Filed 9/4/15 P. v. Smith CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050496

         v.                                                            (Super. Ct. No. 14CF0251)

MARSALIS JOSEPH SMITH,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Kimberly
Menninger, 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.
              In 2011, the California Supreme Court issued its opinion People v. Diaz
(2011) 51 Cal.4th 84 (Diaz), holding police may conduct a warrantless search of a cell
phone seized from a defendant’s person at the time of arrest without violating the Fourth
Amendment’s proscription against unreasonable searches and seizures.
              In January 2014, police officers arrested Marsalis Joseph Smith, who had a
cell phone, for various offenses. Eleven days later, officers searched his cell phone using
data extraction technology. The trial court denied Smith’s motion to suppress evidence
recovered from his cell phone pursuant to Diaz, supra, 51 Cal.4th 84.
              Weeks later, in Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473,
2482 (Riley), the Supreme Court of the United States held the search incident to arrest
exception to the warrant requirement did not apply to cell phones, and absent exigent
circumstances, a warrant was required to search a cell phone seized at the time of arrest.
              A few weeks later, the trial court denied Smith’s renewed motion to
suppress, concluding officers acted in good faith on existing law at the time of the search.
Smith subsequently pleaded guilty and appealed.
              Smith argues Riley controls and Diaz was both not good law and
inapposite. The Attorney General contends Diaz was good law and officers acted in good
faith on Diaz. We agree with the Attorney General.1
                                          FACTS
              In January 2014, police officers arrested a 17-year-old girl for suspicion of
prostitution. She told officers that Smith was her pimp, Smith watched while his friends
assaulted her, and Smith took photographs of her with his cell phone for his illicit
website. When officers arrested Smith, he had a Samsung Galaxy S4 cell phone (the Cell
Phone), which was password protected. Eleven days later, officers recovered 4,175 pages
of data from the Cell Phone using Cellebrite data extraction technology.

1           The same issue is pending before the California Supreme Court in People v.
Macabeo, S221852, review granted November 25, 2014.

                                             2
                 An information charged Smith with the following: human trafficking with
the intent to pimp (Pen. Code, § 236.1, subd. (c)(1), all further statutory references are to
the Pen. Code) (count 1); pimping a minor (§ 266h, subd. (b)(1) (count 2); and pandering
with a minor over 16 years old by procuring (§ 266i, subds. (a)(1), (b)(1)). The
information alleged Smith committed count 1 using force and fear (§ 236.1, subd. (c)(2)),
and he suffered a prior prison term (§ 667.5, subd. (b)).
                 After the trial court denied Smith’s non-statutory motion to dismiss count 1,
Smith filed a motion to suppress evidence recovered from the Cell Phone (§ 1538.5).
The prosecution opposed the motion, and Smith replied; the parties stipulated to the facts
for purposes of the motion. The trial court denied the motion concluding it was bound by
Diaz, supra, 51 Cal.4th 84, although the court stated it expected the law to change.
                 Smith filed a motion for rehearing of his motion to suppress citing to the
then recently decided case, Riley, supra, 134 S.Ct. 2473. The prosecution opposed the
motion, arguing the court should deny the motion because officers relied in good faith on
Diaz, which was existing law at the time of the search, citing Davis v. United States
(2011) ___ U.S. ____, 131 S.Ct. 2419 (Davis). The trial court again denied the motion to
suppress, this time concluding officers acted in good faith on the existing law at the time
of the search.
                 After the prosecutor amended the information by interlineation, Smith
pleaded guilty to human trafficking (§ 236.1, subd. (a), count 4), and criminal threats
(§ 422, subd. (a), count 5). The trial court sentenced Smith to five years in prison on
count 4, and a concurrent term of two years on count 5. On the prosecutor’s motion, the
court dismissed counts 1, 2, and 3. Smith timely appealed.
                                         DISCUSSION
                 “The Fourth Amendment generally requires police to secure a warrant
before conducting a search.” (Maryland v. Dyson (1999) 527 U.S. 465, 466, citing
California v. Carney (1985) 471 U.S. 386, 390-391.) “[I]t is a cardinal principle that

                                                3
‘searches conducted outside the judicial process, 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.’” (Mincey v. Arizona (1978)
437 U.S. 385, 390, quoting Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.)
One such exception is the search incident to lawful arrest. (Chimel v. California (1969)
395 U.S. 752, 762.)
              “The [Fourth] Amendment says nothing about suppressing evidence
obtained in violation of [its] command. That rule -- the exclusionary rule -- is a
‘prudential’ doctrine, [citation], created by this Court to ‘compel respect for the
constitutional guaranty.’ [Citations.] Exclusion is ‘not a personal constitutional right,’
nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.
[Citations.] The rule’s sole purpose, we have repeatedly held, is to deter future
Fourth Amendment violations. [Citations.] Our cases have thus limited the rule’s
operation to situations in which this purpose is ‘thought most efficaciously served.’
[Citation.] Where suppression fails to yield ‘appreciable deterrence,’ exclusion is
‘clearly . . . unwarranted.’ [Citation.]” (Davis, supra, 131 S.Ct. at pp. 2426-2427.)
              “‘“In ruling on a motion to suppress, the trial court must find the historical
facts, select the rule of law, and apply it to the facts in order to determine whether the law
as applied has been violated. We review the court’s resolution of the factual inquiry
under the deferential substantial-evidence standard. The ruling on whether the applicable
law applies to the facts is a mixed question of law and fact that is subject to independent
review.” [Citation.] On appeal we consider the correctness of the trial court’s ruling
itself, not the correctness of the trial court’s reasons for reaching its decision.
[Citations.]’ [Citation.]” (People v. Bryant (2014) 60 Cal.4th 335, 364-365.)
              Smith argues, and the Attorney General effectively concedes, that pursuant
to Riley, supra, 134 S.Ct. at page 2482, the warrantless search of Smith’s cell phone was
unlawful. But even if the search was unlawful under Riley, the evidence was admissible

                                               4
pursuant to Diaz. We will first address issues related to the precedential value of Diaz
and then discuss its applicability to the facts here.
Precedential Value
              In Davis, the United States Supreme Court evaluated the applicability of the
good faith exception in a case involving a change in the law concerning the permissibility
of automobile searches incident to arrest. The Court held that “searches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to the
exclusionary rule.” (Davis, supra, 131 S.Ct. at pp. 2423-2424, 2426-2429.) The Court
explained the exclusionary rule is not a personal constitutional right nor is it designed to
redress the injury caused by an unconstitutional search; rather, its sole purpose is to deter
future Fourth Amendment violations. (Id. at p. 2426.) “For exclusion to be appropriate,
the deterrence benefits of suppression must outweigh its heavy costs.” (Id. at p. 2427.)
              Here, at the time the Cell Phone was searched, the search was authorized by
Diaz, which held a warrantless search of the digital contents of a cell phone is lawful
when the search is performed incident to an arrest. (Diaz, supra, 51 Cal.4th at p. 101.)
Although Diaz is no longer good law in light of Riley, supra, 134 S.Ct. 2473, it was
binding precedent in California at the time of the search. We presume that when officers
searched the Cell Phone, they acted in objectively reasonable reliance on Diaz’s
authorization of such a search as incident to Smith’s arrest. (Conway v. Pasadena
Humane Society (1996) 45 Cal.App.4th 163, 178 [“A public officer is presumed to know
the law, provided it is clearly established”].) Consequently, the good faith exception
precludes application of the exclusionary rule that would otherwise result in the
suppression of the evidence recovered from the cell phone.
              Smith asserts that despite Davis, police officers could not have reasonably
relied on Diaz, which he describes as an “outlier,” for the following reasons: (1) Riley
was a 9-0 decision decided just three years after Diaz; (2) Riley did not overrule any of its



                                               5
own precedent; and (3) the concurrence and dissent in Diaz demonstrate the majority’s
opinion was contrary to the law.
              First, we do not think it is the role of police officers to determine if the
decisions of the California Supreme Court are “outliers.” We conclude it is reasonable
for law enforcement agencies to train their officers to follow the directions of the
California Supreme Court until directed otherwise.
              Second, to the extent the timeliness and unanimity of the United States
Supreme Court is indicative of the soundness of the majority opinion in Diaz, we note the
United States Supreme Court denied petition for writ of certiorari in Diaz. (Diaz v.
California (2011) 132 S.Ct. 94.) Defendant’s appellate counsel in Diaz could not
convince just four justices2 the California Supreme Court’s decision was glaringly
incorrect.
              Third, that the Riley court did not overrule any of its own precedent does
not establish Diaz was contrary to law. The Riley court noted the smart phone “was
unheard of [10] years ago.” (Riley, supra, 134 S.Ct. at p. 2484.) Thus, the Riley court
examined existing precedent and applied its rationale to a new technology. Not every
case, either at the nation’s highest court or our State Supreme Court, requires overruling
existing precedent to reach its holding. Courts routinely apply old law to new facts.
              Finally, the fact Diaz included a concurrence and dissent does not
demonstrate it was such an anomaly officers should have disregarded it. First, a majority
opinion states the law and constitutes the decision of the court that binds lower courts and
a dissent constitutes only the personal views of the author. (Wall v. Sonora Union High
School Dist. (1966) 240 Cal.App.2d 870, 872.) Second, the majority opinion in Diaz



2             Custom at the Supreme Court of the United States is a grant of certiorari
requires the approval of four justices. (See Thigpen v. Roberts (1984) 468 U.S. 27, 33
(Rehnquist, J., dissenting).

                                              6
thoroughly examined and interpreted United States Supreme Court precedent3 in deciding
the novel issue before it. The fact the United States Supreme Court interpreted that
precedent differently as applied to new technology is of no consequence. Third, the Diaz
court was not the only court to conclude officers could search a cell phone pursuant to the
search incident to lawful arrest exception to the warrant requirement. (U.S. v. Murphy
(4th Cir. 2009) 552 F.3d 405, 411-412; Silvan W. v. Briggs (10th Cir. 2009)
309 Fed.Appx. 216, 225; U.S. v. Finley (5th Cir. 2007) 477 F.3d 250, 259-260; U.S. v.
Mendoza (8th Cir. 2005) 421 F.3d 663, 667-668; see U.S. v. Ortiz (7th Cir. 1996) 84 F.3d
977, 984 [warrantless search of pager proper as incident to lawful arrest].) Thus, officers
reasonably relied on Diaz at the time of the search because it was good law.
Applicability
                Diaz, supra, 51 Cal.4th at pages 90-93, began its analysis of the issue with
a discussion of three controlling United States Supreme Court decisions, Robinson
(cigarette package), Edwards (clothes), and Chadwick (footlocker). The court stated the
issue was whether defendant’s cell phone was personal property immediately associated
with his person like the cigarette package in Robinson and the clothes in Edwards. The
court opined if the cell phone was associated with his person, then the delayed
warrantless search was a valid search incident to defendant’s lawful custodial arrest.
(Diaz, supra, 51 Cal.4th at p. 93.) The Diaz court concluded, “We hold that the cell
phone was ‘immediately associated with [defendant’s] person’ [citation], and that the
warrantless search of the cell phone therefore was valid.” (Ibid.)
                Here, Smith “agrees that the constitutionality of a delayed search incident
to arrest is not dependent on whether the delay is short (minutes or hours) or long (as the

3            United States v. Chadwick (1977) 433 U.S. 1 (Chadwick), overruled on
other grounds in California v. Acevedo (1991) 500 U.S. 565, 579; United States v.
Edwards (1974) 415 U.S. 800 (Edwards); United States v. Robinson (1973) 414 U.S. 218
(Robinson).


                                               7
11-day delay here).” Smith asserts the relevant constitutional question is whether officers
had the “ability” to search the personal property at the time of arrest. In other words, if
the Cell Phone had not been password protected officers could have lawfully searched the
Cell Phone but because it was password protected the search, irrespective of time, was
unlawful. We agree with the Attorney General that Smith mistakes an officer’s authority
to search with an officer’s ability to search because of the character of the item. Again,
Diaz is instructive.
              In rejecting defendant’s argument the character of the item is dispositive,
the Diaz court, citing again to Robinson, Edwards, and Chadwick, stated, “The relevant
high court decisions do not support the view that whether police must get a warrant
before searching an item they have properly seized from an arrestee’s person incident to
a lawful custodial arrest depends on the item’s character, including its capacity for storing
personal information.” (Diaz, supra, 51 Cal.4th at p. 94.) The Diaz court also examined
“analogous contexts” to conclude the character of an item is not determinative. For
example, the Diaz court cited to United States v. Ross (1982) 456 U.S. 798, 825 (Ross),
where the United States Supreme Court held that where police have probable cause to
search a vehicle without a warrant, the search may encompass not only a closed
compartment such as a glove box, but also any containers or packages found inside the
vehicle. The Diaz court cited to the following language in Ross: “[A] constitutional
distinction between ‘worthy’ and ‘unworthy’ containers would be improper. Even
though such a distinction perhaps could evolve in a series of cases in which paper bags,
locked trunks, lunch buckets, and orange crates were placed on one side of the line or the
other, the central purpose of the Fourth Amendment forecloses such a distinction.”
(Ross, supra, 456 U.S. at p. 822; Diaz, supra, 51 Cal.4th at p. 95.) Based on this
language, we conclude the character of the item, and the ability to search that item at the
time of arrest, is not the focus of the inquiry. The focus is whether at the time of the



                                              8
arrest, officers had the authority to search the item. Here, based on Diaz, officers had the
authority to search the Cell Phone, although their ability to search it came later.
              Smith’s reliance on a concurrence in U.S. v. Jones (2012) ___ U.S. ___,
132 S.Ct. 945, 963-964 (Jones), a case concerning GPS surveillance of an automobile, for
the proposition technological advancements requires reexamination on the legality of
searches, is unpersuasive. Reliance on Jones is misplaced because it was decided after
Diaz. That the United States Supreme Court, as the final arbiter on questions of federal
constitutional law, subsequently reexamined whether warrantless searches of cell phones
were lawful and overruled Diaz, is not dispositive here. As we explain above, Diaz was
the law when the Cell Phone was searched here and the search was constitutionally
lawful as a search incident to Smith’s arrest.
                                      DISPOSITION
              The judgment is affirmed.




                                                     O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



FYBEL, J.




                                                 9
