People v. Wyllie CA5 ( 2021 )

Filed 12/28/21 P. v. Wyllie CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080092
Plaintiff and Respondent,
(Tulare Super. Ct. No. VCF333753)
v.
CHEYENNE RAY WYLLIE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, and Jennifer
Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant and defendant Cheyenne Ray Wyllie was driving under the influence of
alcohol when she crashed into a vehicle, killing two people. She entered into a plea
agreement whereby she pled no contest to several crimes, including two counts of
murder. The plea agreement was reached after the court denied defendant’s motion to
suppress evidence found on her cell phone. Defendant appeals, contending the trial court
erred in denying the motion to suppress. We affirm the judgment.
BACKGROUND
In an amended information filed on October 15, 2018, defendant was charged with
two counts of murder (Pen. Code, § 187, subd. (a)),1 two counts of gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)), one count of driving under the
influence causing injury (Veh. Code, § 23153, subd. (a)), and one count of driving with a
blood-alcohol level in excess of 0.08 percent causing injury (Veh. Code, § 23153,
subd. (b)). The final two counts each had enhancements for causing great bodily injury
and driving with a blood-alcohol content in excess of 0.15 percent (§ 12022.7, subd. (a);
Veh. Code, § 23578).
On April 25, 2019, defendant filed a motion to suppress data obtained from her
cell phone. The trial court denied the motion on May 10, 2019.
Defendant entered a no contest plea as to all charges on August 9, 2019.
Defendant admitted the enhancements of great bodily injury as to the other driver and
driving with a blood-alcohol content exceeding 0.15 percent. The trial court struck the
other great bodily injury enhancements.
The trial court sentenced defendant to 16 months for count 6, plus three years for
the section 12022.7, subdivision (a) enhancement; a stayed (§ 654), concurrent term of
four years on count 2; a stayed (§ 654), concurrent term of four years on count 4; a stayed
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
(ibid.), concurrent term of 16 months for count 5 plus three years for the section 12022.7,
subdivision (a) enhancement, a consecutive term of 15 years to life for count 1, and a
concurrent term of 15 years to life on count 3.
Defendant appeals.
FACTS2
Incident and Arrest
On March 26, 2016, at approximately 10:00 p.m., a vehicle being driven by
defendant crashed into a Honda Pilot at the intersection of Avenue 200 and Spacer Drive
in Tulare County. California Highway Patrol Officer Lee responded to the scene of the
crash and eventually determined that the accident occurred because defendant ran the
stop sign applicable to westbound traffic on Avenue 200. In addition to the stop sign
itself, defendant would have driven past an upcoming stop sign and “Stop Sign Ahead”
markings on the roadway.
Both passengers of the Pilot died from blunt force trauma injuries, while the driver
suffered numerous injuries requiring a four-month hospital stay.
During his conversation with defendant, Officer Lee noticed that she was confused
about which way she had been traveling and emitted the odor of an alcoholic beverage.
When asked if she had been drinking, defendant said she had two beers. Defendant
claimed she stopped drinking at approximately 10:00 p.m.
Officer Lee conducted several field sobriety tests that defendant failed to
adequately perform. Preliminary alcohol screening tests were also completed with the
first test revealing a blood-alcohol content of 0.229 percent and second test showing
0.226 percent.
2 Because the sole issue on appeal is the sufficiency of the warrant, we provide a
limited factual summary. (See People v. Clark (2014) 230 Cal.App.4th 490, 493, fn. 2;
see also People v. Brown (1989) 207 Cal.App.3d 1541, 1544.)
3.
Officer Lee arrested defendant for driving under the influence. A blood test was
performed on samples taken at approximately 12:26 a.m. The blood test showed
defendant’s blood-alcohol content to be 0.21 percent. Lee also seized a cell phone that
defendant was holding in her hand when he first contacted her. 3
Search Warrant
On March 28, 2016, at 4:30 p.m., Officer Lee submitted a search warrant and
affidavit for the cell phone possessed by defendant at the scene of the accident. The
warrant sought 1) any videos, photographs, or digital images depicting defendant
consuming alcohol or displaying signs of intoxication, 2) any type of communications
tending to show that defendant was intoxicated or planning to consume alcohol, and
3) any type of communication tending to show a timeline for defendant’s consumption of
alcohol in the 24 hours prior to the accident. The search warrant applied only to “items”
within these categories within the “timeframe” of 24 hours before the accident.
The affidavit in support of the search warrant detailed Officer Lee’s training and
experience of seven years as a peace officer, with a majority of his experience on road
patrol. During his years of experience, he participated in numerous investigations
involving DUIs and traffic collisions.
The affidavit described Officer Lee’s investigation at the scene of the accident.
Based upon his observations and experience, Lee believed defendant’s driving may have
been affected by talking or texting on her cell phone. He also went on to state:
“Based on my training and experience, and conversations with other
law enforcement investigators, I know that persons often times take photos
of themselves on their cellular phones, and share those photos on social
media websites. I know from training and experience and conversations
with other law enforcement investigators that persons who consume
alcoholic beverages will often times take photographs of themselves
3 According to defense counsel, defendant’s mother owned the cell phone. We
will refer to it as defendant’s cell phone.
4.
consuming alcoholic beverages, and share them via their cellular phone to
other person(s); or post those photos on social media websites to express
their level of intoxication, the type of alcohol that is being consumed,
photos of other persons that they are consuming alcohol with, and the
location of the establishment where they are consuming alcohol. In this
case, I have reasonable and probable cause to believe the cellular phone
contains […] evidence of [defendant] engaging in the aforementioned acts
and the contents in her cellular phone will show [defendant’s] intent to
knowingly operate a motor vehicle while under the influence of alcoholic
beverage[s]. Additionally, I have reasonable and probable cause to believe
the evidence obtained from [defendant’s] cellular phone will support the
following charges against [defendant]: [Vehicle Code sections 23153,
subdivisions (a) and (b), and Penal Code section 191.5, subdivision (a)].”
The warrant was signed by Judge David C. Mathias and subsequently executed.
The search of defendant’s cell phone uncovered several relevant text messages. For
example, at 9:11 p.m., several hours before the accident, a David S. sent a text message to
defendant’s phone said, “ ‘Ok well your [sic] obviously drunk so your [sic] not
driving.’ ” There was a response from defendant’s phone about two minutes later saying,
“ ‘I am driving.’ ” Shortly thereafter, David S. send a text message saying, “ ‘You
shouldn’t be.’ ”
DISCUSSION
Defendant contends the trial court erred by denying her motion to suppress
evidence obtained from her cell phone because the warrant authorizing the search and
seizure of her cell phone failed to establish probable cause. She argues this lack of
probable cause resulted in a violation of the Fourth Amendment to the Constitution and
the California Electronic Communications Privacy Act (ECPA). As explained below, we
conclude the warrant was supported by probable cause and reject defendant’s
contentions.
I. Legal Principles and Standard of Review
The Fourth Amendment of the United States Constitution provides: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
5.
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” (U.S. Const., 4th Amend.) Under
the ECPA, any person may move to suppress electronic information obtained or retained
in violation of the Fourth Amendment. 4 (§ 1546.4, subd. (a).)
The “standard of probable cause is whether the affidavit states facts that make it
substantially probable that there is specific property lawfully subject to seizure presently
located in the particular place for which the warrant is sought. [Citations.]” (People v.
Cook (1978) 22 Cal.3d 67, 84, fn. 6.) “In determining whether an affidavit is supported
by probable cause, the magistrate must make a ‘practical, common-sense decision
whether, given all the circumstances set forth in the affidavit … there is a fair probability
that contraband or evidence of a crime will be found in a particular place.’ (Illinois v.
Gates [(1983)] 462 U.S. [213,] 238.)” (Fenwick & West v. Superior Court (1996) 43
Cal.App.4th 1272, 1278.) “The affidavit must establish a nexus between the criminal
activities and the place to be searched. [Citation.] ‘The opinions of an experienced
officer may legitimately be considered by the magistrate in making the probable cause
determination.’ [Citation.] However, an affidavit based on mere suspicion or belief, or
stating a conclusion with no supporting facts, is wholly insufficient. [Citation.]” (People
v. Garcia (2003) 111 Cal.App.4th 715, 721.) “Expert opinion may also be considered in
4 Defendant argues that section 1546.1 subdivision (d)(2) also imposes a probable
cause requirement on search warrants. However, that provision’s probable cause
requirement applies not to search warrants, but to court orders excepting information
from an automatic sealing effected by that subdivision. (See § 1546.1, subd. (d)(2)
[information obtained under warrant that is unrelated to the objective of the warrant shall
be sealed “except pursuant to a court order …. A court shall issue such an order upon a
finding that there is probable cause …”].)
Elsewhere, the ECPA effectively incorporates the requirements of the Fourth
Amendment, which would include the probable cause requirement. (See § 1546.4,
subd. (a).)
6.
the totality of the circumstances analysis for probable cause. [Citation.]” (U.S. v.
Underwood (9th Cir. 2013) 725 F.3d 1076, 1081.)
“On appeal from a denial of a motion to suppress evidence on Fourth Amendment
grounds we review the historical facts as determined by the trial court under the familiar
substantial evidence standard of review. Once the historical facts underlying the motion
have been determined, we review those facts and apply the de novo standard of review in
determining their consequences. Although we give deference to the trial court’s factual
determinations[,] we independently decide the legal effect of such determinations.
[Citation.]’ [Citation.]” (People v. Mateljian (2005) 129 Cal.App.4th 367, 373.)
“[T]he duty of a reviewing court is simply to ensure that the magistrate had a
‘substantial basis for … [concluding]’ that probable cause existed. [Citation.]” (Illinois
v. Gates, supra, at p. 238–239.) “On review, the search warrant affidavit is construed in a
commonsense and realistic fashion[]” (People v. Hernandez (1994) 30 Cal.App.4th 919,
923), and its sufficiency must be judged on the totality of the circumstances contained
therein (People v. Andrino (1989) 210 Cal.App.3d 1395, 1401).
Where, as here, the affidavit is the only evidence presented to the issuing
magistrate, the warrant must stand or fall on the contents of the affidavit. (U.S. v.
Sherwin (9th Cir. 1977) 572 F.2d 196, 198.) The Fourth Amendment does not prohibit
the use of reasonable inferences drawn from evidence; it simply requires that such
inferences be drawn by a neutral and detached magistrate. (United States v. Ventresca
(1965) 380 U.S. 102, 106.) There is a strong preference for warrants, and a doubtful or
marginal case must be resolved in favor of the warrant. (Ibid.)
A. Analysis
The affidavit provided a “substantial basis” for finding probable cause existed.
As the officer investigating the accident, Officer Lee determined that defendant’s
car failed to heed a stop sign before hitting the victims’ car. Lee further observed that
defendant displayed objective signs and symptoms of alcohol intoxication, failed a field
7.
sobriety test at the scene of the accident, and admitted to consuming alcohol prior to the
collision. This evidence provided a sufficient basis for Lee to believe that defendant
committed the crime of operating a vehicle while under the influence.
Additionally, there was reason to believe that further evidence of that crime might
be found on defendant’s cell phone. Defendant was holding the cell phone immediately
after the accident caused by her intoxicated driving. Officer Lee’s training and
experience established that people often use their phones to take photographs of
themselves consuming alcoholic beverages. Together, these factors gave rise to probable
cause that defendant might have had photographs of herself drinking alcoholic beverages
before the collision. In other words, these factors indicated there was “a fair probability”
(Illinois v. Gates, supra, 462 U.S. at p. 238) that evidence of a crime would be found on
defendant’s phone.
Defendant resists this conclusion, relying on the case of People v. Pellegrin (1977)
78 Cal.App.3d 913. In Pellegrin, the affidavit in support of the search warrant stated the
affiant, a police officer, saw in plain view a three-foot marijuana plant next to the fence in
the rear of the defendant’s backyard. (Id. at p. 915.) He stated the plant did not appear to
be growing wild. (Ibid.) A warrant was issued to search the defendant’s residence based
on this information. (Id. at p. 916.) The appellate court reversed, finding the affidavit
insufficient to show that the marijuana plant was not growing wild. (Id. at pp. 917–918.)
Absent some evidence of that fact, the appellate court held the magistrate could not infer
the defendant had marijuana in his residence. (Ibid.)
Defendant says that the present affidavit was deficient like the one in Pellegrin.
Specifically, the affidavit did not say that defendant had used her phone to: take any
pictures, take pictures of her drinking, send/receive text messages, or post on social
media. Moreover, the affidavit did not describe the circumstances in which defendant
had been drinking. However, warrant affidavits “ ‘need not reflect the direct personal
observations of the affiant ….’ ” (United States v. Ventresca, supra, 380 U.S. at p. 108.)
8.
Affidavits can be supported by expert opinion “about the behavior of a particular class of
persons” so long as it is shown the defendant belongs to that class. (U.S. v. Underwood,
supra, 725 F.3d at pp. 1081–1082.) Here, Officer Lee’s experience and training led to
opine that a particular “class” of people (i.e., “persons who consume alcoholic
beverages”) often engage in a particular behavior (i.e., taking photographs of themselves
consuming alcoholic beverages on their phone). 5 And there was ample evidence that
defendant was in the relevant “class” of people, given that she failed field sobriety tests
and displayed objective signs of intoxication.
Defendant argues that it does not require special training experience to know that
people often use their cell phones to take “selfies” and sometimes post those selfies on
the Internet. But that is not what the affidavit said. It said that people who consume
alcoholic beverages often take photographs of themselves consuming alcoholic beverages
and then share/post those photographs. If defendant means to argue that this fact is
obvious, it would not be grounds for finding the warrant affidavit deficient. If defendant
means to argue this fact is not obvious or even untrue, then her issue is with Officer Lee,
who stated under penalty of perjury that his training and experience established that
connection. The magistrate and trial court were entitled to rely on that competent
evidence, even if defendant believes a contrary expert opinion is more accurate.
Finally, defendant cites In re Ricardo P. (2019) 7 Cal.5th 1113 and People v.
Frank (1985) 38 Cal.3d 711, in arguing that a warrant may not be based on “boilerplate
allegations” divorced from specific evidence. Defendant contends that in “every case”
there is a possibility a person accused of a crime may have sent pictures or texts which
5 Defendant says Officer Lee should have provided more specificity as to how his
experience led him to know this fact, such as providing an “estimate about the frequency
with which he had seen or heard about suspects using cell phones to take pictures or send
incriminating texts in alcohol-related cases.” However, requirements of “elaborate
specificity” have no proper place in the law of search warrants. (United States v.
Ventresca, supra, 380 U.S. at p. 108.)
9.
have evidentiary value. But the affidavit here employed a specific line of reasoning:
people who drink alcoholic beverages often take pictures of themselves doing so. We
doubt this reasoning would apply with equal force to other criminal contexts. Regardless,
we are only concerned with the fact that this line of reasoning suffices in the present case
to raise a reasonable inference of probable cause. 6
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, J.
WE CONCUR:
LEVY, ACTING P. J.
MEEHAN, J.
6Because we conclude the warrant was supported by probable cause, we need not
determine whether a good faith exception would have applied.
10.