P. v.Johnson

Filed 5/27/08 P. v.Johnson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments of the Superior Court of Los Angeles County,

Eric C. Taylor, Judge. Affirmed.

Frank Duncan for Defendant and Appellant Alfred Johnson.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Pettis.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendants and appellants, Alfred Johnson and Kenneth Pettis, appeal from the judgment entered following their convictions, by plea of nolo contendere, for unlawful access card activity (Pen. Code,  484i, subd. (c)).^[1] Sentenced to state prison for two years, defendants claim the trial court erred by denying their motion to suppress evidence.

The judgments are affirmed.

BACKGROUND

Defendants Johnson and Pettis were arrested after police found a machine for manufacturing counterfeit credit cards in a hotel room. Following an unsuccessful attempt to have this evidence suppressed, each defendant pled nolo contendere to a single count of section 484i, subdivision (c), which provides: Every person who designs, makes, possesses, or traffics in card making equipment or incomplete access cards with the intent that the equipment or cards be used to make counterfeit access cards, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison. The following facts are taken from the hearing on defendants suppression motion.

On May 5, 2005, Pettis checked into a Marriott Hotel in Torrance. The hotel required identification and advance payment. Pettis presented a fake drivers license, and he paid for one days lodging using a Marriott gift card. He was given an electronic key card for room 431. Checkout time was noon the following day.

Mark Asilo worked as a desk clerk at the hotel. He testified that, at about 9:00 or 10:00 a.m. on May 6, he spoke to a woman on the housekeeping staff who told him the guest in room 431 had inquired about extending his stay. Asilo told the housekeeper that the guest had to come to the front desk and pay for another day. Asilo himself never spoke to the guest. When Pettis did not make any additional payment by 1:00 p.m., Asilo checked room 431. Part of his job was to check on all the rooms that were scheduled to be vacated and make sure the guests had departed. When Asilo went into room 431, he saw something wrong that caused him to contact a hotel manager, who called the police. Evidence presented at the preliminary hearing indicates Asilo may have seen the credit card machine and plastic credit card blanks. Because Pettis had not come to the front desk to make another payment, Asilo cancelled his electronic key card at about 2:00 p.m. Asilo subsequently escorted the police into room 431.

Brenda Tyson, the hotels guest care manager, explained that hotel policy required cash customers wishing to extend their stays to come down prior to the check out time at 12:00 p.m. to pay the current day charges. A gift card was treated like cash. If the guest failed to appear by noon, [w]e give them until 1 oclock and then at 1 oclock, one of the desk clerks goes up to check all of the rooms that are supposed to be vacated but are not. This is when the lockouts take place: We cancel out the keys and then [the guests] are forced to come down to the front desk upon returning to the hotel to collect their belongings. Asked if hotel policy would allow a non-paying guest to extend a stay until 3:00 p.m., Tyson testified: Not if you are a cash paying guest because we need a method of payment established when check out time arrives, which is 12 oclock. At 12 oclock if a method of payment is not made, the room goes back to us. (Italics added.)

Tyson was present when Pettis came to the front desk at 3:20 p.m. on May 6 and paid for another night. The only reason she accepted his money was because the police had asked her to as part of their investigation. After paying, Pettis was given a new electronic key card that allowed him access to room 431.

It was stipulated the police had no search warrant when they entered room 431. It was also stipulated that defendant Johnson was an invited guest of Mr. Pettis in the room.

At the conclusion of the suppression hearing, the trial court ruled that Johnson and Pettis do not have standing to argue for an expectation of privacy.^[2]

CONTENTION

Defendants contend the trial court erred by finding they lacked a reasonable expectation of privacy in the hotel room.

DISCUSSION

1. Legal principles.

The Fourth Amendment provides [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . . (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.] A similar guarantee against unreasonable government searches is set forth in the state Constitution (Cal. Const., art. I, 13) but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. [Citations.] Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court. [Citation.] (People v. Camacho (2000) 23 Cal.4th 824, 829-830, fn. omitted.)

The proponent of a motion to suppress bears the burden of proving not only that the search . . . was illegal, but also that he had a legitimate expectation of privacy in the place searched. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104 [65 L.Ed.2d 663].) [T]he United States Supreme Court has stated that 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 which 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.  [Citation.] The defendant must assert a reasonable expectation of privacy in  the particular area searched or thing seized in order to bring a Fourth Amendment challenge.  [Citation.] [] A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] (People v. Jenkins (2000) 22 Cal.4th 900, 972.) In reviewing the action of the lower courts, we will uphold those factual findings of the trial court that are supported by substantial evidence. The question of whether a search was unreasonable, however, is a question of law. On that issue, we exercise independent judgment. [Citations.] (People v. Camacho, supra, 23 Cal.4th at p. 830.)

 [A] person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place. [Citation.] (People v. Moreno (1992) 2 Cal.App.4th 577, 582.) While an ownership or possessory interest in the searched premises is not necessarily required to assert a reasonable expectation of privacy under the Fourth Amendment, the mere legitimate presence there by invitation or otherwise, without more, is insufficient to create a protectable expectation. . . . [] . . . [T]here is no set formula for the showing required by a defendant necessary to establish standing. Most of the cases, however, look to the sum of the evidence or the totality of the circumstances to determine if a defendant has a legitimate expectation of privacy in the premises of another. (People v. Koury (1989) 214 Cal.App.3d 676, 686.)

2. Discussion.

a. Pettis lost his reasonable expectation of privacy in room 431 when he failed to make timely arrangement to extend his stay.

Pettis contends he had a reasonable expectation of privacy in room 431 for the afternoon of May 6, when the police search occurred, because he told a housekeeping employee he was extending his stay for another day, and it was hotel policy in such situations to hold the room until payment was made. This claim is meritless.

Pettis acknowledges the general rule that a hotel guests reasonable expectation of privacy terminates upon expiration of the agreed-upon rental period. The absence of a right to exclude others from access to a situs is an important factor militating against a legitimate expectation of privacy. [Citation.] Consequently, we have held that if a hotel guests rental period has expired, or has been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room. (United States v. Bautista (9th Cir. 2004) 362 F.3d 584, 589.) Pettis relies on several cases in an attempt to avoid this rule, but those cases are not helpful.

For instance, Pettis cites United States v. Henderson (9th Cir. 2000) 241 F.3d 638, where the defendant successfully challenged the search of a rental car on which the lease had expired four days earlier. But in that situation, the rental car company had not attempted to repossess the car. To the contrary, a representative of the company testified that it was not unusual for customers to keep their rental cars beyond the terms of their rental agreements. He added that when that happened, the company would simply charge the customers credit card for the late return. We conclude Henderson retained a reasonable expectation of privacy in the rental car. Even though the rental agreement had expired, the parties to the agreement understood that Henderson would retain possession and control of the car and would, in effect, continue to rent it. (Id. at p. 647.)

Here, on the other hand, there was no such mutual understanding. Pettis had not paid with a credit card. That the hotel did not understand Pettis would retain possession of the room was evidenced by the fact it cancelled his electronic key card.

Pettiss reliance on United States v. Owens (10th Cir. 1986) 782 F.2d 146, is similarly misplaced. In that case, although the term of paid occupancy on a motel room expired at noon, the defendants reasonable expectation of privacy was held to continue for a short period thereafter because of the motels usual policies and because of its actual treatment of the defendant a few days earlier. Moreover, the defendant testified that he believed his $100 deposit had converted his status to that of a weekly rate tenant. (Id. at p. 150.)

Pettis argues he told the housekeeper that he would be extending his stay one more night. The housekeeper subsequently told the front desk of [his] intention. On this record, it cannot be said that Pettis did not make perfectly clear to the hotel staff that he intended to extend his stay. We disagree. The evidence showed that merely speaking to a housekeeper did not comply with the hotels procedures for cash-paying guests to extend their stays. There was no evidence that anything in Pettiss own dealings with the hotel would have led him to reasonably believe this was enough. Pettis asserts, Mr. Asilo directed housekeeping to tell Mr. Pettis that he should come to the front desk to pay for the additional night. Actually, Asilo testified he told the housekeeper if the guest said they are staying over for today, tell the guest that he needs to come down and pay for the room. Pettis argues there was no evidence the housekeeper transmitted Asilos message. But there was no evidence she didnt and it is the proponent of the suppression motion who bears the burden of proving . . . that he had a legitimate expectation of privacy in the place searched. (Rawlings v. Kentucky, supra, 448 U.S. at p. 104.)

The trial court found that, when Pettis failed to meet the 1:00 p.m. grace period for making new financial arrangements to extend his stay for another day, the hotel followed its normal policy by locking him out of the room.^[3] That factual finding was supported by substantial evidence. (See People v. Camacho, supra, 23 Cal.4th at p. 830.) This constituted affirmative action by the hotel that restricted Pettiss access to room 431 and reasserted the hotels control. (See United States v. Allen (6th Cir. 1997) 106 F.3d 695, 699 [Upon learning that Allen was keeping contraband within the motel, the motel manager locked Allen out of his room. With this action, the motel manager divested Allen of his status as an occupant of the room, and concomitantly terminated his privacy interest in its contents.]; United States v. Huffhines (9th Cir. 1992) 967 F.2d 314, 316, 318 [motel guest had no reasonable expectation of privacy when, after rental period expired, assistant manager locked him out for non-payment and gave police permission to search the room].)

Pettiss reliance on the fact the hotel locked him out without renting the room to a new guest is misplaced. The crucial event was the hotels denying Pettis access to the room, whether or not the hotel then rented the room to someone else. (See, e.g., United States v. Rahme (2d. Cir. 1987) 813 F.2d 31, 34 [once hotel guests access to rented room is no longer his exclusive right, he has no legitimate expectation of privacy in the room even though he himself still has access].) In any event, the evidence showed the only reason the hotel allowed Pettis to arrange to stay for another day was to accommodate the police.

Pettis did not have a reasonable expectation of privacy in room 431 at the time of the police search.

b. No evidence to show Johnson was anything more than a casual visitor.

Johnson argues he had a greater expectation of privacy in room 431 than Pettis did because there was no evidence he knew Pettis had failed to make a timely payment on May 6. Johnson contends his expectation was reasonable by virtue of his position as guest and occupant. We disagree.

Minnesota v. Olson (1990) 495 U.S. 91 [109 L.Ed.2d 85], established the principle that an overnight guest has a reasonable expectation of privacy while at the hosts residence. A mere casual visitor, on the other hand, does not have a reasonable expectation of privacy. (See Minnesota v. Carter (1998) 525 U.S. 83, 90-91 [142 L.Ed.2d 373] [defendants who were in anothers apartment for few hours solely to package cocaine, and who had never been to the apartment before, had no legitimate expectation of privacy].) As Carter reasoned: If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely legitimately on the premises as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between [the defendants] and the householder, all lead us to conclude that [the defendants] situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights. (Minnesota v. Carter, supra, at p. 91.)

Here, there was no evidence Johnson was an occupant of the hotel room. It does not appear he registered at the hotel or that he was even with Pettis when Pettis checked in.^[4] Nor was there any evidence Johnson had been Pettiss overnight guest. The evidence at the preliminary hearing showed only that Johnson had been arrested in room 431 on May 6 and that he tried to hide a pile of credit card blanks in a sofa. The stipulation entered into at the suppression hearing merely said Johnson was Pettiss invited guest. Johnson presented no evidence at the suppression hearing as to what his invited guest status entailed, i.e., whether he was a casual visitor as opposed to an overnight guest. Johnsons written motion to suppress evidence did not make any factual allegations related to this issue.

Johnson failed to present any evidence he had a legitimate expectation of privacy in room 431. (See United States v. Sturgis (8th Cir. 2001) 238 F.3d 956, 958 [no reasonable expectation of privacy where defendant was in motel room only for purely commercial purpose of distributing illegal drugs]; United States v. Pollard (6th Cir. 2000)215 F.3d 643, 648 [defendant, who had never been to house before, did not know lessee and was only there for drug transaction, did not have reasonable expectation of privacy]; accord United States v. Gordon (10th Cir. 1999) 168 F.3d 1222, 1227 [Defendant was present in a motel room leased to another person, for a short time, and for the purpose of conducting business. As in Carter, Defendants status was more like one simply permitted on the premises instead of that of an overnight guest. ]; see also United States v. Cooper (11th Cir. 2000) 203 F.3d 1279, 1285, fn. 3 [to establish a reasonable expectation of privacy in a third-partys home, an individual must demonstrate she is a guest on the premises for a personal occasion, rather than for strictly a commercial purpose. Because the evidence in this case suggests Defendants were using the hotel room predominantly to engage in narcotics trafficking, Defendants likely would lack standing even if they had been the overnight guests of Gonzalez.],)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] It should be noted that since Rakas v. Illinois (1978) 439 U.S. 128 . . . , the United States Supreme Court has largely abandoned use of the word standing in its Fourth Amendment analyses. [Citation.] It did so 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 seized. (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3.)

^[3] The trial court found the evidence showed Pettis had not paid [to extend his stay, and that the hotel] had locked [Pettis] out, that they allowed [him] access again only as part of an effort to cooperate with police officers because they thought something illegal was going on on their premises.

^[4] Porsha Carter testified she was working at the front desk when Pettis arrived on May 5 and asked for a room. She gave him room 431. Carter was not asked if she had seen Johnson.