P. v. Spencer

Filed 5/28/15 P. v. Spencer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON SPENCER,
Defendant and Appellant.
B255745
(Los Angeles County
Super. Ct. No. BA404363)
APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund
Willcox Clarke, Jr., Judge. Affirmed.
Jonathan P. Milberg, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 8 --

2
Appellant Brandon Spencer was convicted, following a jury trial, of four counts of
attempted murder in violation of Penal Code sections 664 and 187.1 The jury found true
the allegations that the attempted murders were willful, deliberate and premeditated, and
were committed for the benefit of a criminal street gang within the meaning of section
186.22. The jury also found true the allegations that appellant personally discharged a
handgun in the commission of the attempted murders, and inflicted great bodily injury
with the handgun within the meaning of sections 12022.53, subdivisions (b) through (d).
The trial court sentenced appellant to a term of 40 years to life for the attempted murder
of Geno Hall (Hall), consisting of a 15-year-to-life term for the attempted murder
conviction plus a 25-year-to-life term for the firearm use enhancement. The court
sentenced appellant to concurrent terms of 40 years to life for the remaining three
attempted murder convictions.
Appellant appeals from the judgment of conviction, contending the warrantless
search of his cell phone incident to his arrest violated his Fourth Amendment rights and
requires reversal of the judgment. We affirm the judgment of conviction.
Facts2
On October 31, 2012, a student association at the University of Southern
California (USC) held a Halloween party in USC’s Tutor Campus Center Building. At
about 11:38 p.m., appellant, who was a member of the Black P Stones (BPS) Bloods
gang and was wearing his gang’s colors, approached Hall outside the entrance to the
party area. Appellant asked Hall where he was from, and Hall replied, “Rolling 40s.”
Appellant and Hall were wearing their respective gangs’ colors. BPS and the Rolling 40s
were longtime bitter rivals. Appellant fired six shots at Hall and the group of people
1 All further undesignated code section references are to the Penal Code.
2 This brief summary of the crimes in this matter is taken from the Reporter’s
Transcript of the trial, as is Officer Garcia’s account of his initial search of appellant’s
cell phone. Officer Rand’s testimony is taken from the hearing on appellant’s motion to
suppress.

-- 2 of 8 --

3
around Hall, wounding Hall, Hall’s friend Davonte Smith, Thomas Richie, and Mysson
Downs, who had previously known appellant.
Appellant fled after the shooting, but was arrested in a nearby parking lot by Los
Angeles Police Department (LAPD) officers. LAPD Officer Garcia seized appellant’s
cell phone from his pants pocket and searched it, at least briefly.
Several hours after appellant’s arrest, after receiving information from the
arresting officers that there were photographs on appellant’s cell phone, LAPD Officer
Robert Rand viewed images and video on appellant’s cell phone. These images included
a photograph of a revolver similar to the one used in the shooting, a photograph of
appellant firing a gun at an indoor shooting range, a photograph of BPS graffiti, and a
video of appellant and other gang members driving around asking people where they
were from.
Officer Rand used these photographs and videos, along with other information, to
obtain search warrants for appellant’s and Hall’s cell phone and Twitter accounts. Some
of the photos and videos were shown at trial. Evidence from appellant’s and Hall’s
Twitter accounts was also introduced at trial and showed that they had been engaged in
an argumentative and threatening exchange of messages prior to the Halloween party.
Discussion
Appellant made a motion to suppress the evidence obtained during Officer Rand’s
warrantless search of his cell phone. The trial court denied the motion, finding
dispositive the holding of the California Supreme Court in People v. Diaz (2011) 51
Cal.4th 84 (Diaz). In that case, the California Supreme Court held that the contents of a
cell phone could properly be searched incident to arrest. (Id. at p. 93.)
In June 2014, while this case was pending on appeal, the United States Supreme
Court held that police may not search data or images contained in cell phones without a
warrant in the absence of an emergency necessitating immediate action. (Riley v. United
States (2014) ___ U.S. ___, 134 S.Ct. 2473 (Riley).)

-- 3 of 8 --

4
Appellant contends that since his case was pending on appeal when Riley was
decided, the decision in Riley must be applied retroactively to his case, resulting in a
holding that the evidence should have been excluded. He acknowledges that we have
previously held that data or images found during a warrantless search of a cell phone
prior to the decision in Riley need not be suppressed because the police in good faith
reasonably relied on the decision in Diaz. (People v. Macabeo (2014) 229 Cal.App.4th
486, review granted Nov. 25, 2014 (S221852).)
We reach the same conclusion in this case. In Davis v. United States (2011) __
U.S.__, 131 S.Ct. 2419 (Davis), the U.S. Supreme Court held that evidence seized from a
car during a search incident to arrest is contrary to the rule in Arizona v. Gant (2009) 556
U.S. 332 (Gant) and was not subject to the exclusionary rule because the officers
conducted the search in “objectively reasonable reliance on [the] binding appellate
precedent” of New York v. Belton (1981) 453 U.S. 454 (Belton). After Davis’s arrest,
Gant had restricted the holding of Belton. In such a circumstance, “suppression would do
nothing to deter police misconduct . . . and . . . it would come at a high cost to both the
truth and the public safety. . . .” (Davis, supra, 131 S.Ct. at p. 2423.)
The U.S. Supreme Court in Davis said the exclusion of evidence to deter is proper
when the law enforcement action in question constitutes “‘deliberate,’ ‘reckless,’ or
‘grossly negligent’” police conduct. (Davis, supra, 131 S.Ct. at pp. 2437-2439.)
Presumably this would include systematically negligent police conduct. (See id. at p.
2438.) The court concluded that “[t]he harsh sanction of exclusion ‘should not be applied
to deter objectively reasonable law enforcement activity.’ [Citation.] Evidence obtained
during a search conducted in reasonable reliance on binding precedent is not subject to
the exclusionary rule.” (Id. at p. 2429.) The court further held that although Gant
applied retroactively, “[i]t does not follow . . . that reliance on binding precedent is
irrelevant in applying the good-faith exception to the exclusionary rule.” (Id. at p. 2432.)
The court therefore “[held] that when the police conduct a search in objectively
reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”
(Id. at p. 2434.)

-- 4 of 8 --

5
Appellant contends that Diaz, supra, 51 Cal.4th 84 cannot be considered binding
appellate precedent for purposes of the good-faith exception to the exclusionary rule
because it was contrary to binding U.S. Supreme Court precedent and “clearly out of step
with established federal constitutional law.”
In Diaz, five justices agreed that under existing U.S. Supreme Court decisions cell
phones could be searched incident to arrest. (Diaz, supra, 51 Cal.4th at p. 102 (conc.
opn. of Kennard, acting C.J.).) Justice Kennard, in a concurring opinion, acknowledged
the possibility that the U.S. Supreme Court would change its position on this issue, but
recognized the California Supreme Court was bound to follow those precedents until the
U.S. Supreme Court made exceptions to those cases or overruled them.3 (Id. at p. 103
(conc. opn. of Kennard, Acting C.J.).) Appellant is correct that two justices dissented in
Diaz and argued that the majority opinion in Diaz was contrary to existing U.S. Supreme
Court law. (Id. at pp.103-112 (dis. opn. of Werdegar, J.).) However, the U.S. Supreme
Court denied certiorari in Diaz. (Diaz v. California (2011) 132 S.Ct. 94.) Thus, at the
time of appellant’s arrest, Diaz, was clearly binding appellate precedent for purposes of
the good-faith exception to the exclusionary rule.
Appellant contends there is no evidence that Officer Rand was aware of or relied
on Diaz. He acknowledges that in our previous opinion in Macabeo, we relied on
Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 178 (Conway) to
support a presumption that the officers knew and relied on Diaz. He argues that the
discussion of a presumption in Conway is dicta. The court in Conway relies on federal
law in its discussion of the presumption, and we find Conway persuasive on this issue.
3 “[T]he United States Supreme Court has cautioned that on issues of federal law all
courts must follow its directly applicable precedents, even when there are reasons to
anticipate that it might reconsider, or create an exception to, a rule of law that it has
established. (Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477, 484.) The
high court has reserved to itself alone ‘the prerogative of overruling its own decisions.’
(Ibid.; see Scheiding v. General Motors Corp. (2000) 22 Cal.4th 471, 478.)” (Diaz,
supra, 51 Cal.4th at p. 103 (conc. opn. of Kennard, J.).)

-- 5 of 8 --

6
In his supplemental letter brief, appellant contends that even if reliance on Diaz
could be presumed in some cases, it cannot be presumed in this case because the record
shows that Officer Rand “knew he needed a warrant to search the cell phone since he
obtained one to ‘cover’ himself following his initial warrantless search.” At the hearing
on the motion to suppress, Officer Rand explained that he viewed videos and photographs
on the cell phone, but then shut down the phone because he intended to get the entire
context [sic] of the phone. “SID,” the Scientific Investigation arm of the police
department required a warrant to do a “forensic download.” This download would give
Officer Rand access to “call contents” and “text messaging.” Nothing in Officer Rand’s
testimony suggests that he sought a warrant because he knew or believed that he was not
authorized to view readily accessible material on the cell phone such as photos and
videos. Thus, Officer Rand’s act of obtaining a search warrant does not rebut the
presumption that he was aware of and relied on Diaz.
In the supplemental letter brief, appellant also argues that even if a search of his
cell phone would have been permissible incident to his arrest, the search of his cell phone
did not in fact take place until five hours after he was arrested and so cannot be
considered incident to his arrest. Appellant relies on a recent decision of the Ninth
Circuit Court of Appeals to support his argument. (United States v. Camou (9th Cir.
2014) 773 F.3d 932 (Camou).) In that case, the court held that the search of a cell phone
which occurred an hour and twenty minutes after his arrest and after he was transported
to a border patrol station was not incident to arrest. The Ninth Circuit relied on its
understanding of U.S. v. Chadwick (1977) 433 U.S. 1 (Chadwick) to support its holding.4
Like Riley, Camou was decided after appellant’s arrest in this case and involves an
issue that was decided in Diaz. As the majority in Diaz recognized, approximately 90
minutes elapsed in that case between Diaz’s arrest and the search of his cell phone, a time
which was “substantially similar to the 90-minute delay the high court held to be too
4 We are not bound to follow decisions of the Ninth Circuit even on issues of
federal constitutional law. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352; People v.
Bradley (1969) 1 Cal.3d 80, 86.)

-- 6 of 8 --

7
remote in [Chadwick].” (Diaz, supra, 51 Cal.4th at p. 93, fn .5.) However, as the
majority explained, “Chadwick explains that a delayed warrantless search ‘of the person,’
[Citation.] — which includes property ‘immediately associated with the person’ at the
time of arrest [Citation], but excludes property that is only ‘within an arrestee’s
immediate control’ [Citation] — is valid because of ‘reduced expectations of privacy
caused by the arrest.’ [Citation.]” (Diaz, supra, 51 Cal.4th at p. 94.) Chadwick involved
the search of a double-locked footlocker found in the trunk of a vehicle which was not
immediately associated with the defendant. As the majority in Diaz also pointed out,
“Edwards states that ‘once the accused is lawfully arrested and is in custody, the effects
in his possession at the place of detention that were subject to search at the time and place
of his arrest may lawfully be searched and seized without a warrant even though a
substantial period of time has elapsed between the arrest and subsequent administrative
processing, on the one hand, and the taking of the property for use as evidence, on the
other.’ ([U.S. v. Edwards (1974) 415 U.S. 800, 807].)” (Diaz, supra, 51 Cal.4th at p.
95.)
Although the warrantless search of appellant’s cell phone was unlawful under the
recent decision in Riley, supra, 134 S.Ct. 2473, the search falls within the good faith
exception to the exclusionary rule. Reversal of the trial court’s denial of the motion to
suppress is not required, nor is reversal of appellant’s conviction.

-- 7 of 8 --

8
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GOODMAN, J.
We concur:
TURNER, P.J.
MOSK, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

-- 8 of 8 --