People v. HUGHSTON

• Decision Date: 26 November 2008
• Docket Number: No. A118939.,A118939.
• Citation: 85 Cal.Rptr.3d 890,168 Cal.App.4th 1062
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Boot HUGHSTON, Defendant and Appellant.

168 Cal.App.4th 1062

85 Cal.Rptr.3d 890

The PEOPLE, Plaintiff and Respondent,

v.Boot HUGHSTON, Defendant and Appellant.

No. A118939.

Court of Appeal, First District, Division 5, California.

Nov. 26, 2008.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Joseph Morehead, San Francisco, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, René A. Chacón and Bruce Ortega, Deputy Attorneys General for Plaintiff and Respondent.

SIMONS, J.

Like a 19th-Century itinerant peddler, appellant Boot Hughston arrived in Mendocino County in the summer of 2006 to sell his wares.

Instead of pushing a cart, he drove a rented Hummer, and in place of pots, pans and other dry goods, he sold illegal drugs. At a designated campsite, appellant pitched a tent-like structure that surrounded the Hummer, several smaller tents and an eating area. Then he began pitching his products. An undercover federal drug enforcement agent observed him engage in two hand-to-hand transactions. Searches of his backpack and the Hummer revealed an inventory sufficient to justify charges for four narcotics offenses: possession of cocaine for sale (Health & Saf.Code, § 11351) (count one), ¹ possession of methylenedioxymethamphetamine (MDMA) for sale ( Health & Saf.Code, §§ 11378, 11401, subd. (a)) (count two), possession of psilocybin mushrooms for sale ( Health & Saf.Code, § 11378) (count three), and possession of nitrous oxide ( Pen.Code, § 381b) (count four). Appellant unsuccessfully challenged the two searches in the trial court pursuant to Penal Code section 1538.5 and renews that challenge on appeal. In the unpublished portion of our decision, we uphold the backpack search; in the published portion we conclude the warrantless search of the Hummer, located inside the tent structure, violated the Fourth Amendment to the United States Constitution. We remand to permit appellant to withdraw his guilty plea if he chooses to do so.

FACTUAL AND PROCEDURAL BACKGROUND

At the hearing on the motion to suppress, special agent Nishiyama testified that he was working in an undercover capacity for the California Department of Justice, Bureau of Narcotic Enforcement, on June 23, 2006, at the Sierra Nevada World Music Festival held at the Mendocino County Fairgrounds. One of his goals was to look for sales of controlled substances within the fairgrounds, because the World Music Festival had experienced previous problems with such transactions. At approximately 7:30 p.m., Nishiyama first noticed appellant on the fairgrounds, standing with two other people, holding an open backpack into which all three were peering. He saw appellant reach into the backpack, take out a small baggie, remove two capsules from it, and hand them to one of the other two people. He then saw that person hand appellant a couple of bills, at least one of which did not appear to be a $1 bill.

Based on his observations, as well as his training and experience with illegal drug sales, Nishiyama concluded the exchange was a narcotics transaction. He decided to detain appellant, and he believed appellant's backpack contained other narcotics.

Nishiyama called the sheriff's office and asked that a uniformed sheriff's deputy respond to his location and detain appellant.

Before a deputy arrived, Nishiyama observed appellant meet up with another person, an unidentified male. Nishiyama again observed a transaction between the men: appellant reached into the backpack, removed a capsule from a plastic baggie and handed it to the other man. After looking at the capsule in the palm of his hand, the unidentified male handed one bill to appellant.

The first uniformed deputy to respond to Nishiyama's call for assistance, Deputy Nordine, drove by appellant in a marked patrol car. Nishiyama thought appellant appeared “unsettled because [as] the patrol car had gone by him,” appellant immediately changed direction and walked away from the it. Two other uniformed deputies, McBride and Riboli, arrived on the scene, and Nishiyama told them to detain appellant. They did so.

Appellant was transported to a fire station across the street from the fairgrounds that served as a base of operations for the officers. Nishiyama arrived shortly thereafter, was informed by the deputies of the backpack's contents, and searched the backpack himself. Nishiyama testified he discovered approximately 20 more of the capsules he had observed earlier. These capsules were later determined to contain MDMA. He also found plastic baggies containing psilocybin mushrooms, and several other small baggies containing cocaine. In the backpack, Nishiyama also discovered a set of keys on a keychain with a small card stating the keys were for a Hertz rental, a white Hummer, with a specific license plate number.

Upon completion of the search, Nishiyama placed appellant under arrest. At no point was appellant read his Miranda rights ( Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Nishiyama questioned appellant about the Hummer, and appellant informed Nishiyama he was the renter. Nishiyama then asked appellant where the vehicle was parked, and appellant told him “it was in a parking lot somewhere in the front of the fairgrounds.” Nishiyama directed Riboli to search the fairgrounds' parking lots for the Hummer.

Riboli eventually located the vehicle on the fairgrounds and confirmed its license plate number. Nishiyama walked to the Hummer's location. All but the left front bumper of the vehicle was covered by tarps, which were attached to a 10-by 30-foot aluminum A-frame. The tarps were attached with “zip ties” to the A-frame and to the front grill, mirrors, and other parts of the Hummer. One side of the tarp structure had a flap that was not zip tied all the way down; it appeared to be a means to enter and exit the tarp-covered area. Almost the entire vehicle, as well as a makeshift kitchen, sleeping bags, chairs, and tents were contained within the tarp structure.

Nishiyama pulled aside the untied tarp flap, entered the structure and tested the key in the driver's side door to see if it fit the lock, which it did. After opening the Hummer's door, Nishiyama searched the vehicle. The search revealed approximately 800 more MDMA capsules, “a couple pounds” of psilocybin mushrooms, marijuana, approximately a quarter pound of cocaine, a tank of nitrous oxide approximately 5 feet tall, about 1,000 balloons, cash, and appellant's wallet.

After the search was completed, Nishiyama learned that Hertz had requested the Hummer be towed. Nishiyama directed Nordine to have the vehicle towed and to “do the CHP 180,” a form used by law enforcement agencies in California whenever they tow a vehicle. Completion of the form involves a survey of the condition of the exterior and interior of the vehicle, as well as an inventory of all articles found inside of the vehicle. After the CHP 180 form was completed, the Hummer was loaded onto a flatbed towing truck and driven away.

An information was filed September 20, 2006, charging appellant with the four narcotics offenses. After his motion to suppress was denied by the trial court, appellant pled guilty to counts one and two and admitted the special allegation to count one. The court sentenced him to three years eight months in prison, stayed execution, and placed him on formal probation for 60 months.

DISCUSSION

I. Standard of Review

“The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” ( People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729; see also People v. Woods (1999) 21 Cal.4th 668, 673-674, 88 Cal.Rptr.2d 88, 981 P.2d 1019 [“while we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search [or detention] on the facts so found”].)

II.-III. ^**

IV. Did the Trial Court Err in Denying the Motion to Suppress as to the Contraband Found in the Hummer?

[1] The trial court concluded the search of appellant's Hummer was legal under the so-called automobile exception to the Fourth Amendment's warrant requirement. The exception permits the warrantless search of a vehicle if there is probable cause to believe the vehicle contains evidence of a crime, even though there are no exigent circumstances that preclude obtaining a search warrant. ( Maryland v. Dyson (1999) 527 U.S. 465, 466-467, 119 S.Ct. 2013, 144 L.Ed.2d 442.) Appellant contends the search was outside the scope of the automobile exception because in order to access the interior of the vehicle the officers first had to enter the tarp structure that enclosed the Hummer, and this entry violated the Fourth Amendment. Respondent argues appellant lacked a legitimate privacy interest in the tarp structure and, in any event, the evidence was admissible under the inevitable discovery exception to the exclusionary rule.

A. Did Appellant Have an Objectively Reasonable Expectation of Privacy in the Tarp Structure?

[2] [3] [4] “The Fourth Amendment protects an individual's reasonable expectation of privacy against unreasonable intrusion on the part of the government.” ( People v. Jenkins (2000) 22 Cal.4th 900, 971, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) A person seeking to invoke the protection of the Fourth Amendment must demonstrate both that he harbored a subjective expectation of privacy and that the expectation was objectively reasonable.

( People v. Ayala (2000) 23 Cal.4th 225, 255, 96 Cal.Rptr.2d 682, 1 P.3d 3.) An objectively...