People v. Pereira

• Decision Date: 15 May 2007
• Docket Number: No. A114794.,A114794.
• Citation: 150 Cal.App.4th 1106,58 Cal.Rptr.3d 847
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Gilberto Perez PEREIRA, Defendant and Respondent.

58 Cal.Rptr.3d 847

150 Cal.App.4th 1106

The PEOPLE, Plaintiff and Appellant, v. Gilberto Perez PEREIRA, Defendant and Respondent.

No. A114794.

Court of Appeal, First District, Division 3.

May 15, 2007.

Edmund G. Brown, Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Arthur P. Beever, Deputy Attorney General, for plaintiff and respondent

Mark Shenfield under appointment by the Court of Appeal, for defendant and appellant.

POLLAK, J.

The People appeal from the dismissal of charges against defendant Gilberto Perez Pereira following the granting of defendant's motion to suppress evidence. The court suppressed evidence found as the result of a warrantless search of the contents of a package defendant mailed using a false name. The Attorney General contends that defendant's use of a fictitious name forfeited any legitimate expectation of privacy and necessarily constituted an abandonment of the package. We conclude that whether a person abandons property that it mails under a fictitious name is a question of fact and that there is substantial evidence to support the trial court's finding that defendant did not abandon the package in this case. We therefore shall affirm.

FACTS AND PROCEDURAL HISTORY

Defendant was first charged with offenses evidenced by the seized materials in a prior action that was dismissed after the trial court granted defendant's motion to suppress, pursuant to Penal Code section 1538.5. The district attorney re-filed the charges and following defendant's waiver of a preliminary hearing an information was filed charging defendant with transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (Health & Saf.Code § 11377, subd. (a)), possession of ammunition (Pen.Code, § 12316, subd. (b)(i)), possession of marijuana for sale (Health and Saf.Code, § 11359), two counts of transporting marijuana (Health & Safe.Code, § 11360, subd. (a)), second degree burglary (Pen.Code, § 459), and possession of drug paraphernalia, a misdemeanor (Health & Saf.Code, § 11364, subd. (a)). Defendant again moved to suppress and the parties submitted the motion on the transcript of the testimony adduced in the prior proceedings.

The evidence received in connection with the motion was largely undisputed. On August 10, 2005, defendant brought a sealed package to a shipping business owned by Floyd Ponce for overnight delivery to Milwaukee, Wisconsin. The invoice identified the sender as "Gilberto Santiago" and gave a return address that was not defendant's address. Defendant had sent packages through this shipping company four or fives times previously. As he had done in the past, he requested a routing number for the package so he could track it.

The following day, Ponce became suspicious of the package, opened it and found a teddy bear inside. Ponce noticed some abnormal stitching on the stuffed animal, as if something was inside the bear. Ponce knew that a high postage had been paid for the overnight package, that defendant wished to track the package, and that the return address was different from the one defendant had used in the past. He called the police to notify them of his suspicions.

A police officer picked up the package from the shipping company and brought it to the police station. About four to five hours later, Officer Dale Utecht, who had been informed of Ponce's suspicions,¹ examined the package and the teddy bear. Without obtaining a search warrant, Utecht cut open the bear and found about a half pound of marijuana. After further investigation defendant was identified as the person who mailed the package. While these events were occurring, defendant called the shipping office several times using the tracking number and asking about the whereabouts of the package. The officers directed Ponce to return defendant's calls and to tell him to come to the shipping office to pick up his package. On August 12, defendant returned to the shipping company in a car driven by another person. He was placed under arrest and in a search of his person, the vehicle, and a later search of his apartment other illegal drugs, drug paraphernalia and ammunition were seized.²

The court granted the motion to suppress all of the evidence found inside the bear and seized following defendant's arrest, finding that defendant maintained an expectation of privacy in the package and had not abandoned it. The court ruled that there were no exigent circumstances justifying Officer Utecht's search of the teddy bear without a warrant, and that all evidence obtained following defendant's arrest was the product of the unlawful search.³ The court then dismissed the action on its own motion pursuant to Penal Code section 1385. The People timely appealed pursuant to Penal Code section 1238, subdivision (a)(7).

DISCUSSION

In reviewing a motion to suppress, this court reviews the trial court's findings of fact under the deferential substantial evidence standard, but considers independently the application of the facts to the governing legal standard, including the determination of the reasonableness of police conduct. (People v. Ayala (2000) 24 Cal.4th 243, 279, 99 Cal.Rptr.2d 532, 6 P.3d 193.)

The Attorney General's sole argument on appeal is that the trial court erred in granting the motion to suppress. No contention is made concerning the scope of the suppression order or the dismissal of the action if the suppression order is upheld. In defending the court's order, there is no suggestion that the initial opening of defendant's package by the proprietor of the shipping company, which disclosed the oddly stitched teddy bear, violated defendant's constitutional rights. Ponce is a private person who was not acting at the behest of governmental agents and he therefore was not subject to the restrictions of the Fourth Amendment. (Jones v. Kmart (1998) 17 Cal.4th 329, 332-333, 70 Cal.Rptr.2d 844, 949 P.2d 941.) There is no question, however, that without first obtaining a warrant, Police Officer Utecht cut open the bear and removed contents that were not in plain view. He was not entitled to expand the scope of the search in this manner if doing so violated the proscriptions of the Fourth Amendment. (Walter v. United States (1980) 447 U.S. 649, 656-657, 100 S.Ct. 2395, 65 L.Ed.2d 410 [fact that packages were opened by private party before they were acquired by FBI did not excuse failure to obtain search warrant before FBI expanded scope of the search by viewing contents].)

The Fourth Amendment of the United States Constitution prohibits the government from engaging in unreasonable searches and seizures of a person's "effects."⁴ "[T]he protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." (Rakas v. Illinois (1978) 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387.) One who objects to a warrantless search must demonstrate that he or she had a subjective expectation of privacy in the object of the search, and that society recognizes the expectation as reasonable. (California v. Ciraolo (1986) 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210.) Sealed packages sent through the mail are effects entitled to protection under the Fourth Amendment. Both senders and receivers have a legitimate expectation of privacy in their mail. (United States v. Jacobsen (1984) 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85.) "`Whilst in the mail, [letters and packages] can only be opened and examined under like warrant ... as is required when papers are subjected to search in one's household.'" (Walter v. United States, supra, 447 U.S. at p. 655, fn. 5, 100 S.Ct. 2395, quoting Ex Parte Jackson (1877) 96 U.S. 727, 733, 24 L.Ed. 877.) Warrantless searches are presumptively unreasonable. (Horton v. California (1990) 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112.) Even when an officer lawfully seizes a package, the Fourth Amendment requires that in the absence of exigent circumstances, the officer obtain a warrant before examining the contents of the package. (United States v. Jacobsen, supra, 466 U.S. at p. 114, 104 S.Ct. 1652; U.S. v. Villarreal (5th Cir.1992) 963 F.2d 770, 774.)

Property that is abandoned is no longer subject to Fourth Amendment protection because one does not have a reasonable expectation of privacy in property that has been abandoned. (People v. Daggs (2005) 133 Cal.App.4th 361, 365, 34 Cal.Rptr.3d 649.) The Attorney General argues that defendant's use of a false name and address to send the package in question necessarily relinquished any "legitimate expectation of privacy in' the package," so that it was unnecessary to obtain a warrant to examine its contents.

The Attorney General acknowledges that there is no California authority that supports his position and relies primarily on a decision of a New York district court in U.S. v. DiMaggio (N.D.N.Y.1990) 744 F.Supp. 43 (DiMaggio). In that case the defendants sent packages containing money to recipients in Florida, and in return received packages of cocaine. (Id. at p. 43.) Defendants' names never appeared on the packages they sent and the return packages were sent to fictitious names at locations other than defendants' residence. (Id. at pp. 43-44.) In holding that the defendants had no standing to question the validity of warrants that were obtained to search those packages, the court held that "expectation of privacy vanishes ... when the identity of the sender and intended recipient is not indicated ... on the package. With respect to the unidentified sender, it is as if the package had been abandoned since by withholding from society that he is the source, he has effectively repudiated any connection or interest in the item vis-a-vis society," and thus has abandoned the package....