Re: ECF No. 29
ORDER DENYING MOTION TO SUPPRESS
I. INTRODUCTION
Dеfendant Heri Garcia (“Defendant” or “Garcia”) has “move[d] for an order suppressing all fruits of the warrantless search of an automobile and cell phone, and the seizure of his person, all of which occurred on 20 August 2011, suppressing all statements made by any person during the course of that search or during the course of any interrogation or interview by law enforcement personnel, and suppressing the results of any DNA testing that followed the search and seizure.” Motion to Suppress (“Mot.”), ECF No. 29. The matter came for hearing on Wednesday, August 20.
II. BACKGROUND
A. Procedural History
In September 2013, the United States indicted Defendant for violation of 18 U.S.C. 922(g)(1), felon in possession of a firearm and ammunition, and 18 U.S.C. § 924(d)(1), gun forfeiture. Defendant filed the instant motion to suppress on June 30, 2014. The only evidence Defendant submitted in support of his motion were the two police reports prepared by the arresting officers, the accuracy of which Defendant does not concede. Mot., at 2, n. 1.
In response, the United States argued that two exceptions to the warrant requirement permitted the warrantless search of Defendant’s automobile: Defendant’s consent, and the “automobile exception” to the warrant requirement. Government’s Response to Defendant’s Motion to Suppress (“Resp.”), ECF No. 30. The United States submitted the same two police reports as exhibits to a declaration.
After the deadline to file a reply brief had passed, Defendant filed a rеply brief in support of his motion to suppress. Heri Garcia’s Reply in Support of Motion to Suppress Evidence and Request for an Evidentiary Hearing (“Reply”), ECF No. 32. In support of his reply, Defendant produced a declaration by Andre Barocio, a percipient witness to the challenged searches. Declaration of Andre Barocio (“Barocio Dec!.”), ECF No. 32-2. The Court denied the United States’ motion to strike the reply, but granted the United States leave to file a sur-reply, which it did. ECF No. 35.
B. Factual Background
1. Background
Early in the morning of August 20, 2011, Concord Police Department (“CPD”) Officers Montero and VanDiver were on routine patrol, dressed in uniform but in an unmarked vehicle parked in the parking lot of a Wendy’s restaurant in Concord, California directly across the street from La Cabana Bar & Grill. Exhibit A to
Concord Municipal Code 66-101, Chapter 9.15.010, makes it “unlawful for any person to consume, drink, exhibit or possess an open container of any alcoholic or intoxicаting beverage in any quantity in” certain places open to public view, including on “private property open to the public, including but not limited to parking lots and shopping centers, where the sale of alcoholic beverages has not been licensed.” Exh. C to Reply. The officers report that they decided to make contact with Garcia because they believed him to be violating this ordinance. Montero Report, at 3; VanDiver Report, at 2.
2. The Officers’ Approach
The offiсers report that they then “contacted,” or “pulled up on” Garcia, Barocio and Soto. Montero Report, at 3; VanDiver Report, at 2. Barocio declares that the officers “quickly pulled into the parking lot and stopped behind Mr. Garcia’s car,” such “that it blocked both Mr. Garcia’s car and my car, and prevented us from backing out of our parking spaces.” Barocio Decl. ¶ 5. Barocio declares that the officers then “ordered all of us nоt to move,” “ordered Mr. Garcia to place his hands on the trunk of the car,” and patted down both Garcia and Barocio. Id. ¶ 6. Neither police report describes these actions.
3. The Searches
Barocio provides only the following description of the officers’ communications with Garcia: “After the officers searched us, I heard one of the officers ask Mr. Garcia if they would find anything in Mr. Garcia’s car. The officers then searched Mr. Garcia’s car without first asking his permission to search it or getting his consent to search it.” Barocio Decl. ¶ 7.
The officers’ report, in contrast, records the following.
Defendant acknowledged that he was drunk, stating “that is why I am not driving.” VanDiver Report, at 2. Defendant also acknowledged that the beer he had been drinking was inside the car. Id. Officer VanDiver shined a flashlight inside the vehicle and observed a half-consumed bottle of beer in the driver’s side door of the vehicle. Id. Officer VanDiver reports that he asked Defendant if Officer VanDiver “could open his [Defendant’s] vehicle and
Upon opening the car, Officer VanDiver smelled marijuana. Id. Officer VanDiver asked Defendant if he had marijuana in the vehicle, and Defendant replied “yes.” Id. Officеr VanDiver continued his search of the car, recovering a half-full bottle of Negro Model o beer from the driver’s side area, a loaded Magnum Research Desert Eagle .44 caliber semiautomatic firearm under the driver’s seat, and a blue bandana and a plastic baggie containing marijuana in the pocket behind the driver’s seat. Id.’
Officer Montero notified Defendant that he was under arrest and he was transported to jail. Montero Report, at 3. Officer Montero reports that “Garcia had a cell phone in his possession at the time of his arrest.” Id., at 5. “During a search, incident to arrest, of his cell phone, [Montero] located evidence that Garcia was possibly involved in the sales of illegal narcotics.” Id. “He had several text .messages from people asking him to get them narcotics.”
C. Legal Standard
The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. Amend. IV. “Searches and seizures that offend the Fourth Amendment are unlawful and evidence obtained as a direct or indirect result of such invasions is considered ‘fruit of the poisonous tree’ and is inadmissible under the exclusionary rule.” United States v. McClendon,
III. ANALYSIS
A. Warrantless Seizure of Defendant
Defendant argues that “there is a disputed factual issue whether Mr. Garcia was unlawfully seized,” and argues that all evidence seized from the car was the fruit of an unconstitutional search. Reply, at 4. The Barocio Declaration does not necessarily conflict with the officers’ account of their approach, although it provides additional details indicating that both Garcia and Barocio were initially seized without a warrant. But even assuming the truth of Barocio’s description of events, this does not establish that the detentions were unlawful.
Under the holding of Terry v. Ohio,
Defendant argues that section 66-101 of the Concord Municipal Code may be unenforceable. As support, he cites People v. Duran,
Defendant also argues that the officers have not established that they felt sufficient concern for their safety, or for the destruction of evidence, to justify the pat-downs of Garcia and Barocio. But the patdowns are not at issue. The officers did not seize any items during the pat-downs, and Defendant does not argue that the items seized in the car were somehow the fruit of the patdowns. The Court need not, and does not, reach the question of whether it was constitutional to pat down Defendant and Barocio.
The United States has met its burden to show that the initial seizure of Defendant was constitutional, and suppression is not warranted on this ground.
B. Warrantless Search of Automobile
It is undisputed that officers searched Defendant’s automobile without a warrant. The United States argues that two exceptions to the warrant requirement apply. First, they argue that Defendant consented to the search. Second, they invoke the “automobile exception” to the warrant requirement.
On the issue of whether Defendant consented to the search of his car, the police reports and the Barocio Declaration are in direct contradiction. The Court is not persuaded by the United States’ argument that the Barocio Declaration should be disregarded because he “fails to offer facts in support of’ his statement that the Defendant did not consent to the search. Sur-Reply, at 4, ECF No. 35. Barocio declares that he was at the scene and could hear the officers’ interactions with Garcia. Hе may or may not be able to establish his account to the satisfaction of the finder of fact, and the United States would be entitled to explore the basis of his knowledge at any evidentiary hearing, but his declaration at least establishes a material dispute. To the extent the constitutionality of the search hinges on whether Defendant consented to the search, an evidentiary hearing would be required.
2. Automobile Exception
“The automobile exception permits police to search a vehicle as long as the vehicle is ‘readily mobile’ and ‘probable cause exists to believe it contains contraband.’ ” United States v. Davis,
The officers observed Defendant violate Concord’s open consumption ordinance, and upon investigation they observed a half-consumed bottle of beer within the car. Even without considering Defendant’s acknowledgement that the beer he drank was in the car (a fact the Barocio Declaration does not contra), these facts alone established at least a fair probability that evidence of the crime would be inside. And once the officer began searching the car, he obtained information giving him probable cause to search for evidence of marijuana possession.
Defendant argues that “the police report does not state that from their vantage point the officers could be certain that the bottle they reportedly saw Mr. Garcia drink from was in fact a beer bottle or that it contained an alcoholic beverage.” Reply, at 5. Probable cause does not require certainty. “Probable cause exists when, under the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Davis,
Defendant also states “it is not clear whether, on this record, possession of an open container in a car is unlawful.” Reply, at 5. Defendant cites only an unpublished case for this proposition. People v. Salazar, B148705,
Even assuming the accuracy of the Barocio Declaration, the government has established the applicability of the “automobile exception” to the warrant requirement.
C. Warrantless Search of Cellphone
Defendant has moved to suppress “any text messages or other evidence obtained as a result of the search of his cell phone.”
There is no material dispute abоut the facts underlying the officers’ search of Defendant’s phone, which was conducted without a warrant. Nonetheless, the United States argues that suppression is not appropriate for two different, albeit closely related, reasons.
First, the government argues that “application of the exclusionary rule in this case would serve no purpose but would impose a significant cost on society.” Sur-Reply, at 10. It relies primarily on the Supreme Court’s statement that the exclusionary rule is “applicable only when suppression would result in appreciable deterrence that outweighs the cost to the justice system.” Herring v. United States,
The government’s first argument is unpersuasive. Herring does not apply here, since in Herring (and its many of its progeny), the officers relied in good faith upon information provided by other officials. By contrast, this case involves deliberate actions taken by officers on the basis of their own perceptions and judgments.
The government’s second argument, from Davis, is more convincing. To the extent Riley changed the law regarding the constitutionality of cellphone searches, suppressing evidence because of the officers’ pre-Riley actions would serve little deterrent purpose.
As an initial matter, the Court is persuaded by Justice Sotomayor’s separate opinion in Davis, noting that suppression was inappropriate in Davis because “‘binding appellate precedent specifically authorize[d] a particular police practice,’ ... in accord with the holdings of nearly every other court in the country.”
For this reason, the Cоurt does not agree with the United States that the
The police here were acting under much stronger authority than Robinson, however. Just seven months before the search in this case, the California Supreme Court specifically held that “the warrant-less search of [a] defendant’s cell phone was valid” as part of a search incident to arrest. People v. Diaz,
Defendant argues that a California Supreme Court holding cannot qualify as “binding appellate precedent,” since it is not binding upon this Court, in which the prosecution is taking plаce.
In considering the deterrent principles underlying the rule of Davis, and applying those principles to the facts of this case, the Court concludes that Diaz provides sufficient “binding appellate precedent” that “specifically authorized” the actions the officers took in this case. The officers were investigating the violation of local and state laws, and it was likely that any prosecution arising out of their investigations would take place in California state court. The fact that their investigatory efforts ended up later supporting a prosecution in federal court cannot logically transform their actions from the reasonable application of binding precedent to a constitutional violation deserving of suppression. It might be a different question if Diaz were not so squarely on-point, if the decision had bеen issued by an intermediate state court of appeal, or if there were contradictory authority in the Ninth Circuit that made the question of cellphone searches unsettled in California in August 2011. But on the facts as they are, the rationale of Davis applies with significant force.
Obviously, given how recently Riley was decided, few courts have had an opportunity to continue the interplay between Riley and Davis.
A third court, in this district, also considered this issue very recently. United States v. Martinez, No. 13-cr-00794-WHA,
Under Davis, since the officers acted within the scope of directly applicable appellate precedent that specifically permitted the search of cellphone information incident to arrest, the exclusionary rule does not bar admissibility of evidence obtained in the now-unconstitutional search of the cellphone.
IV. CONCLUSION The motion to suppress is DENIED.
IT IS SO ORDERED.
Notes
. Although the documents appear to be identical, the Court uses the police report versions submitted by the United States, since they were submitted as exhibits to a declaration.
. The remaining facts in this section are drawn only from the police reports.
. Officer Montero describes Defendant's consent more broadly: “Garcia gave Officer Van-Diver consent to search the Ford.” Montero Report, at 3. But it is clear from both reports that Officer VanDiver has the superior knowledge of his conversation with Defendant. See id. ("Please refеr to Officer VanDiver's supplemental report for further details of his conversation with Garcia”).
. Justice Sotomayor persuasively argued that there is a strong rationale for applying the exclusionary rule when the law is unsettled and no binding authority has specifically authorized the challenged search. See Davis,
. One leading treatise does suggest that for Davis to apply, the precedent must be binding "in the jurisdiction of ultimate prosecution.” W. LaFave, 1 Search & Seizure § 1.3(h) (5th ed.).
. The Supreme Court’s Riley opinion consolidated two appeals, one of which was from California. In that case, the search took place in 2009, before Diaz was decided. See
. United States v. Brown, No. 14-CR-20007,