Can police obtain the recordings from vehicles equipped with cameras that monitor driver activity when gathering evidence that the driver committed a crime?

(a) A search warrant may be issued upon any of the following grounds:

[...]

(19)

(A) When the property or things to be seized are data, from a recording device installed by the manufacturer of a motor vehicle, that constitutes evidence that tends to show the commission of a felony or misdemeanor offense involving a motor vehicle, resulting in death or serious bodily injury to any person. The data accessed by a warrant pursuant to this paragraph shall not exceed the scope of the data that is directly related to the offense for which the warrant is issued.

(B) For the purposes of this paragraph, "recording device" has the same meaning as defined in subdivision (b) of Section 9951 of the Vehicle Code. The scope of the data accessible by a warrant issued pursuant to this paragraph shall be limited to the information described in subdivision (b) of Section 9951 of the Vehicle Code.

(C) For the purposes of this paragraph, "serious bodily injury" has the same meaning as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code.

[...]

(b) As used in this section, "recording device" means a device that is installed by the manufacturer of the vehicle and does one or more of the following, for the purpose of retrieving data after an accident:

(1) Records how fast and in which direction the motor vehicle is traveling.

(2) Records a history of where the motor vehicle travels.

(3) Records steering performance.

(4) Records brake performance, including, but not limited to, whether brakes were applied before an accident.

(5) Records the driver's seatbelt status.

(6) Has the ability to transmit information concerning an accident in which the motor vehicle has been involved to a central communications system when an accident occurs.

(c) Data described in subdivision (b) that is recorded on a recording device may not be downloaded or otherwise retrieved by a person other than the registered owner of the motor vehicle, except under one of the following circumstances:

(1) The registered owner of the motor vehicle consents to the retrieval of the information.

(2) In response to an order of a court having jurisdiction to issue the order.

(3) For the purpose of improving motor vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, and the identity of the registered owner or driver is not disclosed in connection with that retrieved data. The disclosure of the vehicle identification number (VIN) for the purpose of improving vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, does not constitute the disclosure of the identity of the registered owner or driver.

(4) The data is retrieved by a licensed new motor vehicle dealer, or by an automotive technician as defined in Section 9880.1 of the Business and Professions Code, for the purpose of diagnosing, servicing, or repairing the motor vehicle.

(d) A person authorized to download or otherwise retrieve data from a recording device pursuant to paragraph (3) of subdivision (c), may not release that data, except to share the data among the motor vehicle safety and medical research communities to advance motor vehicle safety, and only if the identity of the registered owner or driver is not disclosed.

(e)

(1) If a motor vehicle is equipped with a recording device that is capable of recording or transmitting information as described in paragraph (2) or (6) of subdivision (b) and that capability is part of a subscription service, the fact that the information may be recorded or transmitted shall be disclosed in the subscription service agreement.

(2) Subdivision (c) does not apply to subscription services meeting the requirements of paragraph (1).

(f) This section applies to all motor vehicles manufactured on or after July 1, 2004.

We agree. When the police have probable cause to believe an automobile contains contraband or evidence they may search the automobile and the containers within it without a warrant. (California v. Acevedo, supra, 500 U.S. at p. 580, 111 S.Ct. 1982.) The "`specifically established and well-delineated'" (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290) automobile exception to the Fourth Amendment's warrant requirement is rooted in the historical distinctions between the search of an automobile or other conveyance and the search of a dwelling. (California v. Acevedo, supra, at p. 569, 111 S.Ct. 1982.) In Carroll v. United States (1925) 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543, the Supreme Court recognized "a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.",

It is also well established that "`[t]he scope of a warrantless search based on probable cause is no narrower— and no broader—than the scope of a search authorized by a warrant supported by probable cause.'" (California v. Acevedo, supra, 500 U.S. at p. 570, 111 S.Ct. 1982.) "`[I]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.'" (Ibid.) In addition, and as noted, "if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle." (Ibid.)

In the case of a warrantless search and seizure, the burden of proof rests on the People to show that the search and seizure was reasonable under the Fourth Amendment. (People v. Williams (1999) 20 Cal.4th 119, 128, 130, 83 Cal.Rptr.2d 275, 973 P.2d 52.) As a reviewing court, "[w]e exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment." (People v. Lenart (2004) 32 Cal.4th 1107, 1119, 12 Cal.Rptr.3d 592, 88 P.3d 498.) For the reasons set forth in this opinion, we hold that the search and seizure were reasonable under the automobile exception to the warrant requirement. In particular, based on his training and experience, Officer Wahl suspected that valuable trace evidence might be found in Nasmeh's vehicle. His affidavit averred that he knew that "people who commit murder and transport their victims in their vehicles may, in an attempt to conceal their guilt, try to clean their vehicle in an attempt to conceal or rid the vehicle of incriminating evidence." That averment, coupled with the mobility of the Jeep Cherokee and the accompanying risk that any trace evidence might be lost, sufficed to make the search and seizure reasonable under the Fourth Amendment even if there had been a constitutional problem with the search and seizure under the warrant issued by the magistrate.

"[A] warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband." (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225, 158 Cal.Rptr.3d 261, 302 P.3d 574.) Probable cause posits "a fair probability that contraband or evidence of a crime will be found in a particular place."

[27 Cal.App.5th 562]

(Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527.) "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Id. at p. 243, fn. 13, 103 S.Ct. 2317.)

In People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 (Strasburg), a different panel of this division held that a police officer had probable cause to search a vehicle based on the odor of marijuana, despite the defendant's presentation of a medical marijuana prescription. (Strasburg, at pp. 1058–1059, 56 Cal.Rptr.3d 306.) The court rejected the defendant's argument that the decriminalization of medicinal marijuana under the Compassionate Use Act of 1996 (CUA) bars a law enforcement officer from conducting a reasonable search based on the odor of marijuana. "[T]he officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." (Strasburg, at p. 1060, 56 Cal.Rptr.3d 306.)

In Waxler, another division of this court followed Strasburg to conclude that a sheriff's deputy had probable cause to search the defendant's truck for contraband after smelling burnt marijuana near the truck and seeing burnt marijuana in the truck. (Waxler, supra, 224 Cal.App.4th at p. 719, 168 Cal.Rptr.3d 822.) "[N]onmedical marijuana—even in amounts within the statutory limit set forth in [Health and Safety Code] section 11357, subdivision (b) —is ‘contraband’ and may provide probable cause to search a vehicle under the automobile exception." (Waxler, at p. 715, 168 Cal.Rptr.3d 822.) Thus, the deputy "was entitled to investigate to determine whether appellant possessed marijuana for personal medical needs and to determine whether he adhered to the CUA’s limits on possession. ... It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities of marijuana might be found in the car." (Id . at pp. 723–724, 168 Cal.Rptr.3d 822.)

Fews provides no compelling reason to depart from Strasburg and Waxler after the passage of Proposition 64, particularly in light of the facts of the instant case. The continuing regulation of marijuana leads us to believe that Strasburg and Waxler still permit law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence

[238 Cal.Rptr.3d 345]

of a crime. (See Strasburg, supra, 148 Cal.App.4th at p. 1060, 56 Cal.Rptr.3d 306; Waxler, supra, 224 Cal.App.4th at pp. 721, 723–724, 168 Cal.Rptr.3d 822; see also People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1059 [holding that despite Colorado's legalization of marijuana, "a substantial number of other marijuana-related activities remain unlawful

[27 Cal.App.5th 563]

under Colorado law. Given that state of affairs, the odor of marijuana is still suggestive of criminal activity."]; Robinson v. State (2017) 451 Md. 94, 98–101, 152 A.3d 661, 664–665 ].) Due to the odor of marijuana emanating from the SUV and Mims, as well as Mims's admission that there was marijuana in his half-burnt cigar, there was a fair probability that a search of the SUV might yield additional contraband or evidence.

Fews contends that marijuana is no longer contraband in California after Proposition 64. Again, Fews overstates the effect of Proposition 64. Section 11362.1, subdivision (c), provides that "[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest." (Italics added.) Driving a motor vehicle on public highways under the influence of any drug (see Veh. Code, § 23152, subd. (f) ) or while in possession of an open container of marijuana ( Veh. Code, § 23222, subd. (b)(1) ; People v. McCloskey (1990) 226 Cal.App.3d Supp. 5, 9, 277 Cal.Rptr. 509 ) are not acts "deemed lawful" by section 11362.1. On the contrary, "[s]ection 11362.1 does not permit any person to [¶] ... [¶] ... [p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle" ( Health & Saf. Code, § 11362.3, subd. (a)(4) ) or "[s]moke or ingest cannabis or cannabis products while driving" a motor vehicle (id. , subd. (a)(4) ). Here, the evidence of the smell of "recently burned" marijuana and the half-burnt cigar containing marijuana supported a reasonable inference that Mims was illegally driving under the influence of marijuana, or, at the very least, driving while in possession of an open container of marijuana. Because this was not conduct "deemed lawful" by section 11362.1, Fews cannot validly rely upon the "not contraband" designation of section 11362.1, subdivision (c), in order to avoid the holding in Waxler .⁴

Fews cites In re D.W. (2017) 13 Cal.App.5th 1249, 221 Cal.Rptr.3d 332 for the position that the smell of marijuana and a defendant's admission to

[27 Cal.App.5th 564]

recently smoking marijuana do not establish probable cause to search the defendant's vehicle because it is mere conjecture to conclude that within the vehicle there is marijuana amounting

[238 Cal.Rptr.3d 346]

to more than just an infraction. However, In re D.W. involved a warrantless search of a defendant's person incident to arrest, which requires independent probable cause for the arrest. (In re D.W., at p. 1253, 221 Cal.Rptr.3d 332.) In contrast, the instant matter involves a vehicle search pursuant to the automobile exception, which requires probable cause that the vehicle contains contraband or evidence of a crime. Where such probable cause exists, a law enforcement officer may search the vehicle "irrespective of whether possession of up to an ounce of marijuana is an infraction and not an arrestable offense." (Waxler, supra, 224 Cal.App.4th at p. 721, 168 Cal.Rptr.3d 822.)

For these reasons, we conclude there was sufficient probable cause for the warrantless search of the SUV. This, in turn, provides additional support for the validity of the patsearch of Fews on officer safety grounds because, as the magistrate found, the vehicle search would have left one of the officers outnumbered by Mims and Fews, who was wearing baggy clothes that could conceal a weapon. (See Collier, supra, 166 Cal.App.4th at p. 1377, fn. 1, 83 Cal.Rptr.3d 458 ["[t]he wearing of baggy clothing, coupled with other suspicious circumstances, ... furnishes the requisite facts to support a patdown for weapons so that the search of the car could be safely performed"].)

The United States Supreme Court has long held that the expectation of privacy is diminished in the automobile. (Carroll v. United States (1925) 267 U.S. 132, 153, 156, 45 S.Ct. 280, 69 L.Ed. 543 [contraband may be seized from an automobile without a warrant if the officer has probable cause to believe the contraband was being transported in the automobile].) This automobile exception to the warrant requirement has been extended to encompass searches backed by reasonable cause of other offenses and warrantless inventory searches of impounded vehicles. (See, e.g., Wyoming v. Houghton (1999) 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 [holding that when officers have probable cause to search a car, “the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger's belongings” that are capable of concealing the object of the search because “[p]assengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars”]; United States v. Ross (1982) 456 U.S. 798, 807, fn. 8, 102 S.Ct. 2157, 72 L.Ed.2d 572 [stating that historically, persons have been “on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts”], 823, 102 S.Ct. 2157 [stating that “an individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband”]; South Dakota v. Opperman (1976) 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 [in upholding an inventory search, the court noted the diminished expectation of privacy in automobiles given “pervasive and continuing governmental regulation and controls,” and “the obviously public nature of automobile travel”]; Cardwell v. Lewis (1974) 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 [upholding the warrantless examination

[213 Cal.App.4th 754]

of a vehicle's exterior based upon the lesser expectation of privacy].) But the Supreme Court has also recognized some legitimate expectation of privacy in vehicles deserving of protection. (See Arizona v. Gant (2009) 556 U.S. 332, 345, 129 S.Ct. 1710, 173 L.Ed.2d 485 [recognizing that a motorist's privacy interest in his vehicle, although less substantial than the privacy interest in his home, “is nevertheless important and deserving of constitutional protection”]; see also United States v. Ortiz (1975) 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623, fn. omitted [“A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search”].)

As noted, defendant does not dispute that the police had probable cause for the search. The trial court specifically found “there was probable cause to download the SDM, because speed and braking are always relevant in determining the causes of a collision.” The scope of a warrantless search authorized by the automobile exception is “no broader and no narrower than a magistrate could legitimately authorize by warrant.” (United States v. Ross, supra, 456 U.S. at p. 825, 102 S.Ct. 2157.) In Ross, the Supreme Court made clear that, even when the automobile exception applies, “[t]he scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.” (Id. at p. 823, 102 S.Ct. 2157, fn. omitted.) The scope of a warrantless search of an automobile “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (Id. at p. 824, 102 S.Ct. 2157.) Thus, the vehicle is protected by the Fourth Amendment, and an individual's reasonable expectation of privacy as to the vehicle yields only as to places where there is probable cause to search. The scope of the search did not exceed probable cause.

As noted, research did not reveal any published California case addressing the constitutionality of the warrantless downloading of SDM data from a lawfully impounded vehicle. However, in a series of cases, the California Supreme Court has upheld vehicle searches on the basis that the vehicle was an instrumentality of the crime or was itself evidence. In People v. Teale (1969) 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564, the court upheld the warrantless seizure of an automobile when the officers had cause to believe that a murder victim had been shot in the automobile, and the court further found no Fourth Amendment violation in a criminalist's subsequent examination of the automobile, during which spatters of the victim's blood were found on the interior. (People v. Teale, supra, at pp. 508–511, 75 Cal.Rptr. 172, 450 P.2d 564.) The court

[213 Cal.App.4th 755]

held, “ ‘[W]hen the police lawfully seize a car which is itself evidence of a crime rather than merely a container of incriminating articles, they may postpone searching it until arrival at a time and place in which the examination can be performed in accordance with sound scientific procedures.’ ” (Id. at p. 508, 75 Cal.Rptr. 172, 450 P.2d 564.)

In North v. Superior Court (1972) 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, superseded by statute on another ground as stated in People v. Loyd (2002) 27 Cal.4th 997, 1000, 119 Cal.Rptr.2d 360, 45 P.3d 296, the police impounded the defendant's vehicle, which they believed had been used in a kidnapping, examined its interior without a warrant, and found the victim's fingerprints. In addition, they determined that the vehicle's tires and wheel span were consistent with impressions and measurements taken at the crime scene. (North v. Superior Court, supra, at p. 305, 104 Cal.Rptr. 833, 502 P.2d 1305.) The court upheld the post-seizure examination of the vehicle, explaining that the vehicle had been seized contemporaneously with the defendant's arrest, “as evidence of the alleged kidnapping; the car was believed to be the very instrumentality used to commit the kidnapping.” (Id. at p. 306, 104 Cal.Rptr. 833, 502 P.2d 1305, fn.omitted.)

Next, in People v. Rogers (1978) 21 Cal.3d 542, 146 Cal.Rptr. 732, 579 P.2d 1048, the court upheld the warrantless search of a van the police had impounded from the defendant upon his arrest for committing lewd acts on children because the police had cause to believe it had been an instrumentality of the crime. The court explained, “[W]hen officers, incidental to a lawful arrest, seize an automobile or other object in the reasonable belief that the object is itself evidence of the commission of the crime for which the arrest is made, any subsequent examination of the object for the purpose of determining its evidentiary value does not constitute a ‘search’ as that term is used in the California and federal Constitutions. [Citations.] In light of the evidence indicating that the pornographic snapshots were taken in the van and might depict the victims of the reported assaults, [the officer] clearly had reason to believe that the van was itself evidence of the crimes for which defendant had been arrested.” (Id. at pp. 549–550, 146 Cal.Rptr. 732, 579 P.2d 1048, citing North v. Superior Court and People v. Teale.)

In People v. Griffin (1988) 46 Cal.3d 1011, 251 Cal.Rptr. 643, 761 P.2d 103 (Griffin), the court upheld the taking of blood samples from the defendant's lawfully impounded truck. The court explained that “the truck in this case was itself evidence. The bloodstains that had soaked into the floorboard of the truck were clearly an appropriate subject of scientific examination and within the limits of the instrumentality exception.” (Id. at pp. 1024–1025, 251 Cal.Rptr. 643, 761 P.2d 103.) The court observed, “The propriety of a warrantless seizure and search where the vehicle is itself evidence or the instrumentality of a crime is implicit in a number of United States Supreme Court decisions as well.” (Id. at p. 1025, 251 Cal.Rptr. 643, 761 P.2d 103, collecting cases.)

[213 Cal.App.4th 756]

In this case, defendant's vehicle was itself an instrumentality of the crime of vehicular manslaughter. Defendant concedes it was lawfully seized. Consistent with the California Supreme Court cases discussed above, the officers' “subsequent examination of the [vehicle] for the purpose of examining its evidentiary value [did] not constitute a ‘search’ as that term is used in the California and federal Constitutions. [Citations.]” (People v. Rogers, supra, 21 Cal.3d at pp. 549–550, 146 Cal.Rptr. 732, 579 P.2d 1048.)

As the trial court pointed out, the specific data obtained from the SDM was the vehicle's speed and braking immediately before the impact. We agree that a person has no reasonable expectation of privacy in speed on a public highway because speed may readily be observed and measured through, for example, radar devices (e.g., People v. Singh (2001) 92 Cal.App.4th Supp. 13, 15, 112 Cal.Rptr.2d 74), pacing the vehicle (e.g., People v. Lowe (2002) 105 Cal.App.4th Supp. 1, 5, 130 Cal.Rptr.2d 249), or estimation by a trained expert (e.g., People v. Zunis (2005) 134 Cal.App.4th Supp. 1, 6, 36 Cal.Rptr.3d 489). Similarly, a person has no reasonable expectation of privacy in use of a vehicle's brakes because statutorily required brake lights (Veh.Code, § 24603) announce that use to the public. Thus, defendant has not demonstrated that she had a subjective expectation of privacy in the SDM's recorded data because she was driving on the public roadway, and others could observe her vehicle's movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras. In this case, technology merely captured information defendant knowingly exposed to the public—the speed at which she was

[213 Cal.App.4th 758]

travelling and whether she applied her brakes before the impact. (See, e.g., Smith v. Maryland (1979) 442 U.S. 735, 741–745, 99 S.Ct. 2577, 61 L.Ed.2d 220 [installation of a pen register at the telephone company's central offices, at the request of police, did not constitute a “search” within the meaning of the Fourth Amendment because the pen register merely recorded the telephone numbers dialed from the petitioner's home, and the petitioner could “claim no legitimate expectation of privacy,” because “[w]hen he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business.”

We conclude there was no Fourth Amendment violation in the admission of SDM evidence.

Much has been written about an individual's diminished expectation of privacy in vehicles. (See Wyoming v. Houghton (1999) 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 [where police officers have probable cause to search a car, "the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger's belongings" that are capable of concealing the object of the search since "[p]assengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars"]; California v. Carney (1985) 471 U.S. 386, 387, 391-393, 105 S.Ct. 2066, 85 L.Ed.2d 406 [in upholding warrantless search of a "fully mobile 'motor home' located in a public place" based on probable cause, the court emphasized the reduced expectation of privacy in vehicles and determined that "the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable"]; U.S. v. Ross (1982) 456 U.S. 798, 807, fn. 8, 102 S.Ct. 2157, 72 L.Ed.2d 572 [historically, individuals have been "on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts"], 823 ["an individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband"], South Dakota v. Opperman (1976) 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 [in upholding inventory search, court stressed the diminished expectation of privacy in automobiles given "the pervasive and continuing governmental regulation and controls" and "the obviously public nature of automobile travel"]; see id. at pp. 378-379, 96 S.Ct. 3092 [routine inventory searches of vehicles are constitutional because government interests outweigh an individual's diminished expectation of privacy], concurring opn. of Powell, J.; Cardwell v. Lewis (1974) 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 [upholding warrantless examination of vehicle's exterior based upon lesser expectation of privacy].) But the Supreme Court has consistently recognized some legitimate expectation of privacy in vehicles deserving of protection. (See Arizona v. Gant (2009) --- U.S. ----, 129 S.Ct. 1710 1720, 173 L.Ed.2d 485 [rejecting argument that Belton searches are reasonable due to "an arrestee's limited privacy interest in his vehicle" regardless whether arrestee could actually access vehicle and recognizing that a motorist's privacy interest in his vehicle, although less substantial than the *511 privacy interest in his home, "is nevertheless important and deserving of constitutional protection"]; see also U.S. v. Ortiz (1975) 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623 ["A search, even of an automobile, is a substantial invasion of privacy. [Fn. omitted] To protect that privacy from official arbitrariness, the Court always have regarded probable cause as the minimum requirement for a lawful search"]; Coolidge v. New Hampshire (1971) 403 U.S. 443, 461, 91 S.Ct. 2022, 29 L.Ed.2d 564 ["The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears"].)

In the pre-Horton⁷ case of Cardwell v. Lewis, supra, 417 U.S. 583, 94 S.Ct. 2464, the police had probable cause to believe that Lewis's car was used in the commission of a murder under investigation. (Id. at pp. 587, 592, 94 S.Ct. 2464.) A plurality of the U.S. Supreme Court held that the Fourth Amendment did not prohibit the government from taking paint scrapings from and examining the tire treads on Lewis's automobile, which had been seized in a public parking lot and then towed to the police impoundment lot. (Id. at pp. 586-592, 41 L.Ed.2d 325.) The opinion stated: "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view. [Citation.] 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz v. United States, 389 U.S., at 351, 88 S.Ct., at 511; United States v. Dionisio [(1973)], 410 U.S. [1] at 14, 93 S.Ct. [764] at 771 [35 L.Ed.2d 67]." ( Id. at pp. 590-591, 94 S.Ct. 2464.) It concluded: "With the 'search' limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.... Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments." ( Id. at pp. 591-592, 94 S.Ct. 2464.)

In contrast, in U.S. v. Ross, supra, 456 U.S. 798, 823, 102 S.Ct. 2157, the Supreme Court concluded that "the privacy interests in a car's trunk or glove compartment may be no less than those in a movable container." It declared that that "[a]n individual undoubtedly has a significant interest that the upholstery of his automobile will not be ripped or a hidden compartment within it opened." (Ibid.) The Supreme Court made clear that, even where the automobile exception applies, "[t]he scope of a warrantless search based on probable cause is no narrower-and no broader-than the scope of a search authorized by a warrant supported by probable cause." (Ibid.) "Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize." (Ibid., fn. omitted.) The scope of a warrantless search of an automobile "is defined by the object of the search and the places in which there is probable cause to believe that it may be found." (Id. at p. 824, 102 S.Ct. 2157.) Thus, the vehicle is protected by the Fourth Amendment and a motorist's reasonable*512 expectation of privacy with regard to the vehicle yields only as to those places where there is probable cause to search.

In California v. Acevedo (1991) 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619, the U.S. Supreme Court eliminated the warrant requirement for searching a closed container located in a vehicle where probable cause supports a search of the container but not a search of the entire vehicle. (Id. at pp. 573, 576, 579, 111 S.Ct. 1982.) But the court emphasized that its holding did not expand the scope of searches permissible under the automobile exception. (Id. at p. 580, 111 S.Ct. 1982.) Thus, in Acevedo, "the police had probable cause to believe that the paper bag in the automobile's trunk contained marijuana," which justified a warrantless search of the paper bag. (Ibid.) But "the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment." (Ibid.) Thus, a warrantless search of a vehicle, or the containers within it, under the automobile exception continues to be circumscribed by probable cause. (Ibid.) Its holding indirectly confirms that vehicles continue to be protected by the Fourth Amendment.

[9][10] We do not accept the Attorney General's argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle's SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person's driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. But we do not agree with defendant that a manufacturer-installed SDM is a "closed container" separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's SDM.

[11][12] " 'Probable cause exists where "the facts and circumstances within [an officer's] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed,' Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)), and that evidence bearing on that offense will be found in the place to be searched." (Safford Unified School Dist. No. 1 v. Redding (2009) --- U.S. ----, ----, 129 S.Ct. 2633 2639, 174 L.Ed.2d 354.) Defendant maintains that there was no probable cause to retrieve the SDM data in May 2007 because, by that time, investigators had "definitively concluded that Xinos was not guilty of any crime other than the DUI and leaving the scene offenses," and "Xinos had already pled guilty to those offenses, and was awaiting sentencing." The People counter that the inquiry into probable cause is objective and, under that standard, probable cause was shown.

[13][14][15][16][17][18] While "constitutional reasonableness" does not depend on "the actual motivations of the individual officers involved" and "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis" (Whren v. U.S., supra,517 U.S. 806, 813, 116 S.Ct. 1769), "the police officer must be able to point to *513 specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio (1968) 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889.) "[T]he reasonableness of a search must be determined based on the circumstances known to the officer when the search is conducted. ([ People v.] Sanders, supra [ (2003) ] 31 Cal.4th [318] at pp. 333-335 [2 Cal.Rptr.3d 630, 73 P.3d 496])" (In re Jaime P. (2006) 40 Cal.4th 128, 139, 51 Cal.Rptr.3d 430, 146 P.3d 965.) "[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e.g., United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585 2589, 45 L.Ed.2d 623 (1975)" (Ornelas v. U.S. (1996) 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911.) The facts are "judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? [Citations.]" ( Terry v. Ohio, supra, 392 U.S. at pp. 21-22, 88 S.Ct. 1868.) "[T]he probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate...." (U.S. v. Ross, supra, 456 U.S. at p. 808, 102 S.Ct. 2157.) A search cannot be justified by what it turns up. (Bumper v. North Carolina (1968) 391 U.S. 543, 548, fn. 10, 88 S.Ct. 1788, 20 L.Ed.2d 797.)

The evidence at the suppression hearing established that the vehicle was still being held as evidence of a crime on May 11, 2007 but there had already been a disposition of the case based on "all of the [accident] reconstruction and eyewitness testimony." The investigating officers had not accessed the data recorder prior to May 11, 2007 because they did not believe it held any relevant data since the airbags had not deployed during the collision. Officer Checke explained, "Prior to going in [on May 11, 2007], we did not believe there would be anything based on the fact that there were no air bags deployed." Nevertheless, on May 11, 2007, more than a year after the fatal collision, they downloaded the data from the SDM at the request of the District Attorney's Office. It was only some months later that Officer Checke learned that "a non-deployment event" may register even if air bags do not deploy.

[19][20][21] As stated, the scope of a legitimate warrantless search of a vehicle under the automobile exception "is defined by the object of the search and the places in which there is probable cause to believe that it may be found." (U.S. v. Ross, supra, 456 U.S. at p. 824, 102 S.Ct. 2157; cf. Michigan v. Clifford (1984) 464 U.S. 287, 294, 104 S.Ct. 641, 78 L.Ed.2d 477 ["If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched"]; Steagald v. U.S. (1981) 451 U.S. 204, 213, 101 S.Ct. 1642, 68 L.Ed.2d 38 ["A search warrant ... is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place"].) The scope of a warrantless search authorized by the automobile exception is "no broader and no narrower than a magistrate could legitimately authorize by warrant." (U.S. v. Ross, supra, 456 U.S. at p. 825, 102 S.Ct. 2157.) Moreover, probable cause to conduct a warrantless search must exist at the time the warrantless search is executed. (See Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 [officers conducting warrantless search of automobile must have " 'reasonable or probable cause' to believe that they will find the instrumentality of a crime or evidence*514 pertaining to a crime before they begin their warrantless search"]; cf. Sgro v. U.S. (1932) 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 [Proof of probable cause to support issuance of a warrant "must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time"].)

In cases of fatal collisions between a vehicle and a pedestrian, the particular facts and circumstances may give rise to probable cause to believe the SDM contains evidence of a crime. But in this case, the prosecution failed to show that the objective facts known to the police officers at the time of the download constituted probable cause to search the SDM for evidence of crime. The download occurred long after the collision and criminal investigation. The officers who conducted the download were merely complying with an unexplained request of the D.A.'s Office and believed no relevant data would be found.⁸ The download of the data was not supported by probable cause.

[22] California law has recognized that items lawfully seized as evidence of crime are subject to closer examination and scientific testing. (See People v. Teale (1969) 70 Cal.2d 497, 507-511, 75 Cal.Rptr. 172, 450 P.2d 564 [upholding scientific examination identifying victim's blood on vehicle's interior following warrantless seizure of vehicle based on reasonable belief that vehicle itself was evidence of murder], 508 ["it is plainly within the realm of police investigation to subject objects properly seized to scientific testing and examination"]; People v. Griffin (1988) 46 Cal.3d 1011, 1023-1025, 251 Cal.Rptr. 643, 761 P.2d 103 [upholding warrantless search of defendant's truck where fresh bloody shoe print observed on its floorboard believed to be evidence of murder and concluding that bloodstains soaked into the floorboard were appropriate subject of scientific examination]; People v. Superior Court (Nasmeh), supra, 151 Cal.App.4th 85, 97, 59 Cal.Rptr.3d 633 [no Fourth Amendment violation where police took murder suspect's seized vehicle to crime laboratory to search for and conduct a scientific analysis of trace items], 98, fn. 4 [police entitled to use technology to determine the evidentiary value of trace materials].) Although California courts in the past have sometimes*515 justified this examination and scientific testing under the so-called "instrumentality exception" (see e.g. People v. Griffin, supra, 46 Cal.3d at pp. 1023-1025, 251 Cal.Rptr. 643, 761 P.2d 103), no such "exception" has ever been recognized by the U.S. Supreme Court.9

[23] Nevertheless, such closer examination and scientific testing of items lawfully seized as evidence of crime will ordinarily be justified by the same probable cause that justified seizure. Presumably, technologically-enhanced examination or scientific testing of such items must be judged against the Fourth Amendment's general proscription against unreasonable searches and seizures and the corollary that constitutional reasonableness is tied to the circumstances justifying "interference in the first place." (See Terry v. Ohio, supra, 392 U.S. 1, 20, 88 S.Ct. 1868.) It is a cardinal principle of Fourth Amendment law that "[t]he scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652 [18 L.Ed.2d 782] (1967) (Mr. Justice Fortas, concurring); see e.g., Preston v. United States, 376 U.S. 364, 367-368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777 (1964); Agnello v. United States, 269 U.S. 20, 30-31, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925)." ( Terry v. Ohio, supra, 392 U.S. at p. 19, 88 S.Ct. 1868; see e.g. Arizona v. Gant, supra, --- U.S. ----, 129 S.Ct. 1710 [search of vehicle incident to arrest of recent occupant]; Minnesota v. Dickerson (1993) 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 [pat-down search]; Florida v. Wells (1990) 495 U.S. 1 110 S.Ct. 1632, 109 L.Ed.2d 1 [routine inventory search]; Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 [search incident to arrest].)

[24] The Attorney General has not cited any Fourth Amendment authority permitting new intrusions into any internal part or component of a vehicle simply because the vehicle was seized as evidence. This case is, of course, distinguishable from a case where police officers reasonably believe that a murder victim was transported in a particular vehicle and seize it and, consequently, have a reasonable basis for examining the vehicle's interior for trace evidence and then testing any trace evidence discovered. The retrieval of raw data from a vehicle's SDM not believed by police to hold any evidence of crime is not a reexamination or closer look at areas of a vehicle already reasonably believed to be or contain evidence of a crime; it is a new and different intrusion. The prosecution failed to show in this case that the download of data was justified by the circumstances warranting seizure of the vehicle and examination of its condition. Further, the download of raw data from a SDM does not qualify as a scientific test, similar to DNA or ballistics testing since downloading is merely the copying or retrieval of electronic data or information. If the retrieval or accessing of an SDM's raw data is constitutionally valid, however, the CDR software analysis or deciphering of that data is akin to scientific testing and may be constitutionally reasonable based upon the circumstances warranting the download.

Ferguson argues Vehicle Code section 9951, subdivision (d), prohibits use of data from an event data recorder for any purpose other than improving vehicle safety. He argues the legislative history of Vehicle Code section 9951 confirms it was enacted for consumer protection, which precludes its use for other purposes. We do not disagree with Ferguson's initial observation—Vehicle Code section 9951 was adopted in 2003 by Assembly Bill No 213,

[194 Cal.App.4th 1087]

and Assembly Committee reports demonstrate the purpose of the law was to confirm that data recorded by an event data recorder is the property of the car owner and its use should be restricted so as to protect consumer privacy.⁵ But the issue is not whether Vehicle Code section 9951permits admission of EDR data into evidence—as already noted, all relevant evidence is admissible unless otherwise provided by statute (Evid. Code, § 351)—the issue is whether the statute prohibits admission of EDR evidence. And in arguing Vehicle Code section 9951, subdivision (d), precludes use of EDR data in judicial proceedings, Ferguson has taken its language out of context.

“Well-settled principles of statutory construction tell us that when language is clear and unambiguous, ‘ “ ‘there is no need for construction and courts should not indulge in it.’ ” ...' [Citation.]” (Butler v. Bell Helicopter Textron, Inc. (2003) 109 Cal.App.4th 1073, 1085, 135 Cal.Rptr.2d 762.) On its face, Vehicle Code section 9951, subdivision (d)'s restriction on release and use of data obtained from an EDR, applies only when the data was retrieved pursuant to paragraph (3) of subdivision[124 Cal.Rptr.3d 196](c), i.e., when the data was retrieved or downloaded by someone “[f]or the purpose of improving motor vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, and the identity of the registered owner or driver is not disclosed in connection with that retrieved data....” Nothing in the statute purports to restrict the use or admissibility of the data when it has

[194 Cal.App.4th 1088]

been lawfully obtained under paragraph (2) of subdivision (c), i.e., “[i]n response to an order of a court having jurisdiction to issue the order.”

Ferguson's reliance on the recent decision in People v. Xinos (2011) 192 Cal.App.4th 637, 121 Cal.Rptr.3d 496 (Xinos), is misplaced. Xinos was a Fourth Amendment case. It held “a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's [sensing and diagnostic module (SDM) ].” (Id. at p. 659, 121 Cal.Rptr.3d 496.) The court concluded the warrantless downloading of the SDM's digital data, a year after the accident and unsupported by probable cause, violated defendant's Fourth Amendment rights. (Id. at pp. 659–660, 121 Cal.Rptr.3d 496.) Accordingly, it held the trial court erred by denying defendant's motion to suppress. (Id. at p. 664, 121 Cal.Rptr.3d 496.) Here, there is no Fourth Amendment issue. Ferguson concedes the data from his vehicle's EDR was lawfully obtained pursuant to a search warrant.