Filed 2/28/18 P. v. Hurd CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN MORRIS HURD,
Defendant and Appellant.

A146654

(San Mateo County
Super. Ct. No. SC069090A)


After the trial court denied his motion to suppress, defendant and appellant Steven Morris Hurd entered his no contest plea to one count of engaging in oral copulation with a child who is 10 years old or younger. Hurd appeals the denial of his suppression motion. He claims the warrantless search of his cell phone incident to arrest violated his Fourth Amendment rights under the rule announced in Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473] (Riley), and all evidence obtained as a result of the search must be suppressed. There is no dispute that the warrantless search of Hurd’s cell phone was unconstitutional under Riley, but we conclude the police’s search conformed with binding appellate precedent when the search occurred in 2009. Thus, the good-faith exception to the exclusionary rule applies, and the evidence need not be suppressed. We affirm.
BACKGROUND
On the evening of January 2, 2009, San Mateo police arrested Hurd for operating a massage business without a valid permit and for sexual assault. An undercover female officer posed as a client of Hurd’s business and reported Hurd rubbed her breasts and caused her hand to touch his penis multiple times. The arresting officer, Kurt Rodenspiel, searched Hurd incident to arrest and found a cell phone in his pocket. Without a search warrant, another officer reviewed the cell phone to see if it contained evidence of sexual battery or prostitution and found a number of pictures and videos of nude women lying on their backs and chests in massage positions. After being informed there was evidence pertinent to his investigation on Hurd’s phone, Officer Rodenspiel reviewed the phone and found several videos of a three-year-old girl. One video labeled “Ha Ha!” showed the girl briefly placing her mouth around a man’s penis. A man’s voice responded “More, more!,” and the girl again orally copulated him. The man then said, “One more and I’ll give you a ride.” The girl placed her mouth around the man’s penis for a third time. After speaking with Hurd, Officer Rodenspiel identified the man’s voice in the video as Hurd’s.
After seeing the video, the officers sought a search warrant to collect further evidence of crimes related to child molestation and child pornography. That night, on January 3, 2009, at 1:07 a.m., the court issued a night-time search warrant for Hurd’s apartment. During their search, officers collected an additional cell phone, a laptop, photographs of nude underage girls, and hydrocodone pills not prescribed to Hurd.
Hurd was charged with three counts of engaging in oral copulation with a child who is 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) with special allegations; one count of using a minor to do prohibited acts (Pen. Code, § 311.4, subd. (c)); one count of possessing materials depicting a minor engaged in sexual conduct (Pen. Code, § 311.11, subd. (a)); one count of possessing hydrocodone (Health & Safety Code, § 11350, subd. (a)); and five counts of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)). He pled not guilty to all charges and denied all special allegations.
Hurd moved to suppress the evidence obtained from the warrantless January 2, 2009 search of his cell phone and the January 3, 2009 search pursuant to the warrant. Following extensive briefing and a hearing, the trial court denied the motion. Hurd then unsuccessfully petitioned this Court seeking suppression of the evidence (case number A143312).
Just before trial, pursuant to a negotiated disposition, Hurd entered a no contest plea to one count of oral copulation and admitted the special allegations. The remaining charges were dismissed. Hurd was sentenced to 15 years to life in prison. Hurd now appeals the denial of his suppression motion.
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.) “The Fourth Amendment generally requires police to secure a warrant before conducting a search.” (Maryland v. Dyson (1999) 527 U.S. 465, 466.) “[I]t is a cardinal principle that ‘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.) 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 (Robinson).)
But in Riley, the court held that a warrant is generally required to search a cell phone, even when the phone is seized incident to arrest. (Riley, supra, 134 S.Ct. at p. 2493.) Since United States Supreme Court decisions construing the Fourth Amendment are applied retroactively to all cases in which a conviction is not yet final as of the date of the decision (United States v. Estrada (9th Cir. 1984) 733 F.2d 683, 685), the parties agree that the rule announced in Riley in 2014 retroactively applies here to the search of Hurd’s phone when he was arrested in January 2009. The search of Hurd’s phone was illegal.
The parties disagree, however, on the effect of the unconstitutional search. Hurd argues the evidence obtained from his phone must be suppressed and the trial court must assess the basis for the ensuing search warrant without it. The People argue the evidence should not be suppressed because the officer reasonably relied upon binding court precedent when deciding to search the phone at the time of Hurd’s arrest in 2009.
Generally, the exclusionary rule, which operates as a judicially created remedy to safeguard Fourth Amendment rights, forbids the use of improperly obtained evidence at trial. (Herring v. United States (2009) 555 U.S. 135, 139.) But the “exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred.” (Davis v. United States (2011) 564 U.S. 229, 244 (Davis).) Courts have carved out a good-faith exception to the exclusionary rule which allows evidence to be introduced that would otherwise be subject to exclusion based on a Fourth Amendment violation. (See e.g. United States v. Leon (1984) 468 U.S. 897, 918–922 (Leon).) Relevant here is the good-faith exception set forth in Davis, supra, 564 U.S. 229, applicable when a search is lawful under binding judicial precedent that is in effect at the time of the search. In Davis, the United States Supreme Court observed that “[a]n 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.” (Id. at p. 241.) Thus, “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” (Id. at pp. 249–250.)
Thus, we consider whether in January 2009, “binding appellate precedent” would lead objectively reasonable police officers to conclude Hurd’s cell phone could be searched incident to his arrest without first obtaining a warrant. We conclude it would. Officers searching a cell phone seized incident to arrest in January 2009 objectively and reasonably could have understood their search to be valid under binding United States Supreme Court precedents.
Robinson, United States v. Edwards (1974) 415 U.S. 800 (Edwards), and United States v. Chadwick (1977) 433 U.S. 1 (Chadwick) combined to set forth a rule of law reasonably understood to allow for the lawful search and seizure of any personal property immediately associated with a suspect’s person when incident to a lawful arrest, regardless of whether there was probable cause to believe that the defendant was about to destroy evidence. (Robinson, supra, 414 U.S. at p. 235; Edwards, supra, 415 U.S. at pp. 801–802.) The only exception to this rule was for “objects not immediately associated with the person of the arrestee to their exclusive control.” (Chadwick, supra, 433 U.S. at p. 15.)
Here, the officers made a lawful arrest of Hurd for operating a massage business without a license and for sexual assault. Incident to his arrest, Officer Rodenspiel searched Hurd and found a cell phone. He took the phone from Hurd’s pocket. The cell phone was in Hurd’s clothing, immediately associated with Hurd and had been in his exclusive possession. Officer Rodenspiel passed the phone to his fellow officer to review it immediately for evidence related to their investigation. Once such information was discovered, Officer Rodenspiel conducted his own review of Hurd’s cell phone at the site of the arrest. In these circumstances, we have no difficulty concluding that the officers conducted their search consistent with binding appellate precedent as it existed at the time. Accordingly, the good faith exception to the exclusionary rule applies.
Hurd views the state of the law in January 2009 very differently. At that time, he argues “there was no binding appellate precedent allowing the contested search” of his cell phone. Nonetheless, Hurd points to Chimel v. California (1969) 395 U.S. 752 (Chimel) and his interpretation of Robinson, as the proper precedents for us to consider the legal issues in this appeal. In Chimel, the United States Supreme Court held that the permissible scope of a warrantless search incident to a lawful arrest extends to the arrestee and the immediately surrounding area. This was justified by the need to prevent the concealment or destruction of evidence, and the need to protect the safety interest of the arresting officer by securing hidden weapons. (Chimel, supra, 395 U.S. at p. 763.) Hurd emphasizes that the search of a cigarette pack in arrestee’s coat pocket in Robinson was allowable as a protective measure because the officer was not able to identify the objects inside. (Robinson, supra, 414 U.S. at p. 235.) Based on Chimel and Robinson, Hurd argues the search incident to arrest warrant exception is limited to searches of a suspect for physical objects in order to seize weapons and prevent the destruction of evidence. Thus, he contends the exception does not apply to digital content on cell phones and was unnecessary “when police had seized and taken possession of Hurd’s cell phone.” Hurd maintains that his view of these precedents “is the only legally correct interpretation based on the decisions of the United States Supreme Court.” He notes, “Riley instructs us how to view this precedent. . . . Riley tells us what the state of the Chimel/Robinson law was in early 2009. This Court must adopt that view given that this case has not yet reached finality.”
We disagree. While there is no dispute that Riley applies retroactively to render the officers’ search of his cell phone unconstitutional, Hurd’s attempt to interpose the Supreme Court’s 2014 analysis from Riley on two cases from more than 40 years ago improperly imports its retroactivity into the good-faith exception. “[T]he retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question.” (Davis, supra, 564 U.S. at pp. 243–244.) Accordingly, whether the Fourth Amendment rights of a party were violated by police conduct is an issue separate from whether the exclusionary sanction is properly imposed in a particular case. (Leon, supra, 486 U.S. at p. 906.) Thus, while Riley tells us the state of the law in 2014, it does not tell us whether in January 2009 San Mateo police officers could have the objectively reasonable belief that it was proper to search an arrestee’s cell phone seized from his pocket incident to arrest. As noted above, we look to then-existing Supreme Court precedents—Robinson, Edwards, and Chadwick¬—to determine that their search was reasonable then under those authorities. We should not view these cases under Riley’s lens.
Second, Hurd contends that our view of the effect of Robinson, Edwards, and Chadwick is overbroad. He says, “To read Robinson, Edwards and Chadwick as permitting such a search is an expansionist view of those cases not warranted by their scope, as shown us in Riley.” He also criticizes the People’s view of Robinson as divorced from the Chimel rationales of officer safety and preservation of evidence. We are not persuaded. Again, these arguments improperly rely on Riley’s 2014 interpretation of the search incident to arrest exception; they do not consider an officer’s objectively reasonable understanding of the state of the law in 2009 under applicable precedents governing searches incident to arrest. Riley’s discussion of two of the three cases underscores the reasonableness of such a view. The Riley Court states, “[A] mechanical application of Robinson might well support the warrantless searches [of digital information on a cell phone] at issue here.” (Riley, supra, 134 S.Ct. at p. 2484.) It also comments that Chadwick clarified the search incident to arrest exception was limited to “personal property . . . immediately associated with the person of the arrestee.’ ” (Id. at pp. 2483–2484.) Even under Riley, our reading of these cases is neither expansionist nor unreasonable. Moreover, five members of the California Supreme Court in People v. Diaz (2011) 51 Cal.4th 84 read these precedents to allow warrantless searches of cell phones seized incident to a lawful arrest. (Id. at p. 88.) We would be “hard-pressed to place culpability” on officers “for their actions in 2009” when subsequent binding precedent validated those actions. (See U.S. v. Leon (D. Hawaii 2012) 856 F. Supp. 2d 1188, 1194.)
Finally, the “ ‘ “prime purpose” ’ ” of the exclusionary rule is to “ ‘ “effectuate” ’ the Fourth Amendment’s guarantee against unreasonable searches or seizures by ‘deter[ring] future unlawful police conduct. [Citation.] . . . [B]ecause the exclusionary rule is a ‘remedial device,’ its application is ‘restricted to those situations in which its remedial purpose is effectively advanced.’ [Citation.] Thus, application of the exclusionary rule is unwarranted where it would not result in appreciable deterrence.” (People v. Willis (2002) 28 Cal.4th 22, 30.) Moreover, “the deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue. [Citation.] 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], or when their conduct involves only simple, ‘isolated’ negligence, [citation], the ‘ “deterrence rationale loses much of its force,” ’ and exclusion cannot ‘pay its way.’ ” (Davis, supra, 564 U.S. at p. 238.) “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.’ [Citation.]” (Id. at p. 240.) According to the high court, the decision whether to suppress evidence obtained in violation of the Fourth Amendment “must also account for the ‘substantial social costs’ generated by the rule,” because “[e]xclusion exacts a heavy toll on both the judicial system and society at large. [Citation.]” (Id. at p. 237.) “Our cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort.’ [Citation.] For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. [Citations.]” (Ibid.)
Suppressing the evidence from the search of Hurd’s cell phone would do nothing to deter future unlawful conduct. As discussed above, the officers acted in objectively reasonable reliance on binding appellate precedent. To penalize the police here based on a Supreme Court rule announced six years after the search in this case—on which judges reasonably disagreed—and which the officers could not have reasonably anticipated would be the law would not serve to deter Fourth Amendment violations. Further, the record contains no evidence that the officers’ search was done recklessly or with gross negligence, or involved recurring or systemic negligence. Incident to Hurd’s lawful arrest, the officers searched a cell phone found in Hurd’s pocket for their investigation into the legality of his massage business and sexual battery. Once additional potentially criminal activity became apparent, they sought and received a search warrant for other evidence. Here, they “act[ed] as . . . reasonable officer[s] would and should act.” (Leon, supra, 468 U.S. at p. 921.) In these circumstances, exclusion is not warranted.
DISPOSITION
The judgment is affirmed.
 




_________________________
Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.























People v. Hurd, A146654