PEOPLE v. MACABEOAppellant’s Petition for ReviewCal.October 14, 2014$221859 ST SUPREME Coniter IN THE SUPREME COURTOF THE F | . E- oy STATE OF CALIFORNIA OCT 14 2b Frank A. McGu'{lark PEOPLE OF THE STATE OF —_ Depuiy CALIFORNIA, No. Plaintiff and RESPONDENT, Court of Appeal Case No. B248316 v. PAUL MACABEO, Los Angeles County Superior Court Case Defendant and PETITIONER. No. YA084963 PETITION FOR REVIEW Karen Hunter Bird, State Bar No. 119890 Bird & Bird, A Law Corporation 3424 Carson Street, Suite 460 Torrance, California 90503 310-371-7711 Email: khb @birdandbirdlaw.com Counsel for Petitioner, PAUL MACABEO TABLE OF CONTENTS QUESTION PRESENTED.....0.00.. 0...ecece e ee eee ene een e ees 2 NECESSITY FOR REVIEW.................cc cece cece ee ec eee e enone eneen ees 2 STATEMENT OF THE CASE.......... 00... cece cece cence een eee e nena 3 STATEMENTOF FACTS.....0..........0cccccceccee ccc ee nent eee neen ene enenes4 ARGUMENT.............. 0c cccece cece cence een ee een ene een ee nen beeen sean ees6 I. A SEARCH INCIDENT TO ARREST CANNOT LAWFULLY PRECEDE AN ARREST AND SERVE AS PART OF ITS JUSTIFICATION......................65 6 Il. THE SEARCH OF PETITIONER WAS UNCONSTITUTIONAL UNDER RILEY AND THE DAVIS GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE DOES NOT APPLY............9 A. Davis Is Distinguishable Factually And Does Not Support Denial Of The Remedy Of Exclusion Of Evidence Obtained Through An Unconstitutional Search ..........cc cc cccc ccc e cece cece renee enna e eee eeneneae ene e eens9 B. Even If The Ruling In Davis Does Control, The Facts In This Case Do Not Meet The Requirements For Application Of The Good-Faith Exception Rule 12 1. There was no “objectively reasonable reliance” upon Diaz at the time of the search 12 2. Diaz is not sufficient binding appellate authority 2.0.2.0... cece cece eee erence eee es 15 CONCLUSION........... 0c cccce cece cece ne eee een nena nena nena e eens ene ee ee ees 17 CERTIFICATE OF WORD COUNT............... ccc cece cece eee 18 Exhibit A TABLE OF AUTHORITIES Cases Arizona v. Gant (2009) 556 U.S. 332 00... ccccecese cece cece ee eee een eeee eee e ee eseneneeenete9,10 Atwater v. Lago Vista (2001) 532 U.S. 318 00... ce ecee eee e cece eee ee eee eee ee eens eee ee ee ee es 6,7,8 Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 178-179 .... 0c ccc cece ee ee ee eee ees 13,14 Davis v. United States (2011)_ US. __, 131 S.Ct. 2419...eeeee eee eees passim Henry v. United States (1959) 361 U.S. 98 20...e cece cece e eee eee e teeta teen eee e ne ne nes 6 New York v. Belton (1981) 453 U.S. 454 o.oocccccc ee et tence eee e eee ees9,10 People v. Collier (2008) 166 Cal.App.4th 1374 2.0.00... cece cece e cence cece eee e ene en ees 8 People v. Diaz (2011) 51 Cal.4th 84 .....cee ce cece eee ee eter nena enspassim People v. Macabeo (2014) 229 Cal.App.4th 486, 177 Cal.Rptr.3d 311 ..............passim People v. McKay (2002) 27 Cal.4th 601 2.0... cece eee ee eee e eee e cere e eee ee eaes 6,7 People v. Medina (2003) 110 Cal.App.4th 171 0.00... cece cece nec eeeee eee ee nent ee enes 8 People v. Superior Court (1972) 7 Cal.3d 186 2.0.0... ceee cece ee ee eee ee eee eteete teed enenenenaees 15 Rawlings v. Kentucky (1980) 448 U.S. 98 oo cccece cece eee eee eect eee reeset eee e eee ne eee es 6 il TABLE OF AUTHORITIES (Cont’d.) Riley v. California (2014) __U.S.__, 134 S.Ct. 2473... . cece cece cence eee e eespassim Sibron v. New York (1968) 392 U.S. 40.2...cece e eee cnet eee ete t eens eee eens 6 Smith v. Ohio (1990) 494 U.S. 541 oo.eee cece eee e eee ee ne ee ee ene ence eens 6,8 State v. Smith (2009) 124 Ohio St 3d 163 2.00... .cece eee e eee ee cece ene eee ee eens 16 United States v. Garcia (2014, N.D. Cal.)__F.Supp.3rd___ oo...cece cece eee ee eees 10 United States v. Robinson (1973) 414 U.S. 218 oo. ccccceee cece eee eee cent eee ee eee ee een reas7 Statutes Penal Code section 311.11(a) .......... cece cece cece ee een e eens eee eee nnenen anes 3 Penal Code section 995 .........cccccccc cece ccc eeccecsceneuceeeseeneeveuseuceeuuuves4 Penal Code section 1538.5 ..........cc cece cceeeccuencececeteeuceseeeeeesencesenaans 3 Penal Codesection 1538.5(M)..........0: cece eeee eee eee eee e sense eee e ee eaeeeneeess 3 Vehicle Code section 22450 ...........ccccc cece eeececsccenuceceeeeeeeuunseeueueees4 ili IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and RESPONDENT, Court of Appeal Case No. B248316 Vv. PAUL MACABEO, Los Angeles County Superior Court Case Defendant and PETITIONER. No. YA084963 PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THESTATE OF CALIFORNIA: Petitioner Paul Macabeopetitions this court for review following the decision of the Court of Appeal, Second Appellate District, Division Five, filed in that court on September 3, 2014 (see Exhibit A). Rehearing of the Court of Appeal decision was not requested. QUESTIONS PRESENTED 1. When law enforcementofficers detain for a traffic infraction, can a warrantless search of the driver’s person and items found onhis person be conductedprior to custodialarrest? 2. Given the United States Supreme Court’s ruling that a warrantless cell phone search incidentto arrestis unconstitutional absent certain exigencies (Riley v. California (2014) __U.S.__, 134 S.Ct. 2473 (“Riley”).), does an unconstitutional cell phone search priorto the decision in Riley but after the California Supreme Court decision in People v. Diaz (2011) 51 Cal.4th 84 (“Diaz”) require suppression ofthe evidence, or does the good-faith exception rule stated in Davis v. United States (2011)__ U.S. __, 131 S.Ct. 2419 (“Davis”) foreclose the remedy of exclusion? NECESSITY FOR REVIEW Review is necessary to settle two important questions of law. First, is a person whois detainedforviolation of a traffic offense subject to a warrantless search incident to arrest prior to actually being arrested? Here, the Court of Appeal says yes. Petitioner was detained for rolling through a stop sign while on hisbicycle, a traffic infraction. While he was detained for the offense, officers search throughhis cell phone and foundillegal photographs. He was then arrested for possession of those photographs. Petitioner had not been arrested at the time of the search. The decision of the Court of Appeal is in opposition to both federal constitutional precedent and California precedent. Review is necessary to resolve the inconsistency in case law. Second, according to the decision in the Court of Appeal below, betweenthis court’s ruling in Diaz, supra, 51 Cal.4th 84 in 2011 and the 2 United States Supreme Courtruling in Riley, supra, 134 S.Ct. 2473 in 2014, law enforcement officers could rely in good faith on Diaz to support the warrantless search of the cell phone seized from the person of an arrestee. ' “Although the warrantless search of defendant’s cell phone was unlawful under the recent decision in Riley [cite omitted], the search falls within the good faith exception to the exclusionaryrule.” (People v. Macabeo(2014) 229 Cal.App.4th 486, 177 Cal.Rptr.3d 311.) In reaching this conclusion the court relies on Davis, supra, 131 S.Ct. 2419. According to Davis, a good faith exception to the exclusionary rule exists “when the police conducta search in objectively reasonable reliance on binding appellate precedent.” (Davis, supra, 131 S.Ct. at p. 2429.) Petitioner asks this court to consider this matter because any reliance on Diaz, supra, 51 Cal. 4th 84 by the searching officers was unreasonable. The holding in Diaz did not authorize the warrantless search of Petitioner’s cell phone photograph file when he was detained fora traffic infraction. Further, Diaz should not be considered binding appellate authority sinceit was contrary to existing federal constitutional law. STATEMENT OF THE CASE On July 23, 2012, a felony complaint wasfiled against appellant. (1CT 18.) Defense counsel filed a motion pursuant to Penal Code section 1538.5 to be heard concurrently with the preliminary hearing. (1CT 20.) An information wasfiled in the Superior Courtalleging one count, a violation of Penal Code section 311.11(a). Ata pretrial conference, petitioner pleaded no contest to the charges against him and was sentenced, ' The opinion of the Second District of the Court of Appeal, Division Five is attached hereto as Exhibit A. with the terms and conditions of probation stayed during the pendency of appeal. (1CT 129.) Notice of Appeal was filed December3, 2012. After the Court of Appeal notified counsel of a potential procedural error, the initial appeal (Case No. B245511) was dismissed by Appellant. (2CT 18) and Remittitur issued. (2CT 22.) Defense counsel then moved to withdraw petitioner’s previous no contest plea. (2CT 25.) The motion was granted. (2CT 33.) Defense counselfiled motions pursuant to Penal Code section 995 (2CT 35) and pursuant to Penal Code section 1538.5(m) (2CT 42.) Based on the evidence, arguments andrulings in the 1538.5 motion heard during the preliminary hearing by the same judge, the motions were again denied. (2CT 54.) Petitioner was then resentenced with the terms and conditions of probation stayed pending appeal ofthis matter. (2CT 56.) Notice of Appeal wasfiled April 25 2013. (2CT 58.) The Court of Appeal, SecondDistrict, Division Five filed its opinion, which wascertified for publication, on September 3, 2014. A copy of that opinion is attached hereto as Exhibit A. STATEMENT OF FACTS On July 19, 2012, at 1:40 a.m., Officer Craig Hayes was working with a partner, Officer Raymond,patrolling the area of Gramercy and Artesia in a marked black and white vehicle. (LCT 51:12-17, 1CT 64:15.) Heobservedpetitioner riding a bicycle approximately 20 feet in front of the officers’ vehicle. (1CT 52:6, 64:25.) The officers’ vehicle was traveling 5 — 10 mph andfollowedpetitioner’s bike for approximately 50 to 75 feet with the headlights turned off. (1CT 64:23-65:6, 1CT 65:28, 69:13.) The officer testified that he observedpetitioner “roll right through” a stop sign at the intersection and turn left. (ICT 65:16.) Based on the purported observation of a violation of Vehicle Code section 22450, an infraction, the 4 officers detained petitioner. (1CT 53:1-5.) Officer Hayestestified that when he approachedpetitioner it was his intention to either just warn or to cite him for the traffic violation. (1CT 80:18-26.) Although there was somediscussion during the detention about petitioner’s probationstatus, after the arrest of petitioner the officer learned, via the computerin his vehicle, that petitioner’s probation had expired three monthsprior to this contact. (LCT 26:23-23:14, 87:5-8.) Whenconfronted with a tape recording of the contact with petitioner, Officer Hayes admitted that while his report stated that petitioner had told him he was on felony probation for narcotics (1CT 35:14-16), the truth wasthat petitioner never said that he was on felony probation for narcotics. (ICT 81:18-20.) Officer Hayes further admitted that while his report stated that petitioner gave consentto search his person (1CT 83:11- 19) the truth wasthat petitioner said “yes” only to the officer’s question, “Can I take items out of your pocket?” (1CT 83:17-19.) After removing items from petitioner’s pockets, Officer Hayes handedthose itemsto his partner. (1CT 60:13-25.) Petitioner was ordered by the officers to sit on the ground. (1CT 61:18.) Officer Hayestestified that Officer Raymondstood out of the sight of petitioner and searched several databases in the contents of petitioner’s phone, opening and looking through the phoneforfive to ten minutes while petitioner sat on the curb. (1CT 77:15-22, 1CT 117) Officer Raymondsignaled to Officer Hayes and reported that he had searched the cell phone and had not found any narcotic evidencein the texts. (1CT 62:9-12.) However, Officer Raymond did find items in the photograph database which appeared to be sexually explicit imagesof girls under the age of 18. (LCT 62:11-21.) Petitioner was then arrested. (1CT 63:7-10.) Thetrial court ruled that it agreed with the defense that this was not a lawful “probation search” (1CT 43:26-28) citing the absence of any 5 reasonable belief on the part of the officer that appellant was subjectto search and seizure conditions. (1CT 90:2-7.) The court also agreed with the defense that this was not a “consent search.” (1CT 103:2-4.) The court held that since petitioner committed a traffic infraction in the presence of the officers and since he could have been arrested for that offense pursuant to Penal Code section 836, the search of the databasein the cell phone and the seizure of the imagesin the cell phone were proper underthe Fourth Amendmentof the United States Constitution as a search incident to arrest, relying on People v. Diaz, supra, 51 Cal.4th 84. ARGUMENT L A SEARCH INCIDENT TO ARREST CANNOT LAWFULLY PRECEDE AN ARREST AND SERVE AS PART OF ITS JUSTIFICATION In Smith v. Ohio (1990) 494 U.S. 541, the United States Supreme Court held: “faJs we have had occasion in the past to observe, ‘[i]t is axiomatic that an incident search may not precede an arrest and serveas partof its justification.” Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L-Ed.2d 917 (1968); see also Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Rawlings v. Kentucky, 448 US. 98, 111, n. 6, 100 S.Ct. 2556, 2564, n. 6, 65 L.Ed.2d 633 (1980). The exception for searches incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control. Contrary to the Ohio Supreme Court's reasoning, it does not permit the police to search any citizen without a warrant or probable cause so long as an arrest immediately follows.” (Smith v. Ohio, supra, 494 U.S. at 543.) The Court of Appeal in Macabeo, supra, 229 Cal.App.4th 486 held: “a custodial arrest may be madefora traffic violation without violating the United States Constitution. (Atwater v. Lago 6 Vista (2001) 532 U.S. 318, 354 (Atwater); People v. McKay (2002) 27 Cal.4th 601, 607 (McKay).) An exception to the Fourth Amendmentprohibition against unreasonable searches and seizures is a ‘search incident to a lawful arrest.” (United States v. Robinson (1973) 414 U.S. 218, 224 (Robinson).) The Court of Appeal then held that Diaz, supra, 51 Cal.4th 84 authorized a search of the cell phone recovered from his person incident to lawful arrest. (Macabeo, supra, 229 Cal.App.4th at p. 318.) The court below found that the search of petitioner was a search incidentto arrest even thoughthe search occurredpriorto thearrest. Butthe search of petitioner’s cell phone, found on his person at the time of detention for a traffic violation, occurred before petitioner had been arrested and the fruits of that search served as part of the justification for the arrest. (Macabeo, supra, 229 Cal.App.4th at 313.) No arrest had occurred until after the officers found the photographson his cell phone and then the arrest was madefor the felony Penal Codeviolation. (Id.) Theauthorities cited by the Court of Appeal supportingits ruling are inapplicable to a searchesprior to arrest. The Court of Appeal relies on People v. McKay, supra, 27 Cal.4th 601. In McKay, the defendant was observed riding a bicycle in the wrongdirection on a residential street. (McKay, supra, at p. 606.) When the deputy stopped him with the intention of issuing a citation, defendant wasnotable to provide identification. Defendant was arrested and placed in custody for failing to present valid identification. Followingarrest for that offense, a search was conducted and drugs were found in defendant’s shoe. The Court of Appeal in Macabeo, supra, 229 Cal.App.4that p. 318, states that McKay follows the reasoning of Atwater v. Lago Vista (2001) 532 U.S. 318, one of the authorities also cited by the trial court below. In Atwater, the Court ruled that "[ijf an officer has probable cause to believe that an individual has committed even a very minorcriminal offense in his 7 presence, he may, without violating the Fourth Amendment,arrest the offender." Atwater, supra, 532 US 318. However, in Atwater, the defendant wasalso arrested for a traffic offense prior to being searched. The reasoning of the Court of Appeal is based upon cases which involvearrests as a result of a traffic infraction and searches done incident to that arrest. The present case involves a bicyclist being stopped for a traffic infraction and an unconstitutional search of his cell phone being conducted prior to custodial arrest. The Court of Appeal’s decision in Macabeois not consistent with United States Supreme Court authority in Smith v. Ohio, supra. Not only does Macabeoignore federal constitutional precedent in allowing a search as a result of a traffic infraction without custodial arrest, it ignores California precedent which requires that during a traffic stop the officer must have reasonable suspicion that a person is in possession of a weapon before even a pat-down search can be conducted. (People v. Collier (2008) 166 Cal.App.4th 1374 [during an ordinary traffic stop an officer may not pat down a driver and passenger absent reasonable suspicion they are armed and dangerous.]; People v. Medina (2003) 110 Cal.App. 4th 171 [during detention on traffic infraction an officer may not pat-downthe driver even in a “high gang area”]) People v. Superior Court (1972) 7 Cal.3d 186 [“we conclude the search here conducted cannot be justified as an incident to defendant's arrest, and hencethetrial court correctly granted the motion to suppress.”’] Based onall of the above arguments,petitioner requests this Court grant review of the decision of the Court of Appeal becauseit is not consistent with federal constitutional case law or California precedent. Il. THE SEARCH OF PETITIONER WAS UNCONSTITUTIONAL UNDERRILEYAND THE DAVIS GOOD FAITH EXCEPTION TO THE EXCLUSIONARYRULE DOES NOT APPLY. A. Davisis distinguishable factually and does not support denial of the remedy of exclusion of evidence obtained through an unconstitutional search. The Court of Appeal’s opinion states that while Riley, supra, 134 S.Ct. 2473 makes the search in this case unconstitutional, the remedy for that unconstitutional search will not be exclusion becausethe officers relied in goodfaith upon California Supreme Courtruling which allowed such a search. (Diaz, supra, 51 Cal.4th 84.) The Court of Appeal relies on Davis to reach that conclusion. (People v. Macabeo, supra, 229 Cal.App.4that p. 318.) However, Davis, supra, 131 S.Ct. 2419 is inapplicable to this case. In Davis, supra, 131 S.Ct. 2419, defendant was searched under the authority of New York v. Belton (1981) 453 U.S. 454. During the pendency of his appeal, a new ruling by the United States Supreme Court overruled Belton and madethe search in his case unconstitutional. (Arizona v. Gant (2009) 556 U.S. 332.) Defendant argued that evidencein his case should be suppressed since the search was unconstitutional. However, the Court ruled that Belton had been the “bright line rule” regarding vehicle searches since 1981. (Davis, at p. 2424.) The United States Supreme Court in Gant changedthe rules for searches of secured arrestees with a majority of four limiting the rule in Belton and a dissent of four supporting the rule of Belton. With one concurring opinion joining with the majority, there was hardly a resounding support for the changed rule and this was certainly not an anticipated change in the Court’s precedent. In Davis, the court noted that Belton was a United States Supreme Court case. Since United States SupremeCourt casesare rarely overturned and since Belton had been the law for so many yearsat the time of the search of Mr. Davis, the results of the unlawful search in that case were not suppressed whena new rule was announced in Gant. The Court also noted that the search of Mr. Davis had occurred a full two years before the Court announcedits new rule in Gant. (Davis, at p. 2425.) There, the officers were justified and had an objectively reasonable reliance upon Belton, a 26 year old United States SupremeCourt case. The factual and legal background ofDavisis substantially dissimilar to the present case. Here, the search ofpetitioner in this case took place on July 19, 2012 and Diaz was decided January3, 2011. At the time of the search, Diaz was current California law but it was certainly not a “bright line rule”that had beenlitigated for 26 years such as wasthe case with Belton. Further, in Davis, the facts surrounding the search were on all fours with the facts ofBelton. Here, Diaz, supra, 51 Cal.4th 84 wasfactually different than the present case. (See discussion ante) 2 In Davis, supra, 131 S.Ct. 2419, Belton and Gant were United States Supreme Court cases. Diaz, supra, 51 Cal.4th 84 is a California Supreme Court case which was overruled by the United States Supreme Court in a unanimousopinion. Thecourt in Diaz specifically anticipated a ruling on the issue by the United States Supreme Court. > While the court in Diaz * A United States District Court case which analyzes the application of Davis in Diaz/Riley cases notes that a finding ofreasonable reliance upon Diaz “might be a different question if Diaz were not so squarely on-point.” (United States v. Garcia (2014, N.D. Cal.) ___-F.Supp.3rd___.) > The language of Diaz itself recognizes the clear need for the United States SupremeCourt to makea rule in light of modern technology and acknowledgesits inability to make such new law. Thefinal sentence of the majority opinion in Diaz states “If, as the dissent asserts, the wisdom of the high court’s decisions ‘must be newly evaluated’ in light of modern 10 did claim to be reaching its decision based upon current United States Supreme Courtcases, the decision in Riley, supra, 134 S.Ct. 2473 shows how far afield of that Court’s interpretation of those cases the California Supreme Court was. Toreachits decision in Riley, the United States Supreme Court did not overrule any of the cases upon which the California Supreme Courtrelied in Diaz. It just analyzed those cases in a way which was reasonable in this new factual situation,i.e. the search of cell phone content. This Court in Diaz, according to the United States Supreme Court in Riley, misapplied existing federal constitutional law. Therefore, petitioner urges this court to find that Davis, supra, 131 S.Ct. 2419 does not apply here. In Davis, an existing United States Supreme Court case which had beenin effect for 26 years and was considered a “bright line rule” wasrelied upon in a search. Theofficers were justified in their reliance on the case when they conductedtheir search. Even though the Court overruled their own existing law in an unexpected and non-unanimousopinion,the officers were not unreasonable in their reliance on existing law and exclusion was denied based on the officers good-faith reliance. Here, Diaz, supra, 51 Cal.4th 84,an existing California Supreme Court case which had beenin effect for only 19 months prior to the searchofpetitioner, was not a “bright line rule” and in fact was considered a rule which could likely be overruled. It was contrary to a decision of another state Supreme Court. The majority opinion in Diaz even anticipated a challenge to its ruling was likely. Diaz was also factually dissimilar. (See discussion ante.) Therefore, the Davis should not apply here andthe evidenceseized as a result of an unconstitutional search should be excluded. technology, then that reevaluation must be undertaken bythe high court itself.” (Diaz, supra, 51 Cal.4th at p. 117.) 11 B. Even If The Ruling In Davis Does Control, The Facts In This Case Do Not Meet The Requirements For Application Of The Good-Faith Exception Rule. The Court states in Davis “[w]e hold that searches conducted in objectively reasonable reliance on binding appellate precedentare not subject to the exclusionary rule.” (Davis, supra, 131 S.Ct. at p. 2429.) So two questions are at issue if Davis is to be applied:first, did the officers’ conducta search in “objectively reasonable reliance” upon Diaz, supra, 51 Cal.4th 84; and, second, was Diaz “binding appellate precedent?” Petitioner urges this court to find the answers to both questions is no and that Davis does not apply. 1. There was no “objectively reasonable reliance” upon Diaz at the time of the search. Theofficers could not reasonably rely on Diaz, supra, 51 Cal.4th 84 to justify a search of the photographs containedin the cell-phone during a traffic enforcement stop. Diaz does not authorize such a search. In responseto this argument below, the Court of Appealheld that defendant’s interpretation of the holding in Diaz is too restrictive.” (People v. Macabeo (2014) 229 Cal.App.4th 486, 177 Cal.Rptr.3d 311.) Petitioner urges this Court to find otherwise. When a caseis so thoroughly rejected by a unanimous United States Supreme Court, it does not make sense to read that rejected ruling broadly. Petitioner requests this court limit Diaz to the specific facts of that case andfindthat it does not apply here in thatthe search here wastoofar afield of the search approved in Diaz. Because Diaz doesnot apply factually to this case, petitioner requests this court find that the officers at the time of the search could not have reasonably believed their search was authorized by Diaz. In Diaz, supra, 51 Cal.4th 84, defendant was arrested on drug charges and placed in custody. When defendant was booked,hiscell 12 phone, which wason hispersonat the timeof arrest, was placed into evidence. The investigating officers determined that part of their investigation should include the search of defendant’s cell phone because, in their expert opinion, drug dealers often carry on their business through use of a cell phone,particular through texting. They expected to find evidence supporting the charges for which defendant wasarrested on the cell phone. Ninety minutesafter the arrest for drug related offenses, the officers searched defendant’s cell phone text message folder. The search, after arrest for drug charges, wasin further investigation of those charges and the officers had reasonable suspicion that a drug dealer would carry on his business through the use of text messages. Those facts are distinguishable from thearrest of Petitioner. Petitioner was stopped for failing to stop at a stop sign before makinga left turn while on a bicycle,a traffic infraction. The officers searched his cell-phoneat the scene ofthe detention for the traffic offense when the officers had no reasonable suspicion that petitioner’s cell phone contained evidenceofillegal activity or evidence of the crime for which he was detained. The officers, who had plannedto either just warn petitioner or to write him a ticket, detained petitioner on the street while they looked throughnotonly the text messageson the cell phone, but also through the photographfile. There was no evidencethatthe officers relied upon, or even knew about, Diaz, supra, 51 Cal.4th 84. The officers nevertestified attrial that they had beentold by their supervisors to search cell phonesoftraffic offenders. * In addition to nottestifying to their reliance on Diaz, the 4 The court below notes that such absence of evidence makesno difference because an officer is presumed to know the law. (Conway v. Pasadena HumaneSociety (1996) 45 Cal.App.4th 163, 178-179.) But the court doesn’t include the full quote from Conway. The caseactually states “A public officer is presumed to know the law,providedit is clearly 13 officers went out of their way to misstate evidence supporting their claims that this was a probation search or consent search. Oncethe officers’ claims were refuted by the playing of an actual tape of thearrest, the trial court found there was no lawful probation or consent search. The officers would not have neededto try to create a reason for the search if they reasonably believed that the California Supreme Court allowedit or if their supervisors had told them such searches were lawful. Even if the officers can be presumed to knowthe law, they must be presumedto knowthe correct law. They cannotbe allowedto rely on a head-note or soundbite version of the ruling in Diaz, supra, 51 Cal.4th 84. (i.e. “Cell phone Searches Legal in California!”.) The exclusionaryrule is in place to deter unconstitutional searches. (Davis, supra, 131 S.Ct. atp. ___.) It is important in today’s soundbite society not to allow the law to be enforced based upon an overgeneralized summaryof the rule ofa case. Diaz does notsay that all searches of cell phones are lawful. The Court explicitly limited the scope ofits holding in Diaz by stating, “We granted review in this case to decide whether the Fourth Amendmentto the United States Constitution permits a law enforcementofficer . . . to conduct a warrantless search of the text message folder of a cell phone they take from [an arrestee’s] person after the arrest.” (Diaz, supra, 51 Cal.4th atp. 88.) Law enforcement should be held to the standard of actually knowing the law and expected to enforceit correctly, not just based upon the headline or twitter summary of the case law. The remedy of exclusion would established.” (Ibid. at p. 179.) Here, petitioner argues that the law is not clearly established. Additionally, the language in Conwayis mere dicta since there was evidencein that case that the officers had been specifically trained on the subject of search warrants and were awareof the law. (Ibid., at footnote 18.) 14 effectively put law enforcementon notice that they must knowtheactual law, not just the law as described in head-notesor headlines. It was objectively unreasonable for law enforcementto rely on Diaz to allow the unfettered search of a cell phone upona traffic violation detention. 2. Diaz is not sufficient binding appellate authority Diaz, supra, 51 Cal.4th 84 cannot be considered binding appellate precedentfor purposes of the good-faith exception to the exclusionary rule because it was contrary to binding United States Supreme Court precedent. Three years after Diaz was decided, the United States Supreme Court unanimously rejected the Diaz ruling in Riley, supra, 134 S.Ct. 2473. The overwhelmingrejection such a short amountof time after Diaz was decided showsthe reasoning in Diaz was unsupportable by existing precedent. In overruling Diaz, the United States Supreme Court did not overrule any existing precedent;it just affirmed that the California Supreme Court had reached an incorrect decision in its analysis of that precedent. The majority, concurring and dissenting opinions in Diaz, supra, 51 Cal.4th 84 all acknowledged and specifically anticipated a review by the United States Supreme Court on the issue of cell phone searches. The majority states “[iJf, as the dissent asserts, the wisdom of the high court’s decisions ‘must be newly evaluated’ in light of modern technology, then that reevaluation must be undertaken bythe high courtitself.” (Jd. at p. 117.) Immediately after the ruling in Diaz, supra, 51 Cal.4th 84 the California Legislature passed legislation making warrantless cell phone searches unlawful. Thelegislation was vetoed by Governor Brown on October 9, 2011, just months prior to the July 19, 2012 search of petitioner’s cell phone, because Governor Brownbelieved the issue too complicated for the legislators and preferred to wait for the Courtto rule. 15 (Letter from EdmundG. BrownJr., Governor of Cal., to Members of the Cal. State Senate (October 9, 2011), available at http://gov.ca.gov/docs/SB_914_Veto_Message.pdf.) The state of the law wasin flux and could notbe reasonably relied upon bytheofficers. Otherjurisdictions rejected the reasoning in Diaz, supra, 51 Cal.4th 84 and found that unwarranted cell phone searches werea violation of the Fourth Amendmentand a person’s right to privacy. The Supreme Court of Ohio held that the warrantless search of a cell phone is unlawful, citing a high expectation of privacy in a cell phone’s contents. (State v. Smith (2009) 124 Ohio St 3d 163.) Petitioner urges this court to grant review becausea state court opinion whichis so clearly out of step with established federal constitutional law, as articulated by a unanimous United States Supreme Court, should not be considered binding authority and cannot be reasonably relied upon by law enforcementofficers. The good faith exception to the exclusionary rulerelied upon by the Court of Appeal below is inapplicable to this case. The warrantless search of Petitioner’s cell phone was unconstitutional. It was not made lawful by Diaz, supra, 51 Cal.4th 84 because Diaz does not apply factually and Diaz was not based upon current federal constitutional law. 16 CONCLUSION For the above reasons given, Petitioner requests this court to grant review to resolve these important issues of federal constitutional law. Respectfully submitted, BIRD & BIRD Dated: October ¥% 2014 Fane Karen Hunter Bird Attorney for Petitioner PAUL MACABEO. 17 CERTIFICATE OF WORD COUNT I certify that this document contains 5,491 words as counted by the Microsoft Word program on whichit wascreated. KAREN HUNTER BIRD 18 EXHIBIT A PEOPLE v. MACABEO (2014) 229 Cal.App.4th 486, 177 Cal.Rptr.3d 311 (not included on service copies) People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 229 Cal.App.4th 486 Court ofAppeal, SecondDistrict, Division 5, California. The PEOPLE,Plaintiff and Respondent, V. Paul MACABEO,Defendant and Appellant. B248316 | Filed September3, 2014 Synopsis Background: After denial of motion to suppress evidence, defendant pled pleaded nolo contendere in the Superior Court, Los Angeles County, No. YA084963, Mark Arnold, J., to possession of matter depicting a minor engaging in sexual conduct. Defendant appealed. [Holding:| The Court of Appeal, Mosk, J., held that warrantless search of data on arrestee's telephone was within “good faith” exception to exclusionary rule. Affirmed. *312 APPEALfrom an orderofthe Superior Court of the County ofLos Angeles, Mark Arnold, Judge. Affirmed. (No. YA084963) Attorneys and Law Firms Karen Hunter Bird, Torrance, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, for Plaintiff and Respondent. MOSK,J. INTRODUCTION Defendant and appellant Paul Macabeo (defendant) appeals from thetrial court's order denying his motion to suppress evidence. He contends that the trial court erred when it found that the WestlawNext © 2014 Thomson Reuters. No claimto original U.S. Government Works People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 search of his cell phone incident to a stop for a minor traffic violation did not violate the Fourth Amendmentprohibition against unlawful searches and seizures. The United States Supreme Court, in overruling People v. Diaz (2011) 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (Diaz ), and while this case was on appeal, held that absent an emergency, law enforcement must secure a warrant before searchingthe digital content ofa cell phone incidentto an arrest. (Riley v. California (2014) —- U.S. —~—, 134 S.Ct. 2473, 189 L.Ed.2d 430 (Riley ).) We hold that because Diaz was applicable *313 at the time of the search,the officers’ conduct in searching the cell phone was in good faith and therefore the failure to exclude the evidence from the cell phone wasnot reversibleerror. FACTUAL BACKGROUND | OnJuly 19, 2012, City ofTorrance Police Detective Craig Hayes waspatrolling in a police vehicle with his partner, Officer Raymond,near 17200 Gramercy Place and Artesia Boulevard in Torrance. At approximately 1:40 a.m., Detective Hayes observed defendantriding a bicycle directly in front of the police vehicle. At the intersection of Gramercy Place and Artesia Boulevard, defendant “rolled right through [a stop sign] without slowing down or making full stop before making an eastbound[left] turn on Artesia” in violation of Vehicle Code section 22450, subdivision(a). Thepolice officers stopped defendant, and Detective Hayes exited his vehicle and approached defendant who wasstraddling his bicycle. The detective asked defendant from where he was coming, and defendant gave him an address. He next asked defendant if he was on probation or parole, and defendant told him that he was on probation for “methamphetamine.” But defendant did not rememberthe identity of his probation officer. When Detective Hayes asked defendant whether his probation had been discharged, defendantinitially stated, “I've already dismissed my case.” Detective Hayes repeated the question, and defendant stated that he was “not sure.” Defendantalso told the detective that he had been on probation for “a couple of years.” After defendant told Detective Hayes that he did not have anythingillegal in his possession, the detectiveinitiated a pat down search and then asked defendantfor consent to search his pockets.In response, defendant said “yeah, sure.” Detective Hayes removed various items from defendant's pockets, including a cell phone, and handedthe items to Officer Raymond. WhenDetective Hayesfinished searching defendant's pockets, he directed defendantto sit on the curb in front of his patrol vehicle and cross his ankles. The detective spoke to defendant “for a while” and then noticed Officer Raymondsignaling to him. Detective Hayes told defendant to remain seated on the curb and walked overto his partner's location. Officer Raymond informed the detective that there were no text messages in defendant's phone concerning narcotics, but he had found picture folder on the phone that contained pictures ofyoung girls underthe age of 18 nNKienmb| “PONAA Tharsa : ve AlA Risin taarvinimal li & vtay mrt =WestlavNext © 2014 Thomson Reuters. No claim to orginal U.S. Government Works People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 engaged in sexual activity. Possession or control of such pictures wasa violation of Penal Code section 311.11, subdivision (a). ' Detective Hayesreturned to defendant's location and placed him underarrest. The detective subsequently confirmed that defendant was not on felony probation at the time he was stopped because his felony probation ended in April 2012. PROCEDURAL BACKGROUND In a complaint, the District Attorney charged defendant in count 1 with possession of matter depicting a minor engaging in sexual conductin violation of section 311.11, subdivision (a); and in count 2 with possession of a smoking device in violation of Health and Safety Code section (1364.1, subdivision (a)(1). Defendant pleaded not guilty. Defendant filed a motion to suppress evidence pursuant to section 1538.5, contending the offending pictures onhis cell phone had been obtained during an unlawful search and seizure. The hearing on *314 the motion to suppress took place during the preliminary hearing. Following testimony and argument,the trial court denied the suppression motion, held defendant to answer, and granted the prosecution's motion to dismiss count2. Based on the result of the preliminary hearing, the District Attorney charged defendant in an information with possession of matter depicting a minor engaging in sexual conduct in violation of section 311.11, subdivision (a). Defendant pleaded not guilty but thereafter withdrew his plea and pleaded nolo contendere to the charge. The trial court found defendant guilty, suspended imposition of sentence, and placed him on formal probationfor five years subject to various terms and conditions. Thetrial court, however, stayed most, but notall, of the terms and conditions of probation pending an appeal. Defendant timely appealed from the order denying his suppression motion. On appeal, this court issued a briefing order directing the parties to address whether defendant could challenge the order denying his suppression motion if it was not litigated subsequent to the preliminary hearing. Defendant thereafter filed a notice of abandonment of appeal, and we dismissed the appeal. Following remittitur, defendant moved to withdraw his plea, which motion thetrial court granted. Defendant next movedtoset aside the information pursuantto section 995 and renewedhis motion to suppress the evidencefrom the cell phone, which motionsthetrial court denied. Defendant again pleaded nolo contendere, and the trial court accepted the plea. Thetrial court stayed imposition of sentence and placed defendant on formal probation for five years subject to various terms and conditions. Thetrial court, however, stayed most, but not all, of the terms and conditions of probation pending an appeal, which appeal defendanttimely filed. fa d WastlavNext © 20714 Tromson Reuters. No claim to orginal U.S. Government Works People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 DISCUSSION A. Background Following the testimony of Detective Hayesat the preliminary hearing,the trial court informed the parties that it was “not lookingat this as a probation search”andthat “it would be an unlawful probation search.” Thetrial court then heard argument andprovidedits reasoning for denying the suppression motion. “The Court: [Defendant's Counsel], what you havesaid has logic. But I'm goingto cite somecases. Thefirst case is United States v. Scott [Scott v. United States ], which is [ (1978) ] 436 U.S. 128 [98 S.Ct. 1717, 56 L.Ed.2d 168]. The Sco/t case states that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances viewed objectively justify the action.[9] ... [§] So what this indicates to me is what was going through the officer's mind does not have any bearing on the legality of what the officer did. [{] We then go to [Virginia v.] Moore | (2008) 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559], which is a 2008 case, 128 Supreme Court 1598. This case stands for the proposition that as long as the police have probable cause to believe that a person committed a crime in their _ presence, the person can be constitutionally arrested and searched evenifthe arrest violates state law. [{] ... [{] So what I gleaned from all of this is the defendant was subject to arrest. He could have been arrested for failing to stop at the stop sign. The fact that the officer didn't do thatis irrelevant becauseit is the objectivestate ofthe case, not the subjective state ofmindoftheofficer. Since the defendant could have been arrested, he *315 could also have been subjected to a search incident to a lawful arrest. [§] ... [f] And as a search incident to a lawful arrest, we then get to the cell phone because since the cell phone wasin his pockets, it was properly seizable. But the question then becomes,well, is it okay for the officers to search the contents of the cell phone? [{] .-. [§] I think that [the search of the cell phone] could be incident to the arrest. It could be thoroughly searched. Just like his pockets could be thoroughly gone through.[{]] The police can seize his wallet. Following [defendant's] analysis, well, then they wouldn't be able to go through the contents ofthe wallet. They could go through the contents ofthe wallet, and I believe that they could go through the contents ofthe cell phone. [] Consequently,I do notfind that the defendant's fourth amendmentrights were violated.” B. General Legal Principles [1] [2] A custodial arrest may be madefora traffic violation without violating the United States Constitution. (Atwater v. Lago Vista (2001) 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (Atwater); People v. McKay(2002) 27 Cal.4th 601, 607, 117 Cal.Rptr.2d 236, 41 P.3d59 (McKav ).) An exception to the Fourth Amendmentprohibition against unreasonable searches and seizures is a “search incident to a lawful arrest.” (United States v. Robinson (1973) 414 U.S. 218, 224, 94 fa . WastlavNext © 2014 Thomson Reuters, No claim to original US Government Works People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 S.Ct. 467, 38 L.Ed.2d 427 (Robinson).) In Diaz, supra, 51 Cal.4th at page 89, 119 Cal.Rptr.3d 105, 244 P.3d 501, the California Supreme Court held that a search of a defendant's cell phone recovered from his person incident to an arrest was valid without a warrant whether or not an emergency existed. While defendant's case was on appeal before this court, the United States Supreme Court in Riley, supra, 134S8.Ct. 2473 held that the search incidentto an arrest exception to the requirement for a search warrant, absent exigent circumstances, does not apply to the contents of an arrestee's cell phone. C. Search Not Incident to a Lawful Arrest Defendant first contends that the search of his cell phone was not a valid search incident to a lawful arrest because, under state law, i.e., section 853.5, - he could not have been taken into custody forfailing to stop at the stop sign in violation of Vehicle Code section 22450, subdivision (a). (See Veh.Code. § 40302, subd. (a); People v. Superior Court (1972) 7 Cal.3d 186, 199-200, 101 Cal.Rptr. 837, 496 P.2d 1205, superseded by statute on other groundsas stated in People v. Castaneda (1995) 35 Cal.App.4th 1222, 1229, 42 Cal.Rptr.2d 18; People v. Monroe (1993) 12 Cal.App.4th 1174, 1180-1182. 16 Cal.Rptr.2d 267.) According to defendant, ifthe police officers did not have a reasonable suspicion that defendant was involved in any crime other than the observedtraffic infraction, but rather only probable causeto issue a citation under section 853.5, they had noright to search him, muchless his cell phone. *316 In his reply brief, however, defendant concedesthat this contention is contrary to the California Supreme Court decision in McKay, supra, 27 Cal.4th 601, 117 Cal.Rptr.2d 236, 41 P.3d 59, which decision,in turn, is based on the United States Supreme Court decision in Atwater, supra, 532 U.S. 318, 121 §.Ct. 1536. In McKay, supra, 27 Cal.4th 601, 117 Cal.Rptr.2d 236, 41 P.3d 59, a deputy sheriff observed the defendant riding a bicycle in the wrong direction on a residential street. (/d. at p. 606, 117 Cal.Rptr.2d 236, 41 P.3d 59.) The deputy stopped the defendant intending to cite him for violation of Vehicle Code section 21650.1. (/bid.) But when the deputy asked the defendant for identification, the defendant said he did not have any identification and instead provided the deputy with his name and date of birth. (/bid.) The deputy took the defendant into custody for failing to present valid identification in violation of Vehicle Code section 40302, subdivision (a). 3 (lbid.) During a search incident to that arrest, the deputy found what appeared to be methamphetamine in the defendant's sock. (/hid.) The defendant was charged with possession of methamphetamine, and, after the trial court denied his motion to suppress, he pleaded guilty and was sentenced to prison. (/bid.) The Court ofAppeal affirmed the defendant's conviction. (McKay, supra, 27 Cal.4th at p. 606, 117 Cal.Rptr.2d 236, 41 P.3d 59.) On review before the California Supreme Court, the defendant argued,inter alia, that an arrest for such a minor offense violated the Fourth Amendment. (McKay, supra, 27 Cal.4th at p. 606, 117 Cal.Rptr.2d 236, 41 P.3d 59.) The court concluded that the defendant's contention was foreclosed c nWeastlawNext © 2014 Thomson Reuters. No claim to original US. Government Works People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A-R. 12,246 by the United States Supreme Court decision in Afwater, supra, 532 U.S. 318, 121 S.Ct. 1536. The court in McKayexplained, “Appellant's first contention, he now concedes, is foreclosed by Atwaterv. Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549] ...), which upheld a custodial arrest for a violation of Texas's seatbelt law, an offense punishable by fine ofnotless than $25 nor morethan $50. (/d. at p. 323 [121 S.Ct. at p. 1541].) Under Afwater,all that is needed to justify a custodial arrest is a showing of probable cause. ‘If 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.’ (/d. at p. 354 [121 S.Ct. at p. 1557].) We therefore conclude that there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense. (U.S. v. McFadden (2d Cir.2001) 238 F.3d 198, 204 [upholding search incident to arrest for riding a bicycle on the sidewalk].)” (McKay, supra, 27 Cal.4th at p. 607, 117 Cal.Rptr.2d 236, 41 P.3d 59.) On the issue of whether the officers were required to comply with state law limiting their right to arrest (see Vehicle Code section 40302, subd. (a)) before they could constitutionally arrest defendant, the court in McKay, supra, 27 Cal.4th at page 611, 117 Cal.Rptr.2d 236, 41 P.3d 59 concluded that “[o]ur determination of the validity of the search under the federal Constitution thus does not depend on *317 whether ‘it was authorized by state law’ ({Cooperv. California (1967) | 386 U.S. [58,] 61, [87 S.Ct. 788 at p. 790, 17 L.Ed.2d 730] ) or ‘the law ofthe particular State in which the search occurs! ( [California v.| Greenwood | (1988) | 486 U.S. [35,] 43, [108 S.Ct. 1625 at p. 1630, 100 L.Ed.2d 30] ). According to [E/kins v. United States (1960) | 364 U.S. [206,] 224, [80 S.Ct. at page 1447], the test ‘is one of federal law’—and,in this case, was disposed ofby Atwater. Therefore, we need not consider whether defendant's arrest complied with |Vehicle Code] section 40302(a).” [3] Given the holding in McKav, supra, 27 Cal.4th 601, 117 Cal.Rptr.2d 236, 41 P.3d 59—a decision that we are boundto follow *—we must reject defendant's contention that because under state law the officers could not lawfully search defendant based on the Vehicle Code violation in question, they therefore had no right under the federal constitution to search him. A court is not required to suppress evidence that is obtained in a manner consistent with the United States Constitution but in violation of a state law. (/d. at p. 610, 117 Cal.Rptr.2d 236, 41 P.3d 59.) D. Search of Cell Phone During Search Incident to Arrest Defendant next contendsthat even if the officers had probable cause to arrest him and conduct a search of his person incidentto that arrest, they were not authorized to search his cell phone in view ofRiley, supra, 134 8.Ct. 2473. The parties disagree over whether the United States Supreme Court decision in Riley applies retroactively to this case to require the exclusion of the evidence from the cell phone. The Attorney General argues that exclusion based on the newly announced rule in Riley is not warranted, for to do so would have no deterrent effect because the evidence WestlawNext © 2014 Thomson Reuters No ciairn to original US. Government Works. O s People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 wasobtained as a result of good faith police conduct consistent with the then binding authority of Diaz, supra, 51 Cal.4th 84. 119 Cal.Rptr.3d 105, 244 P.3d 501. (See Davis v. United States (2011) —— U.S. ——, 131 S.Ct. 2419, 180 L.Ed.2d 285 (Davis ); United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.) Subsequent to the decision in Riley, one federal district court has refused to apply Riley to require reversal of a conviction based on evidence not excluded under the rule announced in Riley. (United States v. Spears (S.D.Tex.2014) —— F.Supp.3d ——, 2014 U.S. Dist. Lexis 96812] [there was Fifth Circuit authority similar to Diaz |.) In that case, the court noted that the rule announced in Ri/ey applies retroactively to cases on direct review, but that does not mean that suppression of the evidence obtained in violation of the rule in Rileyis required. (/d. at pp. *9-10.) Defendant argues that decisions announcing new constitutional rules of criminal procedure are ordinarily retroactive to all cases on direct review or notyet final in which the newrule constitutes a “clear break” with the past. (See Griffith v. Kentucky (1987) 479 U.S. 314, 328, 107 S.Ct. 708, 93 .Ed.2d 649 [retroactively applying Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Hoyos (2007) 41 Cal.4th 872, 893, fn. 10, 63 Cal.Rptr.3d 1, 162 P.3d 528 [in upholding the actions ofthe police officers, the court said, “[a] high court decision construing the Fourth Amendment, however, applies retroactively to all convictions that were not yet final at the time the *318 decision was rendered”], abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 641, 130 Cal.Rptr.3d 590, 259 P.3d 1186.) Defendant contendsthat there is no reason to distinguish between the rule and the remedy. [4] In this case, the good faith exception to the exclusionary rule applies. In Arizona v. Gant (2009) 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (Gant), the United States Supreme Court held that “Injeither the possibility of access [to the defendant's vehicle] nor the likelihood of discovering offense-related evidence authorized the search in [that] case” because, at the time of the search of the defendant's vehicle, he was handcuffed in the back seat of a police car and the offense for which he was arrested—driving with a suspended license—could not havejustified a search for evidence ofthat crime.(/d. at p. 344, 129 S.Ct. 1710.) Then, in Davis, supra, 131 S.Ct. 2419, the United States Supreme Court held that evidence seized from a car during a search incidentto arrest contrary to the rule in Gant wasnot subject to the exclusionary rule because the officers conducted the search in “objectively reasonable reliance on [the] binding appellate precedent” of New York v. Belton (1981) 453 U.S. 454. 101 S.Ct. 2860, 69 L.Ed.2d 768, which wasrestricted in Gant, and because “suppression would do nothing to deter police misconduct in these circumstances, and because it would comeat a high cost to both the truth and the public safety...” (Davis, 131 S.Ct. at p. 2423.) The court in Davis, supra, 131 S.Ct. at pages 2437 to 2438, said the exclusion of evidence to deter is proper when the law enforcement action in question constitutes “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ ” police conduct. Presumably this would include systematically negligent YiestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 police conduct. (See id. at p. 2438.) The court concludedthat “[t]he harsh sanction of exclusion ‘should not be applied to deter objectively reasonable law enforcement activity.’ [Citation.] Evidence obtained during a search conducted in reasonable reliance on binding precedentis not subjectto the exclusionary rule.” (/d. at p. 2429.) The court further held that although Gant, supra, 556 USS. 332, 129 S.Ct. 1710 applied retroactively, “[i]t does notfollow ... that reliance on binding precedentis irrelevant in applying the good-faith exception to the exclusionary rule.” (/d. atp. 2432.) “Wetherefore hold that whenthe police conducta search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” (/d. at p. 2434.) Here, at the time Officer Raymond searched the cell phone, the search was authorized by the California Supreme Court decision in Diaz, supra, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501, which was decided three years before the United States Supreme Court decision in Kiley, supra, 134 S.Ct. 2473 and wasthe clearly established law in this state at the time of the search in question. Defendantattempts to distinguish Diaz, supra, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 by pointing out that the police searched the cell phonein that case to look for additional evidence of the crime for which defendant was arrested, whereas the search of defendant's cell phonein this case was conductedto look for evidence of crimes for which there wasnopreexisting probable causeto arrest. According to defendant, because Diaz did not authorize such an expansive search, the good faith exception does not apply here. Defendant's interpretation of the holding in Diaz, supra, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 is too restrictive. The court in Diaz, supra, 51 Cal4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501, began its analysis of the issue with a discussion of *319 three controlling United States Supreme Court decisions, United States v. Robinson, supra, 414 U.S. 218, 94 8.Ct. 467; United States v. Edwards (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (Edwards ); and United States v. Chadwick (1977) 433 U.S. 1,97 8.Ct. 2476, 53 L.Ed.2d 538, overruled in part on other grounds in California v. Acevedo (1991) 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619. (Diaz, supra, 51 Cal.4th at pp. 90-93, 119 Cal. Rptr.3d 105, 244 P.3d 501.) The court in Diaz then explained that “[uJnder these decisions, the key question in this case is whether defendant'scell phonewas‘personalproperty ... immediately associated with [his] person’ (Chadwick, supra, 433 U.S. at p. 15 [97 S.Ct. 2476]) like the cigarette package in Robinsonand the clothes in Edwards. ° If it was, then the delayed warrantless search was a valid search incident to defendant's lawful custodialarrest.” (Diaz, supra, 51 Cal.4th at p. 93, 119 Cal.Rptr.3d 105, 244 P.3d 501.) The court in Diaz, supra, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 concludedas follows: “We hold that the cell phone was ‘immediately associated with [defendant's] person’ (Chadwick, supra, 433 U.S. at p. 15 [97 S.Ct. 2476]), and that the warrantless search ofthe cell phone therefore was valid.” The court in Diaz did not state or imply that the cell phone search in that case was valid because the purposeofthe search wasrelated to the crime for which the defendant had been arrested. Indeed, in Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, relied upon by the court in Diaz, § m#| yan “PY PPPS i ere ratesy lm palesit ”~ Arieinal S Pesos at tAdnelesYestlavNext © 2674 Thomson Reuters. No claim to orginal U.S, Government Works 8g People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 the search ofthe defendantthat unearthed heroin in his cigarette package,as here, took place during an arrest for a vehicle code violation. Absent any language in Diaz supporting sucha restriction, weconcludethat the search of defendant's cell phone was consistent with the holding in Diaz and, therefore, undertaken in goodfaith reliance on the holding in Diaz. Defendant also suggests that there is no evidencethe officers relied upon Diaz and that any such reliance was unjustified. But, such reliance can be presumed (see Conwayv. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 178, 52 Cal.Rptr.2d 777 [“A public officer is presumed to know the law, providedit is clearly established”] ), and reliance on such knowledge would have been justified because the California Supreme Court had pronouncedthe law ofthis state. Here, there is no showing that the officers deliberately, recklessly, or in a grossly negligently manner undertook the search of the cell phone. [5] Although the warrantless search of defendant's cell phone was unlawful under the recent decision in Riley, supra, 134 8.Ct. 2473, the search falls within the good faith exception to the exclusionary rule. Thus, the failure of the trial court to suppress the evidence obtained from the search of the cell phone does not require a reversal of the trial court's order denying defendant's motion to suppress or his conviction.{ DISPOSITION Thetrial court's order denying defendant's motion to suppress evidenceis affirmed. Weconcur: *320 TURNER,P.J. KRIEGLER,J. Parallel Citations 229 Cal.App.4th 486, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 Footnotes 1 All further statutory references are to the Penal Code, unless otherwise indicated. 9 Section 853.5 provides: “Except as otherwise provided by law, in any case in which a personis arrested for an offense declared to be an infraction, the person maybereleased.... In all cases ... in which a personis arrested for an infraction, a peace officer shall only require the arrestee to presenthis or her driver's license or other satisfactory evidence ofhis or her identity for examination and to sign a written promise to appear containedin a notice to appear.If the arrestee does not havea driver's license or other satisfactory i oVeestlavyNext © 2014 Tramson Reuters. No claim to original US Government Works. People v. Macabeo, 229 Cal.App.4th 486 (2014) 177 Cal.Rptr.3d 311, 14 Cal. Daily Op. Serv. 10,439, 2014 Daily Journal D.A.R. 12,245 evidence ofidentity in his or her possession, the officer may require the arrestee to place a right thumbprint, ... on the notice to appear.... Only if the arrestee refuses to sign a written promise, has nosatisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody.” 3 Vehicle Code section 40302, subdivision (a) provides: “Wheneverany personis arrested for any violation of this code, not declared to be felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense chargedis alleged to have been committed and whohasjurisdiction ofthe offense and is nearest or most accessible with referenceto the place where the arrest is made in any of the following cases: [{] (a) When the person arrestedfails to presenthis driver's license or other satisfactory evidence ofhis identity for examination.” 4 Auto Equity Sales, Ine. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321. 369 P.2d 937. 5 The cigarette package taken from the defendant's person in Robinson contained 14 heroin capsules. (Dic, supra, 51 Cal.4th at p. 91. LL9 Cal.Rptr.3d 105, 244 P.3d 501.) The clothes taken from the defendant's person in Edwards were found to have incriminating paint chips on them.(/éic.) End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works. a k c o rent WorksWestlawNext ¢ Bird & Bird 3424 Carson Street, Suite 460 (310) 371-7711 Proof of Service People v. Paul Macabeo Court of Appeal No.: B248316 Los Angeles Superior Court No.: YA084963 I, the undersigned, declare that I am over 18 years of age, residing or employed in the County of Los Angeles, and not a party to the instantaction. Mybusinessaddressis listed above. I served the attached PETITION FOR REVIEWbyplacingtrue copies of in a sealed envelope, with the correct postage, and depositing them in the United States Postal Service, to each of the following personsat the following addresses on October |Q__, 2014: Attorney General’s Office 300 S. Spring Street, 1° Floor Los Angeles, California 90013 Los Angeles County District Attorney’s Office 825 Maple Avenue, Room 190 Torrance, California 90503 California Court ofAppeal Second Appellate District, Divison 5 300 S. Spring Street 2" Floor, North Tower Los Angeles, California 90013 Honorable Mark S. Arnold Los Angeles Superior Court 825 Maple Avenue, Dept. G Torrance, California 90503 Paul Macabeo,Petitioner 17007 Wilton Place Torrance, California 90504 Los Angeles Superior Court 825 Maple Avenue Torrance, California Attn: Criminal Clerk’s Office I additionally declare that I electronically submitted a copy of this documentin compliance with the court’s Terms ofUse, as shown on the website. I declare under penalty of perjury under the lawsofthe State of Californiathat the foregoing is true and correct. Executed at Torrance, California, on October | OQ, 2014. QuOCL? SANDRA R. CASTRO
