Warrantless search of cell phone seized from car left at a shooting upheld

 People v. Tousant (Cal. Ct. App., May 26, 2021, No. A156044) 2021 WL 2134389

 Summary: Tousant challenged the denial of his motion to suppress evidence downloaded from his cellphone, seized after an allegedly illegal search of his car left at the scene of an Oakland shooting. Tousant claimed the trial court erroneously denied his motion to suppress evidence obtained after the Oakland shooting and in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. (U.S. Const., 4th Amend.) The Court of Appeal held that the trial court properly denied the motion to suppress.

Warrantless search is presumptively unreasonable

A warrantless search is presumptively unreasonable unless it falls within a “ ‘specifically established and well-delineated’ ” exception to the warrant requirement. (People v. Lopez (2019) 8 Cal.5th 353, 359, 255 Cal.Rptr.3d 526, 453 P.3d 150; U.S. Const., 4th Amend.) “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.” (People v. Barnes (2013) 216 Cal.App.4th 1508, 1513, 157 Cal.Rptr.3d 853.) An appellate court considers the record in the light most favorable to the trial court’s decision and defer to its factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673-674, 88 Cal.Rptr.2d 88, 981 P.2d 1019.)

Automobile exception to warrantless search

Police engaged in a warrantless search of Tousant’ rental car a few hours after a shooting in Oakland and seized his phone. The car was parked directly across the street from the site of a shooting.

Tousant contends there was no probable cause to search his car without a warrant. The  search and seizure are justified under the automobile exception to the warrant requirement.

That exception authorizes law enforcement to conduct a warrantless search of any area of a vehicle if there is probable cause to believe it contains evidence of criminal activity or contraband. (People v. Lopez, supra, 8 Cal.5th at p. 372, 255 Cal.Rptr.3d 526, 453 P.3d 150; U.S. v Ross (1982) 456 U.S. 798, 799-800, 102.

Cars are mobile, creating a risk evidence may be moved or lost while officers seek out a search warrant. (California v. Acevedo (1991) 500 U.S. 565, 569).  Also, there  is a lesser expectation of privacy in a vehicle than a dwelling. (California v. Carney (1985) 471 U.S. 386, 391). Decisions upholding warrantless searches of vehicles thus do not distinguish between searches conducted on parked vehicles or vehicles that have been stopped by police on a highway. (People v. Superior Court (Overland) (1988) 203 Cal.App.3d 1114, 1119, 250 Cal.Rptr. 458.)

Here, law enforcement could reasonably conclude the car was connected to the shooting and could contain evidence relevant to the crime. The totality of the circumstances would lead a person of “ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.” (People v. Dumas (1973) 9 Cal.3d 871, 885, 109 Cal.Rptr. 304, 512 P.2d 1208.)

Probable cause to seize the cellphone

 Officers may seize evidence in plain view “from a position where the officer has a right to be,” including a vehicle he or she is entitled to search. (People v. Webster (1991) 54 Cal.3d 411, 431, 285 Cal.Rptr. 31, 814 P.2d 1273.) “In the cell phone context … it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred.” (Riley v. California (2014) 573 U.S. 373, 388, 399, 134 S.Ct. 2473, 189 L.Ed.2d 430 (Riley) [defense concession that officers can seize and secure cell phones discovered during proper searches of a defendant’s person incident to arrest is “sensible”].) Based on the totality of the circumstances there was probable cause to believe the cellphone would contain evidence related to the shooting, and therefore it was properly seized.

The search warrant for the cellphone was valid

 Tousant argued that without information, obtained from the warrantless search of his phone. confirming his ownership of the cellphone, there was no probable cause to believe the phone contained any evidence of the Oakland shooting. He argued TGIF  there was no basis to issue a warrant to search the phone. The People concede, and we agree, that the initial pre-warrant search of Tousant’s cellphone on was illegal. The U.S. Supreme Court in Riley, supra, 573 U.S. 373, 134 S.Ct. 2473, concluded officers may not engage in a warrantless search of “those areas of the phone where an officer reasonably believes that information relevant to … the arrestee’s identity” may be discovered. (Id. at p. 399, 134 S.Ct. 2473 [addressing limited search of a cellphone seized incident to arrest].) Instead, absent an emergency, a warrant is required to search the digital contents of a cellphone. (Id. at p. 401, 134 S.Ct. 2473.)

Information gathered from the limited warrantless search of Tousant’s cellphone—the telephone number and photograph of his driver’s license—must be excised from the affidavit supporting the search warrant to view the digital contents of the phone. (People v. Weiss (1999) 20 Cal.4th 1073, 1081, 86 Cal.Rptr.2d 337, 978 P.2d 1257 (Weiss).)

Where, as here, “a criminal investigation involved some illegal conduct, courts will admit evidence derived from an ‘independent source’ ”—evidence “ ‘that has been discovered by means wholly independent of any constitutional violation.’ ” (Weiss, supra, 20 Cal.4th at p. 1077, 86 Cal.Rptr.2d 337, 978 P.2d 1257.) For search warrant affidavits containing “both information obtained by unlawful conduct as well as untainted information, a two prong-test applies to justify application of the independent source doctrine.” (People v. Robinson (2012) 208 Cal.App.4th 232, 241, 145 Cal.Rptr.3d 364.) “First, the affidavit, excised of any illegally-obtained information, must be sufficient to establish probable cause.” (Ibid.) Second, the evidence must support a finding that ‘the police subjectively would have sought the warrant even without the illegal conduct.’ ” (Ibid.) “[W]e determine de novo whether the search warrant affidavit is sufficient to establish probable cause … absent the information obtained by the illegal [conduct].” (Ibid.)

Even without the tainted information derived from the illegal search—the cellphone number and driver’s license information confirming Tousant’s connection with the cellphone—The  affidavit established probable cause to search the cellphone. (See Weiss, supra, 20 Cal.4th at p. 1081, 86 Cal.Rptr.2d 337, 978 P.2d 1257.)

Police would have sought and obtained the warrant even without obtaining Tousant’s telephone number or driver’s license information.6 (See id. at pp. 543-544, 108 S.Ct. 2529 [remand required where trial court makes no finding about whether illegal conduct was irrelevant to later securing warrant].)

Both prongs of the independent source doctrine were satisfied here, and there was no error in the trial court’s ruling on Tousant’s suppression motion.