U.S. v. Portillo

• Decision Date: 12 December 1980
• Docket Number: 79-1481,Nos. 79-1407,s. 79-1407
• Parties: 7 Fed. R. Evid. Serv. 421 UNITED STATES of America, Plaintiff-Appellee, v. Paul Richard PORTILLO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel C. MONTELLANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1313

633 F.2d 1313

7 Fed. R. Evid. Serv. 421

UNITED STATES of America, Plaintiff-Appellee, v. Paul Richard PORTILLO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel C. MONTELLANO, Defendant-Appellant.

Nos. 79-1407, 79-1481.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 4, 1980.

Decided Dec. 12, 1980.

Stephen J. Hillman, Joseph Shemaria, Los Angeles, Cal., for defendant-appellant.

James P. Walsh, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before SNEED, SCHROEDER and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Paul Richard Portillo and Daniel Chavez Montellano appeal from the judgment of conviction following a trial by jury in which they were found guilty of armed bank robbery in violation of 18 U.S.C. Section 2113(a) (1970).

Appellants have raised many issues on appeal. Two require detailed analysis. The remainder are either without merit or have already been resolved by existing case law.

For the reasons set forth below, we conclude that the warrantless search of the paper bag found in the trunk of the car was justified as an incident to a vehicle inspection and because of the exigent circumstances confronting the officer. We also hold that appellants whose appeals were pending at the time that United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), was decided may challenge the ruling of the district court as to the admissibility of their prior convictions in spite of the fact they neither took the stand nor made an offer of proof as to the nature of the testimony they would have offered.

VALIDITY OF THE PAPER BAG SEARCH

Appellants contend that the trial court erred in denying their motions to suppress the physical evidence seized from the locked trunk of an automobile without a search warrant.

The government presented the following evidence in justification of the search:

On November 16, 1978, the Norwalk branch office of American Savings and Loan Association was robbed by two armed men, who fled with $747 in cash. On November 20, 1978, Los Angeles County Deputy Sheriff James Clem was in a one-man radio patrol car in East Los Angeles. At approximately 2:00 p.m. he was stopped by another deputy who had been patrolling in an unmarked sheriff's vehicle, and was told that two known felons were in the area in a 1969 green Dodge, license number ZAZ 197. While Clem was talking with the other deputy, he heard a report over his car radio that other officers had observed the two individuals place a paper bag into the trunk of their car. Deputy Clem advised all patrol units in the East Los Angeles area that two known felons were in the general vicinity and then resumed his normal patrol. Later he saw the green Dodge make an illegal left turn. Clem followed the vehicle and attempted to make a traffic stop, but the Dodge entered the freeway before he was able to pull it over. As the driver of the vehicle applied his brakes to make the turn onto the freeway, Clem noticed that the right rear brake light was not working. Clem followed the Dodge onto the freeway and activated his red lights to pull the vehicle over. At that time, Deputy Clem also noted that the license plate registration tags had expired.

When Deputy Clem approached the vehicle, he asked the driver for identification and vehicle registration. Montellano, who was driving the vehicle, stated that he was unable to find the vehicle's registration. Deputy Clem noticed an open bottle of beer on the floor of the vehicle and an odor of alcohol on the breath of the passenger, Portillo. The Deputy ordered both men out of the car and conducted a pat-down search of each individual. He found a small knife on Portillo. Then, while Montellano and Portillo sat on a nearby guardrail as ordered, Clem entered the car, opened the glove box, and found the vehicle registration. He removed the key from the ignition and went to the rear of the car to inspect the faulty taillight. He opened the trunk to look at the fixture from the inside, supporting his weight on his left hand which he placed on top of a paper bag in the center of the spare tire hub. He immediately felt a hard object inside the bag which felt like a handgun. He opened the bag and found a fully loaded 38-caliber colt revolver. Also in the bag were a pair of black glasses, a knit cap and extra ammunition. Clem noticed that there was a second brown paper bag, similar in appearance to the first. Inside that bag Clem found another fully loaded handgun and other items similar to those found in the first bag.

Deputy Clem was cross-examined regarding his reasons for opening the trunk of the Dodge. Deputy Clem explained that it was his experience when a taillight is not working, the malfunction is usually caused by a loose bulb. The only way to determine the nature of the problem is to open the trunk and look at the fixture from the inside. He said that as a matter of his training and experience, he felt he was entitled to conduct an inspection to determine the cause of any mechanical defect which could effect the safe operation of a vehicle on the road. He did not invite the driver to fix the brake light, or obtain permission to open the trunk. He knew that he could have issued a citation and sent the men on their way, but felt that the problems created by driving with a broken taillight would continue. He said that when he looked into the trunk, he saw the bulb hanging away from the receptacle. He then leaned further into the trunk, bracing himself by leaning on the paper bag, which he said was the only clean spot in the trunk. He said that he did not want to put his hand on any of the filthy surfaces, since he was dressed in his deputy's uniform. It was at this point that he felt the hard object that he "knew" was a handgun, precipitating his search of the two paper bags in the trunk. Deputy Clem declared that "based upon what I found in the bags in the trunk and the information learned over the radio, I felt that the two men might well be robbers and I determined to place them under arrest on suspicion of robbery."

Appellants were arrested on suspicion of robbery and transported to the Sheriff's Station for booking. They were fingerprinted and photographed, but released when charges were not filed by the Los Angeles County District Attorney.

The Government contends that neither appellant has standing to raise the alleged illegality of the search of the trunk of the Dodge and the seizure of the paper bags containing the automatic weapons. Just prior to trial of this case, the United States Supreme Court decided Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas the Supreme Court held that the proper test to be applied in determining whether a defendant is a "person aggrieved by an unlawful search and seizure" Fed.R.Crim.P., Rule 41(e), is whether that person has suffered an invasion of a legitimate expectation of privacy.

Rakas held that two passengers in an automobile could not raise fourth amendment violations as to the seizure of items found in the glove box and passenger compartment of the vehicle. The Court noted that the defendants:

(A)sserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were "legitimately on (the) premises" in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched ... they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy. Id. at 148-49, 99 S.Ct. at 433.

In the instant case, the Government points out that neither appellant has alleged that he has a possessory interest in the property seized. ¹ Montellano, however asserted in his motion to suppress that he had a legitimate possessory interest in the automobile, because possession of the vehicle had been entrusted to him together with the keys to the ignition and trunk. Portillo, on the other hand, took the position in his motion to suppress that under California law (People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955)), he need not claim an interest in the property seized to assert standing to object to a fourth amendment violation. However, it is clearly the law in this circuit that the issue of standing is to be determined under federal law. United States v. Cella, 568 F.2d 1266, 1279 (9th Cir. 1977). Portillo initially argues that criminal defendants arrested before Rakas was decided but tried afterwards have standing. This claim is without merit.

Under the facts of this case, Portillo is in the same position as were the petitioners in Rakas. He was merely a passenger in the Dodge. He "asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized." Rakas v. Illinois, 439 U.S. at 148, 99 S.Ct. at 433. Therefore, he does not possess an expectation of privacy which the fourth amendment was designed to protect.

Montellano, on the other hand, is very much in the same position as was the defendant in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). As the Supreme Court pointed out in Rakas : "Jones not only had permission to use the apartment of his friend, but had a key to the apartment with which he admitted himself on the day of the search and kept possessions in the apartment. Except with respect to his friend, Jones had complete dominion and control over the...