Superior Court
Filed 6/17/13 Aguiar v. Superior Court CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
PETER PAUL AGUIAR,
Petitioner,
v.
THE SUPERIOR
COURT OF LOS ANGELES
COUNTY,
Respondent;
THE PEOPLE OF THE STATE OF CALIFORNIA,
Real Party in Interest.
No. B245186
(Los Angeles
County Super.
Ct.
No. GA083867)
ORIGINAL
PROCEEDINGS in mandate. Janice Claire
Croft, Judge. Petition granted.
Robert S.
Gerstein; and Ivan L. Klein for Petitioner.
Jackie
Lacey, District Attorney of Los Angeles County, Phyllis C. Asayama and
Shirley S. N. Sun, Deputy District Attorneys, for Real Party in Interest.
____________________
Peter Paul
Aguiar, charged with illegally cultivating marijuana and possessing marijuana
for sale, seeks a writ of mandate compelling respondent superior court to
suppress evidence of incriminating text messages found on his wife’s cell
phone. Police officers had removed the
phone from a purse belonging to Claudia Paola Villarroel, Aguiar’s wife, while
they were attempting to serve an arrest warrant for Aguiar at the couple’s
home. The superior court denied the
motion, finding Aguiar had no reasonable expectation of privacy in his wife’s
belongings.
The court’s
analysis was incomplete. If the officers
saw the purse in plain view while lawfully in Aguiar’s house or pursuant to a
lawful search of the house, the search of the purse did not invade any
protected privacy interest of Aguiar’s.
However, if the purse and cell phone were discovered only as a result of
an unlawful search of his home, the fruits of that search should have been
suppressed. Because the court
erroneously ruled Aguiar did not suffer a Fourth Amendment violation whether or
not the purse was the product of an illegal search of his home, we grant
Aguiar’s petition for writ of mandate and direct the superior court to vacate
its order denying his motion to suppress and to determine in the first instance
whether the cell phone was discovered lawfully or as part of an
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Information
An information filed on March
13, 2012 charged Aguiar and Villarroel with cultivating marijuana (Health &
Saf. Code, § 11358) and possession of marijuana for purposes of sale (Health
& Saf. Code, § 11359).
2. The
Motion To Suppress
On July 30, 2012 Villarroel
moved pursuant to Penal Code section 1538.5 to suppress text messages between
her and Aguiar found on her cell phone in her purse. On October 12, 2012 Aguiar filed a
joinder in his wife’s motion.
The People
opposed the motion. As to Villarroel,
the People argued the cell phone was retrieved as a result of a search incident
to Villarroel’s arrest, an exception to the rule requiring a search to be
supported by a warrant. As to Aguiar,
the People argued he had no reasonable expectation of privacy in the contents
of his wife’s purse or her cell phone.
According
to the evidence at the suppression
hearing, officers from the Los Angeles Police Department arrived at
Villarroel’s home for purposes of serving a misdemeanor domestic violence
arrest warrant on Aguiar. (Villarroel
had made the domestic violence allegations.)
When the officers arrived, Villarroel told them Aguiar was not at
home. The officers, who did not have a
warrant to search the home, asked Villarroel’s permission to enter the house to
verify that Aguiar was not there.
Villarroel permitted the officers to enter the house and the backyard
for that limited purpose. Once in the
backyard, the officers observed in plain view numerous marijuana plants and
instruments used for cultivating marijuana.
Villarroel was arrested.
Officer
Karel Castro, called to the scene to assist the officers in Spanish translation
because Villarroel is a native Spanish speaker, testified Villarroel was
sitting at the kitchen table when he arrived at the house. She was not handcuffed and had not been
placed under arrest. Castro had a “faint
memory†the purse containing the cell phone had been on the table next to
Villarroel when he arrived, but he could not recall that fact specifically.
Villarroel’s 13-year-old son, Paul Aguiar, who was sitting at the table next to
his mother, to retrieve her purse so she could provide Castro with her
identification. After Villarroel was
handcuffed, arrested and placed in a police car, Castro conducted an inventory
search of the purse and found the cell phone.
Paul Aguiar
testified, after his mother was placed in the police car, a police officer came
inside and asked him if he knew where his mother’s cell phone was located. He told the officer the phone was in his
mother’s purse in her bedroom closet. He
acknowledged he did not actually see the officer go to the bedroom, but he
later saw one of the officers leave the house holding his mother’s cell
phone. He insisted he was sitting next
to his mother at the kitchen table the entire time Castro was in the house and
the purse had not been on the table.
Villarroel
testified her purse had been hanging in her bedroom closet when she was
arrested. She did not ask anyone to
retrieve it. She later saw an officer
holding her cell phone. Villarroel never
consented to the search of her purse or her cell phone.
3. The
Court’s Ruling Granting Villarroel’s Suppression Motion and Denying Aguiar’s
Motion
The court granted Villarroel’s
motion to suppress, finding she had a reasonable expectation of privacy in her
purse and its contents and the People had failed to satisfy their burden to
demonstrate the warrantless search of those items was justified as a search
incident to an arrest. Specifically, the
court found the People had not established the purse was next to Villarroel on
the table or otherwise within her immediate control when it was searched. (See Chimel
v. California (1969) 395 U.S. 752, 762-763 [89 S.Ct. 2034, 23 L.Ed.2d 685]
[search incident to arrest is an exception to the warrant requirement; police
may search person arrested and the area “‘within his immediate control’†to
remove weapons and secure evidence]; People
v. Schmitz (2012) 55 Cal.4th 909, 927.)
The court
denied Aguiar’s suppression motion on the ground he had “no standing†to assert
a Fourth Amendment violation, that is, he had no reasonable expectation of
privacy in his wife’s purse or its contents.
(See People v. Ayala (2000) 23
Cal.4th 225, 254, fn. 3 [“the United States Supreme Court has largely
abandoned use of the word ‘standing’ in its Fourth Amendment analyses
[citation] . . . without altering the nature of the inquiry: whether the defendant, rather than someone
else, had a reasonable expectation of privacy in the place searched or the
items seizedâ€].) The court did not
decide whether the purse was discovered during an unlawful search of the home,
finding that question immaterial to its standing analysis.
DISCUSSION
1. Standard
of Review
In reviewing the ruling on a
motion to suppress, the appellate court defers to the trial court’s factual
findings, express or implied, when supported by substantial evidence. (
719; People v. Ayala, supra, 23
Cal.4th at p. 255; People v. James
(1977) 19 Cal.3d 99, 107.) The power to
judge credibility, weigh evidence and draw factual inferences is vested in the
trial court. (James, at p. 107.) However, in determining whether, on the facts
found, the search or seizure was reasonable under the
independent judgment. (
362.)
2. Governing
Law
The
Fourth Amendment to the
States Constitution protects individuals against unreasonable searches and
seizures in those areas in which a person has a reasonable expectation of
privacy. (Katz v. United States (1967) 389 U.S. 347, 350-351 [88 S.Ct.
507, 19 L.Ed.2d 576]; People v. Camacho (2000)
23 Cal.4th 824, 831.)
name="_ftnref4" title="">[4] “‘In order to claim the protection of the
Fourth Amendment, a defendant must demonstrate that he personally has an
expectation of privacy in the place searched, and that his expectation is
reasonable; i.e., one that has “a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society.â€â€™â€ (People
v. Ayala, supra, 23 Cal.4th at p. 255; accord, Minnesota v. Carter (1998) 525 U.S. 83, 88 [119 S.Ct. 469, 142
L.Ed.2d 373]; Ohio v. Robinette (1996)
519 U.S. 33, 39 [117 S.Ct. 417, 136 L.Ed.2d 347].)
The
exclusionary rule, a judicially-created remedy for a Fourth Amendment
violation, prohibits the introduction of evidence obtained in violation of an
individual’s Fourth Amendment rights at
a criminal proceeding against that
person. (United States v. Calandra (1974) 414 U.S. 338, 347 [94 S.Ct. 613,
38 L.Ed.2d 561]; Rakas v. Illinois (1978)
439 U.S. 128, 134, 144 [99 S.Ct. 421, 58 L.Ed.2d 387 .) To benefit from the exclusionary rule, the
defendant must show his or her personal Fourth Amendment rights were violated,
not the rights of someone else. (See
violated, but who is aggrieved by the introduction of evidence seized from another,
is not entitled to the benefits of the exclusionary rule; only defendants whose
rights have been violated may benefit from the rule]; People v. Letner and Tobin (2010) 50 Cal.4th 99, 213 [same].)
3. Aguiar’s
Fourth Amendment Rights Were Violated if the Purse Was Discovered During an
Illegal Search of His Home
Evidence
seized as a result of an unlawful search of the defendant’s home is properly
excluded in a criminal trial against the defendant, even if the evidence seized
did not belong to the defendant, because the search itself violated the
defendant’s rights: “If the police make
an unwarranted search of a house and seize tangible property belonging to third
parties . . . , the homeowner may object to its use against him, not
because he had any interest in the seized items as ‘effects’ protected by the
Fourth Amendment, but because they were the fruits of an unauthorized search of
his house, which is itself expressly protected by the Fourth Amendment.†(Alderman
v. United States (1969) 394 U.S. 165, 176-177 [89 S.Ct. 961, 22
L.Ed.2d 176]; accord, United States v.
Karo (1984) 468 U.S. 705, 732 [104 S.Ct. 3296, 82 L.Ed.2d 530] (conc.
& dis. opn. of Stevens, J. [“[i]t is certainly true that a homeowner
has a reasonable expectation of privacy in the contents of his home, including
items owned by othersâ€]; United States v.
Issacs (9th Cir. 1983) 708 F.2d 1365, 1368 [defendant suffered Fourth
Amendment violation when journals were seized as a result of an unlawful search
of his safe, even though defendant disclaimed ownership of the journals
themselves].)
Contrary to
respondent court’s ruling, ownership of the purse and the cell phone is not
dispositive of Aguiar’s motion. If the
purse was found and seized by the officers during an unlawful search of his
home, his Fourth Amendment rights were violated; and he may object to use of
the text messages at trial. To the
extent the court ruled otherwise, it erred.
(See Alderman v. United States,
supra, 394 U.S. at p. 177; Mancusi v.
DeForte (1968) 392 U.S. 364, 367, fn. 4 [88 S.Ct. 2120, 20 L.Ed.2d
1154] [“The fact that the seized papers belonged to the Union [and not to
defendant] does not imply of itself that individual could never have personal
standing to object to their admission against him. For example, state officers conceivably might
have seized the papers during a search of DeForte’s home, and in that event we
think it clear that he would have had standing.â€]; see also
676, 687 [once a person establishes a privacy interest in the residence that
was improperly searched, “there is no need to further show an interest in the
particular items which were seized by the policeâ€]; United States v. Issacs, supra, 708 F.2d at p. 1368 [defendant’s
denial of ownership of journals found in safe in his home during illegal search
of premises does not defeat homeowner’s “legitimate expectation of privacy in
the space invadedâ€]; United States v.
Perez (8th Cir. 1983) 700 F.2d 1232, 1236 [homeowner had standing to
challenge seizure of overnight guest’s suitcase and its contents when the
suitcase was found pursuant to an unlawful search of his home].)
4. The
Superior Court Must Determine in the First Instance Whether the Purse Was
Discovered During an Illegal Search of Aguiar’s Home
Aguiar
asserts, in granting Villarroel’s motion to suppress, the trial court impliedly
found her purse had been in the bedroom closet, as she and Paul Aguiar
testified, and not on the kitchen table, as Officer Castro suggested. As a result, Aguiar argues, his suppression
motion also should have been granted because it is undisputed the search of the
closet was not justified.
name="_ftnref6" title="">[6] Aguiar’s argument—and the implied finding he
posits—sweep too broadly under the circumstances presented.
In applying
the substantial evidence rule to
trial court orders, we adopt all intendments and inferences to affirm the order
unless the record expressly contradicts them.
(See People v. Redd, supra, 48
Cal.4th at p. 719; In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133.) We do not infer findings to reverse an order
unless the record permits no other inference.
Here, the record does not compel the inference Aguiar suggests, that the
purse was found in the bedroom closet. In
fact, in granting Villarroel’s motion and denying Aguiar’s, the court expressly
declined to decide whether any search of the home had taken place: “I’m not sure there was a warrantless
search. . . . I can’t say
they searched the house.†Accordingly, the
only finding that may be properly inferred from this record is, wherever it
was, the purse was not within Villarroel’s “immediate control†so that seizing
it and searching its contents constituted a valid search incident to her arrest
(see Chimel v. California, supra, 395
U.S. at pp. 762-763).
Even if the
purse was outside Villarroel’s control, however, it may have been in plain view
of the officers who had a legitimate right to be in the home. A search and seizure of the closed purse
under those circumstances would have certainly violated Villarroel’s Fourth
Amendment rights and required suppression of the evidence as to her. (See People
v. Shepherd (1994) 23 Cal.App.4th 825, 828 [defendant has reasonable
expectation of privacy in contents of her own purse when purse is in her
possession or control or in her own home and not left or abandoned in public
place]; United States v. Davis (9th
Cir. 2003) 332 F.3d 1163, 1168 [“‘[a] person has an expectation of privacy in
his or her private, closed containers’â€].)
However, a
search of the purse under those circumstances would not have violated any
Fourth Amendment right of Aguiar’s because the purse would not have been
discovered during an unlawful search
of his home. (Alderman v. United States, supra, 394 U.S. at pp. 176-177; see
Lorenzana v. Superior Court (1973) 9
Cal.3d 626, 634 [it is a “salutary rule of law that observations of things in
plain sight from a place where a police officer has a right to be do not amount
to a search in the constitutional senseâ€].)
To claim a Fourth Amendment violation and benefit from the exclusionary
rule, Aguiar would have to demonstrate he had a separate, reasonable
expectation of privacy in the purse itself.
(See United States v. Meyer (7th
Cir. 1998) 157 F.3d 1067, 1080 [where officers had warrant to search
defendant’s home, search of refrigerator found within curtilage of the home did
not violate any Fourth Amendment right of defendant homeowner unless he could
demonstrate a reasonable expectation of privacy in the refrigerator
itself: “In the present case, the police
entered Hoff’s curtilage pursuant to a valid warrant. Therefore, Hoff cannot raise a claim based on
an unauthorized search of his curtilage.
Hoff cannot assert a protected interest in the refrigerator based solely
on the fact that the refrigerator was within his curtilage. He must establish that he had a reasonable
expectation of privacy in the refrigerator.â€]; Lenz v. Winburn (11th Cir. 1995) 51 F.3d 1540, 1549 [“Thus, in a
variety of circumstances, courts have held that a person does not have a
reasonable expectation of privacy in another’s belongings. [Citations.]
This is true even when the person claiming the Fourth Amendment right
has a reasonable expectation of privacy in the premises where the other’s
property was foundâ€]; see generally 6 LaFave, Search and Seizure (5th ed. 2012)
§ 11.3(a), p. 175 [“[a] person in possession of premises has standing
with regard to a search of those premises and also as to a seizure of objects
therein, and thus may have suppressed the fruits of either type of intrusion if
found to be illegal, but does not also have standing as to the
another within the premises, at least if the police presence on the premises
was otherwise lawfulâ€] (fns. omitted).)
of an unlawful search, an order denying Aguiar’s suppression motion would be
proper.
676, on which Aguiar relies, is not to the contrary. In that case police searched the home of
Koury’s estranged wife pursuant to a search warrant and, during the search,
found a zippered pouch, a locked briefcase and two closed suitcases, all
containing cocaine. The pouch, briefcase
and one of the suitcases belonged to Hernandez, a house guest. Hernandez moved to suppress the evidence on
the ground it was discovered without a warrant authorizing the search of his
items. Koury moved to suppress the
evidence on the ground the affidavit used to support the warrant to search his
home was legally inadequate and contained misrepresentations and
omissions. Koury and Hernandez also
filed joinders in each other’s motions to suppress. (Id. at
pp. 681-682)
The People
asserted neither Koury nor Hernandez lived at the home and thus lacked standing
to assert a Fourth Amendment violation.
The trial court agreed and denied their motions to suppress. The Court of Appeal, however, rejected that
argument, finding Koury and Hernandez could assert Fourth Amendment
claims. Koury and his wife were still
legally married; Koury had a key to the residence and regularly visited
overnight. This evidence of joint control
of the premises was sufficient to support Koury’s assertion of a reasonable
expectation of privacy in the home, giving him the right to challenge the
search of containers seized during an unlawful search of his home. Although the court also held Hernandez had a
reasonable expectation of privacy in his own luggage and closed containers and
thus had standing to challenge the search of those items, it did not hold, as
Aguiar suggests, Koury could challenge the search of Hernandez’s possessions if
the search of the house itself was otherwise lawful. (People
v. Koury, supra, 214 Cal.App.3d
at p. 689.) Because the hearing on the
suppression motions was “cut short†after the trial court found neither Koury
nor Hernandez could assert a Fourth Amendment violation, the court remanded for
the trial court to consider the merits of Koury’s and Hernandez’s arguments
relating to the validity and scope of the warrant. (Id. at
p. 691.)
Like Koury,
Aguiar has a reasonable expectation of privacy in his home
violation if the purse containing the incriminating evidence was found during
an unlawful search of his closet.
However, if Villarroel’s purse was in plain sight of where the officers
had a legitimate right to be and thus not discovered during an unlawful search
of his home, the search and seizure of Villarroel’s purse, in which Aguiar
claimed no privacy interest, did not violate Aguiar’s Fourth Amendment
rights. The superior court made no
express finding on this point, and none may be inferred by this court on the
record before us. Accordingly, we grant
Aguiar’s petition and direct respondent court to vacate its order denying the
motion to suppress and to determine, either on the basis of the existing
evidentiary record or with additional testimony, whether the purse and its
contents were the fruits of an unlawful search of Aguiar’s home.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue
directing respondent Los Angeles Superior Court to vacate its order of October
19, 2012 denying Aguiar’s motion to suppress the text messages found on the
cell phone; to determine in
the first instance whether the purse and its contents
were the fruits of an unlawful search of Aguiar’s home; and to conduct further
proceedings not inconsistent with this opinion.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
direct examination, the prosecutor reminded Castro he had “previously
testified†the purse had been on the table when he arrived. The prosecutor did not indicate when Castro
had testified to that effect previously, and there is no prior testimony in the
record provided in connection with the writ petition. Castro explained he thought the purse had
been on the table when he retrieved it, but it was only a “faint memory.†He also acknowledged he could not remember
where exactly the purse had been on the table.
On cross-examination Castro reiterated, “I believed I retrieved [the
purse] from the table, but it’s a faint memory and I wouldn’t want to stake my
job on it.â€
court explained its ruling, “I can’t say they searched the house, but I don’t
know where the purse came from. Because
I don’t know where the purse came from, . . . I have to suppress
the evidence.â€
