Filed 12/20/13 P. v. Nadone CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C072433

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F02582)

         v.

KHENNARY NADONE,

                   Defendant and Appellant.




         On April 1, 2011, Special Agent Justin Bolden and other agents from the
California Department of Justice executed a search warrant for defendant Khennary
Nadone’s residence in Sacramento and found several rounds of ammunition and
marijuana. Defendant, who had a prior conviction that prohibited him from possessing
ammunition, was charged with unlawful possession of ammunition, cultivation of
marijuana, and possession of marijuana for sale.
         Defendant moved to traverse the search warrant on the ground that material
information was omitted from the affidavit supporting probable cause for issuance of the



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warrant. The omitted information was that the location of defendant’s residence was
obtained by tracking a global positioning satellite (GPS) device (GPS) which the agents
had, without a warrant, placed on his vehicle on March 12, 2011, while the vehicle was in
a hotel parking lot.
       The trial court denied the motion, reasoning as follows: a warrantless placement
of a GPS device on a vehicle is a Fourth Amendment violation under United States v.
Jones (2012) ___ U.S. ___ [181 L.Ed.2d 911, 918] (Jones), filed January 23, 2012.
However, at the time the GPS device was placed on defendant’s vehicle, there was
binding authority in California, namely People v. Zichwic (2001) 94 Cal.App.4th 944
(Zichwic), that a warrant was not required to place a GPS device on the exterior of a
vehicle in a public place. Then, applying the rationale of Davis v. United States (2011)
___ U.S. ___ [180 L.Ed.2d 285] (Davis), which holds that “searches conducted in
objectively reasonable reliance on binding appellate precedent [which is later overruled]
are not subject to the exclusionary rule” (id. at p. ___ [180 L.Ed.2d at p. 290]), the court
concluded that information gained from the GPS device was not subject to suppression
under the exclusionary rule.
       Pursuant to a plea bargain, defendant then pleaded no contest to unlawful
possession of ammunition and the marijuana charges were dismissed. Imposition of
judgment was suspended and defendant was placed on probation. Defendant timely filed
a notice of appeal.
                                 Defendant’s Contentions
       Defendant contends that Davis was inapplicable because Zichwic was not binding
precedent. He also argues that Special Agent Bolden’s omission from the affidavit that
the means by which he had been able to determine defendant’s residence was by tracking
the GPS device was intentional and meant to deceive the magistrate. We reject both
positions.



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                             Relevant Law and Application
       In Jones, the court held that “the Government’s installation of a GPS device on a
target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes
a ‘search’ [within the meaning of the Fourth Amendment].” (Jones, supra, ___ U.S. at
p. ___ [181 L.Ed.2d at p. 918], fn. omitted.) However, proof of a warrantless placement
of a GPS device does not necessarily render evidence obtained from the GPS device
subject to the exclusionary rule. In Davis, the court held that “searches conducted in
objectively reasonable reliance on binding appellate precedent [which was later
overruled] are not subject to the exclusionary rule” (Davis, supra, ___ U.S. at p. ___
[180 L.Ed.2d at p. 290]) because “[e]xcluding evidence in such cases deters no police
misconduct and imposes substantial social costs” (id. at p. ___ [180 L.Ed.2d at p. 302]).
       Zichwic held that the placing of an electronic tracking device on the undercarriage
of a pickup by a law enforcement officer, who was in a place where he had a right to be,
was not a search. (Zichwic, supra, 94 Cal.App.4th at pp. 955-956.)
       Defendant argues the holding of Zichwic was limited to parolees and/or
probationers who have search conditions attached to their releases from custody, and that
the above holding was “non-binding dicta.” Defendant is wrong. In Zichwic, law
enforcement officers suspected the defendant, who was on searchable parole, of being
involved in a string of recent burglaries and attached an electronic monitoring device
(EMD) to the undercarriage of the defendant’s truck, parked in his driveway. When the
defendant drove away, the EMD allowed the officers to follow his truck to a PG&E yard,
where they caught the defendant stealing tools. (Zichwic, supra, 94 Cal.App.4th at
pp. 948-950.) Charged with the thefts, the defendant unsuccessfully moved to suppress
the evidence. (Id. at p. 948.)
       On appeal, the defendant argued that the attachment of the EMD constituted a
search. He challenged the search as being arbitrary and capricious within the meaning of
People v. Reyes (1998) 19 Cal.4th 743, which held that parole searches were lawful

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unless they were arbitrary, capricious, or harassing. (Zichwic, supra, 94 Cal.App.4th at
p. 951.) After concluding that the search was not arbitrary, capricious, or harassing (id. at
pp. 951-953), and thus upholding the parole search condition, the court stated that even if
the defendant had not been subject to a parole search condition, the court would have
found that placement of the EMD was not a search and explained in detail its reasoning.
(Id. at pp. 953-956.)
       Defendant insists that the search issue in Zichwic was resolved once the court
declared the parole search condition valid, and therefore further discussion of the search
issue was “not necessary to the resolution of the case.” Not so; the court’s conclusion
that the placement of the EMD on the vehicle was not a search constituted an alternative
holding. “[W]hen a decision is based on two separate grounds, neither is dictum.”
(Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635,
646, fn. 7; see People v. Rolon (2008) 160 Cal.App.4th 1206, 1214-1215 [“ ‘ “When an
appellate court bases its decision on alternative grounds, none is dictum.” [Citation.]’
[Citation.]”].) The court’s conclusion that installation of an EMD on a vehicle does not
constitute a search is no more dictum than its discussion of the parole search condition.
Indeed, in light of that conclusion, any discussion of parole search conditions was
unnecessary.
       Defendant also argues that Special Agent Bolden’s omission was intentional, and
therefore the trial court erred in not granting his motion to traverse the warrant. We are
unpersuaded. “A defendant who challenges a search warrant based on omissions in the
affidavit bears the burden of showing an intentional or reckless omission of material
information that, when added to the affidavit, renders it insufficient to support a finding
of probable cause. [Citations.].” (People v. Scott (2011) 52 Cal.4th 452, 484.) Had the
omitted fact that Special Agent Bolden obtained defendant’s address by means of a GPS
device that Bolden had placed on defendant’s vehicle been added to the affidavit, nothing
would have been changed because at the time Bolden attached the GPS device, there was

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binding precedent, to wit, Zichwic, that such attachment was not a search. Consequently,
the omitted fact was not material and the trial court properly denied defendant’s motion.
       Finally, defendant argues that the Legislature made placement of the GPS device
an illegal search when it enacted Penal Code section 637.7, declaring that “electronic
tracking of a person’s location without that person’s knowledge violates that person’s
reasonable expectation of privacy.” (Stats. 1998, ch. 449, § 1, p. 3214.) The point, even
if correct, is irrelevant for purposes of suppression under the exclusionary rule.
Section 28, former subdivision (d) of article I of the California Constitution “prohibit[s]
application of the ‘exclusionary rule’ to evidence gathered in violation of the state
Constitution’s search and seizure clause (art. I, § 13) unless exclusion is compelled by
federal constitutional law.” (People v. Mayoff (1986) 42 Cal.3d 1302, 1318, fn. 9.)
       In sum, we conclude the trial court properly denied defendant’s motion to traverse
the warrant.
                                        Disposition
       The judgment is affirmed.



                                                            RAYE               , P. J.



We concur:



         ROBIE              , J.



         MURRAY             , J.




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