State v. Larocco, 860172-CA

• Decision Date: 27 August 1987
• Docket Number: No. 860172-CA,860172-CA
• Citation: 742 P.2d 89
• Parties: STATE of Utah, Plaintiff and Respondent, v. Phillip Paul LAROCCO, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 89

742 P.2d 89

STATE of Utah, Plaintiff and Respondent, v. Phillip Paul LAROCCO, Defendant and Appellant.

No. 860172-CA.

Court of Appeals of Utah.

Aug. 27, 1987.

Rehearings Denied Sept. 14, and Oct. 6, 1987.

Lisa J. Remal, Salt Lake Legal Defender Ass'n., Salt Lake City, for appellant.

David L. Wilkinson, Atty. Gen., Kimberly K. Hornak, Asst. Atty. Gen., for respondent.

Before GREENWOOD, ORME and BILLINGS, JJ.

OPINION

GREENWOOD, Judge:

Defendant seeks reversal of his jury conviction of theft and possession of a stolen vehicle. Defendant contends the trial court erred in: (1) admitting evidence obtained without a search warrant; (2) refusing to grant a mistrial after a conversation between a juror and a prosecution witness; and (3) instructing the jury it could convict defendant of both theft and possession of the same stolen vehicle.

In June of 1981, a distinctive 1973 Ford Mustang was reported stolen from State Auto Sales. The theft allegedly occurred when a man who had twice previously visited the car lot was allowed by a salesman to take the car for an unaccompanied test drive. The man failed to return the car or pay for it.

In May of 1985, the same salesman saw defendant at another car sales showroom. He obtained defendant's name and address and relayed that information to the owner of the lot from which the Mustang had been stolen in 1981, a Mr. Padilla. Mr. Padilla could not locate the exact street address, but did observe the Mustang parked on the street within a couple of blocks of the address. Mr. Padilla noted the license number and called the police.

Shortly thereafter Deputy Robison, in response to Mr. Padilla's call, observed the Mustang parked in front of what proved to be defendant's home and ascertained through state licensing records that the Mustang was registered in defendant's name. Deputy Robison also checked the Vehicle Identification Number (VIN) listed with the state for the vehicle's registration, and was informed that the VIN came from a 1973 Mustang registered to a Mr. Neil Hailes.

About a week later Deputy Robison and two other officers returned to the neighborhood where the Mustang was parked. They looked through the front window at the VIN tag on the dashboard. That VIN matched the VIN identified as being that of Mr. Hailes' Mustang but did not match the VIN of the vehicle stolen from Mr. Padilla's car lot. The officers then opened the unlocked door and observed the VIN on the safety standard sticker on the inside edge of the door. This VIN differed from that on the dashboard, but matched that of the Mustang stolen in 1981 from State Auto Sales. The officers then went to defendant's home, read him his Miranda rights, and arrested him. Defendant consistently claimed he had purchased the Mustang. Subsequent investigation revealed that Neil Hailes' Mustang was totally destroyed in a car accident in December of 1975.

I. SEARCH AND SEIZURE

Prior to trial and at trial defendant moved to suppress the VIN evidence obtained as a result of the warrantless search of the Mustang. The motions were denied. Defendant asserts on appeal that the warrantless search violated his United States and Utah constitutional rights to be free from unreasonable search and seizure. ¹ Two elements must be examined in connection with the search and seizure claim of defendant. First, we must determine if defendant has standing to challenge the legality of the search. Second, if we determine that defendant does have such standing, we must ascertain whether or not the search was legal.

A. STANDING

The question of standing to protest an alleged unlawful search was discussed by the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Petitioners in Rakas were passengers in, not owners of, a car which was searched by police without first obtaining a warrant. The search produced a rifle and shells used as evidence to convict petitioners. In arguing that the evidence should have been suppressed, petitioners urged the Court to adopt the rule that a person has standing to prevent a warrantless search when the search is "directed" against that person or the person is legitimately on the premises at the time of the search. The Court did not agree, finding that fourth amendment rights are personal and do not extend to the search of another's premises or property. Id. 439 U.S. at 133, 99 S.Ct. at 425. The Court refused to expand the exclusionary rule to vicarious use and stated the standard as being "whether the person who claims protection of the Amendment has a legitimate expectation of privacy in the invaded place." Id. at 143, 99 S.Ct. at 430. The "legitimate expectation of privacy" test continues to be the usual measure utilized in federal and state search and seizure proceedings.

Federal circuit courts have also examined standing to object to search and seizure in fact situations somewhat similar to the case herein. In Simpson v. United States, 346 F.2d 291 (10th Cir.1965), the police, suspecting defendant had stolen a vehicle, arrested him for vagrancy and investigation of car theft and jailed him. While defendant was in jail, the police conducted a warrantless search of the vehicle, which produced evidence of violation of the Dyer Act. Based on that evidence, defendant was convicted under the Dyer Act of interstate transportation of a stolen vehicle. In reversing the trial court's denial of the motion to suppress the evidence, the court rejected the notion that defendant could not protest the search because the car was stolen, as such reasoning would mean that police could conduct searches at will. The result would be that

of all defendants prosecuted for automobile theft, only those who actually owned the automobiles could raise Fourth Amendment objections successfully. Moreover, the proof of ownership would be sufficient to quash the prosecution for theft of the automobile. These constitutional rights belong to the guilty as well as the innocent. (citation omitted.) The sole prerequisite to a defendant's raising the Fourth Amendment issue is that he claims a proprietary or possessory interest in the searched or seized property.

Id. at 294.

The Ninth Circuit also discussed standing of one accused of auto theft to object to search of the alleged stolen vehicle. The court stated that "a person accused of a Dyer Act violation as the defendant was here has automatic standing to contest the validity of search or seizure of a vehicle or its contents where possession of the vehicle forms the basis of the charge." United States v. Jamerson, 549 F.2d 1263, 1269 (9th Cir.1977).

The Tenth Circuit later reached a different result in United States v. Erickson, 732 F.2d 788 (10th Cir.1984). In Erickson, evidence obtained from a warrantless search of an airplane was deemed admissible. The court stated that "no testimony showed that the defendant had anything to do with Emery Air Freight or that he was authorized by Emery to possess, use, or fly the aircraft. Thus, defendant failed to show lawful possession of the plane giving rise to a legitimate expectation of privacy." Id. at 790. Erickson was subsequently cited in United States v. Obregon, 748 F.2d 1371, 1375 (10th Cir.1984), where defendant was in sole possession and control of a car rented by another. The court found defendant had no standing to object to a search of a car which was rented by someone else.

The Utah Supreme Court has also examined standing to object to a warrantless search and seizure. In State v. Montayne, 18 Utah2d 38, 414 P.2d 958 (1966), defendant rented a car under a false name and failed to return it when due. Defendant was stopped by a police officer who knew he was a parolee. After determining that the car was rented under a name other than that of defendant and that it was overdue for return, the police officer arrested defendant for car theft. He then searched the car and found evidence which defendant sought to have suppressed. The Court held that because defendant's lack of ownership of the car was established prior to the search, defendant had no standing to object to the search. The fourth amendment can be invoked only by one who can establish that he was a victim of an invasion of privacy. Id. 414 P.2d at 960. Similarly in State v. Purcell, 586 P.2d 441 (Utah 1978), the searched vehicle was known to have been stolen prior to its search. The Court stated that "[d]efendant simply lacks standing in court to attack the warrant as to the search of the stolen automobile, since on the facts before us, defendant had absolutely no possessory or proprietary interest therein that could have been invaded." Id. at 443.

In State v. Valdez, 689 P.2d 1334 (Utah 1984), use of evidence obtained from a vehicle which the defendant was driving was challenged under both the Utah and United States Constitutions. The search was upheld because defendant stated he did not own the car and demonstrated no expectation of privacy in the effects searched. Most recently, in State v. Constantino, 732 P.2d 125 (Utah 1987), police officers saw defendant and another person in a car. Police knew that defendant had a suspended driver's license and that the other occupant was wanted on an arrest warrant. They arrested both occupants and impounded the car, which belonged to a third person. An inventory search revealed marijuana. The Court held that the evidence was admissible as defendant had no right to possession of the car, it was registered to another and there was no indication that defendant had been given permission to drive the vehicle. The Court stated: "Absent claimed right to possession, he could not assert any expectation of privacy in the items seized and had no standing to object to the search." Id. at 127.

These Utah cases have been decided under both the United States and the Utah Constitutions' search and seizure provisions. In each Utah case where the search was upheld it was clearly...