Filed 2/24/15 P. v. Thomas CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049862

         v.                                                            (Super. Ct. No. 12CF3546)

PETE G. THOMAS,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David
A. Hoffer, Judge. Affirmed.
                   Gerald Werksman for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Meredith S. White and Kimberley A. Donohue, Deputy Attorneys
General, for Plaintiff and Respondent.
               Appellant, a podiatrist, was convicted of possessing child pornography after
the police found numerous images of naked young girls on his computer. He contends
reversal is required because the police unlawfully seized and searched his computer, but
we disagree and affirm the judgment.
                                          FACTS
               On the morning of October 25, 2012, computer technician John Edwards
went to Coastline Podiatry in Santa Ana to install a scanner/copier at appellant’s office.
Appellant was not present at the time, but in order to complete the job, Edwards had to
access the “default folder” on appellant’s computer. When he did, approximately 20
“thumbnail” photographs of young girls appeared on the screen. The girls, who Edwards
estimated were seven to eight years old, were naked from the waist down, and one of
them had her legs spread out, revealing her vaginal area. Edwards did not say anything to
anyone in appellant’s office about the pictures. But later that day, he called the police
and told Corporal Israel Garcia what he had seen.
               Garcia promptly relayed the information to sex crimes Detective Mike
Judson, the lead investigator on the case. Judson instructed Garcia to go to appellant’s
office that afternoon and see if he could get appellant’s consent to search his computer.
However, when Garcia went to appellant’s office, appellant was not there. So, at
Garcia’s request, the office receptionist contacted appellant and put him on the phone
with Garcia.
               Garcia told appellant he was investigating a lead about child pornography
and asked appellant if he could come to his office to talk. Appellant said he could not
because he was in Los Angeles. Garcia then asked appellant if it would be okay if the
police searched his computer. When appellant said no, Garcia told him officers would be
staying at his office until a search warrant could be obtained. Appellant said he wanted
to read the warrant before they took his computer, and Garcia told him they would leave
a copy of the warrant in his office.

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               By that time it was nearly 5:00 p.m., and appellant’s office was about to
close for the evening. Garcia’s shift was also coming to an end, so he radioed for
assistance. Garcia requested that officers be sent out to appellant’s office so that they
could “sit on the place” until a warrant could be obtained. Garcia also contacted
Detective Judson and informed him of the situation. Judson told Garcia to make sure
appellant’s computer remained guarded while he obtained a warrant.
               However, Judson did not seek a warrant at that time. Instead, he discussed
the situation with other detectives in his unit, and together they came to the conclusion
exigent circumstances existed to seize appellant’s computer without a warrant. Given
that appellant knew the police were standing over his computer in anticipation of getting
a warrant, the fear was appellant “could potentially be wiping the hard drive, cleaning the
hard drive and eliminating [any incriminating] pictures from his computer from another
location.” So, Judson called Garcia and told him to seize appellant’s computer, which he
did. The computer was then booked into the evidence department of the Santa Ana
Police Department with the expectation Judson would obtain a warrant to search it. No
one from the department looked at the contents of the computer before then.
               As it turned out, Judson was off work the next three days (Friday, Saturday
and Sunday) and did not start preparing the warrant affidavit until Monday, October 29.
The search warrant was issued the following day, five days after appellant’s computer
was seized. Forensic testing revealed over 1,000 images of child pornography on the
computer, including about 100 photos depicting children who were engaged in sex acts
with adults.
               Appellant moved to suppress the images on two grounds: 1) The police
lacked justification to seize his computer without a warrant; and 2) the five-day delay
between the seizure and issuance of the search warrant was unreasonable. At the
suppression hearing, the parties stipulated that had the police simply unplugged
appellant’s computer while it was at his office, it would have prevented anyone from

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deleting evidence on it remotely. Judson testified he thought about that option at that
time but surmised that unplugging or turning off the computer was tantamount to seizing
it. He said the destruction of evidence is always a concern once a suspect knows the
police are interested in a particular piece of evidence.
                  Speaking of his experience in other cases, Judson testified he had obtained
telephonic search warrants in the past. However, he did not know how long it would
have taken him to get such a warrant in this case. He did not discuss that option in
talking with Garcia. It is undisputed that had Judson sought a telephonic search warrant,
all he would have had to do was get in touch with the on-call magistrate and explain the
basis for his request.1
                  The trial court felt this was a close case in terms of whether the police acted
lawfully in seizing and searching appellant’s computer. However, the court found
exigent circumstances existed for Corporal Garcia to seize appellant’s computer without
a warrant because, had he not done so, appellant could have gone to his office and deleted
the incriminating images from it or instructed someone else to do so. The court also
determined the five-day delay from when the computer was seized until a search warrant
was obtained was reasonable. Therefore, it denied appellant’s motion to suppress the
pornographic images that were discovered on his computer.
                  In light of that ruling, appellant pleaded guilty to one count of possessing
child pornography. (Pen. Code, § 311.11, subd. (a).) The court sentenced him to
probation on the condition that he spend one year in local custody, but it stayed execution
of the sentence pending this appeal.

         1        In conjunction with his suppression motion, appellant also sought information from the
prosecution about the policies and procedures that are applicable when the police seek a telephonic search warrant in
Orange County. Although the trial judge denied that request, he explained on the record how the process works:
“There is an on-call magistrate. When a police officer needs [a telephonic warrant], they make a phone call to the
detention release officer. That officer then conveys that information to the on-call magistrate. The on-call
magistrate then calls the police officer, says what do you want? The officer then conveys the information to the
magistrate. That is the whole procedure that exists.” Both parties agreed this was an accurate characterization of the
application process.


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                                       DISCUSSION
              Appellant contends that in obtaining the incriminating images from his
computer, the police violated his rights under the Fourth Amendment. We disagree.
              The Fourth Amendment to the United States Constitution provides, “The
right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause . . . .” (U.S. Const., 4th Amend.; accord, Cal. Const., art. I, § 13.)
“As the text makes clear, ‘the ultimate touchstone of the Fourth Amendment is
“reasonableness.”’ [Citation.]” (Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473]
(Riley).) Reasonableness “‘is measured in objective terms by examining the totality of
the circumstances’ [citation] . . . .” (People v. Robinson (2010) 47 Cal.4th 1104, 1120.)
              Relying on Riley and Missouri v. McNeely (2013) 569 U.S. __ [133 S.Ct.
1552] (McNeely), appellant contends it was unreasonable for the police to seize his
computer without a warrant. But McNeely and Riley are search cases, not seizure cases.
In McNeely, the United States Supreme Court held the natural dissipation of alcohol from
the body does not per se constitute exigent circumstances justifying a warrantless search
in the form of a blood draw from a person who is suspected of driving under the
influence. (McNeely, supra, 133 S.Ct. at p. 1568.) And in Riley, the court held that,
absent a warrant, the police may generally not search digital information on a cell phone
that has been seized from a person who has been arrested. (Riley, supra, 134 S.Ct. at p.
2480.) Both of those cases involved searches that were highly intrusive in terms of the
privacy interests they implicated. (Id. at p. 2491[recognizing cell phone searches
typically reveal far more private information to the police than most house searches];
McNeely, supra, 133 S.Ct. at p. 1558 [describing an involuntary blood draw as “a
compelled physical intrusion” of bodily integrity that invades “an individual’s ‘most
personal and deep-rooted expectation of privacy.’”].)



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              In comparison, the threshold issue here is whether the police acted
reasonably in seizing appellant’s computer from his office. A seizure is “far less
intrusive than a search.” (United States v. Payton (9th Cir. 2009) 573 F.3d 859, 863.)
Whereas a search implicates a person’s right to keep the contents of his or her belongings
private, a seizure only affects their right to possess the particular item in question.
(Segura v. United States (1984) 468 U.S. 796, 806.) Consequently, the police generally
have greater leeway in terms of conducting a warrantless seizure than they do in carrying
out a warrantless search. As a matter of fact, the United States Supreme Court has
“frequently approved warrantless seizures of property . . . for the time necessary to secure
a warrant, where a warrantless search was either held to be or likely would have been
impermissible.” (Ibid.)
              Practical considerations also favor a more relaxed standard for warrantless
seizures than warrantless searches. “Where law enforcement authorities have probable
cause to believe that a container holds contraband or evidence of a crime, but have not
secured a warrant, . . . the [Fourth] Amendment . . . permit[s] seizure of the property,
pending issuance of a warrant to examine its contents, if the exigencies of the
circumstances demand it . . . . [Citations.]” (United States v. Place (1983) 462 U.S. 696,
701.) Exigent circumstances include “the need to prevent the destruction of evidence.”
(Kentucky v. King (2011) 563 U.S. __, __ [131 S.Ct. 1849, 1853-1854].) Therefore, if the
police officers in the present case reasonably believed 1) appellant’s computer contained
evidence of a crime, and 2) the delay necessary to obtain a warrant to search the
computer might result in the loss or destruction of evidence, then they had every right to
seize the computer. (Illinois v. McArthur (2001) 531 U.S. 326, 333; United States v.
Place, supra, 462 U.S. at p. 701; Roaden v. Kentucky (1973) 413 U.S. 496, 505;
Schmerber v. California (1966) 384 U.S. 757, 770, declined to extend in McNeely, supra,
133 S.Ct. 1552.)



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              Appellant does not dispute the police had probable cause to believe his
computer contained evidence of a crime. However, he contends the police could “have
obviated any exigency in this case” by simply turning off or unplugging his computer
until they obtained a search warrant. Doing this would have eliminated the possibility of
remote data destruction. But it would not have prevented appellant (or someone acting
on his behalf) from going to his office and either manually deleting information from the
computer or damaging its hard drive in such a way as to foreclose the possibility of data
retrieval. (See State v. Maxwell (Utah 2012) 275 P.3d 220, 224 [noting that to impair a
hard drive so as to prevent the retrieval of incriminating evidence on a computer,
“[p]resumably a blowtorch or a power drill could do the trick.”].)
              Other than taking appellant’s computer, the only practical way the police
could have preserved the evidence on it is by standing guard over the machine in
appellant’s office until a search warrant could be obtained. However, that would have
constituted a seizure, as well. (See Horton v. California (1990) 496 U.S. 128, 133 [for
Fourth Amendment purposes, a seizure occurs whenever the police deprive a person of
dominion and control over his property].) In fact, had the police opted to do that, the
resulting interference with appellant’s possessory interest in the computer would have
been no different than what occurred by virtue of the physical seizure. And it probably
would have resulted in a very awkward and cumbersome situation at appellant’s office
until the warrant arrived. “[I]t is difficult to believe [appellant] would seriously [have
found] it a lesser intrusion to have [had] . . . armed officers on his property” than to have
had the officers seize his computer and go on their way. (People v. Link (1994) 26
Cal.App.4th 1272, 1276, fn. 15.)
              In arguing lack of exigency, appellant makes much of the fact the police
made no attempt to seek a telephonic search warrant before seizing his computer. But
even if the police had pursued a telephonic warrant instead of a traditional warrant, it still
would have entailed some delay. While this course of action would likely have reduced

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the duration of the seizure, there still would have been a gap in time during which
appellant’s computer would have been vulnerable to manipulation or attack by outside
forces had the police not taken measures to secure it. The truth of the matter is, once the
police alerted appellant to the fact they were at his office and wanted to search his
computer for evidence of child pornography, they really had no other option than to seize
his computer to prevent the possible destruction of evidence. Therefore, the seizure was
justified under the exigent circumstances doctrine. (See People v. Coddington (2000) 23
Cal.4th 529, 580, disapproved on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13 [failure to seek telephonic warrant immaterial where prompt
police action was needed to prevent the destruction of evidence]; People v. Link, supra,
26 Cal.App.4th 1272, 1277 [same]; People v. Camilleri (1990) 220 Cal.App.3d 1199,
1210-1211 [same].)2
                  Nevertheless, “[e]ven a permissible warrantless seizure, such as the initial
seizure here, must comply with the Fourth Amendment’s reasonableness requirement.
Thus, the [United States] Supreme Court has held that after seizing an item, police must
obtain a search warrant within a reasonable period of time.” (United States v. Burgard
(7th Cir. 2012) 675 F.3d 1029, 1032, citing Segura v. United States, supra, 468 U.S. at p.
812.) Unfortunately, there is “no bright line past which a delay becomes unreasonable.
Instead, [we must] assess the reasonableness of [the delay] by weighing ‘the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.’” (United States
v. Burgard, supra, 675 F.3d at p. 1033, quoting United States v. Place, supra, 462 U.S.


          2        Appellant accuses the police of creating the alleged exigency that arose in this case. Although it is
easy to second-guess the officers’ initial decision to try to obtain appellant’s consent to search his computer, rather
than seeking a search warrant at the outset of the case, the Fourth Amendment does not require the police to apply
for a search warrant at the earliest possible time after acquiring probable cause. (Kentucky v. King, supra, 131 S.Ct.
at pp. 1860-1861].) Because “the police did not create the exigency by engaging or threatening to engage in conduct
that violates the Fourth Amendment,” they had every right to seize appellant’s computer for the purpose of
preserving the images it contained. (Id. at p. 1858.)


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696.) We must also consider whether the police diligently pursued their investigation and
if good cause existed to justify the delay that occurred. (Ibid.)
              During the five-day period the police had appellant’s computer, he
obviously did not have access to it, and thus his right to control and use the computer was
infringed. However, the police did not search the computer, so appellant’s privacy
interest in its contents was not infringed. Moreover, that five-day period included a
Saturday and a Sunday, which are not traditional working days. There is nothing in the
record to suggest appellant would have used his computer on those days had the police
not seized it from his office.
              “On the other side of the equation, law enforcement’s interests [in seizing
appellant’s computer] were . . . strong,” in that the police had probable cause to believe it
contained evidence of child pornography. (United States v. Burgard, supra, 675 F.3d at
p. 1034.) Child pornography is not only a reprehensible offense in and of itself, it “is
proximately linked to the sexual abuse of children [citation], ‘a most serious crime and an
act repugnant to the moral instincts of a decent people’ [citation.]” (In re Grant (2014)
58 Cal.4th 469, 477.) It cannot be gainsaid that the police were pursuing an important
governmental interest in this case.
              Finally, with regard to the diligence factor, the record shows appellant’s
computer was seized at the end of the business day on Thursday, October 25, 2012 and
that Detective Judson was off work the next three days. When Judson returned to his
office on Monday the 29th, he began preparing the search warrant materials, and the
warrant was issued the following day. Thus, the five-day delay between the seizure and
the warrant’s issuance was largely attributable to Judson’s schedule; it was “not the result
of complete abdication of his work or failure to ‘see any urgency’” in the investigation.
(United States v. Burgard, supra, 675 F.3d at p. 1034.) Under these circumstances, the
delay cannot be said to have been unreasonable. While it certainly was not optimal, we
must remember “police imperfection is not enough to warrant reversal. With the benefit

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of hindsight, courts ‘can almost always imagine some alternative means by which the
objectives of the police might have been accomplished,’ but that does not necessarily
mean that the police conduct was unreasonable. [Citation.]” (Ibid.)
                  At bottom, we are convinced the police acted reasonably in both seizing
and searching appellant’s computer. Although five days transpired between those two
events, the delay was not unreasonable under the circumstances presented. (United States
v. Burgard, supra, 675 F.3d at p. 1034 [six-day delay between the seizure of the
defendant’s cell phone and the securing of a search warrant to look for evidence of child
pornography on the device was not unduly lengthy even though the police “should have
been able to submit the warrant application more quickly”]; United States v. Martin (2nd
Cir. 1998) 157 F.3d 46, 54 [although not ideal, 11-day delay between warrantless seizure
and subsequent warrant search was not unreasonable where the delay “included two
weekends and the Christmas holiday”]; State v. Maxwell, supra, 275 P.3d 220 [Fourth
Amendment did not require suppression of pornographic images of children that were
found during a search of the defendant’s computer eight days after the police seized it
from his home].)3
                   As an alternative basis for upholding the trial court’s ruling, the Attorney
General argues that, even if the seizure at hand violated the Fourth Amendment,
suppression is not required because the incriminating photos on appellant’s computer
would have been discovered anyway. (See generally People v. Carpenter (1999) 21
Cal.4th 1016, 1040 [notwithstanding a constitutional infringement, the exclusionary rule
does not apply if the subject evidence would inevitably have been discovered by lawful


          3        Oddly, appellant takes the position that the length of delay to secure a search warrant in this case
is a “non-issue, because if exigent circumstances existed for the seizure, no warrant [was] necessary” to search his
computer. However, in so stating, appellant fails to recognize that, as this case shows, police seizures are sometimes
utilized as a temporary measure to safeguard property until a search warrant can be obtained. By assessing the
reasonableness of the delay involved in obtaining a search warrant, courts can ensure that seizures “reasonable at
[their] inception” do not “become unreasonable as a result of [their] duration.” (Segura v. United States, supra, 468
U.S. 796, 812.)


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means].) When the prosecution floated this inevitable-discovery theory at the
suppression hearing below, the trial judge did not formally rule on it, one way or the
other, but he did express some skepticism toward it.
              However, there is no evidence the seizure of appellant’s computer had any
substantive impact on the warrant process. Probable cause existed apart from the seizure,
and the police were fully prepared to seek a search warrant in the event appellant did not
consent to search. The fact they seized appellant’s computer before seeking a warrant is
immaterial for analytical purposes because they did not search the contents of the
computer before the warrant was issued, and the seizure itself played no part in the
probable cause analysis. Because the search warrant application was wholly independent
from the seizure, the seizure did not taint the warrant or the subsequent discovery of the
incriminating photos. Therefore, assuming the initial seizure of appellant’s computer was
illegal, there was no need to suppress the fruits of the warrant search. (Murray v. United
States (1988) 487 U.S. 533, 542; United States v. Gholston (E.D. Mich. 2014) 993
F.Supp.2d 704, 716-717.)
                                      DISPOSITION
              The judgment is affirmed.




                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.


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