, [unintelligible] DUI, [inaudible] and that’s it. Noburglaries, robberies, weapons charges, nothing like that? Have you done any state prison time? Page 4 ofS 61 000117 Sea. Macabeo: No. Officer: No? Just county? Macabeo: Yeah. Officer: Where did you get this bike? Macabeo: It's mygirlfriend's bike. Officer: What’s her name? Macabeo: Elli. Officer: Eli? Where does she stay? Macabeo: [Inaudible]. . Officer: You don’t have anything stupid in your shoes, right? Macabeo: I can take them off if you like. Officer: Go ahead and take them off ~ start with your right one. Just handit over to me. Don’t shakeit out or anything. Let me see the bottom of your foot. Same thing with the left. Macabeo: Can put this back on? Officer: | Yeah. When you putthat back on just cross your ankles again. Macabeo: Okay. [long silence]. Officer: Okay, Paul. Put your hands on your head. Both of them. Macabeo: Why am Ibeing arrested? Am being arrested? Officer: aeeverything in a second. Do not stand up; you don’t want to do t. {END OF RECORDING]. Page Sof 5 62 PROOF OF SERVICE BY EXPEDITED DELIVERY Re: People v. Macabeo, No. 8221852, Court of Appeal Case No. B248316, Los Angeles County Superior Court Case No. YA08496. I declare thatat the time of service I wasat least 18 years old and not a party to this legal action. My business address is University of California, Berkeley School of Law (Boalt Hall), Clinical Program, 353 Boalt Hall, Berkeley, CA 94720-7200. On April 10, 2015, I sent copies ofthe above APPELLANT’S OPENING BRIEF ON THE MERITSbyenclosing them in sealed envelopes and depositing the sealed envelopes with Federal Express, fully prepaid for standard overnight delivery. The envelopes were addressed as follows: Attorney General’s Office Paul Macabeo 300 S. Spring Street, 1 Floor 17007 Wilton Place Los Angeles, California 90013 Torrance, California 90504 Karen Hunter Bird Criminal Clerk’s Office Bird & Bird, A Law Los Angeles Superior Court Corporation 825 Maple Avenue, Dept. G 3424 Carson Street, Suite 460 Torrance, California 90503 Torrance, California 90503 California Court of Appeal Second Appellate District, Division 5 300 S. Spring Street 2™ Floor, North Tower Los Angeles, California 90013 J am employedin the county where the delivery occurred. The document was sent from Berkeley, California. I declare under penalty of perjury underthe laws ofthe State of California that the foregoing is true and correct. Executed at Berkeley, Califorsia, on April 10, 2015 AMY CigEN ~ 63