Filed 9/30/16 P. v. Renz CA1/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                           FIRST APPELLATE DISTRICT

                                                        DIVISION ONE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                             A145311
v.
ERIC MICHAEL RENZ,                                                           (San Mateo County
                                                                             Super. Ct. No. SC080705)
          Defendant and Appellant.

                                                        INTRODUCTION
          Defendant Eric Michael Renz appeals from a judgment of conviction following a
bench trial of one count of felony possession of child pornography (Pen. Code,
§ 311.1, subd. (a)).1 He raises a single issue on appeal—that the trial court erred in
denying his motion to suppress evidence recovered from his cell phone, which was
searched subsequent to his arrest and without a warrant, and evidence recovered from his
laptop, which was searched pursuant to a warrant based on the evidence recovered from
the cell phone. We conclude the police acted in good-faith reliance on then binding
California Supreme Court authority and, thus, the exclusionary rule does not apply here.
We therefore affirm the judgment.
                                       FACTUAL AND PROCEDURAL BACKGROUND
          In October 2013, defendant was arrested in his Millbrae home. San Mateo Police
Officers Stephen Bennett and Shannon Hagan seized defendant’s cell phone at the time


          1
              All further statutory references are to the Penal Code.


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of his arrest and examined it later the same day according to “standard procedure.” His
cell phone contained sexually explicit material, including videos of defendant
masturbating and performing sex acts with an adult female, and videos and photographs
of children playing at an after-school program where defendant worked.
        Subsequently, Officer Bennett obtained a search warrant for defendant’s
residence, which was executed in November. Officer Hagan forensically examined a
laptop found in his bedroom. The laptop contained several images of underage girls
performing various sexual acts.
        In December, the San Mateo County District Attorney filed a felony complaint
charging defendant with two counts of lewd or lascivious conduct against a child under
the age of 14 years (§ 288, subd. (a); counts 1–2) and one count of possession of child
pornography (§ 311.1, subd. (a); count 3). Following a preliminary hearing, defendant
was held to answer on count 3.
        In April 2014, the district attorney filed an information identical to the
December 4 complaint. The trial court later granted a section 995 motion and dismissed
counts 1 and 2.
        In the meantime, defendant moved to suppress “all tangible and intangible
evidence seized by law enforcement on October 25, 2013,” including “the contents of
Mr. Renz’s cellular phone as well as the fruits of the search that occurred on
November 12, 2013.” (See § 1538.5.) The trial court denied his motion in September
2014.
        The following month, the prosecution filed a new complaint charging defendant
with two counts of lewd and lascivious conduct against a child under the age of 14, and
defendant was held to answer on these charges.
        The trial court subsequently consolidated the two cases.
        After waiving his right to a jury trial, a four-day bench trial was held beginning on
March 5. Defendant moved for a judgment of acquittal (§ 1118), and on March 9 the trial
court granted the motion as to counts 1 and 2 and found defendant guilty as to count 3.



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         Defendant then moved to reduce his felony conviction to a misdemeanor under
section 17, subdivision (b)(3), and the trial court granted the motion on May 15. That
same day, the trial court suspended imposition of sentence, placed defendant on three
years’ probation, and imposed various terms and conditions.
                                             DISCUSSION
         “ ‘The Fourth Amendment provides “[t]he right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures, shall not
be violated . . . .” (U.S. Const., 4th Amend.) . . . A similar guarantee against
unreasonable government searches is set forth in the state Constitution (Cal. Const., art. I,
§ 13) but, since voter approval of Proposition 8 in June 1982, state and federal claims
relating to exclusion of evidence on grounds of unreasonable search and seizure are
measured by the same standard. [Citations.] “Our state Constitution thus forbids the
courts to order the exclusion of evidence at trial as a remedy for an unreasonable search
and seizure unless that remedy is required by the federal Constitution as interpreted by
the United States Supreme Court.” ’ ” (People v. Stillwell (2011) 197 Cal.App.4th 996,
1004.)
         “ ‘[T]he mandate of the [Fourth] Amendment requires adherence to judicial
processes,’ [citation], and that searches conducted outside the judicial process [i.e.,
warrantless searches], without prior approval by judge or magistrate are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347,
357, fns. omitted.) One of those exceptions is that certain searches incident to a lawful
arrest do not require a warrant. (United States v. Robinson (1973) 414 U.S. 218, 224.)
         In January 2011, our Supreme Court decided People v. Diaz (2011) 51 Cal.4th 84
(Diaz). In that case, law enforcement personnel searched the defendant’s cell phone after
lawfully arresting and transporting him to a detention center. The court held, “under the
United States Supreme Court’s binding precedent, such a search is valid as being incident
to a lawful custodial arrest.” (Id. at p. 88.)



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       However, in 2014, about eight months after defendant’s arrest and search of his
cell phone in this case, the United States Supreme Court decided Riley v. California
(2014) __ U.S. __ [134 S.Ct. 2473, 2482–2484] (Riley). In Riley, the court addressed
“how the search incident to arrest doctrine applies to modern cell phones.” (Id. at
p. 2484.) It held “officers must generally secure a warrant before conducting such a
search.” (Id. at p. 2485.) Since defendant’s conviction was not yet final when the United
States Supreme Court announced its decision in Riley, that decision applies retroactively
to his case. (Davis v. United States (2011) 564 U.S. 229, 243 (Davis).)
       The People do not argue Riley is inapplicable. Rather, they contend reversal is not
required because the good-faith exception to the exclusionary rule renders the fruits of
the search admissible. (United States v. Leon (1984) 468 U.S. 897; Davis, supra, 564
U.S. at pp. 231–232.) Specifically, they contend the cell phone search passed muster
under Diaz and the officers reasonably relied on that California Supreme Court decision.2
(Davis, at p. 238 [“When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’
disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and
tends to outweigh the resulting costs. [Citation.] But when the police act with an
objectively ‘reasonable good-faith belief’ that their conduct is lawful, [citation], . . . the
‘ “deterrence rationale loses much of its force,” ’ and exclusion cannot ‘pay its way.’ ”].)
       The trial court found “the cell phone[,] based on the testimony of
Officer Bennett[,] was seized incident to arrest and within an hour’s time was searched.
This was consistent with the holding in Diaz at the time and the officer’s conduct in
searching the cell phone was in good faith and the Court therefore respectfully denies
[defendant’s] motion to suppress the cell phone.” Nothing in the record suggests Officer
Bennett acted in “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth
Amendment rights.” (Davis, supra, 564 U.S. at p. 238.) Indeed, in the years he was with


       2
         Whether the good-faith exception to the exclusionary rule applies to pre-Riley
warrantless searches of data on an arrestee’s cell phone is currently before the California
Supreme Court. (People v. Macabeo (2014) 229 Cal.App.4th 486, review granted Nov.
25, 2014, S221852.)


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the San Mateo Police Department up until defendant’s arrest in late October 2013,
Officer Bennett received search and seizure updates “possibly weekly or at least every
other week.” Officer Bennett could not recall whether there had been any discussion or
training in his department as to the United States Supreme Court’s potential review of
cell phone searches. The trial court stated “[t]here’s no evidence to suggest that the
agency should have known or did know about the pending case.” The trial court found
“. . . Officer Bennett’s testimony was credible.” And the court further noted that “. . .
Officer Bennett acted in good faith based on the existing law at the time, which was
People v. Diaz.” At the time of arrest, Officer Bennett’s understanding of the state law as
it related to searching a cell phone without a warrant was “[t]hat incident to arrest [a] cell
phone that was on the person [of the arrestee] was searchable.”
       “[W]hen binding appellate precedent specifically authorizes a particular police
practice, [as it did here], well-trained officers will and should use that tool to fulfill their
crime-detection and public-safety responsibilities. An officer who conducts a search in
reliance on binding appellate precedent does no more than ‘ “ac[t] as a reasonable officer
would and should act” ’ under the circumstances. [Citation.] The deterrent effect of
exclusion in such a case can only be to discourage the officer from ‘ “do[ing] his
duty.” ’ ” (Davis, supra, 564 U.S. at p. 241.) The police here acted in “strict compliance
with binding precedent, . . . . [and u]nless the exclusionary rule is to become a strict-
liability regime, it can have no application in this case.” (Id. at p. 240.)
       The trial court further found “that the subsequent search warrant was issued based
on the contents of the cell phone, and the court declines to suppress the search warrant as
well in this case.” Since we agree the trial court properly denied defendant’s motion to
suppress as to the cell phone, we likewise conclude it properly denied the essentially
derivative motion to suppress as to the laptop.
                                             DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Margulies, J.




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