P. v. Lamont

Filed 9/26/07 P. v. Lamont CA4/3

Opinion following second remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Reversed.

Edward A. Hoffman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J. T. Carlton, Roberta L. Davis, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

After the trial court denied Matthew Gordon Lamonts motion to suppress, he pleaded no contest to possessing a destructive device or explosive on a public street, possessing a destructive device or explosive with the intent to injure or destroy property, transporting a destructive device, and possessing materials with the intent to make a destructive device or explosive. The court sentenced him to three years in state prison.

On appeal, Lamont challenged the trial courts denial of his suppression motion. Lamont argued that as a passenger in the car, he was seized when the police officer illegally stopped the car in which he was riding in violation of his Fourth Amendment rights. In this courts prior published opinion People v. Lamont (2004)

125 Cal.App.4th 404 (Lamont I), we agreed and reversed the judgment.

The California Supreme Court granted the Attorney Generals petition for review in Lamont[1] and remanded the case to this court with directions to vacate our decision and reconsider our decision in light of People v. Brendlin (2006) 38 Cal.4th 1107 (Brendlin), and People v. Saunders (2006) 38 Cal.4th 1129 (Saunders). We followed the courts directions and rejected Lamonts challenge to the trial courts denial of his suppression motion in People v. Lamont (Feb. 9, 2007, G032369) [nonpub. opn.] (Lamont II).

The California Supreme Court granted Lamonts petition for review in Lamont II[2] and remanded the case to this court with directions to vacate our decision and reconsider our decision in light of Brendlin v. California (2007) 551 U.S. ___ [127 S.Ct. 2400]. We again follow the courts directions and reverse the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS[3]

Long Beach Police Officer Erik Herzog was conducting surveillance of the Southern Kalifornia Anarchist Alliance (SKAA) at its headquarters in the City of Long Beach because of reports SKAA might try to disrupt a celebration of Adolf Hitlers birthday being held by the Aryan Nation in Orange County. Herzog saw Lamont standing outside SKAAs headquarters, talking with a small group of people. Lamont is a member of SKAA, and Herzog knew Lamont because he was arrested at a demonstration turned riot the previous year.

Lamont walked towards a parking lot carrying clothes and two white plastic jugs. One jug appeared to be a three-gallon water jug with a spout and the other a

one-gallon milk jug, both jugs looked to be empty. Lamont, Maxwell Lucas, and another unidentified male got into a car and left. Herzog followed. They drove to a hard-core punk concert at the Unitarian Church in the City of Anaheim. The unidentified male stayed at the church, and Lucas and Lamont drove to a nearby grocery store. Lamont and Lucas went into the store, exited the store, got into the car, and drove towards the presumed location of the Aryan Nation celebration.

Lucas and Lamont stopped at a gas station. Herzog saw the car next to a gas pump, but he could not see what they were doing. Lucas and Lamont left the gas station, and Herzog briefly lost sight of them. When Herzog found them, the car was parked alongside a curb with the passenger door opened slightly. Lucas was sitting in the drivers seat and Lamont was sitting in the back passenger seat. Herzog called the City of La Habra Police Department and asked them to stop the car. Lucas and Lamont drove away.

La Habra Police Officer Kim Razey stopped Lucas and Lamont. Lucas was driving and Lamont was sitting in the rear passenger seat. Razey asked Lucas for his drivers license and he complied. Razey told Lucas he pulled him over because there was a strong odor of gasoline coming from the car. Lucas said the gas cap was leaking. Razey asked Lucas and Lamont whether they had ever been arrested or were on parole or probation. They said, No. Razey asked them to get out of the car so he could investigate where the gasoline odor was coming from. Two undercover detectives arrived.

Razey asked Lamont and Lucas whether he could search them for safety reasons. Lamont consented to a patdown search and Lucas consented to be searched. Razey asked them again whether they had ever been arrested. Lamont said he had been arrested and was on probation, but he did not know whether he was subject to a search and seizure condition.[4] One of the detectives searched Lamont and found three cigarette lighters in his pants pocket. Razey looked inside the car and saw an unopened bottle of Tequila Rose on the floor of the right passenger side of the car. Because Lamont and Lucas were under the age of 21, Razey conducted a full search of the car for contraband. Razey searched the rear passenger portion of the car where Lamont was sitting and found the following: a one-gallon jug with flammable liquid; two sponges soaked with flammable liquid, one of which had two candles embedded in it; a pair of rubber gloves; a bandana; anarchist materials; and articles on nazi gatherings.

DISCUSSION

In Lamont I, supra, 125 Cal.App.4th 404, the majority opinion concluded Lamont, a passenger in the car in which Razey illegally stopped, was seized within the meaning of the Fourth Amendment, and because the district attorney conceded the stop was illegal, all evidence seized as a result of the stop should have been suppressed under the fruit of the poisonous tree doctrine. The California Supreme Court granted review in Lamont I, and subsequently issued its opinion in Brendlin, supra, 38 Cal.4th 1107, holding a vehicles passenger was not automatically seized when a police officer made a traffic stop of the drivers vehicle without any indication the officers investigation or show of authority was directed at the passenger. The California Supreme Court transferred Lamont I back to this court to vacate and reconsider our decision in light of Brendlin. Based on the California Supreme Courts holding in Brendlin, supra, 38 Cal.4th 1107, we concluded Lamont was not seized within the meaning of the Fourth Amendment. Several months later, the United States Supreme Court issued its opinion in Brendlin v. California, supra, 551 U.S. ___ [127 S.Ct. 2400]. The California Supreme Court granted review in Lamont II, and transferred Lamont II back to this court to reconsider our decision in light of Brendlin v. California, supra,

551 U.S. ___ [127 S.Ct. 2400]. Lamont filed a supplemental opening brief, and the Attorney General filed a letter brief. Lamont responded in a letter brief and raised a procedural issue concerning the timing of the Attorney Generals letter brief. As we explain below, Brendlin v. California, supra, 551 U.S. ___ [127 S.Ct. 2400], requires us to again reverse the judgment.

In reviewing a lower courts ruling on a motion to suppress evidence, we review questions of law . . . independently to determine whether the challenged seizure meets constitutional standards of reasonableness. (People v. White (2001)

93 Cal.App.4th 1022, 1025.) Pursuant to article I, section 28, of the California

Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution. [Citation.] (People v. Banks (1993) 6 Cal.4th 926, 934.)

In Brendlin v. California, supra, 551 U.S. ___ [127 S.Ct. 2400], the United States Supreme Court held that when a police officer makes a traffic stop, the passenger, like the driver, is seized within the meaning of the Fourth Amendment and many challenge the stops constitutionality. The Court explained, A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on privacy and personal security does not normally (and did not here) distinguish between passenger and driver. [Citation.] (Id. at p. 2407.)

Relying on Brendlin, Lamont argues the appropriate remedy is to reverse the judgment. The Attorney General acknowledges Brendlins holding, but contends that like in Brendlin, we should remand the matter to the trial court to consider whether suppression turns on any other issue. We agree with Lamont.

As we explained in Lamont I and Lamont II, the district attorney stipulated there was no reasonable suspicion that justified the vehicle stop. Suppression does not turn on any other issue, otherwise the Attorney General would have raised it previously. Therefore, the stop violated Lamonts Fourth Amendment rights and all evidence seized as a result of the stop should have been suppressed under the fruit of the poisonous tree doctrine. (U.S. v. Kimball (1st Cir. 1994)25 F.3d 1, 6; People v. Butler (1988)

202 Cal.App.3d 602, 607.)

DISPOSITION

The judgment is reversed. The trial court is ordered to vacate Lamonts guilty plea and its order denying the motion to suppress, and enter a new order granting the motion to suppress.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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Analysis and review provided by Carlsbad Property line attorney.

[1] Review granted March 30, 2005 (S131308).

[2] Review granted June 20, 2007 (S151206).

[3] Because Lamont pleaded no contest, the facts are taken from the transcript of the preliminary hearing, the transcript of the motion to suppress, and the police reports.

[4] In his opening brief, Lamont states, Razeys claim that [he] acknowledged being on probation appears to be demonstrably false in light of a subsequent discussion between the [trial] court and the [district attorney], in which the court said to the [district attorney], . . . [Lamont] does not have a criminal record. Is that correct? and the [district attorney] responded, Yes, thats correct, Your honor.