Opinion
C082617
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ROBERT GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F07468)
Following the trial court's denial of his motion to suppress evidence, defendant Christopher Robert Garcia pleaded guilty to second degree robbery and identity theft, and admitted he had a prior strike conviction. On appeal, defendant contends it was reversible error for the trial court to deny his motion to suppress evidence obtained pursuant to a warrantless and suspicionless search of his cell phone. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 28, 2015, defendant stole a green Honda Element from an acquaintance. On November 27, 2015, defendant robbed two different women on two different occasions in a grocery store parking lot, taking a purse and a bag, respectively. The stolen Honda Element was tied to both robberies. One victim's arm was broken when defendant began driving away at the same time as the victim reached into the Honda Element in an attempt to retrieve her stolen bag. Defendant used the other victim's stolen credit card to refuel the Honda Element. News reports of the robberies led defendant's acquaintance to provide police with defendant's name and phone number because she suspected her stolen Honda Element was being used in the robberies. The police recovered the stolen vehicle on November 29, 2015.
Two days later, at around 11:30 a.m., officers detained defendant for failing to stop at a stop sign in a residential neighborhood. Upon running a records check, officers discovered defendant was on felony searchable probation and there was an outstanding warrant for his arrest due to domestic violence. One of the terms of defendant's probation provided that he agreed to "submit his . . . person, property and automobile and any object under defendant's control to search and seizure in or out of the presence of the defendant, by any law enforcement officer, and/or probation officer, at any time of the day or night, with or without his . . . consent, with or without a warrant." The probation term further indicated that defendant had been "advised of his . . . constitutional rights in this regard," and nevertheless had "accepted probation," therefore was "deemed to waive [the] same."
No evidence was presented whether the warrant was for a misdemeanor or felony. --------
Because defendant was on searchable probation, officers searched a bag defendant was carrying. In the bag were several cell phones, a Honda key and fob, and burglary tools. The officers arrested defendant for possession of burglary tools and for domestic violence (pursuant to the outstanding warrant). The phones were booked into evidence. The next day, pursuant to defendant's probationary search conditions, police searched the settings log of one of the cell phones in defendant's possession to discover the telephone number assigned to that cell phone. Officers were then able to match that cell phone number to the crime tip received earlier. Because of the phone number match, police used the Honda key found in defendant's possession to unlock the stolen Honda Element. The key also worked in the ignition.
Based on this evidence, defendant was charged with the November 27, 2015 incidents—second degree robbery (Pen. Code § 211—count one), assault with a deadly weapon (a car) (id., § 245, subd. (a)(1)—count two), and identity theft (id., § 530.5, subd. (a)—count three). As to all counts, it was alleged defendant had a prior strike conviction (id., §§ 667, subds. (b)-(i), 1170.12), and it was alleged defendant had personally inflicted great bodily injury (id., § 12022.7, subd. (a)) in the commission of the robbery and assault. Prior to trial, defendant moved to suppress the warrantless and suspicionless search of the cell phone, claiming the search violated his Fourth Amendment rights because his acceptance of probation did not specifically include consent to a search of a cell phone. The trial court found the search was permitted within the language of the probation terms and denied defendant's motion. On the second day of trial, defendant pleaded no contest to counts one and three in exchange for a negotiated state prison term of five years four months.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress evidence. He urges us to adopt the reasoning of Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley) and United States v. Lara (9th Cir. 2016) 815 F.3d 605 (Lara) to conclude that the warrantless and suspicionless searches of the cell phone violated his Fourth Amendment rights despite the fact that he accepted a search term as a condition of his probation. He claims the terms "property" and "object" as used in the search condition should not be construed to include the contents of a cell phone because they did not unambiguously inform him of the permissible scope of the search. We disagree.
" 'The Fourth Amendment proscribes all unreasonable searches and seizures, and it 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." ' " (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1224; People v. Lenart (2004) 32 Cal.4th 1107, 1118-1119.) It is "well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858].) A search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of consent. (Washington v. Chrisman (1982) 455 U.S. 1, 9-10 [70 L.Ed.2d 778, 786-787].) The scope of consent based on a search condition in a probation order is determined by "what a reasonable person would understand from the language of the condition itself . . . ." (People v. Bravo (1987) 43 Cal.3d 600, 606-607 (Bravo); see Florida v. Jimeno (1991) 500 U.S. 248, 251 [114 L.Ed.2d 297, 302] ["The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?"].)
Thus, the question before us would generally be whether it is reasonable for an officer to consider defendant's acceptance of the search condition described above to include consent to search a cell phone found in his bag. (Bravo, supra, 43 Cal.3d at pp. 606-607.) Nonetheless, defendant urges us to depart from that inquiry, and instead conduct a different analysis based on recent significant federal precedents: Riley, supra, 573 U.S. ___ [134 S.Ct. at p. 2473, 189 L.Ed.2d 430] and Lara, supra, 815 F.3d 605. For the reasons discussed below, we are not persuaded that we should abandon our traditional analysis for determining whether a search falls within the scope of a defendant's advance consent.
Riley addressed whether the police may, without a warrant, search digital information on a cell phone seized from a person upon the lawful arrest of that person. (Riley, supra, 573 U.S. at p. ___ [134 S.Ct. at p. 2480, 189 L.Ed.2d at p. 437].) In determining whether a search of a cell phone incident to arrest was reasonable, Riley balanced the defendant's right of privacy underlying the warrant requirement against countervailing governmental interests, such as officer safety and preservation of evidence. (Id. at pp. ___ [134 S.Ct. at pp. 2484-2485, 189 L.Ed.2d at pp. 441-442].) Riley applied the traditional balancing framework to determine the propriety of a search incident to arrest and concluded that given the vast amounts of personal information contained in cell phones, the warrantless search incident to arrest was unjustified when compared to the government's interest. (Ibid.) For, "[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape" (id. at p. ___ [134 S.Ct. at p. 2478, 189 L.Ed.2d at p. 435]) and "once law enforcement officers have [seized and] secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone" (id. at p. ___ [134 S.Ct. at p. 2486, 189 L.Ed.2d at p. 443]). Thus, Riley stands for the proposition that a cell phone cannot generally be searched incident to a suspect's arrest without a warrant and is inapposite to whether a probation search of a cell phone is proper under the objective reasonableness test articulated in Bravo.
Nonetheless, Lara, supra, 815 F.3d 605 applied the reasoning of Riley combined with the reasonableness analysis articulated in United States v. Knights (2001) 534 U.S. 112, 117-118 , to conclude that a warrantless search of a cell phone pursuant to a probation condition was not reasonable. Defendant urges us to do the same. We are not persuaded.
Lara concerned a warrantless search of a probationer's cell phone pursuant to a waiver of the Fourth Amendment in his probation agreement, which included a Fourth Amendment waiver that the defendant submit his "property" and "containers" under his control to search at any time, with or without a warrant, probable cause or reasonable suspicion. (Lara, supra, 815 F.3d at p. 607.) The defendant sought to suppress evidence discovered in the warrantless search of his cell phone conducted pursuant to that waiver. (Id. at p. 608.) Lara balanced a probationer's privacy interest—the defendant's diminished expectation of privacy as a probationer, the clarity of the conditions of probation, and the nature of the contents of a cell phone—against the government's probationary interest that probationary searches combat recidivism and help probationers integrate back into the community. (Id. at pp. 610-612.) Lara found that inclusion of neither the term " 'property' " nor " 'container' " clearly authorized a search of the cell phone or its data. (Id. at pp. 610-611.) Thus, Lara concluded that the search of the defendant's cell phone was unreasonable. (Id. at p. 613.)
Lara is persuasive authority. (People v. Bradley (1969) 1 Cal.3d 80, 86 [Ninth Circuit decisions "are persuasive and entitled to great weight" but are not binding on this court]; see People v. Woods (1999) 21 Cal.4th 668, 674-675.) However, we are not convinced that we should abandon our traditional framework to employ a reasonableness analysis here because the basis for the validity of a probation search is not reasonableness but consent. (People v. Medina (2007) 158 Cal.App.4th 1571, 1575 (Medina).)
That said, defendant also argues that just as neither "container" nor "property" unambiguously encompassed the contents of Lara's cell phone, "property" and "object" do not encompass the contents of his cell phone, and the search of his cell phone was otherwise unreasonable. In construing the scope of a consent to search given as a condition the grant of probation, we do not apply the strict test applied to waivers nor principles of narrow construction. (Bravo, supra, 43 Cal.3d at p. 606.) Rather, as noted above, we "give the condition the meaning that would appear to a reasonable, objective reader" (ibid.) and, if the search falls within the scope of the condition, it does not violate the probationer's Fourth Amendment rights unless it is conducted in a harassing or unreasonable manner (Medina, supra, 158 Cal.App.4th at p. 1576).
Here, an objectively reasonable person would read defendant's probation search condition as encompassing a search of a cell phone in his possession. The plain language of defendant's search condition made clear: (1) he agreed to a warrantless search (2) conducted by any law enforcement officer (3) where any "property" or "object" on defendant was subject to search, (4) and defendant was aware of, and agreed to, the terms of the probation agreement. An objectively reasonable person would interpret a cell phone to be "property" or an "object." Thus, the search of the cell phone in defendant's possession was encompassed in the language of his probation search condition, and defendant's consent to warrantless searches as a condition of probation waived his Fourth Amendment rights with respect to the search conducted in this instance. Therefore, the trial court did not err in denying defendant's motion to suppress the evidence obtained in the search of the cell phone.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. NICHOLSON, J.