Good faith exception to the exclusionary rule inapplicable to pre-Riley cell phone search because the search did not qualify as a search incident to arrest. Police stopped Macabeo for rolling through a stop sign on his bike. They searched his cell phone and found pictures of underage girls on it. Macabeo moved to suppress the evidence. The trial court denied the motion, reasoning that the cell phone search was a valid search incident to arrest under People v. Diaz (2011) 51 Cal.4th 84. The Court of Appeal affirmed. While recognizing that Riley v. California (2014) 573 U.S. __ [134 S.Ct. 2473] had subsequently repudiated Diaz’s reasoning, the court reasoned that the good faith exception to the exclusionary rule applied because Diaz was controlling at the time and the officers could reasonably rely on it to justify the search. The Supreme Court granted review. Held: Reversed and remanded. In Diaz, the Supreme Court concluded that officers could conduct, incident to arrest, a warrantless search of the defendant’s cell phone. However, Riley reached a different conclusion: “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.” It is undisputed that the search of Macabeo’s phone ran afoul of Riley. However, it also ran afoul of Diaz and, as a result, the good faith exception is inapplicable. Diaz, and all the cases upon which it relied, permitted searches incident to an actual custodial arrest. Here, Macabeo was not arrested at the time officers searched his phone, and officers were statutorily prohibited from arresting him for the Vehicle Code infraction of rolling through a stop sign on his bike (see Veh. Code, §§ 22450, subd. (a), 40000.1, 42001, subd. (a)). On remand, the pictures should be suppressed.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S221852.PDF