P. v. Patterson
Filed 1/22/14 P. v. Patterson CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
DINETTE
EUGENE PATTERSON,
Defendant and
Appellant.
C072256
(Super. Ct. No. 12F03027)
Defendant
Dinette Patterson was convicted of being a felon in possession of a firearm. During a traffic stop for a
a gun in his passenger’s purse. On
appeal, defendant contends the trial court erred in denying his motion to
suppress the evidence because: (1) the
People were estopped from arguing that he did not have “standing†to challenge
the search of the purse; and (2) the search of the purse was not supported by
FACTUAL AND PROCEDURAL BACKGROUND
On
April 26, 2012, Officer Mark Callaghan of the Sacramento Police Department was on
patrol with Officer Scott Hall when they passed a vehicle driving with “dark
window tinting in the . . . front windows.â€
Because tinted front windows violate the Vehicle Code, Officer Callaghan
stopped the vehicle.
In
addition to the driver, the car contained a male passenger in the front seat
and a female passenger in the backseat. After
the driver verbally identified himself as Dinette Patterson (defendant), the
officers returned to their patrol car to do a records check. The check showed defendant was on probation
and was driving with a suspended license.
Both
officers then reapproached the vehicle, Officer Callaghan on the driver’s side
and Officer Hall on the passenger’s side.
As Officer Hall “got near the . . . rear area of the passenger side [of
the] car,†he observed movement within the car. He saw defendant “lean a little bit towards
his right†and “turn[] slightly†while the rear passenger “appeared to reach
out with her right arm as to give or receive something.†As the rear passenger’s arm “came back,†a
gold colored purse was visible in her left hand. Officer Hall could not “tell what, if
anything, was passed.â€
Meanwhile,
or shortly thereafter, Officer Callaghan returned to the driver’s side of the
car and informed defendant they would be doing a probation search. Defendant said he was not on probation. Officer Callaghan stated, “we are going to do
a probation search and you need to put your hands behind your head.†Officer Callaghan saw defendant make “an eye
movement towards the front passenger and then towards the back passenger [¶] .
. . [¶] . . . almost like he was signaling or illustrating something.†Defendant then put his hands behind his head. Officer Callaghan removed defendant from the
car and placed him in handcuffs.
Officer
Hall told both passengers to exit the vehicle.
As the female passenger stepped out of the car, she picked up her purse.
Officer Hall told her three times to set
her purse down before she finally “left her purse and stepped out of the
vehicle.†When Officer Hall asked if the
purse belonged to her, she responded, “[W]ell, it’s my purse.†A subsequent search of the purse revealed a
gun, “upside down†in the purse with a scarf bunched over it. No other contraband was found in the vehicle.
Defendant
was charged with being a felon in possession of a firearm and unlawfully
carrying a loaded firearm in a public place.
Defendant
moved to suppress evidence of the gun found in his passenger’s purse. He argued (among other points) that the
warrantless search conducted by the police was unjustified because he was not
on probation at the time of the search.
The
prosecutor argued defendant did not have a reasonable expectation of privacy in
the passenger’s purse because only the female passenger claimed ownership of
the purse. The prosecutor further
contended defendant had no subjective expectation of privacy in the purse
because he “denied any interest in the property located inside [the passenger’s]
purse†and “purport[ed] to not know the contents of the purse.â€
the search of the purse was lawful because it was supported by probable
cause.
The
trial court denied defendant’s motion to
suppress, finding that while “defendant was not actually on
had no reasonable expectation of privacy as to someone else’s purse.â€
only person who has [a] reasonable expectation of privacy as to one’s purse
content is the owner of the purse and not someone else.†In denying defendant’s motion, the court also
suggested the search of the purse was supported by
Defendant
subsequently pled no contest to the charge of being a felon in possession of a
firearm. He was sentenced to 16 months
in prison.
DISCUSSION
Defendant
makes two arguments on appeal. First, he
contends the People were estopped from arguing that he “lacked a reasonable
passenger’s purse†while simultaneously charging him with possession of the gun
found inside the purse. Second, he
argues the search of the purse was not supported by probable cause. These are the only two arguments identified
in defendant’s opening brief and are the only ones we consider on appeal. To the extent defendant makes additional
arguments in his reply brief, we do not consider them because they were not
contained in his opening brief. (
Cal.App.4th 754, 766 [“We refuse to consider the issues raised by [the]
defendant in his reply brief which were not raised in his opening briefâ€];
672, 674 fn. 1 [declining to consider arguments raised for the first time in
the appellant’s reply brief].)
Defendant
contends that because he “was charged with possession of the gun found in the
passenger’s purse[,] the claim that [he] lacked a possessory interest in the
purse sufficient to permit him to challenge the search . . . is contradictory.â€
Thus, he contends “the prosecution
should be estopped from arguing that [he] lacked a reasonable privacy interest
in the passenger’s purse.†Defendant’s
argument is unpersuasive.
Relying
on People v. Dees (1990) 221
Cal.App.3d 588, defendant contends “the prosecution is estopped from arguing
that a defendant may not challenge the search, where the evidence tying a
defendant to a crime is the same evidence that the prosecution
argues is insufficient to establish a
reasonable expectation of privacy for Fourth Amendment purposes.†Dees,
however, is inapposite. “In
that he owned a Cadillac was evidence supporting his conviction for possession
of the drugs the police found when they searched the car.†(People
v. Dachino (2003) 111 Cal.App.4th 1429, 1432 [summarizing
the defendant to the crime was his statement that he owned the car. (Dees,
at pp. 597-598.) “When the defendant
later denied he owned the car, the prosecution successfully argued to the trial
court that because of that denial he lacked standing to challenge the
search.†(Dachino, at p. 1432.)
The
Court of Appeal reversed and held that the People were “estopped†from arguing
that the defendant did not carry his burden to prove standing to challenge the
search. (People v. Dees, supra,
221 Cal.App.3d at p. 598.) Because the
People’s “unequivocal position was that the car and its contents belonged to
[the defendant] because he said so,†“the People in effect conceded [his]
connection to the car and his expectation of privacy therein.†(Ibid.) Thus, “the prosecution could not take the
contradictory positions that his admission of ownership was evidence of his
guilt and his subsequent disavowal of ownership defeated his Fourth Amendment
interest.†(People v. Dachino, supra,
111 Cal.App.4th at p. 1432 [summarizing Dees].)
Defendant’s
case is distinguishable from Dees. Whereas in
argument that the defendant both owned the car and did not own the car, the
People here make no such contradictory argument. Instead, the People have consistently contended
defendant did not own the purse where the gun was found.
Furthermore,
unlike in Dees, where ownership of
the car was essential to proving the defendant was in possession of the drugs,
the prosecution here had no need to prove,
and did not attempt to prove, that
defendant owned the purse in which the gun was found. This is because ownership of the purse was
not what tied defendant to the crime of possessing the gun. Thus, there is no inconsistency in the
People’s position that defendant possessed the gun but at the same time did not
own or have a privacy interest in the purse where the gun was found.
Dachino is
likewise unhelpful to defendant’s argument.
In Dachino, a police officer
claimed the defendant said he had a gun in his waistband and the officer
searched the defendant and found the gun.
(People v. Dachino,
gun and that he actually never had one.
(Ibid.) The prosecution argued that because the
defendant testified the officer did not find the gun on him, no search
occurred. (Ibid.) The trial court
accepted the prosecutor’s position: in
denying the suppression motion, the court “reason[ed] that ‘based on the
testimony of the defendant . . . he lacks standing [to challenge the search].’ †(Id.
at pp. 1432, 1433.) Relying on
not rely on [the defendant’s] denial that he possessed the gun to defeat his
Fourth Amendment interest.†(
Defendant’s
case is again distinguishable. In
possessed the gun (for purposes of the charge against him) and that he did not
possess the gun (for purposes of the suppression motion). As discussed previously, there is no such
inconsistency in the People’s assertion here that defendant possessed the gun
but did not own or exercise dominion and control over the purse in which it was
found. Dachino also is inapposite.
Defendant
next claims the facts of United States v.
Issacs (1983) 708 F.2d 1365 are analogous to his case. We disagree.
In Issacs, police found
journals inside the defendant’s safe and offered the journals as evidence of
the defendant’s guilt. (
pp. 1366-1367.) The defendant claimed ownership of the safe
itself but disclaimed ownership of the journals inside the safe. (Ibid.) Because the government conceded the defendant
had a legitimate expectation of privacy in his safe, the court held the
government could not rely on the defendant’s disavowal of ownership of the
journals to defeat his ability to challenge the search of the safe. (Id.
at p. 1368.)
Unlike
in Issacs, the People here do not
concede defendant had a legitimate expectation of privacy in the purse where
the gun was found. Moreover, language in
Issacs specifically supports the
People’s argument in the instant case: “The
government may properly contend that a defendant owned drugs which, moments
before the challenged search, he had placed in his girlfriend’s purse, in which
he had no legitimate expectation of privacy.â€
(United States v. Issacs, supra,
at p. 1368 [citing Rawlings v. Kentucky
(1980) 448 U.S. 98 [65 L.Ed.2d 633]].)
This is precisely what happened here except it was a gun in the purse.
Finally,
defendant relies on U.S. v. Singleton
(9th Cir. 1993) 987 F.2d 1444 for the proposition that the People may not “ ‘argue
possession but deny expectation of privacy where the circumstances of the case
make such positions necessarily inconsistent.’ †As discussed previously, the People’s
argument in this case is not inconsistent.
The People argue defendant possessed the gun but did not have a reasonable
expectation of privacy in the purse where the gun was found. As the Singleton
court specifically recognized, even “a defendant in legal possession of an item does not necessarily have a legitimate
expectation of privacy in the place from which the item is seized.†(Id.
at p. 1447, italics added.)
In
view of the above, there is no need to reach the second argument of whether the
search of the purse was supported by probable cause. Because he had no legitimate expectation of
privacy in the passenger’s purse, defendant had no right to challenge the
search of the purse. (See
1182, 1190.)
DISPOSITION
The
judgment is affirmed.
ROBIE ,
Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
name="_ftn1" title="">[1] In a subsequent
interview with another officer, the female passenger said that when the
officers returned to their police car, defendant “reached into his front waist
area and pulled out a dark colored firearm and gave it to her.†She stated she “panicked, and she put it in
her purse.â€
name="_ftn2" title="">[2] According to the
People’s opposition to the motion to suppress brief, while sitting in the
backseat of Officer Callaghan’s patrol car, defendant stated, “ ‘I don’t know
where that gun came from. You just came
back with that gun. It was that girl’s
gun.’ â€
