Filed 3/18/15 P. v. Huntsberry CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066332

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE332867)

CRAIG HUNTSBERRY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Laura W.

Halgren, Judge. Affirmed.

         Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
       This appeal arises from guilty pleas following the denial of a motion to suppress

evidence pursuant to Penal Code1 section 1538.5. In this case we must determine if the

officer's failure to more thoroughly investigate the status of a motorist's vehicle

registration violated the Fourth Amendment. We must also consider whether the

exclusionary rule of the Fourth Amendment should be applied to the warrantless search

of a cell phone where the search was conducted after our Supreme Court's decision in

People v. Diaz (2011) 51 Cal.4th 84 (Diaz), but before the contrary decision by the

United States Supreme Court in Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473]

(Riley).

       We conclude the vehicle stop was reasonable under the totality of the

circumstances of this case. We will follow the guidance in Davis v. United States (2011)

___ U.S. ___ [131 S.Ct. 2419] (Davis) and decline to apply the exclusionary rule to the

fruits of the unlawful search of the cell phone.2 We will therefore affirm the judgment of

the trial court.

       Following the denial of his motion to suppress evidence, Craig Huntsberry pleaded

guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)),

possession of methamphetamine (Health & Saf. Code, § 11378), and driving under the

influence of drugs (Veh. Code, § 23152, subd. (a)).



1      All further statutory references are to the Penal Code unless otherwise specified.

2      We are aware this issue is pending before our Supreme Court in People v.
Macabeo, review granted November 25, 2014, S221852. Pending a decision by our high
court we must make our best effort to properly resolve this case
                                              2
          Huntsberry was sentenced to a term of six years, three of which to be served in

custody and the balance to be served under mandatory supervision.

          Huntsberry appeals contending the trial court erred in denying his motion to

suppress evidence found after the stop of his car. We will reject his contentions and

affirm.

                                   STATEMENT OF FACTS

          The facts set forth here are from the transcript of the motion to suppress evidence.

          In the evening of August 16, 2013, San Diego Sheriff's Deputy Laudente Gallegos

was conducting a traffic stop of a vehicle not involved in this case. When Huntsberry

drove past, the deputy noticed the muffler seemed very loud. Gallegos was familiar with

the type of car driven by Huntsberry and based on the sound believed the muffler had

been modified in violation of the Vehicle Code.

          Gallegos followed Huntsberry's car for about a mile. While doing so he ran a

record check on the car's registration by means of the patrol car's computer terminal. As

the response appeared on his computer screen, it indicated that the registration for the

vehicle had expired. Before Gallegos could scroll through the rest of the Department of

Motor Vehicle (DMV) report Huntsberry's car turned into a gas station. Gallegos then

followed the car into the gas station.

          When Gallegos approached the driver he observed symptoms of intoxication. In

his discussion with the driver Gallegos learned the driver had a temporary registration

permit as evidenced by a sticker placed on the top right hand corner of the rear window.

Gallegos had not seen the sticker prior to the stop.

                                                3
       Huntsberry was arrested for driving under the influence. An inventory search of

the car revealed two small bags of methamphetamine and narcotics paraphernalia.3

                                       DISCUSSION

                                              I

                                      THE CAR STOP

       Huntsberry contends the deputy did not have reasonable suspicion to justify the

stop of his car. He argues the deputy's investigation of the registration prior to the stop

was insufficient and that the deputy was legally mistaken regarding whether the loud

muffler violated the Vehicle Code. We will deal with the contentions in order.

                                    A. Legal Principles

       When we review a trial court's decision on a motion to suppress evidence we

follow a two-step process. We examine the trial court's factual determinations under the

substantial evidence standard of review. We review the court's legal conclusions under

the de novo or independent review standard. (People v. Leyba (1981) 29 Cal.3d 591,

596-597; People v. Hernandez (2008) 45 Cal.4th 295, 298-299.) Once we establish the

historical facts we must determine whether the police conduct violated the Fourth

Amendment.

       The Fourth Amendment protects against unreasonable searches and seizures. (U.S

Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.) "A detention is reasonable under



3      Huntsberry does not challenge the probable cause for his arrest nor does he
challenge the legitimacy of the discovery of evidence, other than on the basis of an illegal
car stop and an illegal search of the cell phone without a warrant.
                                              4
the Fourth Amendment when the detaining officer can point to specific articulable facts

that, considered in light of the totality of the circumstances, provide some objective

manifestation that the person to be detained may be involved in criminal activity."

(People v. Souza (1994) 9 Cal.4th 224, 231.)

       Traffic stops are treated as investigatory detentions for which the officer must be

able to articulate specific facts justifying the suspicion that a crime is being committed.

(People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)

       Whether a police officer's conduct is reasonable under the Fourth Amendment is

examined objectively, the officer's subjective motivation is constitutionally irrelevant.

(Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 404.)

       Where an officer makes a traffic stop to investigate a potential Vehicle Code

violation, the question presented is not whether the suspect is in fact guilty of a violation,

but rather whether there were sufficient facts presented to the officer to justify a stop for

purposes of investigation. (People v. Greenwood (2010) 189 Cal.App.4th 742, 750

(Greenwood).)

                       B. Investigation of the Vehicle's Registration

       While Deputy Gallegos followed the car he attempted to run a DMV check on its

registration. The first portion of the response reported the registration had expired. That

was consistent with the expired tags on the license plate. The deputy's testimony, which

was believed by the trial court, was that he did not get the opportunity to further scroll

down the computer screen to the bottom of the report. Nor did he anticipate the bottom

of the report would indicate a temporary registration had been issued. Huntsberry pulled

                                              5
into the gas station and the deputy believed he should do his investigation then. Gallegos

testified he did not see the temporary tag at the top of the rear window. Given that the

stop was at night, the officer was driving, using the computer and watching the suspect

car, the trial court could reasonably find Gallegos's testimony to be true.

          In In re Raymond C. (2008) 45 Cal.4th 303, 305, the defendant was stopped by an

officer who observed no license plates and no temporary tag. However, there was a

temporary tag on the right front window, which the officer did not see. The court found

the officer's stop to be reasonable. It found the officer did not need to exhaust all avenues

of investigation of the registration in order to stop and investigate.

          In Greenwood, supra, 189 Cal.App.4th 742, the court addressed a stop to

investigate registration where there was a tag displayed, but officers believed the type of

tag displayed was for a limited use that would not be applicable to the circumstances in

that case. There the court found the officers had an objectively reasonable basis to

conduct further investigation to clarify the validity of the car registration. (Id. at pp. 748-

750.)

          Huntsberry relies on People v. Brendlin (2006) 38 Cal.4th 1107, 1114, for the

proposition that a stop to check registration, where a temporary permit is displayed is

objectively unreasonable. Brendlin does not stand for that proposition. In that case

police not only saw the permit, but also confirmed with DMV that valid registration was

in progress. In Brendlin, the prosecution conceded the stop was unreasonable, but

addressed the question of whether Brendlin, the passenger, had standing to complain.

(Ibid.)

                                               6
        Based on the totality of the circumstances, we are satisfied that the deputy acted

reasonably in stopping the car to investigate the status of the car's registration. The

testimony, which was credited by the trial judge, shows the officer attempted to clarify

the registration. He received information on the patrol car's computer that indicated the

registration had expired. Before he could scroll down the computer screen further, the

circumstances changed as the car pulled into the gas station. The officer had been

looking at the license plate with expired tags, driving at night, and searching the

computer all at the same time. It does not strain credulity that he reasonably did not see

the tag in the upper right hand corner of the window.

        As the court in Greenwood, supra, 189 Cal.App.4th at page 750 observed, the

question is not whether Huntsberry was in fact in violation of the registration

requirements, but whether on the facts presented to the deputy at the time he acted there

were sufficient facts to warrant investigation. We believe there were such facts in this

case.

                                   C. The Loud Muffler

        Vehicle Code section 27151 (Modification of Exhaust Systems) prohibits

modification of exhaust systems in a manner "which will amplify or increase the noise

emitted . . . so that the vehicle is not in compliance" with Vehicle Code section 27150,

which requires that mufflers be "properly maintained to prevent any excessive or unusual

noise." Sound levels below 95 decibels comply with Vehicle Code section 27151.

        Huntsberry contends the deputy acted unreasonably because he did not measure

the decibel output of the car, thus could not have believed it violated the code. The issue

                                              7
is whether "the facts and circumstances known to the officer support at least a reasonable

suspicion that the driver violated the Vehicle Code or some other law." (People v.

Miranda (1993) 17 Cal.App.4th 917, 926; People v. Niebauer (1989) 214 Cal.App.3d

1278, 1292.)

       Gallegos testified he was personally familiar with the type and model of the car

Huntsberry was driving. He was familiar with the sound of the stock muffler for that

vehicle and, based on the noise, suspected the exhaust had been modified in an unlawful

fashion.

       As the court pointed out in People v. Niebauer, supra, 214 Cal.App.3d at page

1292, we expect officers to rely on their training and experience. They are not required

to carry scientific equipment or demonstrate scientific expertise in order to investigate

ordinary traffic violations. In this case it was the loud sound of Huntsberry's car, as it

passed the deputy that attracted his attention. A sound loud enough, based on his

experience, to suspect an unlawful modification of the car's exhaust system.

       Recently in Heien v. North Carolina (2014) ___ U.S. ___ [135 S.Ct. 530], the

United States Supreme Court addressed whether an officer automatically acts

unreasonably when the officer is mistaken as to the applicable law. There the officer

stopped a car for a defective tail light. The intermediate appellate court in North Carolina

found the officer's interpretation to be incorrect. On review the high court concluded the

test of the Fourth Amendment is reasonableness. The court, quoting Brinegar v. United

States (1949) 338 U.S. 160, 176, said " 'the mistakes must be those of reasonable men.' "

(Heien, supra, at p. 532.) The court went on to say " '[w]hen a probable cause

                                              8
determination was based on reasonable but mistaken assumptions, the person subjected to

a search or seizure has not necessarily been the victim of a constitutional violation.' " (Id.

at p. 539, quoting Herring v. United States (2009) 555 U.S. 135, 139 (Herring).)

       Whether or not Gallegos knew the decibel output of the exhaust when he stopped

the car is irrelevant. Even if he was in error it appears from this record that he acted

reasonably based upon his own observations, law enforcement experience and personal

familiarity with the kind of car at issue. There was no Fourth Amendment violation in

the decision to stop Huntsberry to investigate a loud muffler.

                                              II

                               THE EXCLUSIONARY RULE

       The People concede that the search of Huntsberry's cell phone was unlawful under

Riley, supra, 134 S.Ct. 2473. It is argued, however, we should not apply the exclusionary

rule to the search because the deputy relied in good faith on the California Supreme Court

case of Diaz, supra, 51 Cal.4th 84, 101, which held such searches could be done incident

to lawful arrest. The People contend we should follow the analysis of the Supreme Court

in Davis, supra, 131 S.Ct. 2419, 2427-2428, and find the exclusionary rule should not

apply in this case because the deputy reasonably relied on a decision of the California

Supreme Court in conducting the search and thus he acted reasonably in reliance on

existing law. Thus the deterrent effect of excluding evidence in such case would not

justify the cost of the exclusion of probative evidence.




                                              9
       As we have noted we are aware our Supreme Court has granted review to consider

these arguments, however, this case is before us now and we decline to put off

consideration of the issue pending the Supreme Court's decision.

       Since the exclusionary rule of the Fourth Amendment was first applied to the

states in Mapp v. Ohio (1961) 367 U.S. 643, the Supreme Court has made a number of

modifications to the rule. The court created the good faith exception to the rule in United

States v. Leon (1984) 468 U.S. 897, 909-910. In Leon the court held that the purpose of

the rule was to deter unlawful police behavior and that the rule is not an individual

remedy for the person who has been the subject of an unreasonable search or seizure.

(Ibid.) Later, in Herring, supra, 555 U.S. 135, the court said that "exclusion 'has always

been our last resort, not our first impulse.' " (Id. at p. 140.) The court went on to say

" '[t]he rule's costly toll upon truth-seeking and law enforcement objectives presents a

high obstacle for those urging [its] application.' " (Id. at p. 141.)

       In Davis, supra, 131 S.Ct. 2419, the court addressed the search of a car incident to

arrest. The search was done after the decision in New York v. Belton (1981) 453 U.S.

454, and was done in compliance with Belton. However, while Davis was pending

appeal, the court issued its opinion in Arizona v. Gant (2009) 556 U.S. 332, significantly

narrowing the rule in Belton. Thus the search in Davis was in compliance with Belton,

but unlawful under Gant. The court in Davis was required to decide whether the

exclusionary rule should be applied to police behavior done in compliance with existing

case law, but made unlawful by a subsequent decision. The court in Davis held

application of the exclusionary rule was inappropriate. The officer acted in compliance

                                              10
with existing law. Therefore there was no deterrent value to exclusion of evidence which

was properly seized at the time the officer acted. (Davis, supra, at pp. 2427-2428.)

       In Herring the court said that the exclusionary rule should not apply unless it

could be said that " 'a reasonably well trained officer would have known the search was

illegal.' " (Herring, supra, 555 U.S. at p. 145.)

       Huntsberry contends we should not apply the rule in Davis, supra, 131 S.Ct. 2419,

in this case. He argues that the California Supreme Court decision in Diaz, supra, 51

Cal.4th 84, was an "outlier" and not consistent with a proper application of Fourth

Amendment analysis. He notes there were dissenting opinions in Diaz and thus we

should not treat the Diaz opinion as sufficiently reliable to justify the officer's actions

which were consistent with the opinion.

       First, we do not think it is the role of law enforcement officers to determine if the

decisions of the highest court of the state are "outliers." We think it is entirely reasonable

for law enforcement to train their officers to follow the directions of our high court, until

told otherwise.

       Further, Huntsberry's position ignores the lessons of the United States Supreme

Court in defining the proper scope of the rule of exclusion. Exclusion is not a right of the

individual and is not a personal remedy of an aggrieved person. As the court has refined

the rule and limited its purpose to deterring unlawful police behavior, it should not be

applied to police actions done in reasonable, good faith reliance on established decisions

of our highest courts. Accordingly, we will affirm the decision of the trial court to deny

suppression of the materials obtained in the search of the cell phone in this case.

                                              11
                                DISPOSITION

    The judgment is affirmed.




                                              HUFFMAN, J.

WE CONCUR:


          BENKE, Acting P. J.


               O'ROURKE, J.




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