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Two S.C. Justices Question Correctness of C.A. Opinion
Liu, Evans See Flaws in Perluss’s April 13 Decision Upholding Decision Not to Suppress Fruits of Search
By a MetNews Staff Writer
An April 13 opinion of the Court of Appeal for this district, which concluded that a search warrant violated the Fourth Amendment but that the “good faith” exception to the exclusionary rule applied and the statute governing electronic searches was not breached, came under fire yesterday by two justices of the California Supreme Court who dissented from an order denying review in the case.
Justice Goodwin H. Liu authored the “dissenting statement” in which Justice Kelli Evans joined. It was appended to the Court of Appeal opinion, written by Presiding Justice Dennis M. Perluss of Div. Seven.
Perluss’s opinion affirmed the murder convictions of Daniel Meza and Walter Meneses. After their suppression motions were denied, Meza pled guilty to first degree murder and Meneses pled no contest to second degree murder.
A “geofence” warrant served on Google “lacked the particularity required by the Fourth Amendment and was impermissibly overbroad,” Perluss said, but invoked the rule set forth in the U.S. Supreme Court’s 1984 decision in United States v. Leon that good-faith reliance by law enforcement officers on a warrant that is later determined to be invalid insolates the evidence from exclusion at trial. The presiding justice declared that the warrant did not violate the California Electronic Communications Privacy Act of 2016 (“CalECPA”).
Definition of ‘Geofense’
He explained that a “geofence” entails the defining of geographical area. Perluss quoted an article on the Internet as saying:
“Geofence warrants (sometimes called ‘reverse location searches’) are official requests by law enforcement authorities to access the device location data gathered by large tech companies like Google. The warrants specify a time and geographic area, and require the companies to turn over information on any devices that were in that area at that time. While this data is typically anonymized, it can be used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation.”
Information supplied by Google led to the arrests of Meza and Meneses. Their cell phones were signed into Google accounts on the morning of March 1, 2019, and Google’s data-gathering records showed that the two men were in the vicinity of a man who was slain that morning.
Infirmities of Warrant
Perluss concluded that the “failure to place any meaningful restriction on the discretion of law enforcement officers to determine which accounts would be subject to further scrutiny or deanonymization renders the warrant invalid” and that the warrant did not meet the recognized requirement of being “narrowly tailored to avoid unnecessary infringement on the privacy of uninvolved third parties.”
Nonetheless, he said, “[g]iven the dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid,” and Leon applies.
The defendants argued that the warrant violates CalECPA, which governs searches of electronic data, because no individual was named as the target. Perluss responded:
“The warrant in this case described the target individuals and accounts with the greatest degree of particularity available to investigators—individuals whose devices were located within the search boundaries at certain times. There is no requirement in the statute that a suspect’s name or other identifying information be included in the warrant to ensure its validity.”
Constitutional Infirmities
A portion of the opinion that drew criticism from Liu says:
“Finally, Meza and Meneses argue any constitutional infirmities in the warrant create an independent violation of CalECPA. Meza and Meneses do not explain precisely how a constitutional violation is also a statutory violation. However, it appears they rely on CalECPA’s requirement that a warrant must comply with all ‘provisions of California and federal law’ ([Penal Code] § 1546.1, subd. (d)(3)) and its grant of standing to ‘any person’ to ‘move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter’ (§ 1546.4, subd. (a)). Those provisions do nothing more than expressly preserve an individual’s existing rights under the federal Constitution. There is nothing in the cited language that, without more, converts a Fourth Amendment violation into a statutory violation.”
Perluss said in a footnote:
“Establishing an independent CalECPA violation in addition to a Fourth Amendment violation is crucial to Meza and Meneses’s position because they contend the Leon good faith exception is not applicable to a CalECPA violation. We need not address that issue.”
Liu recited that Perluss said the warrant violated the Fourth Amendment but that this did not constitute a violation of CalECPA.
“The Court of Appeal’s analysis was minimal,” he said. “It reasoned that ‘nothing in the [statutory] language..., without more, converts a Fourth Amendment violation into a statutory violation.’ ”
The justice continued:
“It is not apparent what ‘more’ is necessary here. Penal Code section 1546.1, subdivision (d)(3) requires all warrants to comply with ‘all other provisions of California and federal law,’ which includes the Fourth Amendment. CalECPA’s incorporation of the Fourth Amendment’s requirements seems unambiguous: a warrant that violates federal law also violates CalECPA. Consistent with this reading, the statute’s remedy provision specifically references Fourth Amendment violations: ‘Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter.’ (Pen. Code, § 1546.4, subd. (a).)
“The Court of Appeal held that these ‘provisions do nothing more than expressly preserve an individual’s existing rights under the federal Constitution.’…But there is no need for a state statute to ‘expressly preserve’ federal rights.”
Addressing the Court of Appeal’s application of Leon’s “good faith” exception, he said that “[i]t is not clear whether such an exception applies to violations of CalECPA, and there are plausible arguments on both sides of the question,” but that, “[i]f the exception does not apply, then the identifying evidence would be suppressed under CalECPA, thus affecting the validity of Meza’s and Meneses’s convictions.”
Liu added that because he finds “questionable the Court of Appeal’s interpretation” of CalECPA, which he termed an “important state law,” he would grant review.
The case is People v. Meza, 2023 S.O.S. 3037.
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