State v. Sepulveda

• Decision Date: 19 November 1992
• Docket Number: No. 920163-CA,920163-CA
• Citation: 842 P.2d 913
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jesus A. SEPULVEDA, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 913

842 P.2d 913

STATE of Utah, Plaintiff and Appellee, v. Jesus A. SEPULVEDA, Defendant and Appellant.

No. 920163-CA.

Court of Appeals of Utah.

Nov. 19, 1992.

Milton T. Harmon, Nephi, for defendant and appellant.

R. Paul Van Dam and Marian Decker, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GREENWOOD and ORME, JJ.

BILLINGS, Associate Presiding Judge:

AMENDED OPINION ¹

Defendant Jesus A. Sepulveda appeals his jury conviction for possession of a controlled substance with intent to distribute, a second-degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (Supp.1992). We affirm.

FACTS

On January 30, 1990, Officer Paul V. Mangelson stopped a Camaro sports car near Nephi, Utah after observing the car had an expired registration sticker. Defendant, the driver, was traveling in the company of a woman and a juvenile. All were Hispanic. Officer Mangelson observed "[t]he interior was quite cluttered up, and it appeared that they'd been living in the car."

Officer Mangelson asked defendant for his driver's license and registration. Defendant produced an expired California temporary driving permit and had no registration information for the car. Defendant claimed a friend in California loaned him the vehicle for his return trip to Utah when the truck in which he traveled to California broke down.

As the conversation continued, Officer Mangelson observed defendant grow nervous and begin to shake. Officer Mangelson inquired whether defendant was carrying "contraband" in the car, and defendant responded negatively. Next, Officer Mangelson asked to search the vehicle for guns, alcohol, or drugs, and defendant said, "Go ahead." Officer Mangelson requested defendant and the two passengers to exit the car. During a pat-down search, Officer Mangelson discovered in the juvenile's back pocket a pipe commonly used for smoking marijuana.

Officer Mangelson asked defendant to open the trunk. Defendant stated he had no key to the trunk but broke the lock with a screwdriver so Officer Mangelson could search the trunk. After ascertaining the trunk contained no contraband, Officer Mangelson proceeded to the interior of the car. He observed that the screws on the back of the driver's bucket seat were marred. At some point before Officer Mangelson removed these screws, the woman passenger identified herself to Officer Mangelson as an undercover DEA agent. She told Officer Mangelson she was certain the car contained narcotics but did not know where they were hidden. Officer Mangelson removed the screws on the back of the front seat, revealing a compartment containing cocaine.

Defendant moved to suppress the cocaine on the ground that it was illegally seized. In support of his motion to suppress, defendant argued he never voluntarily consented to the search of the vehicle, and Officer Mangelson had no probable cause to search. The trial court denied defendant's motion. Defendant was convicted by a jury as charged. Despite his arguments below, on appeal defendant additionally claims the trial court erred in denying his motion to suppress because Officer Mangelson unreasonably detained him beyond the scope of the original traffic stop. Defendant also argues he gave no voluntary consent, and there was no probable cause to search the vehicle.

In examining a denial of a motion to suppress, we review the trial court's findings of fact "under a 'clearly erroneous' standard" and the trial court's "ultimate legal conclusions" based on those findings "under a 'correctness' standard." State v. Lopez, 831 P.2d 1040, 1043 (Utah App.1992).

STANDING

As a threshold issue, the State claims defendant lacks standing to challenge the search of the vehicle. The State argues the trial court actually found defendant had no standing. ² In any event, we review the trial court's conclusion as to whether defendant had a legitimate expectation of privacy under a correctness standard, affording no deference. See State v. Taylor, 818 P.2d 561, 565 (Utah App.1991).

Fourth Amendment rights are personal in nature and " 'may not be vicariously asserted.' " Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969)); accord Taylor, 818 P.2d at 565. Therefore, to challenge the propriety of a search, a defendant must establish "a legitimate expectation of privacy in the invaded place." Rakas, 439 U.S. at 143, 99 S.Ct. at 430; accord State v. Atwood, 831 P.2d 1056, 1058 (Utah App.1992). Furthermore, "[o]nce the defendant has been put on notice that the state claims the warrantless search was constitutional because [the defendant] has no expectation of privacy in the area searched, then the defendant must factually demonstrate ... standing to contest the warrantless search." State v. Marshall, 791 P.2d 880, 887 (Utah App.), cert. denied, 800 P.2d 1105 (Utah 1990).

In determining whether a defendant has shown the requisite expectation of privacy in the area searched, we employ a two-step test. First, we examine whether the defendant "has demonstrated 'a subjective expectation of privacy in the object of the challenged search.' " Taylor, 818 P.2d at 565 (quoting United States v. Hastamorir, 881 F.2d 1551, 1560 (11th Cir.1989)); accord State v. Webb, 790 P.2d 65, 80 (Utah App.1990). Second, we conclude, as a matter of law, "whether society is 'willing to recognize the individual's expectation of privacy as legitimate.' " Taylor, 818 P.2d at 565 (quoting Hastamorir, 881 F.2d at 1560); accord Webb, 790 P.2d at 80. This test does not provide a "bright line" standard because "no single factor invariably will be determinative" in judging the reasonableness of privacy expectations. Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring).

Utah courts have concluded a defendant must have at least permissive, possessory control of the car to contest a warrantless automobile search. See State v. Constantino, 732 P.2d 125, 126-27 (Utah 1987) (per curiam); State v. Robinson, 797 P.2d 431, 437 n. 6 (Utah App.1990); State v. DeAlo, 748 P.2d 194, 200 (Utah App.1987) (Greenwood, J., concurring and dissenting).

In Constantino, police officers stopped the car the defendant was driving because one of the officers knew the defendant's driver's license had been suspended and there was an outstanding warrant for the defendant's passenger. See Constantino, 732 P.2d at 125. The officers subsequently confirmed this information through dispatch. See id. When the defendant told the officers the registered owner of the car was "a Mr. Groberg," the officers impounded the car until they could find a licensed driver or contact the owner. Id. An inventory search of the car revealed two plastic bags of marijuana bearing the defendant's fingerprints. See id. at 125-26. The defendant moved to suppress the evidence, arguing lack of probable cause to stop and search the vehicle. See id. at 126.

The Utah Supreme Court declined to reach the defendant's arguments concerning the validity of the search, concluding:

[T]he facts here show no right to possession. [The officer]'s brief investigation of defendant revealed that the car was registered to a person other than defendant. Defendant presented no testimony that he had driven the car with the permission of the owner or that he had borrowed the car under circumstances that would imply permissive use. 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 126-27 (emphasis added); accord State v. Larocco, 742 P.2d 89, 92 (Utah App.1987) ("We agree with the reasoning in State v. Constantino, that there must be at least a claimed right to possession in the property."), aff'd in part and rev'd in part, 794 P.2d 460 (Utah 1990).

In Robinson, a police officer stopped a van in which the defendants Towers and Robinson were traveling for driving erratically. See Robinson, 797 P.2d at 433. Both defendants produced valid California driver's licenses and a registration listing "Paul Jarred" as the registered owner. Id. Defendant Robinson, riding in the passenger seat, told the officer Mr. Jarred was his employer and had permitted them to take the van on a two-week vacation. See id. A check with police dispatch revealed the van was not reported stolen. See id. After observing a homemade bed, two small gym bags, and a fishing pole in the back of the van, the officers decided to conduct a search, ultimately discovering marijuana hidden under the bed. See id. at 434. The trial court denied the defendants' motion to suppress the drug evidence. See id.

We stated:

The defendants' testimony that they were given permission by the owner to take the van on a two-week vacation trip was not disputed by the State. We hold that they established a possessory interest in the van sufficient to give them both a legitimate expectation of privacy in the entire van interior.

Id. at 437 n. 6.

In the instant case, Officer Mangelson was the only witness to testify at the hearing on defendant's motion to suppress. Officer Mangelson stated that when he inquired how defendant obtained possession of the car, defendant responded "the car belonged to a friend in California." According to Officer Mangelson, defendant said he and his passengers had been given permission from a friend to drive this car to Utah. Officer Mangelson initially noted the interior of the car was cluttered, as if defendant and his passengers had been living in the car.

Therefore, at the time of the search, the facts established (1) defendant was driving the car, (2) defendant had permission to use the car, and (3) defendant had personal belongings in the car.

Following the two-step standard outlined in Taylor, we first conclude defendant's statement that the car belonged to a friend in California who loaned it to defendant demonstrates a subjective...