Metropolitan News-Enterprise


Tuesday, December 6, 2016


Page 1


California Supreme Court Declares:

Photos on Cell Phone Should Have Been Suppressed

Justice Corrigan Says That Even Under State High Court Opinion Which Then Controlled, Search Following Defendant’s Commission of an Infraction Was Unlawful


By a MetNews Staff Writer


The California Supreme Court held yesterday that a conviction for possession of photographs of minors engaged in sex acts must be reversed because the cellphone on which the photographs resided was unlawfully searched after a man was stopped by Torrance police for riding his bicycle through a stop sign.

Both the trial judge—Los Angeles Superior Court Judge Mark S. Arnold—and the Court of Appeal, in a decision by Justice Richard Mosk (since deceased) of this district’s Div. Five, held the search to have been valid under the California Supreme Court’s opinion in People v. Diaz (2011) 51 Cal. 4th 84.

Mosk noted that while the case of the bike rider was on appeal, the United States Supreme Court overruled Diaz, holding in Riley v. California that, absent an emergency, a warrant is needed to search a cell phone incident to an arrest. He said, however, that “because Diaz was applicable at the time of the search, the officers’ conduct in searching the cell phone was in good faith and therefore the failure to exclude the evidence from the cell phone was not reversible error.”

Diaz Misconstrued

Rejecting that reasoning, Justice Carol Corrigan said in yesterday’s high court opinion:

 “We conclude the warrantless search of defendant Paul Macabeo’s phone would not have been proper even under our decision in Diaz, and a reasonably well-trained officer would have so known. Under these circumstances, the search violated the Fourth Amendment and the good faith exception to the exclusionary rule does not apply.”

The jurist explained:

“The warrantless examination of the contents of defendant’s cell phone here ran afoul of Riley. Even before Riley, however, the search here would not have qualified as a proper search incident to arrest under Diaz. The People acknowledge that the present case is distinguishable from Diaz where we upheld the search as incident to an actual custodial arrest. Diaz was properly taken into custody and brought to the sheriff’s station, where his cell phone was taken and eventually searched….As a second point of distinction, the Diaz arrest was supported by probable cause independent of any information subsequently discovered on the defendant’s phone.

“Unlike Diaz, Mr. Macabeo was not under arrest when officers searched his phone. Despite this fact, the People urge that the officers could have arrested defendant for failing to stop his bicycle at a stop sign, and then searched his phone incident to that arrest in reliance on Diaz.”

This echoed the reasoning expressed by Arnold who said, in declining to supprerss the evidence:

“He could have been arrested for failing to stop at the stop sign. The fact that the officer didn’t do that is irrelevant because it is the objective state of the case, not the subjective state of mind of the officer. Since the defendant could have been arrested, he could also have been subjected to a search incident to a lawful arrest.”

Offense Was Infraction

Corrigan disagreed. Going through a stop sign, she pointed out, is merely an infraction.

“Indeed, the People acknowledged during oral argument that state law precluded officers from arresting Mr. Macabeo under these circumstances,” she wrote, adding that “except under circumstances not present here,” Macabeo “could only have been cited and released.”

Macabeo was vague in responding to questions as to whether he was on probation. The arresting officer, Detective Craig Hayes, testified that he thought the search of the cellphone was proper because he assumed the bicyclist was on probation (and also that he thought that by his agreeing to have the contents of his pockets examinmed he was consenting).

“[D]efendant was not on probation, so the search could not be based on that nonexistent status,” Corigan said.

The jurist said there is an exception to the suppression requirement where an officer reasonably acts in good faith.

Good-Faith Exception

“But here,” she declared, “a reasonably well-trained officer would have known that state law prohibited an arrest in these circumstances, and there is no objective indication that the officers were going to arrest defendant in defiance of that state law.”

While a search is authorized incident to an arrest to protect the officers, preserve evidence, or prevent escape, Macabeo was not only not arrested for going through the stop sign, but wasn’t even issued a citation, Corrigan noted, which “precluded an incident search.”

The case is People v. Macabeo, 2016 S.O.S. 6169.


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