Filed 6/23/15 P. v. Raoult CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B256148
                                                                          (Super. Ct. No. 2012004512)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JEREMY EVAN RAOULT,

     Defendant and Appellant.


                   After a police officer arrested Jeremy Evan Raoult for possessing
methamphetamine, he searched the passenger compartment of Raoult's car and found
incriminating videos in a camera's digital storage. Subsequently, the United States
Supreme Court decided that officers may not search a cell phone's digital storage incident
to lawful arrest. (Riley v. California (2014) __ U.S.__ [134 S.Ct. 2473, 2495] (Riley).)
We conclude that Riley does not extend to the digital camera on this record, and, even if
it did, the officer acted in good faith reliance on existing authority.
                   Raoult appeals from an order denying his motion to suppress and the
judgment that followed his conviction by jury of three counts of committing lewd acts
upon a child (Pen. Code, § 288, subd. (c)(1))1; one count of possessing a controlled
substance (Health & Saf. Code, § 11377); and one count of failing to appear on bond
(§ 1320.5). We affirm.

1
    All statutory references are to the Penal Code unless stated otherwise.
                    FACTUAL AND PROCEDURAL BACKGROUND
               In 2012, Raoult was on probation following a conviction for possessing
narcotics. As a term of his probation, Raoult consented to warrantless searches of his
person and property "for controlled substances including marijuana and related
paraphernalia . . . ."2
               Ventura City Police Officer Arthur Gonzales stopped Raoult's car because
the rear license plate was not illuminated. When Gonzales checked Raoult's records, he
learned that Raoult was wanted and subject to the controlled substance probation search
term.
               Gonzales arrested Raoult. The parties agree that the detention and arrest
were lawful.
               Raoult complied with Gonzales's instructions to get out of the car. After
Gonzales handcuffed Raoult, Raoult told Gonzales that he "had dope on him." Gonzales
found baggies that held about 10 grams of methamphetamine in Raoult's pocket.
               Gonzales searched Raoult's car and found a backpack with a camera inside.
He searched through the camera's digital storage and found three videos of Raoult's 15-
year-old female passenger performing sexual acts. Gonzales also searched Raoult's cell
phone, but found nothing incriminating.
               In July 2013, Raoult moved to suppress evidence found in his "Nikon
Coolpix Camera" and in his cell phone. (§ 1538.5.) The trial court heard the motion to
suppress in December 2013, about six months before the United States Supreme Court
decided Riley, supra, __ U.S.__ [134 S.Ct. 2473].
               Gonzales testified that, in his experience, it is common for drug users and
dealers to have photographs of drugs and drug paraphernalia. He knew Raoult was




2
  The trial court took judicial notice of Raoult's probation terms and read them into the
record. The terms are not included in the clerk's transcript.
                                              2
subject only to a specific search term "[f]or controlled substances." He was not aware of
any general search term or stolen property search term.3
              The trial court denied the motion to suppress. It relied on then-current
California precedent that held that searches of cell phones incident to lawful arrest do not
violate the Fourth Amendment. (People v. Diaz (2011) 51 Cal.4th 84, 93; People v.
Nottoli (2011) 199 Cal.App.4th 531, 557-558.)
                                       DISCUSSION
              The Fourth Amendment protects against unreasonable searches and
seizures. Generally, a nonconsensual search is only reasonable if it is made pursuant to a
warrant. (Riley, supra, __ U.S.__ [134 S.Ct. 2473, 2482].) But warrantless searches may
be reasonable under established exceptions. (Ibid.) One such exception is a search
incident to lawful arrest. (Ibid.) It allows officers to search (1) an arrestee's person and
the area within his or her immediate control to protect officer safety and preserve
evidence (id. at p. 2483; Chimel v. California (1969) 395 U.S. 752, 762-763); and (2) the
passenger compartment of an arrestee's vehicle when it is reasonable to believe evidence
relevant to the crime of arrest might be found there, for the sole purpose of gathering
evidence (Riley, at p. __ [at pp. 2484, 2492]; Arizona v. Gant (2009) 556 U.S. 332, 350).
Gonzales reasonably believed that evidence of drug possession might be found in the
camera's digital storage because drug users and dealers commonly photograph their drugs
and paraphernalia.
              When Gonzales arrested Raoult, California law held that the scope of a
search incident to lawful arrest extends to the contents of the arrestee's cell phone,
whether the phone is on their person or in their vehicle. (People v. Diaz, supra, 51
Cal.4th 84, 93 [the warrantless search of a cell phone within arrestee's immediate control
does not violate the Fourth Amendment when incident to lawful arrest]; People v. Nottoli,


       3
         The prosecutor asserted that Raoult was also subject to a general search term as a
condition of a supervised release program, but conceded that was "irrelevant for the
purposes of this motion since the officer didn't know that." The trial court agreed it was
irrelevant.
                                              3
supra, 199 Cal.App.4th 531, 558 [the warrantless search of a cell phone in the passenger
compartment of the arrestee's vehicle does not violate the Fourth Amendment when
incident to lawful arrest].)
              The California's Legislature responded to Diaz and Nottoli by passing a bill
that would require a warrant for a search of any portable electronic device, incident to
arrest. (Sen. Bill No. 914 (2011-2012 Reg. Sess.) § 2.) Governor Brown vetoed the bill,
explaining that it would "overturn a California Supreme Court decision," and "[t]he
courts are better suited to resolve the complex and case-specific issues relating to
constitutional search-and-seizure protections." (Governor Edmund G. Brown, Jr., letter
to Cal. Sen., Oct. 9, 2011.)
              After the hearing on Raoult's motion to suppress, the United States
Supreme Court resolved the issue. It decided that "the search incident to arrest exception
does not apply to cell phones." (Riley, supra, at p. __ [134 S.Ct. 2473, 2494].) Justice
Roberts wrote for the unanimous court: "Our answer to the question of what police must
do before searching a cell phone seized incident to an arrest is accordingly simple—get a
warrant." (Id. at p. __ [p. 2495].) The court refused to extend the Gant exception to cell
phones, which would have "allow[ed] a warrantless search of an arrestee's cell phone
whenever it is reasonable to believe that the phone contains evidence of the crime of
arrest." (Riley, at p. __ [p. 2492].) It decided that proposal "would prove no practical
limit at all when it comes to cell phone searches." (Ibid.) The court reasoned, "It would
be a particularly inexperienced or unimaginative law enforcement officer who could not
come up with several reasons to suppose evidence of just about any crime could be found
on a cell phone." (Ibid.)
              Riley was concerned that "a cell phone search would typically expose to the
government far more than the most exhaustive search of a house." (Riley, supra, __
U.S.__ [134 S.Ct. 2473, 2491.) An argument can be made that the digital storage of a
camera and the digital storage of a cell phone are similar for purposes of the Fourth
Amendment, but the argument is not supported by this record. Some digital cameras may
have the capabilities of a smartphone, but there is no evidence that Raoult's camera did.

                                             4
There is no evidence of its capabilities at all, except that it stored video footage. Nothing
in the record establishes that the camera held "a cache of sensitive personal information"
of the scope that supported the Riley court's protection of a cell phone. (Riley, supra, __
U.S.__ [134 S.Ct. 2473, 2490; id. at pp. 2489-2490, 2493].) The Riley court observed
that "[t]he sum of an individual's private life can be reconstructed through a thousand
photographs labeled with dates, locations, and descriptions" (id. at p. __ [p. 2489]), but
there is no evidence that Raoult's photographs and videos were thus labeled. Riley does
not extend to protect Raoult's camera on this record.
              Because the search was justified incident to lawful arrest, we do not reach
the question whether Raoult consented to a warrantless search of his person and property
for "controlled substances including marijuana and related paraphernalia" as a term of his
probation.
              Even if the search was unlawful under Riley, the evidence would not be
subject to exclusion. "[T]he sole purpose of the exclusionary rule is to deter misconduct
by law enforcement." (Davis v. United States (2011) __ U.S. __ [131 S.Ct. 2419, 2432].)
Exclusion is not a personal right designed to redress injury; rather, it is a sanction to deter
future violations. (Id. at p. __ [pp. 2433-2434].) Thus, the exclusionary rule does not
apply when police conduct a search in objectively reasonable reliance on binding
appellate precedent that is later overturned. (Id. at p. __ [pp. 2423-2424].) Officer
Gonzales searched the cell phone and camera in objectively reasonable reliance on Diaz
and Nottoli. The trial court reasonably relied on the same authority.
              Raoult argues that Gonzales could not reasonably rely on Diaz and Nottoli
because they were uncertain and non-binding. He points out that the Diaz court was
divided, Diaz and Nottoli were not long-standing, neither case involved a digital camera,
both relied on authority that preceded modern technology, and Diaz anticipated that the
United States Supreme Court would "reevaluate" its precedent in light of "modern
technology." (People v. Diaz, supra, 51 Cal.4th 84, 101.)
              But Gonzales was bound by Diaz and Nottoli, the holdings of which were
sufficiently clear to trigger legislative response. As the Legislative Counsel's Digest of

                                               5
Senate Bill No. 914 (2011 Reg. Sess.) explained, "Existing case law authorizes arresting
officers, without a warrant, to conduct a search incident to a lawful arrest, including to
search the contents of a cellular telephone taken from a suspect during an arrest." If it
authorized officers to search the digital contents of a phone, it authorized them to search
the digital contents of a camera, which are far less sensitive. And Gonzales could not be
expected to question the veracity of Diaz and Nottoli. The United States Supreme Court
expresses a "general preference to provide clear guidance to law enforcement through
categorical rules." (Riley, supra, __ U.S. __ [134 S.Ct. 2473, 2491].) "[I]f police are to
have workable rules, the balancing of the competing interests . . . 'must in large part be
done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police
officers.'" (Michigan v. Summers (1981) 452 U.S. 692, 705, fn. 19.) Gonzales
reasonably relied on categorical binding precedent. The evidence he found is not subject
to exclusion.
                                      DISPOSITION
                The judgment is affirmed.
                NOT TO BE PUBLISHED.




                                            GILBERT, P.J.

We concur:



                YEGAN, J.



                PERREN, J.




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                               Kevin G. DeNoce, Judge

                           Superior Court County of Ventura

                         ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy,
William Quest, Senior Deputy Public Defender, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy
Attorney General, for Plaintiff and Respondent.




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