Filed 5/16/16 P. v. Silas 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C078187

                   Plaintiff and Respondent,                                     (Super. Ct. No. 14F02009)

         v.

RAYMOND LAMONT SILAS,

                   Defendant and Appellant.




         After the trial court denied his motion to suppress, defendant Raymond Lamont
Silas pled no contest to possession of counterfeit marks for sale and possession of
methamphetamine for sale and admitted one prior strike conviction. On appeal, he
contends the trial court erred when the court denied his motion to suppress because he did
not consent to the search of his girlfriend’s car, the search of the car was not a valid
inventory search, and the search of his cell phone on the scene of the traffic stop did not
fall within the good faith exception to the exclusionary rule.



                                                             1
       We conclude the search of the car was a valid inventory search, but agree with
defendant that the on-scene search of the cell phone did not fall within the good faith
exception to the exclusionary rule. Accordingly, we will reverse and remand for further
proceedings.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On March 25, 2014, Sacramento Police Officers Mark Redlich and Matt Hoffman
pulled over a car defendant Raymond Lamont Silas was driving, which belonged to his
girlfriend, after defendant did not use his turn signal when he turned into the parking lot
of an apartment complex. When defendant stopped the car, it was blocking traffic into
and out of the apartment complex. Officer Redlich approached defendant and asked for
his identification. Defendant gave Officer Redlich a California identification card but
told Officer Redlich he did not have a driver’s license because it was suspended. Officer
Redlich asked defendant to step out of the car and then took defendant over to his patrol
car. Based on defendant’s admission that his driver’s license was suspended, Officer
Redlich’s intention was to conduct an inventory of the car and have it towed.
       While defendant was standing next to the door of the patrol car in handcuffs,
Officer Redlich said to him, “Is there anything illegal in the car? Nothing? Okay. We’re
gonna end up going through it okay. You cool with that?” Officer Redlich testified that
defendant responded by giving consent to search the car. Officer Redlich then conducted
a records check and confirmed defendant’s license was suspended for driving under the
influence.
       Officer Redlich testified that it was the department’s “common policy . . . to tow
vehicles when people are driving on [a] suspended license.” The officer explained that
pursuant to this policy, when someone has a suspended license he tows the car unless
there is an “articulable fact” justifying not towing the vehicle, such as “there [are] infants
or small children in a vehicle and it [i]s pouring down rain, or if there is someone with a
severe type of disability that would be stranded on the side of the road.”

                                              2
        Officer Hoffman testified that the officers towed the car because defendant “was
driving on a suspended driver’s license [¶] [and] the vehicle was stopped in the middle of
the parking lot, obstructing traffic from the entrance and people as they parked into their
spaces.” Officer Hoffman stated that another articulable reason for not towing a car
might be if there was “a passenger that had a valid driver’s license . . . and he was
cooperating on something else . . . [he] might let the passenger take custody of the
vehicle . . . .”
        During the stop, while the inventory search of the car was already underway,
defendant’s girlfriend, Anneke Pruitt, approached the officers and demanded that they
give her the car. Officer Hoffman testified that they did not give Pruitt her car because of
her “hostility towards the police and not having anything to do with [the] scene.”
        During the inventory search, Officer Redlich found a “black mesh see-through bag
that contained [about 49] sports brand hats” in the backseat of the car. He also searched
defendant’s trunk and found another see-through mesh bag containing about 20 “sports
jerseys” and “a black garbage bag . . . that contained leather belts.” He also found 10
pairs of pants in the car. He thought all of the clothing items were counterfeit and was
suspicious because of the number of clothing items, because the clothing items were for
various teams of a single sport, and because the stickers on the hats did not have
holograms on them.
        After he found the various apparently counterfeit items in the car, Officer Redlich
conducted a search of defendant’s cell phone while on the scene of the traffic stop, as a
search incident to defendant’s arrest, but he could not remember where he found the
phone. For his part, Officer Hoffman could not recall who found the phone or where it
was found. It is unclear what evidence, if any, Officer Redlich located in this initial
warrantless search of the phone.
        After the inventory search and the search of the cell phone, police officers
obtained a search warrant and searched an apartment shared by defendant and Pruitt,

                                              3
where they found more counterfeit clothing, methamphetamine, a box of plastic baggies,
and a digital scale. During the search of a second address, the police also found
additional counterfeit items. Officers also apparently obtained a search warrant to search
the cell phone found during the traffic stop and found text messages they believed
referred to the sale of narcotics and the sale of clothing.
       Defendant was charged with possession of counterfeit marks for sale, possession
of methamphetamine for sale, driving a car without a valid driver’s license, driving a car
with a driver’s license suspended for driving under the influence of an alcoholic beverage
and a drug, driving a car with a suspended driver’s license, and driving a car not equipped
with a functioning ignition interlock device.
       Defendant moved to suppress the evidence against him, including all counterfeit
items found during the search of the car, as well as “the methamphetamine, baggies,
digital scale, and the counterfeit goods” found at the apartment and “all data obtained
from [his] cell phone and any fruits thereof” on the ground that there was no justification
for the initial warrantless search and seizure. The People responded (among other things)
that the search of the car was a valid inventory search and a valid consent search. In a
supplemental brief, defendant argued (among other things) that the search was not a valid
inventory search because it was not conducted pursuant to standardized criteria or an
established routine and because no community caretaking function was served by
impounding the car.
       The trial court (the Honorable Pamela Smith-Steward) viewed and listened to an
audio-video recording of the traffic stop and then heard the testimony of Officers Redlich
and Hoffman. When the officers had finished testifying, the prosecutor told the court she
had not anticipated that neither of the officers would remember where the cell phone was
found, and she asked the court “for a little more time to see whether or not an inevitable
discovery argument can be made, depending on what the content of the search warrant is
with regard to the cell phone, what information was in that search warrant.” Defense

                                                4
counsel did not object to a continuance and stated that he had a supplemental brief he
wanted to file to “provide a little guidance to the Court in the sense that the search
warrant for the cell phone included, as part of the affidavit for probable cause, the sum of
the information and data that was found, I believe, during Officer Redlich’s initial search
of the cell phone.” The prosecutor stated that she might prepare a supplemental brief as
well “specifically on the cell phone issue,” and the court continued the hearing for two
weeks.
         Three days before the continued hearing, defense counsel filed a supplemental
brief that addressed, in part, the search of defendant’s cell phone incident to his arrest.
Defense counsel first pointed out that in Riley v. California (2014) 573 U.S. ___ [189
L.Ed.2d 430], which was decided three months after the search at issue here the United
States Supreme Court had held that “officers must generally secure a warrant before
con[duct]ing a search of data on a suspect’s cellular phone.” In light of Riley, defense
counsel anticipated the prosecutor would argue that any evidence obtained from the
warrantless search of the cell phone in this case was nonetheless admissible under the
good faith exception to the exclusionary rule based on the California Supreme Court’s
earlier decision in People v. Diaz (2011) 51 Cal.4th 84, in which the court had upheld “a
warrantless search of the text messages folder of a cell phone . . . as being incident to a
lawful custodial arrest.” (Id. at p. 88.) Attempting to deflect this anticipated argument,
defense counsel contended the officers could not have relied in good faith on Diaz to
justify the warrantless search of the phone because “Diaz was in direct contradiction to
recognized federal authority as established in United States v. Wurie ([1st Cir.] 2013) 728
F.3d 1,” in which the federal circuit court had held that the warrantless search of a cell
phone could not be justified as part of a lawful search incident to arrest. Defense counsel
further argued that because at the time of the search at issue here, the United States
Supreme Court had already granted certiorari in both Wurie and Riley, “any reliance on
Diaz . . . cannot be characterized as in good faith.”

                                              5
       Two days later, the prosecution filed its own supplemental brief, arguing (as
defense counsel anticipated) that “the evidence on the defendant’s cellphone should be
properly admitted” because “Officer Redlich was relying on validly binding law in
People v. Diaz, where the California Supreme Court rejected the arguments that the
nature or character of a cell phone, its capacity for storing personal data, or the arrestee’s
expectation of privacy in its contents required courts to treat the arrestee’s cell phone
found on him differently from other types of personal effects or containers that may be
validly searched incident to arrest.”
       At the outset of the continued hearing, both parties stipulated “that the cell phone
that was searched in this case was found inside the car during the inventory search . . . of
the car,” “rather than on the person of anyone.” Both parties declined to call any
additional witnesses, and the matter proceeded to argument. Defense counsel argued
defendant’s consent to the search of the car was not voluntary and the inventory search
was not valid because the officers had no valid reason to impound the vehicle. With
regard to the warrantless search of the cell phone, defense counsel referred to a case
decided about a week earlier -- People v. Macabeo (2014) 229 Cal.App.4th 486, review
granted November 25, 2014, S221852 -- in which the appellate court had applied the
good faith exception to the exclusionary rule to the warrantless search of a cell phone
conducted after Diaz but before Riley. Counsel argued Macabeo was distinguishable
because the search in that case predated both Wurie and Riley and the United States
Supreme Court’s grant of certiorari in Riley.
       The prosecutor responded that the search of the car was justified by defendant’s
consent and as a valid inventory search. On the issue of the cell phone, the prosecutor
contended that just because certiorari had been granted in Riley did not preclude the
officers from relying on existing precedent, “[s]o at the moment when the officers search
the cell phone, the good law of the land was . . . essentially, that the officer could search



                                                6
cell phones incident to arrest. And the officer was acting in good faith in accordance
with that.”
       The trial court found that defendant’s consent to search the car was not voluntary
because “[h]e was in handcuffs, and [because] while one interpretation was that [O]fficer
[Redlich’s request for consent to search the car] was phrased as a question, it really also
could have been taken as a declaratory statement . . . .” The court also concluded,
however, that the search of the car was a valid inventory search because the officers cited
“statutory authority and [testified] that their policy is to tow in circumstances such as
this.” The court found the officers’ policy “to be pretty clear [because] [t]hey tow unless
there are extenuating circumstances.” With regard to Officer Redlich’s warrantless
search of the cell phone, the court found that the good faith exception to the exclusionary
rule applied.
       After the court denied his motion to suppress, defendant pled no contest to
possession of counterfeit marks for sale and possession of methamphetamine for sale and
admitted to a strike prior in exchange for dismissal of the remaining charges. Pursuant to
the terms of the plea agreement, the trial court sentenced defendant to an aggregate term
of five years and four months in prison.
       Defendant timely appealed.
                                       DISCUSSION
                                              I
                  The Search Of The Car Was A Valid Inventory Search
       Defendant contends the search of the car was not a valid inventory search because
“the prosecution [did not meet its] burden of establishing that the impound [of the car]
was necessary as part of the officers’ community caretaking function, and that the
officers were acting in conformance with departmental policy [to impound].” We
disagree.



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       “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 so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
       “As part of their ‘ “community caretaking functions,” ’ police officers may
constitutionally impound vehicles that ‘jeopardize . . . public safety and the efficient
movement of vehicular traffic.’ [Citation.] Whether ‘impoundment is warranted under
this community caretaking doctrine depends on the location of the vehicle and the police
officers’ duty to prevent it from creating a hazard to other drivers or being a target for
vandalism or theft.’ [Citation.] If officers are warranted in impounding a vehicle, a
warrantless inventory search of the vehicle pursuant to a standardized procedure is
constitutionally reasonable. [Citation.] When an inventory search is conducted based on
a decision to impound a vehicle, we ‘focus on the purpose of the impound rather than the
purpose of the inventory,’ since an inventory search conducted pursuant to an
unreasonable impound is itself unreasonable. [Citation.] Although a police officer is not
required to adopt the least intrusive course of action in deciding whether to impound and
search a car [citation], the action taken must nonetheless be reasonable in light of the
justification for the impound and inventory exception to the search warrant requirement.
Reasonableness is ‘the touchstone of the Fourth Amendment.’ ” (People v. Williams
(2006) 145 Cal.App.4th 756, 761-762.)
       Defendant first contends that here “the officers were not impounding the car as
part of any community caretaking function” because “it could easily have been moved to
a location where it was not blocking anyone.” This contention dovetails with defendant’s
assertion that the prosecution had to prove that impound of the car was “necessary.” In
fact, the prosecution had no such burden. As the Williams court recognized, “a police
officer is not required to adopt the least intrusive course of action in deciding whether to

                                              8
impound . . . a car.” (People v. Williams, supra, 145 Cal.App.4th at p. 761.) Instead, to
satisfy constitutional principles, the decision to impound the car need only have been
“reasonable in light of the justification for the impound.” (Ibid.)
       Here, the decision to impound the car was reasonable. Defendant stopped the car
at the entrance to the apartment complex, where it was blocking traffic in and out of the
complex. Indeed, even defendant acknowledges the car was blocking traffic when he
argues that the car “could easily have been moved to a location where it was not blocking
anyone.” (Italics added.) This was not a case like Williams, where “[t]he car was legally
parked at the curb in front of [the defendant]’s home.” (People v. Williams, supra, 145
Cal.App.4th at p. 762.) Instead, this was a case where, at the very least, the car was
“ ‘jeopardiz[ing] . . . the efficient movement of vehicular traffic.’ ” (Id. at p. 761.) As
Williams recognizes, officers may constitutionally impound such a vehicle. (Ibid.)
       Defendant’s assertion that Pruitt was “on the scene and available to take custody
of her car” makes no difference because the evidence was that the officers had already
decided to impound the car and the inventory search of the car was already underway
before she appeared. The belated arrival of defendant’s girlfriend after the inventory
search had begun cannot affect the constitutionality of the decision the officers had
already made to impound the car.
       Additionally, defendant’s assertion that “the officers were not concerned about the
car’s location” -- and thus, by implication, could not have been truly exercising their
community caretaking functions in having the car impounded -- is not supported by the
evidence. In support of this assertion, defendant cites a portion of the transcript of the
audio-video recording of the traffic stop, in which one of the officers asks the other, “You
want me to reposition the car?” and the other officer responds, “No. I don’t give a shit.”
The transcript clearly shows, however, that by the time of that question and answer, the
officers had already decided to impound the car and had communicated as much to
defendant, and the tow truck had already been called. Taken together with the officers’

                                              9
testimony that the car was blocking traffic, on this record we must conclude that the
officers were concerned about the location of the car, and defendant’s assertion to the
contrary is of no moment. To the extent that the officer no longer cared about the car’s
current position at the moment he responded to the question, this is likely because the car
was about to be towed away and any “repositioning” was thus unnecessary.
         Defendant next contends the prosecution “failed to establish that the officers were
acting pursuant to an established departmental policy” when they decided to impound the
car. Not so. Both Officer Redlich and Officer Hoffman testified that it was common
departmental policy and practice to tow a car when a person is driving with a suspended
driver’s license, unless “articulable” reasons justify not towing a car in a particular case.
As the trial court found, “their policy seems pretty clear. They tow unless there are
extenuating circumstances not to tow.” To the extent defendant’s argument suggests the
officers had to be acting pursuant to a written policy, that is not the law. (See People v.
Williams (1999) 20 Cal.4th 119, 127 [holding that a written policy is not necessary with
respect to the search of closed containers in an inventory search].)
         The evidence here supports the conclusion that the officers’ decision to impound
the car was constitutionally reasonable and made pursuant to established policy.
Accordingly, the inventory search conducted in connection with that decision was valid.1
                                              II
    The Good Faith Exception To The Exclusionary Rule Does Not Apply To The Search Of
              Defendant’s Cell Phone During The Inventory Search Of The Car
         In the trial court, the People acknowledged that under Riley, which was decided
three months after the search at issue here, “police generally may not, without a warrant,
search digital information on a cell phone seized from an arrested individual.”



1     Because the search of the car was permissible as an inventory search, we need not
address defendant’s argument that his consent to the search was involuntary.

                                              10
Nevertheless, they argued that the evidence found on defendant’s cell phone should not
be suppressed because “Officer Redlich, in good faith, was relying on current, valid
precedent” -- specifically, Diaz -- when he searched the cell phone without a warrant at
the scene of the traffic stop. Thus, the People sought to invoke the good faith exception
to the exclusionary rule. (See Davis v. United States (2011) 564 U.S. 229, 232 [180
L.Ed.2d 285, 290] [“searches conducted in objectively reasonable reliance on binding
appellate precedent are not subject to the exclusionary rule”].) The trial court agreed
with the People.
       On appeal, defendant argues (among other things) that the trial court erred in its
ruling because “Diaz did not constitute binding appellate precedent authorizing the search
of a cell phone that was found somewhere within a car, but not on the arrestee’s person.”
According to defendant, Diaz authorized only the search of a cell phone that was on the
defendant’s person at the time of his arrest. Thus, in defendant’s view, Officer Redlich
could not have relied in good faith on Diaz when he conducted a warrantless search of the
cell phone found in the car, rather than on defendant himself.
       The People contend that defendant forfeited this argument because he did not
make it in the trial court. According to the People, defendant “never challenged the
applicability of . . . Diaz . . . to the search of . . . his cell phone on the ground that the cell
phone was not on [his] person . . . .” In the People’s view, because defendant did not
argue in the trial court that Diaz applied only to searches of cell phones found on the
person of an arrestee, defendant is precluded from making that argument now.
       We disagree. The general rule applicable here is that “when defendants move to
suppress evidence, they must set forth the factual and legal bases for the motion, but they
satisfy that obligation, at least in the first instance, by making a prima facie showing that
the police acted without a warrant. The prosecution then has the burden of proving some
justification for the warrantless search or seizure, after which, defendants can respond by
pointing out any inadequacies in that justification. [Citation.] Defendants who do not

                                                11
give the prosecution sufficient notice of these inadequacies cannot raise the issue on
appeal.” (People v. Williams (1999) 20 Cal.4th 119, 136.) But “[t]he determinative
inquiry in all cases is whether the party opposing the motion had a fair notice of the
moving party’s argument and fair opportunity to present responsive evidence.” (Id. at
p. 135.)
       Here, it is true that defendant never specifically argued in the trial court that
Officer Redlich could not have relied in good faith on Diaz to justify his warrantless
search of the cell phone because Diaz authorized only the search of a cell phone found on
the defendant’s person at the time of his arrest. Nevertheless, we reject the People’s
suggestion that defendant’s failure to argue this reading of Diaz in the trial court denied
the People a fair opportunity to present evidence that might have provided some other
justification for the search or ground for denying application of the exclusionary rule.
The record here shows that whether the warrantless search of the cell phone was justified
-- and the related question of whether the fruits of that search should be excepted from
the exclusionary rule -- was directly raised and specifically briefed by both sides. Indeed,
it was the prosecutor herself who first highlighted the issue when she requested a
continuance to address the search of the cell phone after the officers could not recall
where it was found. During the period of continuances, the prosecutor had every reason
to identify every possible justification for the warrantless search of the phone and every
possible basis for denying application for the exclusionary rule. What she came up with
was an argument that the search was justified under Diaz, but nothing prevented her from
coming up with other justifications as well, if there were any.
       On appeal, the People contend they “were never given the opportunity to establish
if the search satisfied the exception in Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d
485] that a car and its contents may be searched if there is reason to believe that evidence
of the offense [of] arrest could be found.” Not so. There were only two places the cell
phone could have been found -- on defendant’s person or in the car. At the end of the

                                              12
initial hearing, both locations were still a possibility. Thus, the prosecutor had every
incentive to establish that the warrantless search of the cell phone was justified under
Gant, as well as being authorized under Diaz, but she made no attempt to do so. That
failure cannot be blamed on defendant because he later failed to offer a particular
challenge to the prosecutor’s reliance on Diaz.
       In summary, we conclude defendant did not forfeit the argument he now raises on
appeal -- which is that Officer Redlich could not have relied in good faith on Diaz to
justify the warrantless search of the cell phone because Diaz governs only cell phones
found on the person of an arrestee at the time of his or her arrest. And addressing that
argument, we find it has merit.
       The People acknowledge that in Diaz “the California Supreme Court held that the
search-incident-to-arrest exception to the warrant requirement allowed a police officer to
review data on an arrestee’s cell phone found on the person at the time of the arrest.”
(Italics added.) Here, the People stipulated that the cell phone was not found on
defendant’s person, but instead was found in the car.
       Defendant is correct that Diaz “did not constitute binding appellate precedent
authorizing the search of a cell phone that was found somewhere within a car, but not on
the arrestee’s person.” Indeed, quoting from United States v. Chadwick (1977) 433 U.S.
1 [53 L.Ed.2d 538], the court in Diaz explained that “ ‘warrantless searches of luggage or
other property seized at the time of an arrest cannot be justified as incident to that arrest
either if the “search is remote in time or place from the arrest,” [citation], or no exigency
exists. Once law enforcement officers have reduced luggage or other personal property
not immediately associated with the person of the arrestee to their exclusive control, and
there is no longer any danger that the arrestee might gain access to the property to seize a
weapon or destroy evidence, a search of that property is no longer an incident of the
arrest.’ ” (People v. Diaz, supra, 51 Cal.4th at p. 92, quoting Chadwick, at p. 15 [53
L.Ed.2d at pp. 550-551].)

                                              13
       Here, the officers searched defendant’s cell phone without a warrant during the
course of the inventory search of his car, at a time when defendant was handcuffed and
seated in a patrol vehicle. Under Chadwick, that search could not be justified as a search
incident to arrest. Thus, there was no basis here to apply the good faith exception to the
exclusionary rule, and the trial court erred in concluding otherwise.
                                              III
                                    Remand Is Necessary
       Because the warrantless search of the cell phone was unlawful, both the direct and
indirect products of that search are subject to exclusion. (See People v. Werner (2012)
207 Cal.App.4th 1195, 1213.) It is impossible for us to determine, however, just what
items of evidence constitute the direct and indirect products of that search. No testimony
was elicited from the officers regarding what they saw on the cell phone during the
warrantless search, although the transcript of the audio-video recording of the traffic stop
shows one of the officers saying, with respect to the cell phone, that “every photo he has,
it’s all jerseys, all hats, it’s everything he has back there.” Thus, it appears the officers
saw photographs of what appeared to be counterfeit items like those found in the car.
       Even assuming that is what they saw (and all they saw) on the cell phone, the
record does not definitively disclose whether the existence of those photographs was used
in the affidavits used to obtain the search warrants for: (1) the apartment shared by
defendant and Pruitt, where police found more counterfeit clothing, methamphetamine, a
box of plastic baggies, and a digital scale; (2) the second address, where police found
additional counterfeit items; and/or (3) the cell phone, where the police found text
messages they believed referred to the sale of narcotics and the sale of clothing. In
agreeing to a continuance of the suppression hearing after the officers could not recall
where they found the cell phone, defense counsel did represent to the trial court that “the
search warrant for the cell phone included, as part of the affidavit for probable cause, the
sum of the information and the data that was found, I believe, during Officer Redlich’s

                                              14
initial search of the cell phone.” Absent the affidavit itself, however, we cannot verify
the accuracy of this statement, nor can we determine whether and to what extent evidence
obtained from the warrantless search of the cell phone was used to obtain any of the other
warrants that were issued in this case. To the extent the existence of the photographs on
the cell phone observed during the warrantless search was used in any of the affidavits
used to obtain any of the warrants, the evidence obtained from the execution of those
warrants would be subject to exclusion if “after excising the illegally obtained
information from the affidavit, . . . there was no probable cause for the warrant’s
issuance.” (People v. Werner, supra, 207 Cal.App.4th at p. 1213.) On the record before
us, however, we cannot determine whether any of the evidence discovered pursuant to the
execution of the warrants should have been excluded on this basis, because the affidavits
used to obtain the search warrants are not before us. Even if they were, however, the trial
court should have the opportunity in the first instance to determine what evidence, if any,
is subject to suppression because of the unlawful warrantless search of the cell phone.
       The People suggest defendant forfeited any right to seek suppression of evidence
obtained from the execution of the warrants based on the illegality of the underlying
warrantless search of the cell phone because he “did not move to traverse or
quash the warrants.” We disagree. “[T]o prevail on a motion to traverse an affidavit [in
support of an application for a search warrant], the defendant must demonstrate (1) that
the affidavit included a false statement made knowingly and intentionally, or with
reckless disregard for the truth, and (2) that the allegedly false statement was necessary to
the finding of probable cause.” (People v. Luera (2001) 86 Cal.App.4th 513, 524-525.)
Here, defendant did not contend that any of the officers who applied for any of the search
warrants made any false statement; thus, a motion to traverse would not have been
proper. Nor have the People shown that defendant was required to proceed by means of a
motion to quash the warrants. On the contrary, authority supports the proposition that a
defendant can move to suppress evidence that was obtained in a search conducted

                                             15
pursuant to a warrant on the ground that the evidence was tainted by a prior warrantless
search. (See People v. Werner, supra, 207 Cal.App.4th at p. 1213; People v. Machupa
(1994) 7 Cal.4th 614.) That is what defendant did here. As in Werner, however, because
the record before us does not allow us to determine exactly what evidence should be
suppressed because of the illegal warrantless search, the appropriate remedy is to remand
the case to the trial court to conduct further proceedings as necessary. Accordingly, we
will remand the case to the trial court to determine what evidence, if any, is subject to
suppression because of the unlawful warrantless search of the cell phone if defendant
chooses to withdraw his no contest plea.
                                      DISPOSITION
       The judgment is reversed. On remand, the trial court shall permit defendant to
withdraw his no contest plea. In the event defendant elects to withdraw his plea, the
dismissed charges shall be reinstated, and the trial court shall vacate its order denying the
motion to suppress, shall grant the motion to suppress any evidence that it determines is
the direct or indirect product of the warrantless search of defendant’s cell phone, and
shall conduct such further proceedings as may be required. In the event defendant elects
not to withdraw his plea, the judgment shall be reinstated.


                                                  /s/
                                                  Robie, Acting P. J.

We concur:



/s/
Mauro, J.



/s/
Duarte, J.

                                             16
