People v. Lamont

• Citation: 125 Cal.App.4th 678,23 Cal.Rptr.3d 26
• Decision Date: 28 December 2004
• Docket Number: No. G032369.,G032369.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Matthew Gordon LAMONT, Defendant and Appellant.

23 Cal.Rptr.3d 26

125 Cal.App.4th 678

The PEOPLE, Plaintiff and Respondent, v. Matthew Gordon LAMONT, Defendant and Appellant.

No. G032369.

Court of Appeal, Fourth District, Division 3.

December 28, 2004.

Review Granted March 30, 2005.

Edward A. Hoffman, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY, J.

After the trial court denied Matthew Gordon Lamont's motion to suppress, he pleaded no contest to possessing a destructive device or explosive on a public street, possessing a destructive device or explosive with the intent to injure or destroy property, transporting a destructive device, and possessing materials with the intent to make a destructive device or explosive. He was sentenced to three years in state prison. On appeal, Lamont challenges the court's ruling on his motion to suppress. We find the court incorrectly determined he did not have grounds to bring the motion and reverse.

FACTS¹

Long Beach Police Officer Erik Herzog was conducting surveillance of the "Southern Kalifornia Anarchist Alliance" (SKAA) at its headquarters in the City of Long Beach because of reports SKAA might try to disrupt a celebration of Adolf Hitler's birthday being held by the Aryan Nation in Orange County. Herzog saw Lamont standing outside SKAA's headquarters, talking with a small group of people. Lamont is a member of SKAA, and Herzog knew Lamont because he was arrested at a demonstration turned riot the previous year.

Lamont walked towards a parking lot carrying clothes and two white plastic jugs. One jug appeared to be a three-gallon water jug with a spout and the other a one-gallon milk jug, both jugs looked to be empty. Lamont, Maxwell Lucas, and another unidentified male got into a car and left. Herzog followed. They drove to a "hard-core punk concert" at the Unitarian Church in the City of Anaheim. The unidentified male stayed at the church, and Lucas and Lamont drove to a nearby grocery store. Lamont and Lucas went into the store, exited the store, got into the car, and drove towards the presumed location of the Aryan Nation celebration.

Lucas and Lamont stopped at a gas station. Herzog saw the car next to a gas pump, but he could not see what they were doing. Lucas and Lamont left the gas station, and Herzog briefly lost sight of them. When Herzog found them, the car was parked alongside a curb with the passenger door opened slightly. Lucas was sitting in the driver's seat and Lamont was sitting in the back passenger seat. Herzog called the City of La Habra Police Department and asked them to stop the car. Lucas and Lamont drove away.

City of La Habra Police Officer Kim Razey stopped Lucas and Lamont. Lucas was driving and Lamont was sitting in the rear passenger seat. Razey asked Lucas for his driver's license and he complied. Razey told Lucas he pulled him over because there was a strong odor of gasoline coming from the car. Lucas said the gas cap was leaking. Razey asked Lucas and Lamont whether they had ever been arrested or were on parole or probation. They said no. Razey asked them to get out of the car so he could investigate where the gasoline odor was coming from. Two undercover detectives arrived.

Razey asked Lamont and Lucas whether he could search them for safety reasons. Lamont consented to a pat down and Lucas consented to be searched. Razey asked them again whether they had ever been arrested. Lamont said he had been arrested and was on probation, but he did not know whether he was subject to a search and seizure condition.² One of the detectives searched Lamont and found three cigarette lighters in his pants pocket. Razey looked inside the car and saw an unopened bottle of Tequila Rose on the floor of the right passenger side of the car. Because Lamont and Lucas were under the age of 21, Razey conducted a full search of the car for contraband. Razey searched the rear passenger portion of the car where Lamont was sitting and found the following: a one gallon jug with flammable liquid; two sponges soaked with flammable liquid, one of which had two candles embedded in it; a pair of rubber gloves; a bandana; anarchist materials; and articles on nazi gatherings.

DISCUSSION

Both parties spend much time discussing whether Lucas's and Lamont's conduct justified the traffic stop, i.e., whether Herzog saw Lucas and Lamont commit Vehicle Code violations and informed the City of La Habra Police Department of the violations or whether Razey smelled gasoline coming from the car before stopping them. However, the district attorney stipulated "there was no reasonable suspicion that justified the vehicle stop." Therefore, we need not get mired in these factual disputes.

In ruling on Lamont's suppression motion, the trial court stated: "The question for the court is whether you can distinguish what happened with ... Lamont from the holding in [People v. Cartwright (1999) 72 Cal.App.4th 1362, 85 Cal.Rptr.2d 788 (Cartwright)], based on the fact that there is a concession by the [district attorney] that there was no probable cause nor reasonable suspicion, or traffic violation, that preceded the stop of the vehicle. [¶] Now, I have read and reread Cartwright, and I do think that Cartwright does apply. And I think that the emphasis in Cartwright is what can a passenger in a vehicle expect in terms of [a] legal obligation on the part of the officer. And I don't see that the court should not consider Cartwright in determining this issue. [¶] So having considered all of the arguments and all of the items that I identified on the record, and in light of the stipulation that has been presented to this court as a factual basis on which the court should rule, the court now denies the motion...." (Italics added.)

In reviewing a lower court's ruling on a motion to suppress evidence, we review "`questions of law ... independently to determine whether the challenged seizure meets constitutional standards of reasonableness.'" (People v. White (2001) 93 Cal.App.4th 1022, 1025, 113 Cal.Rptr.2d 584.) "Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution. [Citation.]" (People v. Banks (1993) 6 Cal.4th 926, 934, 25 Cal.Rptr.2d 524, 863 P.2d 769.)

Lamont argues the trial court erroneously denied his motion to suppress evidence because as a passenger in the vehicle he was seized when Razey illegally stopped the vehicle in violation of his Fourth Amendment rights. We agree.

There is a split of authority as to whether a passenger in a vehicle has a reasonable expectation of privacy³ and may challenge the legality of a traffic stop. On two occasions, this court has held a passenger is not seized within the meaning of the Fourth Amendment and may not challenge the traffic stop. (People v. Castellon (1999) 76 Cal.App.4th 1369, 1373-1374, 91 Cal.Rptr.2d 204 (Castellon); Cartwright, supra, 72 Cal.App.4th at p. 1369, 85 Cal. Rptr.2d 788.) The Sixth District has held "a passenger is not `lawfully stopped' [citation], seized, or detained [citation] merely because the vehicle in which he or she is riding is stopped for a traffic violation." (People v. Fisher (1995) 38 Cal.App.4th 338, 344, 45 Cal.Rptr.2d 57.)

However, the Fourth District, Division Two, Third District, and Fifth District, have all held a passenger in a vehicle has a reasonable expectation of privacy and may challenge the validity of a traffic stop. (People v. Bell (1996) 43 Cal.App.4th 754, 765, 51 Cal.Rptr.2d 115; People v. Hunt (1990) 225 Cal.App.3d 498, 505, 275 Cal. Rptr. 367; People v. Grant (1990) 217 Cal. App.3d 1451, 1460, 266 Cal.Rptr. 587.) Federal circuit courts have held similarly. (U.S. v. Twilley (9th Cir.2000) 222 F.3d 1092, 1095 (Twilley); U.S. v. Eylicio-Montoya (10th Cir.1995) 70 F.3d 1158, 1164; U.S. v. Kimball (1st Cir.1994) 25 F.3d 1, 5-6; U.S. v. Roberson (5th Cir. 1993) 6 F.3d 1088, 1091; U.S. v. Rusher (4th Cir.1992) 966 F.2d 868, 874, fn. 4.)

In ruling on Lamont's motion to suppress, the trial court relied on Cartwright, where a different panel of this court first announced the rule a passenger in a vehicle has no reasonable expectation of privacy and, therefore, has not been seized within the meaning of the Fourth Amendment. Interpreting the United States Supreme Court case Maryland v. Wilson (1997) 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (Maryland), the Cartwright court expanded the Supreme Court's holding and stated, "In holding that officers are entitled to order passengers out of a car as a matter of course, the [court] recognized that when a traffic stop occurs, `[t]here is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers.' [Citation.] By noting the absence of any objective justification to detain passengers in cars stopped for traffic violations, however, the court obviously did not mean to imply that passengers are routinely subjected to illegal seizures. We believe it was saying passengers are not `detained' as the law uses that term." (Cartwright, supra, 72 Cal.App.4th at p. 1367, 85 Cal.Rptr.2d 788.) In Castellon, we reaffirmed Cartwright without further analysis. We simply noted our previous reliance on Maryland. (Castellon, supra, 76 Cal.App.4th at pp. 1373-1374, 91 Cal.Rptr.2d 204.)

One year after Cartwright, the Ninth Circuit Court of Appeals addressed the issue in Twilley, supra, 222 F.3d at page 1095. Based on our reading of Twilley, we conclude our court's previous interpretation of Maryland was erroneous.

In Twilley, the defendant passenger challenged the search of the car trunk and seizure of packages of...