Mr. Macabeo was riding his bicycle at 2:00 in the morning. He failed to stop at a stop sign before he made a left turn. Police officers, who were following 20 feet behind Mr. Macabeo in a marked vehicle with its headlights off, detained Mr. Macabeo for failure to stop at the stop sign.

Mr. Macabeo was ordered to get off his bicycle. Officers asked him to empty his pockets. Mr. Macabeo removed his cell phone from his pants pocket. Officers told Mr. Macabeo to sit on the curb. While one officer asked Mr. Macabeo questions such as “Where are you going?” “Where are you coming from?” “Are you on probation?” the other officer was rummaging through the content of defendant’s cellphone. The officer found illegal materials contained on the cellphone and Mr. Macabeo was arrested, not for riding through a stop sign, but for the possession of illegal photographs.

At the time of this search, the California Supreme Court, in People v. Diaz, had ruled that the search of a cell phone incident to arrest was constitutional and not a violation of a person’s Fourth Amendment right to remain free of illegal search and seizure. Subsequent to the search of defendant, the United States Supreme Court, in People v. Riley, ruled that a cell phone search incident to arrest was unconstitutional and required a warrant prior to the search.

The California Supreme Court is reviewing this case regarding the following issues:

  1. May law enforcement officers conduct a search incident to the authority to arrest for a minor traffic offense, so long as a custodial arrest (even for an unrelated crime) follows?
  2. Did Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] require the exclusion of evidence obtained during the warrantless search of the suspect’s cell phone incident to arrest, or did the search fall within the good faith exception to the exclusionary rule (see Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419, 180 L.Ed.2d 285]) in light of People v. Diaz (2011) 51 Cal.4th 84?

During oral argument on May 4, 2016, all of the Justices were fully engaged with the argument of Professor Charles Weisselberg, Criminal Procedure professor and assistant dean of Berkeley School of Law. Karen Bird associated in to the case a team of professors and students from Berkeley to assist in preparation of briefs and the oral argument. This case presented a huge constitutional argument which required a team effort.

And the efforts appear to have been successful. The court’s opinion must be submitted within 90 days but Karen expects, based upon the Justices’ questions and comments during oral argument, a victory for Mr. Macabeo.

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