People v. Nadone CA3

Filed 12/20/13 P. v. Nadone CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072433

Plaintiff and Respondent, (Super. Ct. No. 11F02582)

v.

KHENNARY NADONE,

Defendant and Appellant.

On April 1, 2011, Special Agent Justin Bolden and other agents from the California Department of Justice executed a search warrant for defendant Khennary Nadone’s residence in Sacramento and found several rounds of ammunition and marijuana. Defendant, who had a prior conviction that prohibited him from possessing ammunition, was charged with unlawful possession of ammunition, cultivation of marijuana, and possession of marijuana for sale. Defendant moved to traverse the search warrant on the ground that material information was omitted from the affidavit supporting probable cause for issuance of the

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warrant. The omitted information was that the location of defendant’s residence was obtained by tracking a global positioning satellite (GPS) device (GPS) which the agents had, without a warrant, placed on his vehicle on March 12, 2011, while the vehicle was in a hotel parking lot. The trial court denied the motion, reasoning as follows: a warrantless placement of a GPS device on a vehicle is a Fourth Amendment violation under United States v. Jones (2012) ___ U.S. ___ [181 L.Ed.2d 911, 918] (Jones), filed January 23, 2012. However, at the time the GPS device was placed on defendant’s vehicle, there was binding authority in California, namely People v. Zichwic (2001) 94 Cal.App.4th 944 (Zichwic), that a warrant was not required to place a GPS device on the exterior of a vehicle in a public place. Then, applying the rationale of Davis v. United States (2011) ___ U.S. ___ [180 L.Ed.2d 285] (Davis), which holds that “searches conducted in objectively reasonable reliance on binding appellate precedent [which is later overruled] are not subject to the exclusionary rule” (id. at p. ___ [180 L.Ed.2d at p. 290]), the court concluded that information gained from the GPS device was not subject to suppression under the exclusionary rule. Pursuant to a plea bargain, defendant then pleaded no contest to unlawful possession of ammunition and the marijuana charges were dismissed. Imposition of judgment was suspended and defendant was placed on probation. Defendant timely filed a notice of appeal. Defendant’s Contentions Defendant contends that Davis was inapplicable because Zichwic was not binding precedent. He also argues that Special Agent Bolden’s omission from the affidavit that the means by which he had been able to determine defendant’s residence was by tracking the GPS device was intentional and meant to deceive the magistrate. We reject both positions.