SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA ) ) ) ) ) ) ) ) ) ) ) )

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1 1 1 1 Thomas A. Johnson, SBN 1 Kristy M. Kellogg, SBN Law Office of Thomas A. Johnson 00 Capitol Mall, Suite Sacramento, CA 1 Telephone ( -0 Attorneys for Matthew Muller PEOPLE OF THE STATE OF CALIFORNIA, vs. Plaintiff, MATTHEW MULLER, Defendant. SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA Case No. - DEFENDANT S NOTICE AND MOTION TO SUPPRESS EVIDENCE PURSUANT TO PENAL CODE.. Dept: 0 Date: // Time: :00 p.m. TO THE COURT AND THE DISTRICT ATTORNEY OF ALAMEDA COUNTY: PLEASE TAKE NOTICE that on August,, or as soon thereafter as the matter may be heard, Defendant, MATTHEW MULLER, shall and hereby does move the Court to suppress evidence pursuant to Penal Code.. Defendant s Motion to Suppress Evidence 1

2 1 1 1 Table of Contents Table of Authorities... I. Introduction... II. III. Description of Evidence to be Suppressed... Statement of Facts...- IV. Points and Authorities... A. Defendant Has a Legitimate Expectation of Privacy to Challenge the Legality of the Search and Seizure... B. The Phone Was Never Abandoned, It Was Simply Lost... C. The Burden is Upon the Prosecution to Prove That the Search was Reasonable Since the Police Did Not Possess a Search Warrant... D. The Warrantless Search of Defendant s Cellular Phone Was Impermissible Because No Exception to the Warrant Requirement Existed No Exigent Circumstance Existed that Would Justify the Search of the Cellular Phone.... Analogous Case Law on Cellular Phone Searches Indicates the Search was Unlawful...1 E. The Fruits of the Unlawful Search Must Be Suppressed and Forever Eliminated as Evidence in the Case and All Others that Follow...1 V. Conclusion...1 Defendant s Motion to Suppress Evidence

3 1 1 1 Table of Authorities Brigham City v. Stuart, supra, U.S. at p California v. Carney, 1 U.S., 0-1(... Flippo v. West Virginia, U.S., 1 (... Mapp v. Ohio, U.S. (1... Maryland v. Dawson, U.S., (... Mincey v. Arizona, U.S., (... Murray v. U.S., U.S. (... People v. Ayala, Cal. th, n. (00... People v. Daggs, 1 Cal. App. th 1, - (1st Cir. 0..., 1 People v. Duncan, Cal. d 1, (... People v. Panah, Cal.th, (0..., People v. Shepherd, Cal. App. th, (... People v. Wharton, Cal. d, (1...1 People v. Williams, Cal. th 1, 1 (... People v. Woods, Cal. th, (... Rakas v. Illinois, U.S. 1, 1-1 (... Riley v. California, 1 S. Ct. (1..., 1 Terry v. Ohio, U.S. 1, 1 (... U.S. v. Alderman, U.S., 1 (... U.S. v. Wanless, F. d 1 (th Cir....1 Weeks v. United States, U.S. (1... Wong Sun v. U.S., 1 U.S. 1 (...1 Defendant s Motion to Suppress Evidence

4 1 1 1 I INTRODUCTION The complaint alleges Defendant violated the following offenses: 1 Two counts of Penal Code / 1, attempted robbery; Penal Code, first degree residential burglary; Penal Code (a(1 assault by means of force likely to produce great bodily injury; together with enhancements under Penal Code 1(b use of a weapon and Penal Code 1., personal infliction of great bodily injury. Mr. Muller s Fourth Amendment right to be free from unreasonable searches and seizures was violated by the warrantless search of a cell phone. The warrantless search of his cell phone was the "poisonous tree" that eventually led to his arrest in this matter. Defendant submits the following points and authorities in support thereof. The Defendant requests that the court suppress the warrantless search of the cellular phone, and all evidence that flowed from the search of the phone, more specifically all evidence that was the "fruit" of the warrantless cell phone search. II DESCRIPTION OF EVIDENCE TO BE SUPPRESSED Defendant seeks suppression of all tangible and intangible evidence, including statements and observations obtained as a result of the deprivations of Mr. Muller s right to privacy following the unlawful warrantless search of the cellular phone. That would include any evidence that the police came into possession of post search of the phone. That includes the entire search of a residence and car in El Dorado County in June of. It would include all statements given by the defendant and all physical evidence seized at any time post search of the phone. The entire investigation of Mr. Muller began when a police officer without consent and without a warrant activated the keypad to a phone and began to develop information from that exact moment in time. This search was warrantless, unlawful and all the evidence obtained after the search should be suppressed. Defendant s Motion to Suppress Evidence

5 1 1 1 III - STATEMENT OF FACTS The following facts have been obtained from the discovery provided by the Alameda County District Attorney s Office and are relevant to this motion: At : a.m. on Friday, June,, the Alameda County Sheriff s received a call from North Terracina Drive, Dublin, CA. Chung Yen and Lynn Yen are married and lived at the Terracina address with their daughter, Kelly Yen. Lynn and Chung were sleeping in their bedroom and were awakened by a subject at about : a.m. who had a green laser pointed at them. The subject stated they had their daughter and that she was safe. The Yens were directed to lay face down on the bed with their hands behind their backs. As the subject moved closer, Chung Yen grabbed the subject and tackled him to the ground. Lynn Yen grabbed her cellular phone and locked herself in the bathroom and called. Chung Yen told Lynn Yen to get the gun and the subject stuck Chung Yen on the head with what was believed to be a mag light flashlight. Thereafter a short struggle ensued and Mr. Yen was unable to subdue the perpetrator. The perpetrator fought with Mr. Yen but managed to escape the residence by running out of the back of the house. That person fled the area and was not apprehended. Officers were dispatched to the Yen residence at : a.m. They arrived within a few minutes. First on scene was Sgt. Shepard, followed by deputies Dormer and Feroz. When the deputies arrived, Chung and Lynn Yen exited the residence and were waiting outside with Sergeant Shepard of the Alameda County Sheriff's Department. Within a minute or two, Kelly Yen then walked out of the residence and handed Sergeant Shepard a white Samsung Galaxy cellular phone which she said she had found on the counter across from her bedroom. None of the Yens claimed ownership of the cell phone. By this time, approximately :0 a.m. to : a.m., the subject had been gone a minimum of ten minutes. The call from Lynn Yen was placed at 0 and the second set of officers was dispatched, not arrived, but dispatched at 0 hrs. At some point the Sheriff's deputies then decided based upon the belief that it was important to identify the owner of the phone and determine if he was the suspect, to Defendant s Motion to Suppress Evidence

6 1 1 1 prevent him from attempting to harm other residents in the area... to activate the phone by calling from the phone. They did not have a warrant to do so, but in their reports cited an exigency as the primary reason. Unfortunately the officers did not note at any time in the reports when they called. There were at least and possibly as many as officers on scene when the call was placed from the cell phone in question. The house was cleared, the scene was quiet, and the Yens were completely safe. There was no imminent danger to any person at the premises. The deputies also stated in their reports that if they identified the owner of the phone, they would be able to locate him in the area more easily by locating a photo of him in Cal Photo. The deputies claimed these were exigent circumstances which warranted a search of the suspect s cellular phone. However, the phone was locked with a code. In order to bypass the code, Sergeant Shepard dialed from the phone and the Sheriff s Radio advised that the incoming call was (00-0. Somehow the deputies were able to bypass the lock screen to get to the phone screen to dial. DPS Special Investigations Unit Detective K. Woods authored and obtained a search warrant for the recovered cellular phone later that day. The scene at the Yen home had been secure for several hours. The search warrant revealed that the cellular phone belonged to John Zarback with an address of 00 Mississippi Bar Drive in Orangevale, CA. Detective Woods had the Sacramento Sheriff s Department call John Zarback and advise him that they had found a cellular phone that belonged to him and for him to call Deputy Buenrostero. At approximately hours on June,, Deputy Buenrostero received a call from Joyce Zarback. Joyce stated that her husband paid the bill on the phone but it belonged to her son, Matthew Muller. Deputy Buenrostero called again and John Zarback returned the call. He informed the deputy that his son was going to pick up the cellular phone and that he was living in Tahoe. Using a local law enforcement database, Accurint, John Zarback was the registered owner of a residence in Tahoe located at Genoa Avenue in South Lake Tahoe, CA. That same day Mr. Muller was Defendant s Motion to Suppress Evidence

7 1 1 1 arrested and a residence in South Lake Tahoe was searched which produced evidentiary items connecting Mr. Muller to the Dublin event. IV POINTS AND AUTHORITIES The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, and the California Constitution, Article I, Section 1, guarantees the right of people to be free from unreasonable searches and seizures. The exclusionary rule prohibits the introduction of any evidence seized from the defendant in violation of his Fourth Amendment rights. Murray v. U.S., U.S. (; U.S. v. Alderman, U.S., 1 (; Mapp v. Ohio, U.S. (1; Weeks v. United States, U.S. (1. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. Terry v. Ohio, U.S. 1, 1 (. The Fourth Amendment generally requires the police to secure a warrant before conducting a search. Maryland v. Dawson, U.S., (; California v. Carney, 1 U.S., 0-1(. Many courts have stated that the warrant requirement is subject only to a few narrow and well-delineated exceptions. See e.g., Flippo v. West Virginia, U.S., 1 (; People v. Woods, Cal. th, (. Pursuant to Penal Code., a defendant may move... to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure [if] the search or seizure without a warrant was unreasonable. Penal Code.(a(1(A. A. Defendant Has a Legitimate Expectation of Privacy to Challenge the Legality of the Search and Seizure. In order to for a defendant to suppress evidence seized in violation of his Fourth Amendment rights, the defendant must have a reasonable expectation of privacy in the Defendant s Motion to Suppress Evidence

8 1 1 1 place searched or items seized. Rakas v. Illinois, U.S. 1, 1-1 (. The California Supreme Court has indicated that mention of standing should be avoided when analyzing a Fourth Amendment claim, and noted that the United States Supreme Court has largely abandoned the use of the word and, instead, used the term reasonable expectation of privacy. People v. Ayala, Cal. th, n. (00. The United States Supreme Court has recently emphasized the importance of constitutional protection to be free from unreasonable searches and seizures of a person s cellular phone and found that [i]t is no exaggeration to say that many of the more than 0% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives from the mundane to the intimate. (Citation Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case. Riley v. California, 1 S. Ct. (1. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form. Id. at 1. Every person who uses a cell phone has an expectation of privacy with respect to that item. Mr. Muller is no different. The reports indicate that Joyce and John Zarback indicated that they paid the bill, but the phone belonged to Mr. Muller. Therefore, he had an expectation of privacy with respect to that phone. In People v. Shepherd, Cal. App. th, (, the court noted that [A]n important consideration in evaluating a privacy interest is whether a person has taken normal precautions to maintain his or her privacy. The phone was obviously not left at the Yen residence on purpose by the intruder. The intruder/burglar left running as quickly as possible, right out the back door while the screaming, yelling and the call was occurring. Moreover, the phone had a locking personal code. Phones can be programmed either to have a pass code or not have a pass code. That pass code is no Defendant s Motion to Suppress Evidence

9 1 1 1 different than a password to a bank account, or to a laptop, etc. Having a pass code is actually code for: this is my private information which I mean to keep secure and private. As the police reports indicate, the cellular phone was locked with a pass-code, and the deputies could not access the information on the cellular phone since it was locked. Based upon the recent United States Supreme Court case law emphasizing the importance of maintaining privacy in cellular phones and the fact this phone was locked, sufficient precautions were taken to protect the privacy of the user of the phone. B. The Phone Was Never Abandoned, It Was Simply Lost. This much we know from the reports about the sequence of events in the home: An intruder entered the Yen residence and left after a failed robbery attempt. After the event ended, Kelly Yen produced a phone that she said she found inside the residence on a counter across from her bedroom. The statements of Chung Yen and Lynn Yen indicate that the intruder was confronted and a fight ensued between him and Mr. Yen. The intruder then ran out of the house, as the call was being placed. The intruder never had an opportunity to thoughtfully, after considering what was occurring, decide to abandon the phone. The most logical and reasonable inference that can be drawn from the available facts is that after entering the house the phone was placed on a counter. The fight occurs between Mr. Yen and the intruder, people are yelling, crying, and screaming, it is pitch black in the house and the intruder just runs out of the house as fast as possible, to escape. That is exactly how it was described by the Yens. In People v. Daggs, 1 Cal. App. th 1, - (1st Cir. 0, the Court stated the rules to determine whether an object was abandoned: [T]he intent to abandon is determined by objective factors, not the defendant s subjective intent. Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so Defendant s Motion to Suppress Evidence

10 1 1 1 relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search. (Brown, supra, Cal. App. d at p., italics added; see also In re Baraka H. ( Cal.App.th, [ Cal. Rptr. d 1]; United States v. Jones (th Cir. 0 F.d 1, 1. The most reasonable inference from these facts is that the intruder intended to flee the residence to avoid capture and arrest. If a person has just burglarized a home and the resident is calling, the first and most likely reaction is one of flight to avoid arrest. The intruder did not intend to abandon the phone; it was simply left there in the heat of an escape attempt. C. The Burden is Upon the Prosecution to Prove That the Search was Reasonable Since the Police Did Not Possess a Search Warrant. A warrantless search or seizure is presumptively unreasonable and the prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure. People v. Williams, Cal. th 1, 1 (, rehearing denied, as modified. It is incumbent on the District Attorney to prove that this search was lawful, given the fact that it was warrantless and done without consent. D. The Warrantless Search of Defendant s Cellular Phone Was Impermissible Because No Exception to the Warrant Requirement Existed. 1. No Exigent Circumstance Existed that Would Justify the Search of the Cellular Phone. The exigent circumstances doctrine constitutes an exception to the warrant requirement when an emergency situation requires swift action to prevent imminent danger to life. People v. Panah, Cal.th, (0. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Mincey v. Arizona, U.S., (. There is no ready litmus test for determining whether such circumstances exist, and in Defendant s Motion to Suppress Evidence

11 1 1 1 each case the claim of an extraordinary situation must be measured by the facts known to the officers. Panah, supra, at. Generally, a court will find a warrantless search justified if the facts available to the officer at the moment of the search would cause a person of reasonable caution to believe that the action taken was appropriate. See People v. Duncan, Cal.d 1, (. In this case, there was no emergency situation that required swift action to prevent imminent danger to life. Deputy Buenrostero articulated that in his belief that there was an exigent circumstance in his police report and stated it was important to identify the owner of the phone and determine if he was the suspect, to prevent him from attempting to harm other residents in the area. The gaping hole in the reports is that the time of the warrantless search is never put on paper. Nowhere in the reports does it say that at a specific time the phone was accessed. It is impossible to argue exigency when there is not a reliable timeline to attach the exigency to in the first place. The reports simply read that the deputies considered it an exigency, without stating the time, versus an act of sheer expediency. This articulated exigency was simply a decision that had everything to do with investigating on the fly, which later morphed into an exigency, possibly because they realized the warrantless search would become problematic. The problem with that for the Sheriff's Department is that the phone became the door that led to the treasure of evidence they located thereafter. Deputy Buenrostero also wrote in this report that an exigent circumstance existed because if they identified the owner of the phone and it was the suspect they would be able to locate him in the area more easily by locating a photo of him in Cal Photo. Again, no emergency existed to warrant an immediate search of the cellular phone. Violating a person s Fourth Amendment right to be free from unreasonable searches and seizures cannot be negated simply to make it easier for law enforcement to apprehend suspects more easily. The circumstances of this case did not pose an emergency situation that would have justified making an exception to the warrant requirement. Based upon the facts Defendant s Motion to Suppress Evidence

12 1 1 1 known to officers at the time, searching the cellular phone was unreasonable and a warrant was required before a search was conducted. A review of precedent case law in which a court found an exigent circumstance authorized a warrantless search shows that the actions taken in this case were unreasonable. The California Supreme Court has previously recognized that a warrantless entry may be appropriate when the police seek an occupant reliably reported as missing. People v. Wharton, Cal. d, (1. The Supreme Court has recognized an exigent circumstance when the police have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. Brigham City v. Stuart, supra, U.S. at p. 00. No case law provides for the warrantless search of a cellular phone when no exigent circumstance was present.. Searching Cell Phones Without a Warrant is Generally Unlawful Post Riley v. California. In a recent unanimous decision, the United States Supreme Court has ruled that searches of cellular phones incident to arrest generally require a search warrant. Riley v. California, 1 S. Ct. (1. The Supreme Court held: Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life, Boyd, supra, at 0, S. Ct., L. Ed.. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple get a warrant. Id. at -. Due to the wealth of private information a cellular phone can contain, even though a person who is arrested is subject to less privacy, the Court still found that in order to search a cellular phone incident to arrest police are generally required to obtain a search warrant. Similarly, in this case, the deputies needed to obtain a warrant Defendant s Motion to Suppress Evidence 1

13 1 1 1 before searching the cellular phone. No immediate threat to the safety of others was present which would circumscribe the warrant requirement. In People v. Daggs, 1 Cal. App. th 1 (1st Dist. 0, the Appellate Court also dealt with the search of a cellular phone. However, Daggs is distinguishable. In Daggs, the court found that defendant had abandoned his phone when he left it unattended in a public place of business at the scene of the crime and made no attempt to reclaim it. Police seized the phone and waited over a week for someone to reclaim it. When no one tried to claim the phone, then officers searched the phone for identifying information. In contrast, the cellular phone in this case was not left unattended in a public place of business and the police did not wait a week to see if it would be reclaimed. Furthermore, the phone in this case was locked with a pass-code. The ruling in Daggs also occurred prior to the ruling in Riley where the United States Supreme Court emphasized the importance of privacy in a cellular phone. Therefore, the case is sufficiently distinguishable and the Court should grant the motion to suppress. D. The Fruits of the Unlawful Search Must be Suppressed and Forever Eliminated as Evidence in the Case and All Others That Follow. Over 0 years ago, the United States Supreme Court in the sentinel case of Wong Sun v. United States, 1 U.S. 1 (, held that evidence obtained as a direct result of an illegal search may not be used against the defendant in a criminal proceeding. Referring to the illegal search as a poisonous tree and the evidence that flowed from it as the tainted fruit of that tree, the court held that the fruit of the poisonous tree is not admissible evidence. Furthermore, evidence obtained illegally may not even be used to establish probable cause for a subsequent search. United States v. Wanless, F. d 1 (th Cir.. In this case, the entire investigation flowed directly from the illegal search of the phone to the subsequent arrest of Matthew Muller and to all of the subsequent searches and all statements from witnesses with the exception of the Yen family. The phone search was quite literally the door that led to a room full and a car full of evidence, not to Defendant s Motion to Suppress Evidence 1

14 1 1 1 mention the ultimate identification of Matt Muller as the possessor of the phone. Without the illegal search the authorities never would have called Joyce Zarback. All of this evidence must be suppressed to protect the integrity of the Fourth Amendment of the United States Constitution. V - CONCLUSION Based upon the facts of this case and precedent case law, the prosecution will not be able to prove a reasonable justification for the warrantless search of Mr. Muller s cellular phone and the Court should grant the motion to suppress. Therefore, for all of the aforementioned reasons, Defendant, Matthew Muller, respectfully requests the Court to grant a motion to suppress evidence under Penal Code.. Dated: August, Respectfully Submitted, Thomas A. Johnson Attorney for Matthew Muller Defendant s Motion to Suppress Evidence 1