People v. Moreno

• Decision Date: 08 January 1992
• Docket Number: No. F014967,F014967
• Citation: 3 Cal.Rptr.2d 66,2 Cal.App.4th 577
• Court: California Court of Appeals Court of Appeals
• Parties: , 60 USLW 2511 The PEOPLE, Plaintiff and Respondent, v. Lorenzo Patino MORENO, Defendant and Appellant.

Page 66

3 Cal.Rptr.2d 66

2 Cal.App.4th 577, 60 USLW 2511

The PEOPLE, Plaintiff and Respondent, v. Lorenzo Patino MORENO, Defendant and Appellant.

No. F014967.

Court of Appeal, Fifth District, California.

Jan. 8, 1992.

[2 Cal.App.4th 579] Gordon S. Brownell, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., W. Scott Thorpe, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

STONE (WM. A.), Acting Presiding Justice.

In this case we address a question not previously answered in California: Does a baby sitter have standing to move to suppress the items seized at the place and during the time the baby sitter sits? We answer the question affirmatively.

THE CASE

An information charged Lorenzo Patino Moreno with offering to sell, conspiracy to sell, and possession for sale of cocaine; it alleged he was armed with a firearm in the commission of the first two crimes. The defense filed a motion to suppress evidence (Pen.Code, § 1538.5), ¹ which the trial court denied. Thereafter a jury convicted Moreno of all counts and found true the armed allegations.

THE FACTS

Our review is limited to those matters before the trial court--Moreno's "Notice of Motion and Motion to Suppress" and accompanying points and authorities, the People's "Response in Opposition to Motion to Suppress Evidence," and brief testimony and argument presented at the hearing on the motion. Both the points and authorities and the response contained facts drawn from the preliminary examination transcript. However, the transcript itself was not introduced into evidence, Moreno having refused to stipulate to its use.

The motion sought to "suppress all evidence seized as a result of the search of the residence located at 2412 W. Dennett, # 103, on or about June 22, 1990." According to the points and authorities, on that date, while Moreno was an occupant, Fresno police officers entered and searched the premises without a warrant. Officer Flores then obtained a telephonic warrant authorizing the search of Ismael Moreno (Moreno's brother, hereinafter Ismael) and the occupants of the premises. Testimony at the preliminary examination disclosed large quantities of cocaine and packaging paraphernalia were found in two bedrooms along with income tax returns and a joint safety deposit box receipt bearing Moreno's name.

The defense asserted, inter alia, the original entry and search were invalid and the affidavit supporting the warrant was based on information obtained during the original warrantless entry and search; therefore, the evidence seized pursuant to the warrant was the fruit of the poison tree. The prosecution asserted the original entry and search were valid; in any event, even excluding information based on the original entry and search, the affidavit contained probable cause for the warrant; and, finally, Moreno had not established standing to challenge the search.

At the hearing on the motion Moreno's counsel noted both parties had "filed points and authorities, and we're probably prepared to submit it on that unless the Court wants some information, for instance, regarding standing, if you have any questions about that or any problem with standing in this case." The court indicated it wanted to hear testimony concerning Moreno's standing.

Moreno, the sole witness, testified he arrived at his brother Ismael's apartment around 7 p.m., June 22, 1990. Ismael asked Moreno to take care of his young son while Ismael went to the store. Moreno intended to go to his own house to sleep when Ismael returned. The boy was asleep in the living room and Moreno was sitting on the living room sofa when the officers arrived at about 7:30 p.m. Moreno did not enter any bedroom that evening.

Defense counsel argued Moreno was more than a "casual guest" and, therefore, had a legitimate expectation of privacy which was violated by the warrantless entry of the police. The prosecutor countered Moreno had no such expectation; he was "a mere brief guest to watch this child for a brief period of time while his brother was gone to the store." Alternatively, the prosecutor contended any expectation of privacy was limited to the living room area and did not extend to "any bedroom searched."

The court found "[Moreno] was apparently visiting for a brief period to baby-sit his brother's child. There's no standing."

DISCUSSION

I. Fruit of the Poison Tree Doctrine

If initial entry into a house violates a defendant's Fourth Amendment rights, any evidence found in the ensuing warrantless search is "fruit of the poison tree." (Wong Sun v. United States (1963) 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441; People v. Hernandez (1988) 199 Cal.App.3d 1182, 1187, 245 Cal.Rptr. 513.) In Hernandez, after an occupant consented to a search of a house in which a different person occupied each bedroom, police found evidence in one bedroom. Defendants challenged the initial entry. The court noted:

"Defendants argue that Rodriguez's consent to search the house ... was involuntarily given.... If this argument is correct, the police had no authority to enter the house and any evidence seized from within should have been excluded." (199 Cal.App.3d at p. 1187, 245 Cal.Rptr. 513.)

On the merits, the Hernandez court held substantial evidence supported a finding of consent to search the house and the two defendants excluded from the subject bedroom lacked standing to object to any search that might have occurred there. (People v. Hernandez, supra, 199 Cal.App.3d at pp. 1188, 1190, 245 Cal.Rptr. 513.) However, the court recognized all evidence would have been suppressed had the initial entry been unauthorized. (Id. at p. 1187, 245 Cal.Rptr. 513.)

The same principle appears in United States v. Erwin (10th Cir.1989) 875 F.2d 268, in which the defendant attacked the initial stop and subsequent search of a car. The court explained: "We believe that standing to challenge a stop presents issues separate and distinct from standing to challenge a search. Thus, defendant's challenge to the stop and search must be examined separately.2" (Id. at p. 269.) Footnote 2 of the quoted passage provides: "Even if defendant lacks standing to challenge the search of the car, if the initial stop was illegal, the seized contraband is subject to exclusion under the 'fruit of the poison tree' doctrine. [Citations.]"

Because we determine the initial entry intruded on Moreno's reasonable expectation of privacy in the apartment generally, and thus he had standing to challenge the search, we do not reach the question whether the warrantless search of the particular bedrooms also violated his legitimate expectation of privacy.

II. Standing: Jones to Rakas to Olson

"The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. [Citations.]" (Rakas v. Illinois (1978) 439 U.S. 128, 131, fn. 1, 99 S.Ct. 421, 424, 58 L.Ed.2d 387; see also People v. Ybarra (1991) 233 Cal.App.3d 1353, 1360, 285 Cal.Rptr. 200; People v. Koury (1989) 214 Cal.App.3d 676, 685, 262 Cal.Rptr. 870.)

In Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the Supreme Court held "anyone legitimately on premises where a search occurs may challenge its legality...." (Id. at p. 267, 80 S.Ct. at p. 734.) In Rakas v. Illinois, supra, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, the court held "the phrase 'legitimately on premises' coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights." (Id. at p. 142, 99 S.Ct. at p. 430, fn. omitted.) "We think that Jones on its facts merely stands for the unremarkable proposition that 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." (Id. at p. 142, 99 S.Ct. at p. 430.)

"[C]apacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. [Citations.]" (Rakas v. Illinois, supra, 439 U.S. at p. 143, 99 S.Ct. at p. 430.) What the moving party must show is " '... an actual (subjective) expectation of privacy,' ... [and the] subjective expectation of privacy is 'one that society is prepared to recognize as 'reasonable," ' ..." (Smith v. Maryland (1979) 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, quoting Katz v. United States (1967) 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576.) "Legitimation of expectations of privacy by law must have 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. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest." (Rakas v. Illinois, supra, 439 U.S. at p. 144, fn. 12, 99 S.Ct. at p. 431, emphasis added.)

In Minnesota v. Olson (1990) 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85, the Supreme Court held "Olson's status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." (110 S.Ct. at p. 1688.) "To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the everyday expectations of privacy that w...