In re Jose T. CA2/6

Filed 6/22/15 In re Jose T. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

In re JOSE T., a Person Coming Under the 2d Juv. No. B259052 Juvenile Court Law. (Super. Ct. No. 2013001929) (Ventura County)

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE T.,

Defendant and Appellant.

Jose T. appeals from a judgment sustaining a juvenile wardship petition. (Welf. & Inst. Code, § 602.) The petition alleged one count of possession of marijuana for sale. (Health & Saf. Code, § 11359.) The juvenile court committed appellant "to the care of the probation officer for a period of 104 days." Appellant's sole contention on appeal is that the court erroneously denied his motion to suppress the results of a warrantless search of his cell phone. (Welf. & Inst. Code, § 700.1.) The search was incident to appellant's arrest. We affirm. Facts In December 2012 Officer Christopher Martin of the Simi Valley Police Department stopped a vehicle because it did not have a front license plate. Appellant was the driver. Upon contacting appellant, Martin smelled an odor of marijuana coming from inside the

vehicle. Appellant admitted possessing marijuana and handed Martin "a cylindrical-type object that contained the marijuana." Appellant said he was 17 years old and did not have a "prescription" for the marijuana. Officer Martin arrested appellant and, "incident to [the] arrest," searched his cell phone. Martin saw "some text messages on the cell phone that were consistent with [appellant] being involved in selling marijuana." Martin searched the vehicle and found a scale with marijuana residue on it. He searched appellant and found $500 in cash. Appellant said that he had been selling marijuana "to kids at his school" and had been "making about a thousand bucks a month." The $500 on his person "was profit from selling marijuana." Standard of Review "In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1119.) Discussion Appellant contends that the search of his cell phone was unlawful pursuant to Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley). There, the United States Supreme Court held that the search incident to arrest doctrine does not apply to searches of cell phones. Thus, "a warrant is generally required before such a search, even when a cell phone is seized incident to arrest." (Id., 134 S.Ct. at p. 2493.) Officer Martin searched appellant's cell phone in December 2012, more than one year before Riley was decided. At the time of the search, the controlling authority was our California Supreme Court's decision in People v. Diaz (2011) 51 Cal.4th 84 (Diaz). Diaz "held that the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee's person. [Citation.]" (Riley, supra, 134 S.Ct. at p. 2481.)