THE PEOPLE, Plaintiff and Respondent, v. LORENZO BARNES, Defendant and Appellant.
No. A135131
Court of Appeal, First District, Division Two, California
June 11, 2013
July 10, 2013
216 Cal.App.4th 1508
COUNSEL
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Leif M. Dautch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHMAN, J.—Following the denial of his motion to suppress evidence pursuant to
BACKGROUND
The salient details are not in dispute.
Shortly after midnight on November 5, 2009, Charles Parce and Carolyn Fey were walking near Fort Mason in San Francisco when a Black male approached them, brandished a handgun, and demanded their belongings. Parce handed over his wallet, but Fey ran across the street and threw her turquoise Prada handbag under a parked car. The gunman retrieved the handbag and fled on foot. Parce and Fey described the gunman as wearing blue jeans, a white T-shirt underneath a black hooded sweatshirt, and white shoes. Fey told police that her wallet and a “Palm Pre smart phone” were in her handbag.
Zeltser “turned the phone over to Officer Hamilton” to continue speaking with Sprint, and then he and another officer left to go to “the location to see if we could locate the suspect.” En route, Zeltser heard Hamilton report that “the ping was still coming from 16th and Mission,” and then “between 16th and 17th and Mission.”
Meanwhile, Officers Clifford and Tannenbaum, having received a broadcast as to the first location, observed defendant on foot at 16th and Mission. Zeltser testified that Tannenbaum reported being at 15th and Mission, and that “a person matching the description1 . . . had gotten into a vehicle and was driving down Mission Street.” “As the vehicle was stopped at a red light at 15th and Mission,” “[w]e repinged the cell phone and it came back 15th and Mission; at which point I . . . raced over to assist him, because he advised that he was going to initiate a traffic stop.” Officers Clifford and Tannenbaum were “updated” with the results of the continued pinging, i.e., that “the ping was moving towards the north.”
Officer Zeltser arrived on the scene, which was at 13th and Mission, just as Tannenbaum had “initiated the traffic stop” and “was contacting Mr. Barnes.” Zeltser testified: “As I approached, I had my flashlight out; I looked in the rear seat of the vehicle and I noticed a purse that matched the description [of the one] that was taken in the robbery” on the rear seat of the vehicle that defendant was driving. On the front seat Zeltser saw the cell phone. This was approximately an hour after the robbery.
Officer Clifford testified to what happened once the stop was made: “[W]e asked him . . . if he was on probation . . . [¶] And then there was a comment
Fey was brought to the scene and identified defendant as the robber. Later, taken back to the police station, she identified the handbag and cell phone as hers.
When defendant argued the suppression motion in May 2011, he challenged only the legality of “the initial stop.” Without making a formal Kelly-Frye objection,2 defendant pointed out “there is no evidence before the Court that these officers have utilized this technique for location determination,” the prosecution having offered no evidence as to the reliability of this process. And, in the absence of such evidence, the prosecution was merely “relying on . . . a hunch” by the officers, and “they base their stop on that.” Defendant analogized this idea to “the reliability of a confidential informant. You know, if the informant has on prior occasions supplied information that turned out to be reliable, I believe the law allows the Court to consider that in determining whether the officer‘s conduct was reasonable.”
Citing U.S. v. Maynard (D.C. Cir. 2010) 392 U.S. App.D.C. 291 [615 F.3d 544], defendant insisted that “the language . . . is clear. [¶] There is concern that when the police use this type of technology, that they are violating a reasonable expectation of privacy. [¶] So in and of itself, the use of this technology could be found to violate a reasonable expectation of privacy.” Defense counsel‘s argument concluded: “I would submit that there really is not enough evidence to justify the stop of this individual miles away from where the crime occurred based upon the GPS and the clothing description, which could have fit anybody.”
The prosecutor responded that “the defense is relying on this Maynard case. Well, this is nothing like Maynard. In Maynard, the police attached a device to the defendant‘s car and then followed his movements 24 hours a day for four weeks with that device that they had attached. [¶] That‘s not
The trial court agreed: “I think Ms. Fey had every right to utilize her phone company to find her phone, and I think that‘s what happened here. I don‘t believe that the defendant has a privacy interest in that regard. [¶] I don‘t think that there was a particular action on the part of the police . . . to intrude on the defendant‘s privacy. They were in pursuit of a phone that they have consent from the owner of the phone to pursue; so they went to the area where this phone was located. [¶] . . . [¶] I don‘t feel that there was an unreasonable intrusion . . . [with] . . . the stop of the defendant. [¶] Motion to suppress is denied.”
DISCUSSION
Defendant‘s Contentions and the Standard of Review
During the pendency of this appeal, the Maynard decision was reviewed and affirmed by the United States Supreme Court in United States v. Jones (2012) 565 U.S. ___ [181 L.Ed.2d 911, 132 S.Ct. 945] (Jones). In light of Jones, which will be discussed later, defendant has reformulated his approach to overturning his conviction. He no longer sees use of GPS technology as a per se violation of the Fourth Amendment. Continuing themes expressed at the suppression hearing, defendant reiterates the issue of “reliability” and the confidential informant analogy. Next, defendant contends that, even assuming the information provided by Sprint was reliable, “it merely established the location of the stolen phone, not the location of the suspected robber.” Finally, defendant maintains that without the GPS information, Officers Clifford and Tannenbaum had only “pedestrian facts“—i.e., “the suspect‘s race, gender and attire“—“which did not support reasonable suspicion for the stop.”
We analyze these arguments according to well-established principles.
Evidence obtained from a search or seizure in violation of the Fourth Amendment must be excluded from use at a criminal trial only if required by federal law. (
The applicable federal standard is likewise not in dispute: “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual‘s right to personal security,’ [citation], tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer‘s action is supported by reasonable suspicion to believe that criminal activity ’ “may be afoot,” ’ [citation].” (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 122 S.Ct. 744].) In making determinations of reasonable suspicion to justify a detention, reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.] . . . [T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [citation].” (Id. at pp. 273-274.)
United States v. Jones
Jones, a suspected narcotics trafficker, drove his Jeep for 28 days without realizing police had, without benefit of a warrant, attached a GPS device to track the vehicle‘s movements. “By means of signals from multiple satellites, the device established the vehicle‘s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages over the 4-week period.” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 948].) The District of Columbia Circuit Court of Appeals concluded that evidence obtained from the GPS device violated the Fourth Amendment, requiring reversal of Jones‘s conviction. All nine members of the United States Supreme Court agreed with this result.
Justice Scalia spoke for five justices. His approach is notable for his devotion to the constitutional text, in this case the Fourth Amendment language that “[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 . . . .” Justice Scalia began his analysis by insisting, “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a
“The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures‘; the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous. [¶] Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 949-950].) The change came with Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], where “we said that ‘the Fourth Amendment protects people, not places,’ and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan‘s concurrence in that case, which said that a violation occurs when government officers violate a person‘s ‘reasonable expectation of privacy.’ [citations].” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 950].) Still, “for most of our history, the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects‘) it enumerates. Katz did not repudiate that understanding.” (Ibid., fn. omitted.)
Justice Scalia explained: “. . . Katz did not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’ [Citation.] We have embodied that preservation of past rights in our very definition of ‘reasonable expectation of privacy’ which we have said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 951].) “[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” (565 U.S. ___, ___ [132 S.Ct. 945, 952].)
There were two concurrences in Jones. The first was by Justice Sotomayor, who joined the majority Scalia opinion “because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, ‘[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.’ ” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 954] (conc. opn. of Sotomayor, J.).) But she set forth a major caveat: “In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion‘s trespassory test may provide little guidance,” thus necessitating broadening the scope of a
The second concurrence in Jones was by Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan. Justice Alito believed it was “unwise” for the majority to “decide this case based on 18th-century tort law.” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 957-958] (conc. opn. of Alito, J.).) Katz was certainly an improvement, but “the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes.” (565 U.S. ___, ___ [132 S.Ct. 945, 962] (conc. opn. of Alito, J.).)
Cell phone technology was very much on Justice Alito‘s mind: “[C]ell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States. For older phones, the accuracy of the location information depends on the density of the tower network, but new ‘smart phones,’ which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone‘s location and speed of movement and can then report back real-time traffic conditions after combining (‘crowdsourcing‘) the speed of all such phones on any particular road. Similarly, phone-location-tracking services are offered as ‘social’ tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person‘s expectations about the privacy of his or her daily movements.” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 963] (conc. opn. of Alito, J.); fns. omitted.)
Justice Alito noted that because there was little legislative guidance “regulating the use of GPS tracking technology for law enforcement purposes[, t]he best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 964]
Justice Scalia responded to Justice Alito by denying that the majority was shackled to “18th-century tort law“: “That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it offered when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz‘s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed. [¶] The concurrence faults our approach for ‘present[ing] particularly vexing problems’ in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. [Citation.] We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” (Jones, supra, 565 U.S. ___, ___ [132 S.Ct. 945, 953].)3
Analysis
Although defendant no longer equates police use of GPS technology with a standing violation of the Fourth Amendment, he is still deeply uneasy with what he fears is the onset of an irresistible erosion of personal privacy. Both defendant and the Attorney General have obviously given the matter considerable thought, and the briefs reflect research that has reached into academic journals and unpublished federal decisions.
Twice the Ninth Circuit has held that “a person lacks a reasonable expectation of privacy in the contents of a laptop computer he stole,” particularly because “Whatever possessory interest a thief may have, that interest is subordinate to the rights of the owner . . . .” (U.S. v. Caymen, supra, 404 F.3d 1196, 1200-1201; see U.S. v. Wong (9th Cir. 2003) 334 F.3d 831.) Another circuit has held post-Jones that the sort of “pinging” found here presents no Fourth Amendment problem when the information used in determining location could have been gained from simple visual surveillance. (U.S. v. Skinner (6th Cir. 2012) 690 F.3d 772, 777-778 [“While the cell site information aided the police in determining Skinner‘s location, that same information could have been obtained through visual surveillance. [¶] . . . Skinner did not have a reasonable expectation of privacy in the location of his cell phone while traveling on public thoroughfares.“]; see U.S. v. Forest (6th Cir. 2004) 355 F.3d 942, 951.)
Moreover, Fey, the actual owner of the cell phone—and the only person who could have a legitimate expectation of privacy—had consented to its use by Sprint and the police in apprehending the person who was illegally in possession of the phone. Federal courts have weighed such consent against a criminal defendant‘s claim of privacy. (See U.S. v. Bruneau (8th Cir. 1979) 594 F.2d 1190, 1194 [consent by owner of airplane to attach electronic
Finally, all of this appears to comport with a California statute that is highly instructive. In 1998, the Legislature enacted a measure which states, “No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person,” but then also provides, “This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” (
Accordingly, we conclude that the use of GPS technology in ascertaining the location of the stolen cell phone, and thus assisting in the locating of defendant was no violation of the Fourth Amendment.
The remainder of defendant‘s arguments are unavailing.
A single sentence in defendant‘s opening brief—“the prosecution did not establish that the accuracy of this type of GPS technology is well accepted in the scientific community and the community at large, or that it‘s pretty accurate“—suggests that defendant may still believe that some aspect of a Kelly-Frye (see fn. 2, ante) argument can be utilized on this appeal. However, because defendant never objected to the admission of Officer Zeltser‘s testimony, which was the only evidence on GPS technology received at the suppression hearing, any Kelly-Frye claim was not preserved for review. (
Defendant‘s analogizing the information from Sprint as akin to a tip from “an untested informant whose reliability was not presumed or established” must also fail. Unlike an informant, Sprint did not initiate contact with police. Instead, it was police, with the active assistance of the property owner, who approached Sprint. Defendant argues that “There is no way that the police officers in the Mission District could have verified the reliability of [Sprint‘s] phone location information until they observed the actual cell phone.” These are other oblique efforts by defendant to impeach or discount the use of the GPS technology by the officers here. It is also wrong. The officers could verify the information passed on from Sprint if in the pinged areas the officers encountered a person matching the description provided by the victims.
Equally misplaced is defendant‘s assertion that even if the information from Sprint is accepted as reliable, “it merely established the location of the stolen phone, not the location of the suspected robber.” True, but the officers could certainly infer a reasonable possibility that if they could locate the phone they would also locate the robber. The question for the officers was if they went to the scene reported by Sprint, would they find a male resembling the description provided by the victims? Correlating defendant‘s observed movements with both the GPS location and the victims’ description provided Officers Tannenbaum and Clifford with ample reasonable suspicion for a detention. (United States v. Arvizu, supra, 534 U.S. 266, 273-274.)
Our independent review discloses no error in denying defendant‘s suppression motion, and the judgment of conviction is affirmed.
Kline, P. J., and Haerle, J., concurred.
A petition for a rehearing was denied July 10, 2013.