People v. Dees

• Decision Date: 20 June 1990
• Docket Number: No. A044836,A044836
• Citation: 221 Cal.App.3d 588,270 Cal.Rptr. 554
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Randy Dewayne DEES, Defendant and Appellant.

Page 554

270 Cal.Rptr. 554

221 Cal.App.3d 588

The PEOPLE, Plaintiff and Respondent, v. Randy Dewayne DEES, Defendant and Appellant.

No. A044836.

Court of Appeal, First District, Division 4, California.

June 20, 1990.

Kathy M. Chavez, Berkeley, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., Joanne S. Abelson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

Following denial of a motion to suppress evidence, defendant Randy DeWayne Dees (appellant) proceeded to trial on three drug-related offenses and one charge of possession of a concealable firearm by an ex-felon. A jury found him guilty of (1) possession of methamphetamine for sale; (2) unauthorized possession of a hypodermic needle or syringe; and (3) being under the influence of a controlled substance. It deadlocked on the firearm count, which the district attorney subsequently dismissed. The court found true the allegation of a prior drug conviction and sentenced appellant to five years in state prison (two years for count 1; concurrent six-month terms for counts 2 and 3; three-year consecutive sentence for the enhancement).

On appeal appellant contends the trial court erroneously concluded he did not have "standing" to pursue his suppression motion. We agree and reverse and remand.

I. BACKGROUND; PRETRIAL PROCEEDINGS

A. Preliminary Hearing

On the basis of the following facts adduced at the preliminary hearing, on July 8, 1988, appellant moved to suppress evidence seized during searches of a vehicle and residence and to dismiss all counts except count 3 (being under the influence of a controlled substance):

(1) January 19, 1988, Arrest and Search

On the afternoon of January 19, 1988, Contra Costa County Deputy Sheriff Frederick Gray received a radio call regarding a disturbance at 2460 Fordham in San Pablo. When he arrived at the scene he spoke with resident Phillip Newman who related that appellant, a friend of his, was in his backyard removing property. As Gray walked around the corner to look in the backyard, he noticed a brown Cadillac parked on Rollingwood Drive. The registration had expired, the driver's window was down and the keys were in the ignition.

Appellant was approximately 150 feet east of the car walking down the middle of Rollingwood toward Gray when Gray noticed him. Gray testified that appellant appeared slightly agitated. Gray gestured towards the car and asked appellant if it belonged to him; appellant responded, "yes."

Sergeant Ford arrived as Gray was discussing Newman's complaint with appellant. After observing appellant for about two minutes Ford whispered to Gray that he was under the influence of drugs and told Gray to search the car. Appellant indicated he did not think the police could search his vehicle.

Gray found a canvas bag on the floorboard of the Cadillac. He could feel the "distinct outline" of a set of scales and as he touched them, appellant said, "oh, yeah, they're scales there but they're not mine." Opening the bag, Gray found several plastic bags containing a white powder substance, 10 syringes and some colored pills. Subsequent testing of the powder revealed three of the seized bags contained methamphetamine in 3.43-, 3.8- and 6.4-gram quantities. Another large bag contained a noncontrolled, vitamin-like substance.

Ford arrested appellant and transported him to a Richmond police station where officers conducted a search of his person. They found over $900 in one of two wallets recovered, segregated by denomination and into $100 amounts.

(2) January 27, 1988, Search

Six days later Deputy Sheriff Daniel Terry and several other officers searched 1831 Manzanilla in San Pablo pursuant to a search warrant. Appellant was not there but his now ex-wife, Regina Dees, allowed the officers entry. She told the deputies that they were having marital problems and appellant "stayed there on and off."

In the master bedroom Daniels located a locked wood cabinet. Regina said the cabinet belonged to her husband and she was not allowed in it. Daniels forced it open, finding a .38-caliber pistol, some white powder and indicia in appellant's name. They also found bindles, coin bags, a scale, some pills, more powder in the garage and a knife in a child's bedroom. (3) Defense

Regina Dees testified she told the deputies that appellant did not live at 1831 Manzanilla and they were separated at the time. He apparently moved out at the beginning of January. She did not give the officers the key to the cabinet. Regina Dees stated that the gun belonged to her. She also related that appellant owned several vehicles, but not a Cadillac.

Michael Piper testified he had known appellant for about two weeks. He saw him in the neighborhood on January 19; appellant was trying to jump start his truck with his little blue pickup. Piper never saw appellant driving or anywhere near a brown Cadillac.

B. Suppression Hearing

At oral argument on the suppression motion, the parties argued the issue of "standing." Defense counsel insisted the prosecution established a "nexus" between appellant and the car through testimony that appellant said the car was his, and further urged that it could not under these circumstances argue both sides of the fence on the "standing" issue. The judge continued the matter to review the preliminary hearing transcript before pronouncing his ruling. A week later he denied the motion as follows: "I am going to with reluctance deny this motion. I think if there was standing, this motion would have to be granted. The out-of-court admission does not give the Defendant standing and I don't think there was any other sufficient proof of standing."

II. DISCUSSION

Appellant contends the trial court based its ruling on two grounds, both of which he maintains were incorrect reasons for defeating his "standing" to bring the suppression motion: (1) the court deemed the police testimony about appellant's interest in the car to be inadmissible hearsay and (2) the court believed appellant was responsible for producing evidence of "standing." He further submits the People cannot argue the facts both ways to defeat his right to prosecute the suppression motion.

The People interpret the court's ruling as the result of judging witness credibility, weighing the evidence and resolving conflicts in the testimony. Regarded this way, they conclude "that the court viewed appellant's in-court position disavowing ownership as more compelling evidence regarding standing than his out-of-court statement to the contrary related by Officer Gray. Quite simply, by proffering testimony that he did not own the car, appellant failed to persuade the court that he had standing."

We do not agree with this interpretation. The statement that appellant's out-of-court admission does not give him standing means just that, in the court's opinion, appellant's statements at the scene could and did not factor into its determination of whether he had a reasonable expectation of privacy in the Cadillac. For the reasons set forth below we conclude the court erred in refusing to hear the merits of appellant's suppression motion and, accordingly, reverse and remand.

A. Admissibility

To the extent the court may have concluded appellant's statements at the scene, as related by the officers, were inadmissible hearsay, it was wrong. First, appellant did not object to the statements. Second, Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...." The prosecution offered the statements in question against appellant on the issue of guilt on the possession counts, i.e., he owned or possessed the Cadillac and its incriminating contents. These statements were admissible pursuant to Evidence Code section 1220.

B. Expectation of Privacy

(1) Case Law Summary; Effect of Disclaimer

In Rakas v. Illinois (1978) 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387, the United States Supreme Court abandoned what it considered an artificial examination of defendant's "standing" to challenge the legality of a search in favor of focussing on substantive Fourth Amendment law and in particular the cornerstone principle that Fourth Amendment rights are personal in nature. (Id., at pp. 139-140, 99 S.Ct. at p. 428-429.) "[T]he question is whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." (Id., at p. 140, 99 S.Ct. at p. 429.) The court went on to explain that the capacity to claim the protection of the Fourth Amendment depends on whether the claimant has a legitimate expectation of privacy in the invaded place. (Id., at p. 143, 99 S.Ct. at p. 430.)

The high court has also stated that the defendant has the burden of proving he or she has a legitimate expectation of privacy in the area or item searched. (Rawlings v. Kentucky (1979) 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633.) In Rawlings the court upheld the judgment of the Supreme Court of Kentucky, wherein the state court looked to the "totality of the circumstances" to ascertain whether the defendant made a sufficient showing. As explained in United States v. Hawkins (11th Cir.1982) 681 F.2d 1343, 1345, upon which respondent relies, when deciding whether a defendant has a sufficient expectation of privacy in the article at the time of the search, the reviewing courts must "view in totality the circumstances surrounding the event, including the preliminary statements of ownership asserted by [defendant] at the ...