Filed 7/17/13 P. v. Hall CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B243839

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA078122)
         v.

KAJUAN HALL et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County. James R.
Dabney, Judge. Affirmed.


         Hancock and Spears and Alan E. Spears, under appointment by the Court of
Appeal, for Defendant and Appellant Kajuan Hall.


         Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant Maurice Newton.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
       Defendants and appellants, Kajuan Hall (Hall) and Maurice Newton (Newton)
appeal from their burglary conviction entered upon a guilty plea. They challenge only
the trial court’s denial of their motion to suppress evidence gained as a result of the
placement of a global positioning system (GPS) tracking device on their automobiles.
We find no error and confirm the judgments.
                                     BACKGROUND
1. Procedural history
       Hall, Newton, and a codefendant William Jones (Jones)1 were charged with first
degree residential burglary in violation of Penal Code section 459.2 The information
alleged that on June 30, 2011, defendants and Jones entered an inhabited dwelling with
the intent to commit a felony. For purposes of section 667, subdivision (a)(1), and the
“Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), the information
alleged that Hall had suffered a prior serious or violent felony conviction and he served a
prison term within the meaning of section 667.5, subdivision (b).
       After the trial court heard and denied defendants’ motion to suppress evidence
pursuant to section 1538.5, subdivision (a)(1)(A), both defendants entered into plea
agreements. Hall pled no contest to the charge and admitted the prior conviction in
exchange for an eight-year prison term, consisting of the middle term of four years,
doubled as a second strike, and the dismissal of the remaining allegations. Newton pled
no contest to the charge in exchange for the low term of two years in prison.
       On September 4, 2012, the trial court sentenced defendants according to the plea
agreements. Hall was given a total of 128 days of custody credit and Newton was given
four days of custody credit. The trial court ordered both defendants to pay victim




1
      Jones is not a party to this appeal. We affirmed his conviction in a nonpublished
opinion. (See People v. Jones (Mar. 27, 2013, B242987).) Here, when we refer to
defendants collectively, we mean only Hall and Newton.
2
       All further statutory references are to the Penal Code unless indicated otherwise.

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restitution of $300 as well as mandatory fines and fees; and to provide biological
samples. Both defendants filed timely notices of appeal.
2. Suppression hearing
       At the hearing on the suppression motion, it was stipulated that no warrant had
been issued at the time that a GPS tracking device was placed on Jones’s car and
Newton’s SUV. Los Angeles Sheriff’s Department (LASD) Detective Joseph Cabral
testified that defendants’ homes and automobiles were placed under surveillance after a
confidential informant provided evidence that defendants and Jones were running a
burglary ring. In addition to following defendants’ cars in LASD vehicles, deputies
occasionally used airplane surveillance. After two days, it became apparent that
following the defendants’ cars was difficult due to their driving patterns. GPS tracking
devices were then placed on the two defendants’ vehicles.
       Newton parked his SUV near an intersection near his home. After another week
of surveillance on June 30, 2011, Detective Cabral checked the GPS monitor to confirm
that Newton’s SUV was parked near his home, and then took up his surveillance position.
Detective Cabral had observed that the SUV had metal California license plates attached.
Shortly after he began following Newton, however, he saw that the rear license plate had
been replaced with a paper one. Detective Cabral followed Newton’s SUV to a carwash
where Jones was picked up, and then to Hall’s residence. Before Jones and Newton left
the carwash, Detective Cabral had notified other detectives on the team who drove to the
carwash in seven unmarked cars. The detectives all followed Newton’s SUV to the I-10
freeway, where the airplane joined the surveillance team. Defendants drove from the I-
10 to the I-405 freeway and ultimately into a residential neighborhood.
       The deputies in the cars and the airplane were in communication with one another
by radio. Detective Cabral lost sight of the SUV once or twice and consulted the
detectives in the airplane as well as the detective in possession of the GPS monitor. The
airplane was not equipped with a GPS monitor, and its occupants never lost actual sight
of Newton’s SUV until after it stopped at a residence on Comstock Avenue. Detective
Cabral testified that although the GPS information was available during the surveillance,
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it was unnecessary as detectives in cars or in the airplane kept the SUV in sight from the
time it left Newton’s home until it reached a residence on Comstock Avenue. The
detectives travelling in cars lost sight of the SUV when it entered the residential
neighborhood and then relied on the airplane for direction. Detective Cabral received
word from the airplane that Newton’s SUV had stopped at the Comstock Avenue
residence and then moved out of sight as Hall walked toward the house. The GPS tracker
showed the SUV parked nearby.
       Detective Alvarado drove to the Comstock Avenue address, parked and watched
the house. He reported seeing two men later identified as Jones and Hall walking toward
the front from the rear yard of the house. Jones was carrying a pillow case filled with
items. As Detective Alvarado was transmitting that information, he saw the SUV pull
into the driveway of the same house, park and after Jones placed the pillow case in the
back, the two men got inside and they all drove away.
       Detective Alvarado then went to check the house. He reported that a rear window
had been smashed and the interior room looked as though it had been ransacked. The
deputies in the airplane maintained surveillance of the SUV until Detective Cabral and
other deputies in a marked patrol car conducted a traffic stop of the SUV and detained the
defendants.
                                       DISCUSSION
I. Standard of review
       “‘In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]’ [Citation.] In evaluating whether the fruits of a search
or seizure should have been suppressed, we consider only the Fourth Amendment’s
prohibition on unreasonable searches and seizures. [Citation.]” (People v. Brendlin
(2008) 45 Cal.4th 262, 268 (Brendlin).)
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II. United States v. Jones and the “trespassory test”
       Both defendants rely on the recent decision of the United States Supreme Court in
United States v. Jones (2012) ___ U.S. ___ [132 S.Ct. 945] (Jones), in which the court
upheld the ruling of the circuit court of appeals that the installation and use of a GPS
device without a valid warrant violated the Fourth Amendment. (Id. at pp. 948, 953.)
The high court held that the Fourth Amendment exclusionary rule applies not only “when
government officers violate a person’s ‘reasonable expectation of privacy,’” but also
when a trespass to the defendant’s personal property (“effects”), is “conjoined with . . . an
attempt to find something or to obtain information.” (Id. at pp. 950-951 & fn. 5.) The
court termed the latter test “the common-law trespassory test”; and explained that it was
separate from and existed prior to the reasonable-expectation-of-privacy test articulated
in Justice Harlan’s concurrence in Katz v. United States (1967) 389 U.S. 347, 360 (Katz
test). (Jones, supra, 132 S.Ct. at pp. 950-952.)
       The court concluded 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.’” (Jones, supra, 132 S.Ct. at p. 949, fn. omitted.) The court did not overrule
United States v. Knotts (1983) 460 U.S. 276 (Knotts), in which the court had upheld the
warrantless use of a “beeper” (another form of electronic monitoring device) to trace the
movements of a vehicle on public roads. (Jones, supra, 132 S.Ct. at pp. 953-954.)
Instead it found Knotts distinguishable because there was neither a trespass nor a
reasonable expectation of privacy in that case and thus no search within the meaning of
the Fourth Amendment. (Jones, supra, 132 S.Ct. at pp. 951-952.) In Knotts, officers did
not touch the defendant’s effects; the beeper was not placed on the car but inside a can
purchased by the defendant from someone who gave his consent to the placement, and
the court reasoned that “[a] person traveling in an automobile on public thoroughfares has
no reasonable expectation of privacy in his movements from one place to another.”
(Knotts, supra, 460 U.S. at pp. 277-279, 281-282; see also United States v. Karo (1984)
468 U.S. 705, 711-715 (Karo).)


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       Thus conduct identical to that of the deputies in this case is now a trespassory
search under Jones. (See Jones, supra, 132 S.Ct. at pp. 950-951 & fn. 5.)3 However, the
GPS device was placed on Newton’s SUV in 2011, prior to the publication of Jones. In
2011, the high court held that “[s]earches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary rule.” (Davis v. United
States (2011) ___ U.S. ___ [131 S.Ct. 2419, 2423-2424] (Davis).) The court explained
that “when the police conduct a search in compliance with binding precedent that is later
overruled . . . suppression would do nothing to deter police misconduct . . . , and
. . . would come at a high cost to both the truth and the public safety . . . .” (Ibid.)
       Jones impliedly overruled such precedent in California. In People v. Zichwic
(2001) 94 Cal.App.4th 944 (Zichwic), the appellate court held that police officers were
not required to obtain a warrant prior to attaching an electronic monitoring device to the
undercarriage of the defendant’s truck while the truck was parked in his open driveway.
The Zichwic court upheld the search for two reasons: the defendant was on parole and
subject to search without a warrant; and the defendant had no expectation of privacy on
public highways or the exterior body of his truck while it was parked in an open
driveway. (Id. at pp. 952-955.) Finding no California authority on point, the Zichwic
court relied in part on the reasoning of Knotts and Karo as well as a Ninth Circuit case,
United States v. McIver (9th Cir.1999) 186 F.3d 1119, 1126-1127 (McIver), which
rejected a contention that placing a tracking device on the defendant’s SUV while it was
parked in an open driveway constituted a search within the meaning of the Fourth
Amendment. (Zichwic, supra, 94 Cal.App.4th at pp. 955-956.)4


3
      At oral argument Hall conceded he lacked “standing” to assert Jones, as there was
no GPS device placed on Hall’s car and no evidence that Hall had any ownership or
possessory interest in Newton’s SUV. Regardless, we need not resolve the issue here as
we conclude that Jones is inapplicable.
4
       Hall contends that the Zichwic court’s second holding was dictum and thus did not
constitute binding precedent. We disagree. As the court based its decision on two
separate grounds, neither was dictum. (King v. Pauly (1911) 159 Cal. 549, 554-555; see
People v. Rudd (1998) 63 Cal.App.4th 620, 633, fn. 3.) Trial courts would have been
                                            6
       Recently the Ninth Circuit applied Davis to affirm the denial of a suppression
motion after finding its own precedent, including McIver, permitted a similar search
before Jones. (United States v. Pineda-Moreno (9th Cir. 2012) 688 F.3d 1087, 1090-
1091.) The court there concluded that even if the placement of tracking devices were
unconstitutional under Jones, suppression would be unwarranted because the law
enforcement officers acted in objectively reasonable reliance on binding precedent when
they attached the devices. (Pineda-Moreno, supra, at pp. 1090-1091.) That reasoning
applies equally here, as the record demonstrates that in 2011, the deputies placed the GPS
device on Newton’s SUV while it was parked near an intersection outside his home and
used it to follow his movements on public streets and highways. The deputies’ conduct
was thus lawful under Zichwic.
       Defendants contend that Davis has no application here because the prosecutor
conceded at the hearing on the motion that the attachment of the GPS device constituted
an unlawful search under Jones. Newton also invokes the rule that a prosecutor may not
change theories on appeal. (See People v. Carr (1974) 43 Cal.App.3d 441, 444-445.)
We note however, that each of the defendants have relied on Jones to challenge the
judgment by raising the issue in their opening briefs and arguing that the use of a GPS
device violated the Fourth Amendment. Indeed, as we have concluded the use of the
GPS device was lawful under existing California authority (Zichwic, supra, 94
Cal.App.4th at pp. 955-956), defendants’ challenge is wholly dependent on the implied
overruling of Zichwic by Jones. Whether that implicit repudiation applies retroactively
presents an issue of law which the prosecutor’s concession cannot preclude us from
reviewing. (See Bradley v. Clark (1901) 133 Cal. 196, 210 [reviewing court’s “duty [is]
to declare the law as it is, and not as either appellant or respondent may assume it to be”];
People v. Sanders (2012) 55 Cal.4th 731, 740.)




bound by the decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450.)

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        It is axiomatic that a question of pure law may not be waived or forfeited. A new
legal theory to justify a search may be raised on appeal when it presents a question of law
based solely on the evidence in the record. (See People v. Brendlin, supra, 45 Cal.4th at
p. 267, fn. 1; Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 942.) Newton
contends however, that if we consider respondent’s arguments here, additional evidence
would be required to demonstrate the deputies’ good faith belief that their conduct was
lawful. We find no merit to Newton’s contention, as we cannot agree that the deputies’
subjective thoughts or evidence of actual reliance on appellate precedent is required to
demonstrate “objectively reasonable reliance on binding appellate precedent.” (Davis,
supra, 131 S.Ct. at pp. 2423-2424.) The Supreme Court’s use of the term “compliance”
interchangeably with “reliance” (id. pp. 2423-2424), suggests that objectively reasonable
compliance with binding pre-Jones precedent will suffice. Further, the court explained
“objectively reasonable reliance” by reference to the reasoning of United States v. Leon
(1984) 468 U.S. 897 (Leon). (Davis, supra, 131 S.Ct. at pp. 2427-2428.) In Leon, the
Supreme Court enunciated an exception to the exclusionary rule when an officer acted in
good faith while relying on an invalid search warrant. (Leon, supra, at pp. 922-924.)
The court explained that the “good-faith inquiry is confined to the objectively
ascertainable question whether a reasonably well trained officer would have known that
the search was illegal . . . .” (Id. at p. 923.) This means that the objective reasonableness
of an officer’s conduct, not his thoughts, determines his good faith belief or reliance.
(People v. Willis (2002) 28 Cal.4th 22, 29, fn. 3; see Illinois v. Krull (1987) 480 U.S. 340,
353.)
        Moreover, the Supreme Court observed in Davis that the exclusionary rule had
never been applied to lawful police conduct, and made clear that the intent of its decision
was to prevent the exclusion of legally obtained evidence. (See Davis, supra, 131 S.Ct.
at pp. 2427, 2429, citing Herring v. United States (2009) 555 U.S. 135, 144.) Requiring
evidence of subjectively reasonable reliance or actual knowledge of the binding
precedent here would result in the exclusion of legally obtained evidence, the very
consequence the court intended to avoid.
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       As the facts in this record are sufficient to show the deputies acted in objectively
reasonable compliance with Zichwic, regardless of whether they knew of its existence, we
conclude that under binding appellate precedent the attachment of the GPS device was
not unlawful at the time of defendants’ arrest. (Zichwic, supra, 94 Cal.App.4th at pp.
955-956.) We also conclude that publication of Jones the following year did not make
any evidence found as a result of the device retroactively subject to the exclusionary rule.
(Davis, supra, 131 S.Ct. at pp. 2423-2424.)
III. The Katz test
       Hall contends that the judgment should be reversed on the ground that any
electronic tracking of a vehicle violates the reasonable expectation of privacy of all the
vehicle’s occupants.5 He refers to the explanation in Jones that the court did not intend to
make trespass the sole test of when the transmission of electronic signals constitutes a
search, or to eliminate the Katz test when electronic signals are monitored without a
physical trespass. (See Jones, supra, 132 S.Ct. at p. 953.)
       Hall acknowledges the Supreme Court did not overrule Knotts, which held that
“[a] person traveling in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another.” (Knotts, supra, 460
U.S. at p. 281.) He contends that the criticism of the majority’s trespass-based rule by
Justice Alito in his concurring opinion in Jones, in which Justices Ginsburg, Breyer, and
Kagan joined, signals a resolve to overrule Knotts. Not at all. Justice Alito cited Knotts
with approval for the proposition that “relatively short-term monitoring of a person’s
movements on public streets accords with expectations of privacy that our society has
recognized as reasonable.” (Jones, supra, 131 S.Ct. at p. 964 (conc. op. of Alito, J.),
citing Knotts, supra, 460 U.S. at pp. 281-282, italics added.) He explained that for law
enforcement to “secretly monitor and catalogue every single movement of an individual’s
car for a very long period” would exceed society’s reasonable expectations of privacy


5
       Newton joins in all of Hall’s arguments that might benefit him.

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sometime before the four weeks that agents tracked Jones’s car in this manner. (Jones,
supra, 131 S.Ct. at p. 964.)
       Thus, nothing in Justice Alito’s concurring opinion suggests that he would find the
nearly negligible one-week use of GPS monitoring in this case exceeded the privacy
expectations of a passenger in Newton’s SUV. When the tracking device was attached to
Newton’s vehicle it was already under live surveillance by many law enforcement
officers. The deputies continued their live surveillance and Detective Cabral made a
quick check of the monitor to see if the vehicle was at Newton’s residence before taking
up his morning position. On the day of defendants’ arrest, the GPS monitor was used
several times on the freeway and once as the SUV moved out of sight after reaching the
residence on Comstock Avenue. It was not necessary, as deputies in cars or the airplane
maintained visual contact from the time the SUV left Newton’s home until it moved
away from the Comstock Avenue residence. By the time it returned, Detective Alvarado
was in position there as a result of a report from the airplane. The GPS monitor was
checked when the airplane lost visual contact, but unnecessarily so, as the SUV had
returned to the Comstock residence to retrieve Hall and Jones.
VI. Attenuation and harmless error
       Respondent contends that these same facts demonstrate attenuation under the
inevitable discovery doctrine or the independent source doctrine as found by the trial
court. (See generally Murray v. United States (1988) 487 U.S. 533, 536-541; Wong Sun
v. United States (1963) 371 U.S. 471, 487-488.) We need not undertake that analysis, as
we have found that the deputies’ conduct resulting in defendants’ arrest was lawful at the
time and did not violate defendants’ reasonable expectations of privacy. Regardless, if
the attachment of the GPS device had been unlawful, a strong argument for attenuation
could be made under “the three Brown factors -- i.e., the temporal proximity of the
unlawful seizure to the subsequent search of the defendant’s person or vehicle, the
presence of intervening circumstances, and the flagrancy of the official misconduct in
effecting the unlawful seizure. [Citations.]” (Brendlin, supra, 45 Cal.4th at p. 269, citing
Brown v. Illinois (1975) 422 U.S. 590, 603-604 (Brown).)
                                            10
       The third factor, the flagrancy of police misconduct is “the most important
because ‘it is directly tied to the purpose of the exclusionary rule -- deterring police
misconduct.’ [Citations.]” (Brendlin, supra, 45 Cal.4th at p. 271; see also Brown, supra,
422 U.S. at p. 604.) The absence of facts supporting this factor would most certainly
justify denial of defendants’ suppression motions. There was no significant use of the
GPS device leading to defendants’ arrest and the discovery of evidence. The only
electronic data used that day was Detective Cabral’s verification that defendant was home
before the deputies started that day’s surveillance. All other information was gained by
actual visual surveillance, either from automobiles or from an airplane, which is still
lawful under Jones. (See Jones, supra, 132 S.Ct. at pp. 953-954.)
       A violation of the Fourth Amendment is subject to the harmless error test of
Chapman v. California (1967) 386 U.S. 18, 24. (See Arizona v. Fulminante (1991) 499
U.S. 279, 306-307.) Thus, reversal is not warranted if any error in denying a suppression
motion was harmless beyond a reasonable doubt. (People v. Moore (2011) 51 Cal.4th
1104, 1128.) We conclude that even if the placement of the GPS device had been
unlawful, defendant’s motion would most certainly have been denied due to the
de minimus nature of any police misconduct. For the same reason, we would find any
error in denying the motion harmless beyond a reasonable doubt.
                                      DISPOSITION
       The judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ____________________________, J.
                                                   CHAVEZ

We concur:



____________________________, P.J.                 ____________________________, J.
BOREN                                              ASHMANN-GERST

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