People v. Hamilton

• Decision Date: 31 May 1985
• Citation: 168 Cal.App.3d 1058,214 Cal.Rptr. 596
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eli HAMILTON, Defendant and Appellant. Crim. F003192.

Page 596

214 Cal.Rptr. 596

168 Cal.App.3d 1058

The PEOPLE, Plaintiff and Respondent, v.Eli HAMILTON, Defendant and Appellant.

Crim. F003192.

Court of Appeal, Fifth District, California.

May 31, 1985.

[168 Cal.App.3d 1060] Michael L. Gums, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., W. Scott Thorpe and Clayton S. Tanaka, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

Defendant pleaded not guilty to a charge of possession of heroin for purpose of sale (Health & Saf.Code, § 11351), and filed a motion to suppress evidence under Penal Code section 1538.5.The motion was denied and defendant's petition seeking review by writ in this court was denied.After several continuances for the purpose of retaining private counsel, defendant failed to appear for his scheduled trial.When defendant was apprehended several months later and returned to Kern County, an amended information was filed containing the same substantive charge.Defendant pleaded not guilty and after learning that all evidence seized had been destroyed, moved to suppress any reference to the destroyed evidence under People v. Hitch(1974)12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.The court denied the motion.A trial followed.The jury found defendant guilty and he was sentenced to state prison for the upper term of four years.He appeals.

FACTS

The Bakersfield Police Department received a tip from an anonymous informant that defendant was at an apartment on "K" Street and that there was an outstanding arrest warrant for him from Los Angeles.The police verified the existence of the warrant and obtained a description and picture of the defendant.

Four officers proceeded to the address of the apartment.Two officers posted themselves at the back or side of the building and the other two approached the front door.

The officers knocked and Carrie Woolfolk, the lessee of the apartment, came to the door.The officers said they wanted to speak with defendant.Woolfolk denied knowing defendant, but the police persisted, saying they had a warrant for his arrest and would just wait outside.Woolfolk hesitated, then stepped back and opened the front door.¹

The two officers entered.One stayed with Woolfolk in the living room; the other officer went to the kitchen.As the officer left the kitchen he headed toward a bedroom with its door ajar.Woolfolk ran in front of the officer and attempted to close the bedroom door.The officer pushed open the door, having observed someone lying on the bed.

The officers found defendant on the bed.Defendant identified himself when questioned by the officer and was thereafter placed under arrest.The other officers also entered the apartment.One, in the bedroom, pointed out baggies and other instruments lying on top of the nightstand near the bed.

Defendant exclaimed, "... it's not what you think it is.Taste it."All the material on top of the table was seized by the police.Analysis showed these two baggies to contain 0.92 grams of heroin.Three baggies of white powder were also seized.No definitive analysis was made of the contents, other than one excluding the possibility that they contained a controlled substance.Also seized were a

"set of measuring spoons, a green filter, a glass vial containing an unknown green substance, a brown paper bag containing balloons, ..., a plastic straw, mesh screens, plastic baggie containing cotton swabs, cotton balls, business card, green jar lid, a razor blade, a Ronson butane [sic ] containing a flamer, two glass jars, a weave basket containing a screwdriver, tweezers, plastic spoon, scissors, a set of green scales, an eyedropper, a barrel cleaner, a butane lighter, a metal trough, three playing cards, a can lid, a set of surgical scissors, a glass tube."

These materials were introduced into evidence at the preliminary hearing.Thereafter, the police property card itemizing the seized evidence erroneously was marked "adjudicated."All the evidence was destroyed.The prosecutor reported the loss of the evidence to the court and defense counsel on the day of trial.

DISCUSSION

I

Standing to Challenge the Search.

Defendant first argues error in the denial of his motion to suppress the evidence seized from Carrie Woolfolk's apartment.

The California Supreme Court in In re Lance W.(1985)37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, concluded that the passage of Proposition 8, amending the California Constitution by the addition of article I, section 28, subdivision (d), abrogated the "vicarious exclusionary rule" established in California by People v. Martin(1955)45 Cal.2d 755, 290 P.2d 855.(Lance W., supra, 37 Cal.3d at p. 879, 210 Cal.Rptr. 631, 694 P.2d 744.)In order to challenge an alleged illegal search, a defendant in California must show he was "the victim of the unlawful search."(Id., at p. 882, 210 Cal.Rptr. 631, 694 P.2d 744.)

" '[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 pp. 882-883, 210 Cal.Rptr. 631, 694 P.2d 744, citingRakas v. Illinois(1978)439 U.S. 128, 140, 99 S.Ct. 421, 429, 58 L.Ed.2d 387.)

The question of standing was neither raised nor litigated below.The trial court based its denial of defendant's motion to suppress upon a finding of consent.

Defendant sought review of the trial court's denial of the suppression motion by petition for writ of mandate.(5 Civ. 7488.)Defendant claimed:

"In California, one may vicariously assert another's right to be free from unreasonable searches and seizures: evidence obtained in violation of constitutional guarantees is inadmissible whether or not it was obtained in violation of a particular defendant's constitutional rights.People v. Martin(1955)45 Cal.2d 755[290 P.2d 855]."

The People did not respond to the petition.This court denied the petition and stated:

"Petitioner has failed to show that he had a reasonable expectation of privacy in a bedroom of Carrie Woolfolk's apartment.(SeeCal. Const., art. I, § 28, subd. (d);Rawlings v. Kentucky(1980)48 U.S. 98, 100 S.Ct. [2556] 2557[65 L.Ed.2d 633];United States v. Salvucci(1980)448 U.S. 83, 100 S.Ct. 2547[65 L.Ed.2d 619];Rakas v. Illinois(1978)439 U.S. 128, 99 S.Ct. 421[58 L.Ed.2d 387].)"²

In his appellate brief defendant makes no assertions as to standing.Respondent challenges defendant's standing only in a terse recital of general federal law.

Proposition 8 obviously changed the procedure for attacking a warrantless search in a motion to suppress.(SeeWilder v. Superior Court(1979)92 Cal.App.3d 90, 96-97, 154 Cal.Rptr. 494.)As California no longer has the Martin vicarious standing rule, the establishment of, or challenge to, standing becomes a necessary ingredient in any motion to suppress.

Here, the issue was not litigated below.While there is authority for a limited remand to the trial court for a hearing on the question (Combs v. United States(1972)408 U.S. 224, 226-228, 92 S.Ct. 2284, 2285-2286, 33 L.Ed.2d 308;United States v. Anderson(9th Cir.1981)663 F.2d 934, 937-938), because the undisputed factual record is adequate and not "virtually barren"(Combs, supra, 408 U.S. at p. 227, 92 S.Ct. at p. 2286), we find it possible to reach the legal conclusion of whether defendant had standing.We need not remand the matter for hearing.(United States v. Hansen(10th Cir.1981)652 F.2d 1374, 1382-1383.)"[T]he facts necessary to determine whether petitioner had an interest in connection with the searched premises that gave rise to 'a reasonable expectation [on his part] of freedom from governmental intrusion' upon those premises"(Combs, supra, 408 U.S. at p. 227, 92 S.Ct. at p. 2286) are in the record before us.

The record discloses that defendant was visiting Bakersfield from Los Angeles.He was driven to Woolfolk's apartment late in the evening.He left luggage at two other places.He took with him only a "purse," pajamas and a robe.Defendant and the man who drove him there watched TV at Woolfolk's until about 3 a.m., when the other man left.When he came to pick up defendant the next day, defendant had been arrested.

When the police arrived, defendant was the sole occupant of one bedroom.He was lying on the bed and may have been asleep.He was wearing his pajama bottoms.His clothes were in the room.The search of the bedroom and seizure of the evidence in plain view occurred while defendant was in the room.Woolfolk testified that defendant was a friend who was not living at her apartment.

We do not know whether, or how often, defendant had been to the apartment before.Defendant claimed no proprietary interest in the apartment.From the record, it appears defendant was a guest or invitee.Defendant, after his arrest, claimed the drugs and paraphernalia were his.Upon a pretrial motion by defendant, the court held the statement inadmissible at trial.

In United States v. Salvucci(1980)448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619, the United States Supreme Court abandoned the automatic-standing rule announced in Jones v. United States(1960)362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, accorded to defendants charged with crimes involving possession of the evidence seized.The court stated that in assessing the reach of Fourth Amendment rights, the question was "not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched."(United States v. Salvucci, supra, 448 U.S. at p. 93, 100 S.Ct. at p. 2553.)While claimed ownership of the goods seized is one...