Filed 2/4/15 P. v. Hood CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065076

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN303291)

DANIEL ROGER HOOD,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed.

         Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Martin E. Doyle, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Daniel Roger Hood of five counts of oral copulation on a child

10 years of age or younger (Pen. Code, § 288.7, subd. (b));1 one count of sexual

intercourse with a child under 10 years of age (§ 288.7, subd. (a)); and five counts of

lewd acts on a child under the age of 14 years (§ 288, subd. (a)). The trial court

sentenced Hood to a total term of 116 years to life.

       On appeal, Hood contends that the warrantless examination of his cell phone

violated the Fourth Amendment. We reject this contention and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Daniel Roger Hood visited his friend Charles Bryant at Bryant's home on January

20, 2012. During the course of the evening, Hood set his cell phone down on a table,

where Bryant's 13-year-old son, Z.B., picked it up and looked through it. Z.B. discovered

videos on Hood's cell phone showing Hood engaging in sexual acts with a young girl.

Z.B. hid the cell phone from Hood, who frantically searched for it after he realized that it

was missing. Z.B. gave the cell phone to Bryant, who viewed some of the videos and

photographs that were on the cell phone. Bryant recognized some of the children on the

videos, including E.S., the youngest daughter of Hood's former girlfriend, and children

from the Indian reservation where Bryant and Hood used to live.

       After being rebuffed by the Corona Police Department (Riverside County), Bryant

contacted the FBI on January 26. FBI Special Agents Heather Koch and Klaus Franze

(the FBI agents) interviewed Bryant the following day. After Bryant described the


1      Unless otherwise indicated, further statutory references are to the Penal Code.
                                             2
circumstances of how he had obtained the cell phone, Koch said, "Show me what disturbs

you." Bryant proceeded to show the FBI agents one or more of the videos that were on

the cell phone.

       The FBI agents determined that a video on the cell phone clearly depicted child

pornography. The video showed the perpetrator's face, identifiable as Hood. Koch asked

Bryant to give the cell phone to her, which he did. Koch then obtained a federal search

warrant from a U.S. Magistrate Judge and submitted the cell phone for a forensic

examination. Koch also served an administrative subpoena on the cellular telephone

company to confirm that Hood was the owner of the cell phone.

       Hood's cell phone contained 57 videos and more than 3000 photos, including

many photos of Hood, his car, and his friends. Thirteen of the videos clearly depicted

Hood engaging in sex acts with E.S. The cell phone also contained child erotica,

including recordings of children's buttocks as they walked down the street. Other videos

showed E.S. dancing in the shower while Hood told her to "shake your booty" and "shake

it for the internet crowd." In several videos, E.S. could be heard referring to the adult

male as "Daniel."

       After identifying E.S. and the location of the acts, Koch referred the case to the

Oceanside Police Department. She coordinated a forensic examination and interview of

nine-year-old E.S., who disclosed that Hood had orally copulated her, sodomized her,

placed his penis inside her vagina, fondled her breast area, ejaculated into her vagina and

anus, made her watch adult pornography, directed her to lick his nipples and masturbate

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him with her hand, and drugged her, beginning when she was four years old and

continuing until she was nine years old. The videos on Hood's cell phone were made

when E.S. was eight years old. A doctor who conducted a physical examination of E.S.

determined that her hymen and vaginal wall showed abnormalities indicative of child

sexual abuse.

       The trial court denied Hood's motion to exclude the cell phone videos and

photographs on grounds of authenticity and lack of foundation.

       A four-day jury trial was held in May and June 2014. The jury heard testimony

from Charles Bryant, Heather Koch, E.S., E.S.'s mother and older sister, Oceanside

police officers, and Catherine McLennan, who had conducted a forensic interview of E.S.

The jury reviewed videos of Hood engaging in sexual activities with E.S. Hood testified

in his own defense, stating that he had not had access to E.S. during the time that the

videos were allegedly made and that the cell phone was not his. He also claimed that the

videos had been switched to his cell phone by a third party without his knowledge. The

jury returned guilty verdicts on all charges.

       In April 2014, Hood's appellate counsel filed an opening brief raising no specific

issues on appeal and asking this court to conduct an independent review of the record.

(People v. Wende (1979) 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 783.)

Hood filed several supplemental briefs on his own behalf with this court, raising, among




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other issues, a claim that the search and seizure of his cell phone violated his Fourth

Amendment rights.2

       During the pendency of this court's independent review of the record, the U.S.

Supreme Court decided Riley v. California (2014) 134 S.Ct. 2473 (Riley). Riley holds

that a warrantless search of a cell phone incident to arrest violates the Fourth

Amendment, and that police must generally secure a warrant before searching digital

information on an individual's cell phone, unless a case-specific exception to the warrant

requirement applies. (Riley, supra, at p. 2485.)

       After reviewing the record on appeal, this court directed appellate counsel to file

supplemental letter briefs addressing the following questions:

          (1) What impact, if any, does Riley have on this case?

          (2) Assuming that a warrant was required prior to any examination
          of the contents of Hood's cell phone by law enforcement authorities,
          does any exception to the warrant requirement apply under the
          circumstances of this case?

          (3) Assuming that a warrant was required prior to any examination
          of the contents of Hood's cell phone by law enforcement authorities,
          does the doctrine of inevitable discovery apply to render harmless
          any error in failing to obtain a warrant prior to the initial
          examination?




2      Hood did not claim at trial that the admission of cell phone evidence violated his
Fourth Amendment rights. However, constitutional issues may be raised for the first time
on appeal where the asserted error fundamentally affects the validity of the judgment or
important issues of public policy are at stake. (Hale v. Morgan (1978) 22 Cal.3d 388,
394; People v. Brown (1996) 42 Cal.App.4th 461, 470-471 [appellate court has discretion
to decide a pure question of law based on undisputed facts].)
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                                       DISCUSSION

                                              I

                                  The Parties' Arguments

       Hood contends that FBI Agents Koch and Franze's warrantless examination of his

cell phone during their interview with Bryant violated the Fourth Amendment. He argues

that the search was not permitted because it was not a search incident to arrest, and there

were no exigent circumstances. Hood further argues that although the government

eventually obtained a warrant, the initial warrantless search and seizure of his cell phone

violated his Fourth Amendment rights and required suppression of all evidence

eventually seized from that device.

       The People assert that the exclusionary rule does not apply to searches conducted

by private citizens and that Riley is therefore inapplicable. The People further contend

that even if the FBI agents exceeded the scope of the private searches conducted by

Bryant or his son, the extended government search was legal because Riley does not

apply retroactively and the good faith exception to the warrant requirement applies.

Finally, the People argue that the doctrine of inevitable discovery applies because Bryant

would have persisted in his efforts to bring the contents of the cell phone to the attention

of law enforcement authorities.

       Hood acknowledges that the Fourth Amendment does not generally apply to

searches conducted by private citizens, but contends that the record does not

unequivocally establish that the FBI agents confined their search of Hood's cell phone

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during their interview with Bryant to the material that Bryant had previously viewed.

Hood further contends that the doctrine of inevitable discovery does not apply because

there is no evidence suggesting that authorities could have obtained a search warrant on

independent evidence before they examined the cell phone. Specifically, Hood points to

the facts that the victim had not come forward, and Bryant's statements could not be

corroborated. Finally, Hood contends that the People's argument that Bryant would have

persevered until a police investigation was initiated constitutes mere speculation.

                                              II

                                   The Fourth Amendment

       The Fourth Amendment to the U.S. Constitution directs that "[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, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized." The Supreme Court recently stated

that the expectation of privacy in the information contained on an individual's cell phone

is as great as, or greater than, the privacy interest in the "papers and effects" that might be

found in an individual's home. (Riley, supra, 134 S.Ct. at pp. 2489-2491.)

       "[S]earches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only




                                              7
to a few specifically established and well-delineated exceptions."3 (Katz v. United States

(1967) 389 U.S. 347, 357; Arizona v. Gant (2009) 556 U.S. 332, 338; Riley, supra, 134

S. Ct. at p. 2482; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) Unless a case-

specific exception to the warrant requirement applies, " '[w]here a search is undertaken

by law enforcement officials to discover evidence of criminal wrongdoing, . . .

reasonableness generally requires the obtaining of a judicial warrant.' [Citation.]" (Riley,

supra, 134 S. Ct. at p. 2482.)

       However, the Fourth Amendment proscribes only governmental action. (People v.

Wilkinson (2008) 163 Cal.App.4th 1554, 1564 (Wilkinson).) It " 'is wholly inapplicable

"to a search or seizure, even an unreasonable one, effected by a private individual not

acting as an agent of the Government or with the participation or knowledge of any

governmental official." ' " (U.S. v. Jacobsen (1980) 466 U.S. 109, 130, quoting Walter v.

United States (1984) 447 U.S. 649, 662.) When the government conducts a search

subsequent to a search by a private citizen, the Fourth Amendment is not implicated

unless the government's search exceeds the scope of the search by the private citizen, or

the private citizen can be said to be acting as a government agent. (Wilkinson, supra, at

pp. 1572-1573.)


3      Generally, "[a]mong the exceptions to the warrant requirement is a search incident
to a lawful arrest. [Citation.] The exception derives from interests in officer safety and
evidence preservation that are typically implicated in arrest situations. [Citations.]"
(Arizona v. Gant, supra, 556 U.S. at p. 338.) Warrantless searches may also be
permissible in exigent circumstances "to prevent the imminent destruction of evidence in
individual cases, to pursue a fleeing suspect, and to assist persons who are seriously
injured or are threatened with imminent injury." (Riley, supra, 134 S.Ct. at p. 2494.)
                                              8
                                             III

    The FBI's Search of Hood's Cell Phone Did Not Violate His Fourth Amendment Rights

         We agree with the People's argument that Agent Koch's examination of Hood's

cell phone did not violate the Fourth Amendment. "The Fourth Amendment's prohibition

against unreasonable searches and seizures does not apply to searches by private citizens,

even if the private citizens act unlawfully . . . ." (Wilkinson, supra, 163 Cal.App.4th at p.

1564.) Here, Bryant, a private citizen, viewed videos and photographs on Hood's cell

phone and then sought assistance from law enforcement authorities to investigate

evidence that Bryant believed depicted sexual offenses committed on children. The

subsequent warrantless search of Hood's cell phone by FBI Agent Koch would violate the

Fourth Amendment only if her search exceeded the scope of Bryant's search or that of his

son.4 (Wilkinson, supra, 163 Cal.App.4th at pp. 1572-1573.)

         In Wilkinson, two private citizens found signs that the defendant was

surreptitiously recording their intimate activities on his computer. They retrieved 36

compact discs from his room and brought them to the police station. (Wilkinson, supra,

163 Cal.App.4th at pp. 1560-1561.) They showed two of the images to a detective and

left all of the discs with him. However, there was no evidence in the record as to "exactly

what" discs the detective viewed or whether those discs were ones that one of the citizens

had viewed in his or her private search. As a result, the reviewing court concluded that it

was impossible to determine whether the detective had exceeded the scope of the private


4        Hood does not contend that Bryant or his son was acting as a government agent.
                                             9
search. Because there was no evidence in the record as to exactly what the government

actor viewed or whether the government's search was limited to the same material that

the private citizen had viewed, the reviewing court remanded the matter to the trial court

to determine what evidence, if any, was subject to suppression as a result of an illegal

search. (Id., at pp. 1573-1575)

       Here, in contrast, the evidence in the record clearly shows that after listening to

Bryant's description of how he obtained the cell phone, Agent Koch said to him, "Show

me what disturbs you." Bryant testified that he then showed the FBI agents five or six

videos and photographs of Hood that Bryant thought were inappropriate. Agent Koch

testified that she could not recall how many videos she had viewed, but she believed that

she had looked at one or two videos during her interview with Bryant. Once Koch

determined that the videos depicted child pornography, she took the phone, with Bryant's

permission. She then obtained a federal search warrant before submitting the phone to

forensic examiners.

       Bryant's son Z.B. "went through" Hood's phone looking at photos. At Z.B.'s

urging, Bryant viewed some of the videos and photographs on Hood's cell phone before

deciding to contact authorities. In stating to Bryant, "Show me what disturbs you," Koch

impliedly asked him to show her only the content on the cell phone that he had already

viewed. Thus, the record clearly supports the inference that the FBI agents viewed only

material that the private citizen had previously viewed and did not exceed the scope of

the search by the private citizen. (Wilkinson, supra, 163 Cal.App.4th at pp. 1572-1573.)

                                             10
       We conclude that the FBI agent's search of Hood's cell phone did not violate

Hood's Fourth Amendment rights. Bryant and Z.B. viewed the contents of Hood's cell

phone prior to the search by the government agents, and the scope of the agents' initial,

warrantless search was more limited than those private searches. Because we conclude

that the government's initial search was legal, the FBI's subsequent search of Hood's cell

phone pursuant to warrant was not tainted by any prior illegal search. (See, generally,

Segura v. U.S. (1984) 468 U.S. 796, 804.) Therefore the government's subsequent

examination of that device is not at issue. Because the government action in this case

does not implicate the Fourth Amendment, we need not consider the parties' arguments

whether the Supreme Court's proscription against routine searches of arrestees' cell

phones is to be applied retroactively, or whether the doctrine of inevitable discovery

applies under the circumstances of this case.

                                      DISPOSITION

       The judgment is affirmed.



                                                                                AARON, J.

WE CONCUR:



            HALLER, Acting P. J.



                   O'ROURKE, J.

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