Filed 9/13/17

                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D070732

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCE354485)

MEGAN DONNA SANDEE,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Lantz

Lewis, Judge. Affirmed.



        Benjamin P. Lechman, Siri Shetty, and Michelle Rogers, under appointments by

the Court of Appeal, for Defendant and Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, Teresa

Torreblanca and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and

Respondent.
       After the trial court denied a motion to suppress evidence, Megan Donna Sandee

pled guilty to possession for sale of a controlled substance (Health & Saf. Code, § 11378)

and unauthorized possession of a controlled substance (id., § 11377, subd. (a)). The trial

court granted felony probation to the court for a period of three years.

       Sandee challenges the trial court's denial of her motion to suppress the evidence

obtained from the search of her cell phone.1 According to Sandee, although she was on

probation at the time of the search and subject to a general search condition which

allowed authorities to search her "property" and "personal effects" without a warrant, the

scope of that search condition did not extend to a warrantless search of her cell phone.

We conclude that the motion to suppress was properly denied, as a reasonable, objective

person at the time of the search would understand a search of Sandee's cell phone to fall

within the scope of the search conditions in her probation orders. Accordingly, we affirm

the judgment.

                                             I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On September 23, 2015, San Diego County Sheriff's Department detectives were

conducting surveillance on a house suspected of being a location for narcotics activity.

Sandee and a male companion arrived at the house on bicycles, entered the house for a


1       Even though Sandee did not obtain a certificate of probable cause from the trial
court, this appeal is proper as an appeal following a guilty plea challenging the denial of a
motion to suppress evidence for which an appeal is provided under Penal Code section
1538.5, subdivision (m). (People v. Shelton (2006) 37 Cal.4th 759, 766; Cal. Rules of
Court, rule 8.304(b)(4)(A).)

                                             2
period of time and then rode away. A detective on the surveillance team observed that

Sandee and her companion failed to stop at a red light on their bicycles after leaving the

house, and he conducted a traffic stop in his sheriff's vehicle by activating his lights and

yelling at them to stop. Sandee stopped her bicycle next to a large bush. In response to

the detective's question, Sandee stated that she was on probation and subject to a search

condition. By contacting dispatch, the detective confirmed that Sandee had a "valid

[F]ourth [Amendment] waiver, good in all four areas," meaning that the waiver covered

property in Sandee's residence, vehicle, person and place of work.2 Relying on the

waiver, the detective searched Sandee's backpack and found a hypodermic needle. He

also conducted a search of Sandee's cell phone and found several text messages which he

believed were indications that Sandee was involved in selling narcotics. The detective

took photos of the text messages and noted them in his report. Near the area where

Sandee had stopped her bicycle, the detective found a bag containing 6.9 grams of

methamphetamine lying next to the bush.

       Sandee was arrested, and a complaint was filed alleging three counts:

transportation for sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a));




2      At the time of the search, Sandee was on probation in several misdemeanor cases
in which she agreed to allow searches of her person and property as a condition of
probation. Specifically, the probation conditions stated that Sandee shall "[s]ubmit
person, vehicle, place of residence, property, personal effects to search at any time with
or without a warrant, and with or without reasonable cause." The probation orders were
made in August 2013, September 2013 and April 2015.

                                              3
possession for sale of a controlled substance (id., § 11378) and unauthorized possession

of a controlled substance (id., § 11377, subd. (a)).

       Sandee filed a motion to suppress the evidence found on her cell phone. On

April 29, 2016, after holding an evidentiary hearing with testimony from the detectives

involved in Sandee's arrest, the trial court denied the motion to suppress. Specifically,

the trial court concluded that the detective's search through Sandee's phone for text

messages was within the scope of the Fourth Amendment waiver agreed to by Sandee as

a condition of probation.3

       Sandee entered a guilty plea to possession for sale of a controlled substance

(Health & Saf. Code, § 11378) and unauthorized possession of a controlled substance

(id., § 11377, subd. (a)). The People dismissed the remaining count. The trial court

suspended imposition of sentence for a period of three years and granted felony probation

to the court.




3      Because the detective conducted only a cursory search of the contents of the cell
phone, limited to text messages, this case does not present the issue of whether a
probation search condition permits law enforcement to use a cell phone to access other
type of data that may raise third-party privacy concerns, such as using the cell phone
connection to access a shared database or social networking site with restricted access.
(See, e.g., In re Malik J. (2015) 240 Cal.App.4th 896, 903 ["Remotely stored information
may also implicate the privacy interests of third parties who are not otherwise subject to
search or court supervision. This remains true even if the information is posted to a
social networking Web site or a large group of people. . . . Although a user's personal
profile is potentially viewable by anyone, the Web sites have privacy features that allow
users to set limits on who may access their information and what information may be
shared generally. Some Web sites default their settings to allow broad public access,
while others default to more private access."].)

                                              4
                                             II.

                                       DISCUSSION

       Sandee's sole argument on appeal is that the trial court erred in denying the motion

to suppress the evidence found on her cell phone.

A.     Applicable Legal Standards for Motions to Suppress Evidence

       A defendant may move to suppress evidence on the ground that "[t]he search or

seizure without a warrant was unreasonable." (Pen. Code, § 1538.5, subd. (a)(1)(A).)

"When a defendant raises a challenge to the legality of a warrantless search or seizure,

the People are obligated to produce proof sufficient to show, by a preponderance of the

evidence, that the search fell within one of the recognized exceptions to the warrant

requirement. [Citations.] A probation search is one of those exceptions. [Citations.]

This is because a 'probationer . . . consents to the waiver of his Fourth Amendment rights

in exchange for the opportunity to avoid service of a state prison term,' except insofar as a

search might be 'undertaken for harassment or . . . for arbitrary or capricious reasons.'

(People v. Bravo (1987) 43 Cal.3d 600, 608, 610 . . . ; accord, People v. Medina (2007)

158 Cal.App.4th 1571, 1577.)" (People v. Romeo (2015) 240 Cal.App.4th 931, 939.) "A

search conducted pursuant to a valid consent does not violate the Fourth Amendment

unless the search exceeds the scope of the consent." (People v. Bravo, supra, 43 Cal.3d

at p. 605 (Bravo).)

       " ' "The standard of appellate review of a trial court's ruling on a motion to

suppress is well established. We defer to the trial court's factual findings, express or

implied, where supported by substantial evidence. In determining whether, on the facts

                                              5
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise

our independent judgment." ' " (People v. Suff (2014) 58 Cal.4th 1013, 1053.) "Under

California law, issues relating to the suppression of evidence derived from police

searches and seizures must be reviewed under federal constitutional standards." (People

v. Robles (2000) 23 Cal.4th 789, 794.)

       Following the United States Supreme Court's opinion in Riley v. California (2014)

573 U.S. __ [189 L.Ed.2d 430, 134 S.Ct. 2473], it is firmly established that a law

enforcement officer may not conduct a search of a person's cell phone without a warrant,

even incident to arrest, unless an applicable exception to the warrant requirement applies.

As Riley observed, "[c]ell phones differ in both a quantitative and a qualitative sense

from other objects that might be kept on an arrestee's person." (Riley, supra, 573 U.S. at

p. __ [189 L.Ed.2d at p. 435].) Riley explained that "[m]odern cell phones are not just

another technological convenience. With all they contain and all they may reveal, they

hold for many Americans 'the privacies of life,' [citation]. The fact that technology now

allows an individual to carry such information in his hand does not make the information

any less worthy of the protection for which the Founders fought." (Riley, supra, 573 U.S.

at p. __ [189 L.Ed.2d at p. 452].)

B.     The Search of Sandee's Cell Phone Was Within the Scope of the Search Conditions
       in Her Probation Orders

       As we have explained, as a condition of probation in several misdemeanor cases

Sandee agreed to "[s]ubmit person, vehicle, place of residence, property, personal effects

to search at any time with or without a warrant, and with or without reasonable cause,"


                                             6
and the detective in this case relied on that probation search condition to conduct the

warrantless search of Sandee's cell phone. Accordingly, the question presented here is

whether the warrantless search of Sandee's cell phone was permitted under the probation

search exception to the warrant requirement in that the search fell within the scope of the

Fourth Amendment waivers in Sandee's probation orders.

       As our Supreme Court explained in Bravo, supra, 43 Cal.3d 600, when

interpreting the scope of a Fourth Amendment waiver agreed to by the defendant as a

condition of probation, the "waiver of [the defendant's] Fourth Amendment rights must

be interpreted on the basis of an objective test." (Bravo, at p. 606.) Under this approach,

"[t]he search condition must . . . be interpreted on the basis of what a reasonable person

would understand from the language of the condition itself, not on the basis of appellant's

subjective understanding, or under a strict test in which a presumption against waiver is

applied." (Id. at p. 607.) The reason for this rule is that "[l]aw enforcement officers who

rely on search conditions in probation orders, the probationer himself [or herself], and

other judges who may be called upon to determine the lawfulness of a search, must be

able to determine the scope of the condition by reference to the probation order. We

cannot expect police officers and probation agents who undertake searches pursuant to a

search condition of a probation agreement to do more than give the condition the

meaning that would appear to a reasonable, objective reader. They can neither inquire

into the subjective understanding of the probationer, nor analyze the condition in light of

legal precedent drawing fine points based on minor differences in the wording of search

conditions in other probation orders." (Id. at pp. 606-607.)

                                             7
       For the purpose of our analysis, it is important to determine the appropriate

timeframe for determining the reasonable meaning of the search condition in Sandee's

probation orders. We conclude that the proper inquiry focuses on what a reasonable,

objective person would understand the search condition to mean at the time of the search.

We reach this conclusion based on our Supreme Court's focus in Bravo, supra, 43 Cal.3d

600, on the limitations of law enforcement officers who conduct the search. Bravo

explained that an objective test is appropriate because officers "can neither inquire into

the subjective understanding of the probationer, nor analyze the condition in light of legal

precedent drawing fine points based on minor differences in the wording of search

conditions in other probation orders." (Id. at pp. 606-607.) If law enforcement officers

cannot be expected to draw fine points based on legal precedent when interpreting the

search condition's reasonable meaning, those officers certainly cannot be expected to

possess an understanding based on future legal developments.4

       Turning to the language of the probation search condition, we conclude that at the

time the search was conducted a reasonable, objective person would understand it to

encompass a search of Sandee's cell phone. In the probation search condition, Sandee



4      Consistent with the approach of focusing on law enforcement officers' reasonable
understanding of scope of the search condition at the time of the search, the United States
Supreme Court has developed a good faith exception to the exclusionary rule, under
which a law enforcement search conducted in reliance on binding legal precedent at the
time, does not become impermissible because applicable legal standards changed
afterwards. (Davis v. United States (2011) 564 U.S. 229, 232 (Davis) ["searches
conducted in objectively reasonable reliance on binding appellate precedent are not
subject to the exclusionary rule"].)

                                             8
agreed to submit her "property" and "personal effects" to search at any time. The

probation search condition is worded very broadly and contains no language whatsoever

that would limit the terms "property" and "personal effects" to exclude Sandee's cell

phone or other electronic devices and the data stored on them. As a cell phone is

indisputably the property of the person who possesses it and constitutes part of his or her

personal effects, a reasonable person would understand the terms "property" and

"personal effects" to include Sandee's cell phone and the data on it.5

C.     United States v. Lara Is Not Persuasive Authority

       To support her contention that the scope of the probation search condition did not

extend to a search of her cell phone, Sandee relies on a recent opinion from the United

States Court of Appeals for the Ninth Circuit. Specifically, in United States v. Lara (9th

Cir. 2016) 815 F.3d 605 (Lara), the Ninth Circuit concluded that the federal district court

should have granted a motion to suppress evidence obtained from a search of the

defendant's cell phone pursuant to a probation search condition that allowed warrantless

searches of the defendant's " 'person and property, including any residence, premises,

container or vehicle under [his] control.' " (Id. at p. 610.) In conducting its analysis, the

Ninth Circuit did not follow the approach normally employed by the California Supreme

Court in assessing the validity of a search conducted pursuant to a probation search


5      Although Riley observed that "[c]ell phones differ in both a quantitative and a
qualitative sense from other objects that might be kept on an arrestee's person . . ." (Riley,
supra, 573 U.S. ___, 189 L.Ed.2d at p. 435), making it inappropriate to include them in
the search incident to arrest exception to the warrant requirement, nothing in Riley
suggests that cell phones should not be understood as a type of personal property.

                                              9
condition, under which the probationer is understood to have consented to all searches

within the scope of the probation search condition, as interpreted on an objective basis.

(Bravo, supra, 43 Cal.3d at p. 610.) Instead, Lara applied the balancing approach

employed by the United States Supreme Court in U.S. v. Knights (2001) 534 U.S. 112

(Knights), under which the validity under the Fourth Amendment of a search conducted

pursuant to a probation search condition is determined under a balancing approach to

determine whether the search was reasonable under the totality of the circumstances.6



6       In Knights, the Supreme Court expressly acknowledged that the California
Supreme Court uses a different approach for assessing the constitutional validity of a
search conducted pursuant to a probation search condition, under which the court
analyzes whether the probationer consented to the search by accepting the specific
probation search condition at issue. (Knights, supra, 534 U.S. at p. 118, citing People v.
Woods (1999) 21 Cal.4th 668.) As set forth in Woods, "[i]n California, probationers may
validly consent in advance to warrantless searches in exchange for the opportunity to
avoid service of a state prison term. [Citations.] For nearly three decades, this court has
upheld the legality of searches authorized by probation terms that require probationers to
submit to searches of their residences at any time of the day or night by any law
enforcement officer with or without a warrant." (Woods, at pp. 674-675, fn. omitted.)
Relying on Bravo, supra, 43 Cal.3d 600, Woods explained that "[i]n all cases, a search
pursuant to a probation search clause may not exceed the scope of the particular clause
relied upon. [Citation.] Nor may such a search be undertaken in a harassing or
unreasonable manner." (Woods, at p. 682.)
        Knights also expressly stated that it was not deciding the validity of the California
Supreme Court's consent-based approach because it found the search to be valid under
the alternative balancing approach. (Knights, supra, 534 U.S. at p. 118 ["We need not
decide whether Knights' acceptance of the search condition constituted consent in the . . .
sense of a complete waiver of his Fourth Amendment rights, however, because we
conclude that the search of Knights was reasonable under our general Fourth Amendment
approach of 'examining the totality of the circumstances,' [citation], with the probation
search condition being a salient circumstance."].) Accordingly, after Knights, the
California Supreme Court's consent-based approach to assessing the validity of a search
performed under a probation search condition remains the controlling law in California
and has not been abrogated by controlling United States Supreme Court authority.

                                             10
This balancing approach consists of " 'assessing, on the one hand, the degree to which

[the search] intrudes upon an individual's privacy and, on the other, the degree to which it

is needed for the promotion of legitimate governmental interests.' " (Knights, at p. 119.)

       In conducting its balancing analysis, Lara observed that the probation search

condition at issue was not clear as to whether it encompassed cell phones, and therefore

the probationer may still have had a reasonable expectation of privacy in the contents of

his cell phone despite his agreement to warrantless searches of his property. Lara

explained the defendant had "agreed to 'submit [his] person and property, including any

residence, premises, container or vehicle under [his] control to search and seizure,' " but

"[n]one of these terms—in particular, neither 'container' nor 'property'—clearly or

unambiguously encompasses his cell phone and the information contained therein."

(Lara, supra, 815 F.3d at p. 610.) Lara also observed that the types of objects named in

the probation condition (i.e., " 'residence, premises, container or vehicle' ") were

"physical objects that can be possessed," whereas cell phone data was "not property in

this sense." (Id. at p. 611.) In light of the lack of clarity in the probation search condition

and the privacy interests implicated by cell phone data as described in Riley, supra, 573

U.S. ___ [189 L.Ed.2d 430], the Ninth Circuit concluded that the defendant had an

expectation of privacy in the contents of his cell phone. (Lara, at pp. 611-612.)

Balancing this expectation against the government's interest in supervising the defendant

on probation, Lara concluded that the search was not reasonable under the totality of the

circumstances, and therefore the evidence obtained from a search of the defendant's cell

phone should have been suppressed. (Id. at p. 612.)

                                              11
       We are not bound by Ninth Circuit precedent (Forsyth v. Jones (1997) 57

Cal.App.4th 776, 782-783), and we do not find Lara's analysis to be persuasive because it

does not follow the approach approved by the California Supreme Court for assessing the

constitutional validity of a search conducted pursuant to a probation search condition.

Unless the United States Supreme Court provides direct authority disapproving the

California Supreme Court's approach in Bravo, supra, 43 Cal.3d 600, we are bound by

the law set forth in that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450, 455.) Under this state's body of law, as set forth in Bravo, a search pursuant to a

probation search condition is not prohibited by the Fourth Amendment as long as (1) it is

not "undertaken for harassment or . . . for arbitrary or capricious reasons" (Bravo, at

p. 610); and (2) it is within the scope of the search condition, interpreted "on the basis of

an objective test" according to "what a reasonable person would understand from the

language of the condition itself." (Id. at pp. 606-607.) As we have explained, a

reasonable person at the time the search was conducted would understand the terms

"property" and "personal effects" to include Sandee's cell phone and the data that it

contained. Further, Sandee does not contend that the search was arbitrary or capricious

or conducted in order to harass her. Therefore, the search was constitutionally valid

under governing California authority.

D.     The Electronic Communications Privacy Act Does Not Support Sandee's
       Argument

       Sandee also relies on California's recently enacted Electronic Communications

Privacy Act (Pen. Code, § 1546 et seq.) (ECPA) to argue that the probation search


                                             12
condition did not provide consent for law enforcement to search her cell phone. The

ECPA went into effect on January 1, 2016, after the search of Sandee's cell phone in

September 2015. (Stats. 2015, ch. 651, § 1.) Among other things, the ECPA states that a

government entity shall not "[a]ccess electronic device information by means of physical

interaction or electronic communication with the electronic device" unless one of several

statutory exceptions applies, including obtaining the specific consent of the authorized

possessor of the device. (Pen. Code, § 1546.1, subds. (a)(3), (c)(3).) As applicable here,

an additional specific exception was added to the ECPA, effective January 1, 2017, which

states that a government entity may physically access electronic device information

"[e]xcept where prohibited by state or federal law, if the device is seized from an

authorized possessor of the device who is subject to an electronic device search as a clear

and unambiguous condition of probation, mandatory supervision, or pretrial release."

(Id., § 1546.1, subd. (c)(10); Stats. 2016, ch. 541, § 3.5.)

       Sandee contends that the ECPA makes it illegal for the detective to have accessed

the data on her cell phone without her consent and in the absence of a clear and

unambiguous probation search condition referring to the search of electronic devices.

Although the ECPA did not go into effect until after the search at issue in this case,

Sandee contends that ECPA is nevertheless applicable here in interpreting the scope of

Sandee's probation search condition. Specifically, Sandee points out that the ECPA was

in effect at the time of the suppression hearing in April 2016, and she argues that the trial

court accordingly should have applied it in assessing the legality of the search. We

disagree.

                                              13
       As we have explained, the proper inquiry under Bravo, supra, 43 Cal.3d 600, is

whether at the time of the search a reasonable, objective person would have understood

the search of Sandee's cell phone to fall within the scope of the warrantless search

conditions in Sandee's probation orders. (Id. at pp. 606-607.) As the ECPA was not in

effect at the time of the search, a reasonable, objective person at the time of the search

would not have understood the ECPA to restrict the scope of the search permitted by the

probation orders. As the proper inquiry focuses on a reasonable person's understanding

at the time of the search, not at the time of the suppression hearing, it is not relevant that

the ECPA was in effect at the time of the suppression hearing.7 Although it may be

reasonable, after the ECPA became effective, for a law enforcement officer conducting a

search to interpret a general probation search condition authorizing a warrantless search

of the probationer's property as excluding searches of the probationer's electronic device

information, such as cell phone data, we see no basis for a reasonable person to have

reached that conclusion prior to the ECPA.




7       Sandee also supports her argument by relying on In re Estrada (1965) 63 Cal.2d
740, in which our Supreme Court held that when a criminal statute is amended to lessen
punishment for a crime, the newly enacted law is to be applied retroactively to criminal
prosecutions not yet final on appeal. (Id. at p. 745; see also People v. Brown (2012) 54
Cal.4th 314, 325.) The retroactivity principle discussed in Estrada is not applicable here
because the ECPA does not have the effect of lessening the punishment for a crime.
Citing People v. Babylon (1985) 39 Cal.3d 719, 722, and People v. Wright (2006) 40
Cal.4th 81, 91, Sandee also contends that the principal set forth in Estrada applies when a
statute decriminalizes conduct altogether or defenses have been expanded. Assuming
without deciding that Sandee accurately characterizes those authorities, they are not
applicable here as the enactment of the ECPA does not fall into either category.

                                              14
E.     Sandee's Reliance on In re I.V. Is Not Persuasive

       Finally, Sandee contends that the recent opinion in In re I.V. (2017) 11

Cal.App.5th 249 (I.V.) supports her argument that the scope of the search conditions in

her probation orders did not extend to a search of her cell phone data.

       I.V. addressed a challenge to a probation order imposed in a juvenile delinquency

proceeding in June 2016, requiring that the minor submit his " 'property' " and " 'any

property under [his] immediate control' " to search at any time. (I.V., supra, 11

Cal.App.5th at p. 254.) The minor challenged the probation condition on the ground,

among others, that it was unconstitutionally vague "as to whether it encompasses

electronic devices and data." (Id. at p. 261.) I.V. rejected the vagueness challenge,

concluding that "[r]easonably construed, the search condition applies only to tangible

physical property, and not to electronic data." (Id. at p. 262.) In the course of its

discussion, I.V. noted that its conclusion was "consistent with California's recently

enacted [ECPA], which limits government entities' access to 'electronic device

information.' " (Id. at p. 262, fn. 16.)

       In light of the fact that I.V. considered the scope of a search condition imposed

after the ECPA became effective in January 2016, although I.V. used broad language in

describing its holding, we do not find its analysis regarding the scope of the probation

search condition to be applicable in this case, in which the search at issue took place

before the ECPA. As we have noted, while it is reasonable after the ECPA to interpret a

general search condition in a probation order to exclude a search of the probationer's



                                             15
electronic data unless the search condition specifically states otherwise, a reasonable,

objective person would not reach such a conclusion prior to the ECPA.

       In sum, we conclude that at the time the detective searched Sandee's cell phone in

September 2015, a reasonable, objective person would interpret the search condition in

Sandee's probation orders, allowing a search of Sandee's "property" and "personal

effects" to encompass a search of her cell phone to review the text messages contained

therein. Accordingly, the trial court properly denied Sandee's motion to suppress the

evidence discovered as a result of the search of her cell phone.8

                                      DISPOSITION



       The judgment is affirmed.



                                                                                  IRION, J.

WE CONCUR:




HUFFMAN, Acting P. J.




O'ROURKE, J.


8       In light of our conclusion, we need not and do not consider the People's argument
that the search was permissible under the good faith exception to the exclusionary rule.
(Davis, supra, 564 U.S. at p. 232.)

                                             16
