People v. Bell CA4/3

Filed 2/3/21 P. v. Bell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058309
v. (Super. Ct. No. 19CF0044)
BRANDON LAMAR BELL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Robert
Alan Knox, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After his motion to suppress evidence was denied, defendant Brandon
Lamar Bell pleaded guilty to pimping Jane Doe No. 1 (Pen. Code, § 266h, subd. (a);
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count 1); pandering by procuring Jane Doe No. 1 (§ 266i, subd. (a)(1); count 2);
possession of a concealed loaded unregistered firearm in a vehicle (§ 25400, subds.
(a)(1), (c)(6); count 3); pimping Jane Doe No. 2 (§ 266h, subd. (a); count 5); and
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pandering by procuring Jane Doe No. 2 (§ 266i, subd. (a)(1); count 6). Per the terms of
the plea agreement, the court sentenced defendant to a four-year prison sentence on count
1. The court also sentenced defendant to four years on counts 2, 5, and 6, and two years
on count 3, all to run concurrently.
On appeal defendant raises various contentions related to the denial of his
suppression motion. He argues the search warrants issued for the cell phones violated
various provisions of the California Electronic Communications Privacy Act or 2015
(ECPA) (§ 1546 et seq.). He also argues the delays between the seizures of the cell
phones and the applications for the search warrants violated his rights under the Fourth
Amendment of the United States Constitution. He further contends one of the warrants
was invalid on its face because the warrant included names of people not involved in the
case as parties to be searched. Finally, he argues the court improperly sentenced him on
counts 2 and 6 because the sentences should have been stayed pursuant to section 654
instead of running concurrently with count 1. We reject each contention and affirm.
1
All statutory references are to the Penal Code.
2
The court dismissed count 4, possession of a large-capacity magazine
(§ 32310, subd. (c)), pursuant to section 995.
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FACTS AND PROCEDURAL HISTORY
On May 28, 2017, police stopped a car because they suspected prostitution
activity. Defendant was driving the car and E. was in the passenger seat. Defendant’s
driver’s license had been suspended so the officers searched the car and found a handgun.
The officers arrested defendant for possession of the handgun. The officers also took two
cell phones as evidence, one belonging to defendant and one belonging to E.
On January 2, 2019, police officers conducted a prostitution sting operation
in which an officer agreed to meet a woman for sex at a hotel. Defendant dropped off the
woman pictured in the online advertisement the officer used to set up the date. The
woman, A., was arrested and admitted to working as a prostitute. Defendant was also
detained and later arrested. Both A. and defendant had cell phones in their possession.
The officers called defendant’s cell phone with A’s cell phone and defendant’s cell phone
“illuminated with the name ‘Princess.’” A third cell phone was discovered in the
glovebox of defendant’s car.
After acquiring warrants, officers searched all of the cell phones recovered
from the May 2017 and January 2019 incidents. Text messages between defendant and
both E. and A., were recovered from the cell phones and introduced into evidence during
defendant’s preliminary hearing.
Defendant filed a motion to suppress “[a]ll electronic communication and
all electronic communication information” recovered from each of the cell phones.
The following evidence was introduced during the hearing on defendant’s
suppression motion.
Warrants Related to the May 2017 Arrest
On December 26, 2018, Detective Valdez prepared an affidavit and request
for a search warrant for defendant’s and E.’s cell phones, which had remained in police
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possession since the May 28, 2017 arrest (December 26, 2018 Warrant). The warrant
commanded law enforcement officers to “[p]hysically and forensically search all data
which constitutes evidence and instrumentalities of Pimping, Pandering and Prostitution
occurring between [1 year before date of arrest—date of arrest], including
communications referring or relating to this investigation involving [defendant] and [E.]”
In the warrant affidavit, Valdez also requested that the warrant authorize delayed
notification of the search to defendant and E.: “Due to the fact that [E.] is out of custody
and because cellular phone data has the ability to be remotely deleted/wiped, I believe
disclosure of the aforementioned information and making it public record will lead to
possible destruction of the phones/devices used by [defendant] and [E.] Additionally,
providing notification could likely result in [E.] absconding to avoid detection/arrest.”
The warrant was signed on the same day it was requested and it allowed for delayed
notification of the search to defendant and E.
During cross-examination, Valdez stated that at the time she wrote the
affidavit, she did not “think [the cell phone] would be wiped.” She then clarified that she
meant: “I didn’t think she would wipe out the phone. Or she had wiped it out at the time
I wrote the warrant.” Valdez said she had not understood the initial question and she
“honestly didn’t know what to think with regards to the phone because—that’s why we
were writing the warrant. We didn’t know what was in there.” She said she was
concerned E. would wipe the phone if she was given notification that information on the
cell phone was about to be extracted. Although she had asked for delayed notification,
Valdez nevertheless sent notice of the search pursuant to the search warrant to defendant
and E. the day before the extractions of data from the phones began.
In July 2019, Detective Hawkins replaced Valdez on the investigation and
wrote an almost identical warrant for a search of the same cell phones (July 17, 2019
Warrant). The scope of the warrant was identical to the December 26, 2018 Warrant.
The second warrant also sought delayed notification and used the exact same wording as
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justification for the delay as had the previous warrant. The warrant was signed by the
magistrate on the same day it was requested. The notice of the search pursuant to the
warrant and the extraction of data from the cell phones both happened that day.
Warrants Related to the January 2019 Arrest
Seven days after defendant’s January 2, 2019 arrest, Detective Speakman
prepared a search warrant (January 9, 2019 Warrant) for A’s phone, the phone found on
defendant’s person, and the phone found in defendant’s car. The warrant commanded
law enforcement officers to “[p]hysically and forensically search all data which
constitutes evidence and instrumentalities of pimping, pandering, human trafficking, and
prostitution, including communications referring or relating to this investigation
involving [J.L. and M.M.]” Speakman used a template in preparing the warrant and
mistakenly left the names from the template in the warrant.
The affidavit of probable cause for the warrant described defendant’s arrest
and referred to him as “S-Bell.” A. was referred to as “V-DOE.” The conclusion of the
affidavit stated, “Based on my training, and experience, it is my belief that information
obtained from the cellphones will support the charges against Brandon Bell.” It also
stated, “A cell phone examination can retrieve information, whether deleted or undeleted,
which can assist with this investigation and show a felony was committed by Brandon
Bell.”
The affidavit also stated, “The download process is automated and forensic
examiners are not able to manipulate the information extracted or to restrict the
information being extracted to a particular date range.” “Further, I believe based on my
training and experience that information prior to the date range of this crime, will show
the suspect’s knowledge of prostitution activity, how and where to recruit women or girls
into prostitution, and terminology or information related to the pimping/prostitution
subculture.” Speakman’s affidavit asked the court “to determine that, based on the nature
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of this case, it is not appropriate or reasonable to specify the time periods of information
to be extracted from the device(s) . . . .” The extraction of data from all of the cell phones
recovered in the January 2, 2019 arrest occurred in January 2019.
On July 15, 2019, Speakman rewrote the search warrant, correcting the
erroneous inclusion of the template names (July 15, 2019 Warrant). Another extraction
of data from one of the cell phones recovered in the January 2, 2019 arrest was performed
the day before the hearing on defendant’s motion to suppress.
DISCUSSION
We review the court’s decision to deny defendant’s suppression motion for
substantial evidence supporting the findings on questions of fact and apply the de novo
standard of review to the court’s conclusions on questions of law. (People v. Carter
(2005) 36 Cal.4th 1114, 1140.)
The ECPA
The ECPA (§ 1546 et seq.) regulates the government’s access to a private
party’s electronic information. Section 1546.1 subdivision (a)(3) generally prohibits
“Access[ing] electronic device information by means of physical interaction or electronic
communication with the electronic device.” However, section 1546.1(c)(1) allows for
access to electronic device information with a search warrant.
Section 1546.1, subdivision (d)(1) provides: “The warrant shall describe
with particularity the information to be seized by specifying, as appropriate and
reasonable, the time periods covered, the target individuals or accounts, the applications
or services covered, and the types of information sought . . . .” (Ibid.) However, the time
periods do not need to be specified if the court “determine[s] that it is not appropriate to
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specify time periods because of the specific circumstances of the investigation, including,
but not limited to, the nature of the device to be searched.” (Ibid.)
Section 1546.2, subdivision (a)(1) requires the governmental entity seeking
the warrant to provide written notice to the identified targets of the warrant
“contemporaneously with the execution of a warrant.” The party seeking the warrant
may request to delay notification via a sworn affidavit. (Id., subd. (b)(1). The court shall
grant the request to delay notification “if the court determines that there is reason to
believe that notification may have an adverse result, but only for the period of time that
the court finds there is reason to believe that the notification may have that adverse result,
and not to exceed 90 days.” (Ibid.)
“Upon expiration of the period of delay of the notification” the government
entity must serve the identified targets of the warrant with written notice which meets the
requirements of section 1546.2(a)(1) as well as “a copy of all electronic information
obtained or a summary of that information . . . .” (§ 1546.2, subd. (b)(3).)
Section 1546.4, subdivision (a) allows a defendant to “move to suppress
any electronic information obtained or retained in violation of the Fourth Amendment to
the United States Constitution or of this chapter [the ECPA].” A motion made under this
subdivision is “subject to review in accordance with the procedures set forth in
subdivisions (b) to (q), inclusive, of Section 1538.5.” (Ibid.)
Finally section 1546.4, subdivision (c), provides: “An individual whose
information is targeted by a warrant . . . that is inconsistent with this chapter, . . . may
petition the issuing court to void or modify the warrant, . . . or to order the destruction of
any information obtained in violation of this chapter.”
The First Alleged ECPA Violation—The December 26, 2018 Warrant
Defendant first argues the December 26, 2018 Warrant did not meet the
requirements for delayed notification under section 1546.2, subdivision (b)(1) because
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there was “no reason for the court to believe that contemporaneous notification might
have an ‘adverse result.’”
Defendant is not arguing that contemporaneous notice of the December 26,
2018 Warrant was not in fact given. That argument, had it been made, would be fruitless
because substantial evidence supports a finding that Valdez served the required notice
contemporaneously with issuance of the warrant. Referring to the warrant issued on
December 26, 2018. Valdez testified as follows:
“Q So that same day, you got the warrant, and that same day you sent
notification—
“A Uh-huh.
“Q Is that a yes?
“A Yes.
“Q That same day you sent the notification—
“A Correct.
“Q You sent the notice on the 26th.
“A Uh-huh, yes.”
Instead, defendant argues that the mere request for delayed notification was
faulty and for that reason alone the evidence extracted from the cell phones the next day
must be suppressed. Defendant does not ground this argument on the Fourth
Amendment. He relies on section 1546.4, subdivisions (a) and (c) which provide a
remedy to a targeted person to move for suppression of evidence and petition for the
destruction of evidence seized in “violation of this chapter.” (Id., subd. (c).) Defendant
construes an unnecessary request for delayed notice as a “violation of this chapter”
thereby requiring the destruction of the evidence, even though law enforcement did not
actually delay the notice. Nonsense. We construe a “violation of this chapter” to mean
the seizure of evidence without compliance with the substantive requirements of the
ECPA, not a mere unnecessary request for delayed notification.
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Thus, substantial evidence supports law enforcement’s substantive
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compliance with the notice requirements of section 1546.2, subdivision (a)(1).
The Second Alleged ECPA Violation – the January 9, 2019 and July 15 Warrants
Defendant argues the warrants prepared by Speakman did not meet the
EPCA’s requirement of specifying the date range of information to be searched.
However, Speakman’s affidavit explained: (1) it was not practicable to specify a date
range based on the nature of the devices involved, and (2) he believed that information
relevant to defendant’s knowledge of prostitution and practice in manipulating women
would likely be found outside of the date range for the crimes being investigated.
Defendant does not address the second justification and asserts the first
justification “has little credibility” because Valdez had specified a date range in her
request for a warrant. However, just because a different officer requested a search
warrant for different cell phones and specified a date range for the requested warrant does
not invalidate the rationale for not specifying a date range as outlined in Speakman’s
affidavit. No evidence was presented that contradicted Speakman’s concerns that a date
range should not be specified. And Speakman’s second reason was sufficient for the
court to determine that the investigation of defendant’s conduct should not be limited to a
specific date range. (§ 1546.1, subd. (d)(1).)
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Defendant also argues the government violated the ECPA by failing to
provide defendant the number and types of records discovered after the end of the
delayed notice period as required by section 1546.2, subdivision (b)(3). But defendant
does not provide a record reference for this contention and we have not independently
found any evidence in the record that the government failed to meet this requirement.
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The Delay in Applying for the Search Warrants
Defendant argues the evidence should be suppressed because of the delay
between the seizure of the cell phones and law enforcement’s applications for the
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warrants. We disagree.
A seizure that is “lawful at its inception can nevertheless violate the Fourth
Amendment because its manner of execution unreasonably infringes possessory
interests.” (United States v. Jacobsen (1984) 466 U.S. 109, 124). An unreasonable delay
between the seizure of property and the police seeking a warrant can violate a defendant’s
Fourth Amendment rights. (United States v. Van Leeuwen (1970) 397 U.S. 249, 252-
253.)
Defendant cites several federal cases as persuasive authority that the delays
in seeking the warrants in this case were unreasonable. U.S. v. Pratt (4th Cir. 2019) 915
F.3d 266 (Pratt) is the most analogous to the instant case. In Pratt, the Federal Bureau of
Investigation suspected the defendant was “running a prostitution ring that included
juveniles.” (Id. at p. 269.) Federal agents seized the defendant’s cell phone and waited
31 days before seeking a search warrant. The only justification offered for the delay was
that the defendant was believed to have committed crimes in two states, and the officers
needed to decide where to seek the warrant. (Id. at p. 270.)
The United States Court of Appeals, Fourth Circuit held the delay violated
the defendant’s possessory interest in his cell phone without sufficient justification.
(Pratt, supra, 915 F.3d at pp. 272-273.) The court explained the decision on where to
seek a warrant should not have taken a month; the officers had not justified their lack of
diligence. (Id. at p. 272.) The court also rejected “the government’s alternative argument
that it could retain the phone indefinitely because it had independent evidentiary value,
4
There was an 18-month delay between the May 28, 2017 arrest and the
December 26, 2018 Warrant and a seven-day delay between the January 2, 2019 arrest
and the January 9, 2019 warrant.
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like a murder weapon. Only the phone’s files had evidentiary value. The agents could
have removed or copied incriminating files and returned the phone.” (Id. at p. 273.) But
there is no indication in the Pratt opinion that the defendant used the cell phone to
commit his crimes. The principal information recovered from the cell phone were 28
images alleged to be child pornography. (Id. at p. 270.)
As to the cell phone seized from A., there is nothing in the record to
support a conclusion that defendant had any possessory interest in A’s cell phone. The
cell phone was found in A’s possession and there was no evidence defendant owned the
cell phone and loaned it to her.
No justification was offered for the delay between the seizure of the cell
phones and the acquisition of the warrants. But unlike Pratt, the cell phones in this case
had evidentiary value independent of the files within them. During defendant’s
suppression hearing, Detective Barragan testified to the importance of pimps and
prostitutes carrying cell phones while they were working. He explained cell phones were
the primary communication tool between a pimp and a prostitute and where necessary to
communicate information about the amount of money the prostitute has earned, “if
there’s police in the area . . . whether [the prostitute] needs help.” Therefore, the cell
phones themselves would be admissible evidence at defendant’s trial as the
instrumentalities by which defendant pimped his prostitutes. Defendant provides no
authority, and we find none, obligating the police to return admissible evidence prior to
the disposition of the pending criminal charge for which the evidence was seized.
The Validity of the Speakman Warrant
Defendant argues the January 9, 2019 Warrant was invalid because it
included incorrect names when it requested to “[p]hysically and forensically search all
data which constitutes evidence and instrumentalities of pimping, pandering, human
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trafficking, and prostitution, including communications referring or relating to this
investigation involving [J.L. and M.M.]” We disagree.
Section 1525 states, “A search warrant cannot be issued but upon probable
cause, supported by affidavit, naming or describing the person to be searched or searched
for, and particularly describing the property, thing, or things and the place to be
searched.”
Speakman’s warrant correctly identified the three cell phones to be
searched and described the cell phones by brand, model number, serial number, and
color. The statement of probable cause repeatedly referred to defendant as “S-Bell.”
And the conclusion of the affidavit included the officer’s belief “that information
obtained from the cellphones will support charges against Brandon Bell.” Thus, the
search warrant and attached affidavit both correctly identified the property to be searched
and identified defendant as the relevant party in the search.
Penal Code Section 654
Defendant argues his sentences for counts 2 and 6 (pandering of E. and A.,
respectively) must be recalled and stayed pursuant to section 654. We disagree.
Defendant accepted a court offer and pleaded guilty to counts 1, 2, 3, 5, and
6. Following the terms of the plea, the court sentenced defendant to four years in state
prison on count 1 and, as relevant here, four years on counts 2 and 6 to run concurrently
to count 1. Defendant did not object to any portion of the sentence.
California Rule of Court, rule 4.412(b) provides: “By agreeing to a
specified term in prison or county jail under section 1170(h) personally and by counsel, a
defendant who is sentenced to that term or a shorter one abandons any claim that a
component of the sentence violates section 654’s prohibition of double punishment,
unless that claim is asserted at the time the agreement is recited on the record.” In a case
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procedurally equivalent to this case, our Supreme Court upheld the validity of rule 4.412.
(People v. Hester (2000) 22 Cal.4th 290, 296.)
Here, defendant agreed to a specified prison term and received that term.
Thus, California Rules of Court, rule 4.412 precludes defendant from arguing his
sentence violates section 654.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.
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