P. v. Lopez and Hamilton

Filed 1015/07 P. v. Lopez and Hamilton CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Aracley Lopez and Carl F. Hamilton appeal their convictions by plea for identity theft (Pen. Code,  530.5, subd. (a))^[1]and receiving stolen property ( 496, subd. (a)), entered after the trial court denied their motions to suppress evidence ( 1538.5). Lopez also pled guilty to possession of a forged driver's license ( 470b) and was sentenced to three years state prison. Hamilton received a two year state prison sentence. We affirm.

Facts & Procedural History

On the evening of April 7, 2006, Los Angeles Police Detective Chris McKinney saw appellant Hamilton and Michael Mendoza standing by three vehicles parked in a row at a 7-Eleven parking lot. One of the vehicles was a Mercedes. Appellant Hamilton and Mendoza touched hands in what appeared to be a narcotics transaction.

Detective McKinney approached and asked if either was on probation of parole. Mendoza, a parolee, consented to a search of his person. He had a matchbox filled with a substance resembling marijuana in his pocket.

Appellant Lopez was sitting in the Mercedes and made eye contact with the detective. She leaned forward, appeared to move items around as if trying to hide something, and started talking on her cell phone.

Detective McKinney pointed to the Mercedes and asked whose car it was. Mendoza said the Mercedes was not his but he was thinking about buying it. The detective asked appellant Hamilton if the car was his. Hamilton replied "No."

Appellant Lopez acknowledged that she was on probation for receiving stolen property and when asked if she would allow a search of the Mercedes, she replied, "It's not mine, go ahead."^[2] Her wallet was on the front passenger seat. The wallet had two credit cards with different names and an identification card issued to Lily Lazarnejed but with appellant Lopez's photo.

The detective found a checkbook issued to Peggy Thompson under the front passenger seat. In the center console area, was a credit card with someone else's name and a bag of identity theft profile information. The detective also found $8,000 in the back seat and a car registration listing Hamilton as the owner of the Mercedes.

Officers searched everyone incident to arrest. Appellant Hamilton had a Visa card and a blank check bearing the name of another person. Mendoza had a credit card issued to someone else and an arrow key used by postal carriers to access mailboxes in apartment buildings. Appellant Lopez had a stolen credit card and false driver's license in her bra.

The Chevrolet Prism next to the Mercedes belonged to appellant Lopez. Inside the vehicle were personal checks and credit cards issued to other people.

Both appellants claimed the search of the Mercedes violated their Fourth Amendment rights. The trial court denied appellant Lopez's motion to suppress evidence on the ground it was a consensual encounter and search.

With respect to appellant Hamilton, the trial court found that he lacked "standing" to assert a Fourth Amendment violation. "Hamilton denied it was his vehicle. The officer then goes over, encounters Lopez, and proceeds to search the [Mercedes] for several minutes, at least 10 minutes, if not more. [Hamilton] does nothing to stop him, say[ing] . . . that is my vehicle You are searching the wrong car. []  I think a reasonable person under the circumstance unless they are attempting to hide the ownership of the vehicle based upon its contents would have spoken up."

Discussion

In reviewing the denial of a suppression motion, we defer to the trial court's factual findings where supported by substantial evidence and independently determine whether, on the facts found, the search was reasonable under Fourth Amendment standards. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) "It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary. [Citations.]" (People v. Woods (1999) 21 Cal.4th 668, 675.)

Appellants claim that no one consented to the search because they disavowed ownership of the Mercedes. The argument is based on the theory that "[a] person's expectation of privacy in a place where the police seize an item is the same whether the person admits or denies ownership of the item. [Citation.]" (People v. Dachino (2003) 111 Cal.App.4th 1429, 1432.) But this confuses the place to be searched (i.e., the Mercedes) with the items seized (i.e., false id, credit cards, etc.).

To assert a violation of a Fourth Amendment right, the defendant must have a reasonable expectation of privacy in the place searched. (Rakas v. Illinois (1978) 439 U.S. 128, 140 [58 L.Ed.2d 387, 399].) Because it is a personal right, it may not be asserted vicariously. (Ibid. [58 L.Ed.2d at p. 399].)

Although earlier decisions characterized this as Fourth Amendment "standing," recent cases avoid use of the principle of "standing" in determining whether the defendant, rather than someone else, has a reasonable expectation of privacy in the place searched. (People v. Alaya (2000) 23 Cal.4th 225, 254, fn. 3.) "The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.' [Citing Katz v. United States (1967) 389 U.S. 347, 360 [19 L.Ed.2d 576].] Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" (California v. Ciraolo (1986) 476 U.S. 207, 211 [90 L.Ed.2d 210, 215].)

Appellant Lopez Consensual Search

Appellant Lopez denied that she owned the Mercedes but consented to the search. She got out of the vehicle to assist the officer, revealing a wallet on the passenger seat. She acknowledged that the wallet, which contained a phony identification and credit cards, was hers. The officer limited the search to areas in her control or access -- the passenger seat, the center console, the front floor area, and the back seat. Substantial evidence supported the finding that it was a consensual search. (People v. Woods, supra, 21 Cal.4th at p. 682; United States v. Matlock (1974) 415 U.S. 164, 171, fn. 7 [39 L.Ed.2d 242, 250, fn. 7]; United States v. Poulack (8th Cir. 2001) 236 F.3d 932, 934-935 [passenger manifested authority to consent to search of vehicle he was riding in].)

Appellant Hamilton Abandoned Privacy Interest

Appellant Hamilton argues that Lopez's consent to search the Mercedes does not defeat his right of privacy. The Fourth Amendment, however, does not protect uncommunicated, subjective expectations of privacy that are unreasonable or otherwise "illegitimate." (People v.Daggs (2005) 133 Cal.App.4th 361, 364.)Appellant Hamilton "assumed the risk" that his passenger, Lopez, would consent to a search of common areas in the vehicle. (People v. Jenkins (2000) 22 Cal.4th 900, 977.) His assertion that the officer lacked probable cause is without merit. An investigatory stop is permissible under the Fourth Amendment if supported by a reasonable suspicion of criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 22 [20 L.Ed.2d 889, 906-907].) He consented to a pat down search, denied that he owned the Mercedes, and was told that he was free to leave.

In the words of the trial court: "It's a suspicious circumstance with the three vehicles, the defendants standing there touching hands or exchanging something or at least their hands made contact. [appellant Lopez] was alone in the Mercedes. There's no law to my knowledge that would forbid the officers from going up to the Mercedes, especially based upon the furtive gestures at that point. It's just a consensual encounter. []   She is not detained." Appellant Hamilton did not object or intervene when she agreed to let the officer search the Mercedes.

The evidence supports the finding that appellant Hamilton, by his speech and conduct, abandoned any Fourth Amendment protected privacy interest in the Mercedes. (People v. Stanislawski (1986) 180 Cal.App.3d 748, 757; see e.g., People v. Dasilva (1989) 207 Cal.App.3d 43, 48 [defendant disclaimed ownership of bags in car trunk]; People v. Daggs, supra, 133 Cal.App.4th at p. 369 [defendant left cell phone in public place and fled].) By disavowing ownership of the vehicle, appellant Hamilton gave the officers "the green light" to proceed with the search insofar as his own Fourth Amendment rights were concerned. (People v. Dees (1990) 221 Cal.App.3d 588, 595.)

The judgments are affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Susan Speer, Judge

Superior Court County of Los Angeles

______________________________

Matthew Alger, under appointment by the Court of Appeal, for Aracely Lopez, Defendant and Appellant.

Alan Stern, under appointment by the Court of Appeal, for Carl F. Hamilton, Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey, Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code.

^[2]It was later learned that Lopez's probation included search terms. An officer may not use a probation search condition to justify a search if the officer was unaware of the probation condition. (People v. Robles (20000) 23 Cal.4th 789, 799; People v. Sanders (2003) 31 Cal.4th 318, 336.)