PEOPLE v. SCHMITZRespondent’s Petition for ReviewCal.September 27, 2010 Ly S186707 In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREME Coury me Plaintiff and Respondent, Case No. FILE v. SEP 27 201 DOUGLAS GEORGE SCHMITZ, Frederick K, Ghitich Cleri Defendant and Appellant. ~ Deputy = Appellate District Division Three, Case No. G040641 Orange County Superior Court, Case No. 06HF2342 The Honorable John S. Adams, Judge PETITION FOR REVIEW EDMUNDG. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General JAMES D. DUTTON Supervising Deputy Attorney General EMILY R. HANKS Deputy Attorney General State Bar No. 230442 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3196 Fax: (619) 645-2191 Email: Emily.Hanks@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Petition for ROVICW ........ccecccescesscessesseeeseceaeessecsseessesseeeseeseseeceeesessssseesenessaes 1 Issue Presented saceessceveasecersoeeecsaeesseeesseeescereeaeceseectaessaeeseeaesaaeeesereaeeceeesenseres 1 Statement of the Case...csesscssseessserecsessseeceseeseeseeeceseesnerseeeaessaeeseseseeees 1 Reasons for Granting REViCW 00.0... ccesesceesessseesteceseeeeseeeeaseaeeaeeereaeeateenees 3 I. Review is necessary to settle an important question of law regarding the permissible scope of a parole search of a vehicle shared by a parolee and nonparolee................... 3 Conclusion .00...... sce eesesseeesceeeseeesceeeenecseeecsaceesacecsceeeaeeseeaeeeaeeeeaeenseeceaaeoneeees 10 TABLE OF AUTHORITIES Page CASES Illinois v. Rodriguez — (1990) 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148.0eee8 Inre Arturo D. (2002) 27 Cal.4th 60 0...eeeccescesceseeeecesseecsceeseeseeeeesensssesennesaeeaeeenteeestaeees 8 People v. Boyd (1990) 224 Cal.App.3d 736.0... ceesccsessceseecesceseceseeeseccscsneesenseeeeneesseeneeeneees 6 People v. Reyes (1998) 19 Cal.4th 743 ooo ceccecesseseecseerseessceesseeaeeneceeseeevseesneeeneeenseeseeseeen 8,9 People v. Robles (2000) 23 Cal.4th 789 ooo. eeecesssesecceresceesecsecsersnesecsaessesecseeceeeeeestensesseeansanes 4 People v. Sanders (2003) 31 Cal.4th 318 oooeeeecseeseeersesesesecesseeersseseeaesesseresseeseeseserseeaeesaees 5 People v. Smith (2002) 95 Cal-App.4th 912 oecesesssserscsressteeccnecessersesseesesesssacenasssense 4,5 People v. Tharp (1969) 272 Cal.App.2d 268 oo... cecscsssecseeceeseeceeseceecsseeeeesenseaesersssneseeeeeets 7 People v. Triche (1957) 148 Cab.App.2d 198 oo.eececsessecseeeseeseceesnecsssersnetseeeseeenecsasesennes 6 People v. Vermouth . (1971) 20 CalApp.3d 746 oo... cccccecscssscsesseesscsenseseseesesrersecenesererereseaseenee 7 People v. Woods (1999) 21 Cal.4th 668 ooo.eeececeeeeseseseeeeesecereteeseseeesecseeceeseeeearessesnees 4,5 Samson v. California (2006) 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250...eeeeeeeeeeeeee 9 South Dakota y. Opperman (1976) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.0.eeeeeteeeees 8 il United States v. Matlock (1974) 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 o.oo. cccccccesssccesseessees 4,8 Wyoming v. Houghton (1999) 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d FOB oes eeeeteeeteeteneeeeees 8 CONSTITUTIONAL PROVISIONS United States Constitution Fourth Amendment .............cccccccccessscsssccessssccescccceessccessecenscsesensesetsaeensees 1,2,7 CouRT RULES California Rules of Court TUle 8.500 ooo. ccccesscssscesssesscssscsessccstaceeceseuscensssesessscesaussesssuceseseracertrssesersass 1 Tule 8.500, subd. (b)(1) ......cescesessssecesccsceccssesscssccsssvescssessacceecaseseeauenseceeeuaes 1 ili PETITION FOR REVIEW TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Pursuantto rule 8.500 of the California Rules of Court, the People of the State of California respectfully request that this Court grant review in this matter to settle an important question of law. (Cal. Rules of Court, rule 8.500, subd. (b)(1).) On August 18, 2010, the Court of Appeal, Fourth Appellate District, Division Three, filed a published opinion reversing the judgmentofthe trial court and holding the search of appellant’s car violated the Fourth Amendment. A copy of the Court ofAppeal’s opinionis attached to this Petition. - ISSUE PRESENTED When conducting a search authorized by an automobile passenger’s parole condition, can the police search those areas of the passenger compartment that reasonably appear subject to the parolee’s access? STATEMENT OF THE CASE Appellant was driving his car with three passengers. A woman and a two-year old baby were seated in the backseat. The front seat passenger was an adult male on parole. While appellant’s car was stopped in a parkinglot, an officer approached andaskedifhe was lost or needed assistance. He declined help. The officer asked appellantifhe minded ‘showingherhis driver’s license. While he was handingherthe license, she noticed his arms were covered with abscesses consistent with drug use. The officer asked if anyone in the vehicle was on probationorparole. Appellant stated that he wasnot, butthefrontseat passenger admitted to being on parole. The officer asked for consent to search the car and appellant was silent. (Supp. CT 8-9.) The officer searched the passenger compartmentofthe car based on the passenger’s parole status. She found two hypodermic needles in a bag of chips, methamphetaminein a shoe, and a needle cap in a woman’s purse. The chip bag, shoe, and purse were located in the backseat area ofthecar. (Supp. CT 9-10.) Appellant brought a motion to suppress, arguing that he was stopped and searchedin violation of the Fourth Amendment. (CT 43.) Thetrial court denied the suppression motion. (CT 61-64, 66.) Appellant pled guilty to possession of a hypodermic needle, child endangerment, driving underthe influence, and being underthe influence. (CT 80-81.) Appellant appealed, claiming that he was stopped without reasonable suspicion andthat the search wasillegal because it extended beyond the area authorized by the passenger’s parole status. (AOB 11-26.) On August 18, 2010, the Court of Appeal, Fourth Appellate District, Division Three, issued a published decision finding the initial encounter betweenthe officer and appellant was consensual, but the officer’s subsequent search of appellant’s car violated the Fourth Amendment. (Slip opn. at pp. 7, 12.) The opinion concludedthatthe officer could not search the passenger compartment of appellant’s car based on his passenger’s parole status. The court found that by inviting a paroleeto ride in his vehicle, appellant “gave up none of his own expectation ofprivacy.” (Slip opn.at p. 11.) The court held that because the parolee was not an owner of the car and had not been entrusted to drive it, he could not consent to a search of the car and therefore his parole status could not justify searching any area beyond the actual seat he was occupying. (Slip opn.at p. 11.) The court particularly found that a front seat passenger has no authority over the backseat andnoright to “open packages,eat food, or even read magazines he foundin the back seat.” (Slip opn.at p. 11.) Because, in the court’s view,the front seat passenger had noright to access or use the backseat, he had noright to permit the officer to search the backseat and his parole status could not justify searching the backseat area. (Slip opn.at pp. 11- 12.) REASONS FOR GRANTING REVIEW I. REVIEW IS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW REGARDING THE PERMISSIBLE SCOPE OF A PAROLE SEARCH OF A VEHICLE SHARED BY A PAROLEE AND NONPAROLEE Review ofthis case is necessary to settle an important question of law—the permissible scopeofa parole search of a vehicle shared by a parolee and nonparolee. Although there is considerable law regarding the permissible scope ofparolee search of a residence shared between parolees/probationers and nonparolees/nonprobationers,this is thefirst decision applying the law in the context of a vehicle search. The Court of Appeal’s published decision in this case holds that officers may not search the passenger compartmentofa vehicle unless the parolee is the legal owneror has been entrusted to drive the vehicle. Even if an officer has reason to believe a parolee passengerhas accessto oris using the passenger compartmentofthe car, the Court of Appeal’s decision creates a bright-line rule restricting an officer’s search to the actual seat occupied by the parolee and no further. Thus, absent review by this Court, officers will be severely restricted in their search andthis issue will likely evade judicial review. Asthe Court ofAppeal’s decision notes,this is the first published decision regarding the permissibility of a search of a non-parolee’s car based on a passenger’s parole status. (Slip opn. at pp. 9-10.) In reaching its decision, the Court ofAppeal purported to rely on prior decisions bythis Court regarding the permissible scopeof a search ofresidences shared between parolees/probationers and nonparolees/nonprobationers. (Slip opn. at pp. 8-10.) However, the court significantly altered the existing standard. Instead of consideringwhetherthe parolee had joint access to the area searched, the court focused on legal right to consent to a search ofthe area. The Court of Appeal’s decision broke with this Court’s precedent and afforded far more constitutional protection to a car search than a search of a home. In People v. Woods (1999) 21 Cal.4th 668 (Woods), this Court upheld a warrantless search of a bedroom shared betweena probationer and two non-probationers. This Court found a warrantless search of a residence shared by a probationer may extend to commonareas which the probationer has “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (/d. at p. 676.) The “commonauthority” theory of consent rests “on mutual use of the property by persons generally having joint access or control for most purposes,so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the commonarea to be searched.” (Ubid., citing United States v. Matlock (1974) 415 U.S. 164, 170 [94 S.Ct. 988, 39 L.Ed.2d 242].) Subsequent courts have relied on this language in both probation and parole search cases and have found the warrantless search can extend to areas of the residence, and containers therein, that the officer reasonably believes are subject to the probationer’s or parolee’s joint access or control. (See, e.g., People v. Smith (2002) 95 Cal.App.4th 912, 917 (Smith); People v. Robles (2000) 23 Cal.4th 789, 798 [“common or shared areas of their residence may be searchedby officers aware of an applicable search condition”].) Under this analysis, ownership of the item searched is not determinative. For example, in Smith, the Court ofAppeal for the Third Appellate District upheld a warrantless search of a woman’s purse found in a bedroom sharedby a male probationer and a female nonprobationer. The Smith court found that the search was proper because it was reasonable underthe totality of the circumstances for the officers to believe the probationer was using the purse, even if he did not own or control it. (Smith, supra, 95 Cal.App.4th at pp. 919-920.) In this case, the Court ofAppeal varied from existing law and greatly reduced the area subject to a parole search. The court ignored whetherthe parolee appeared to have accessto and be using the item searched, here a chip bag anda pair of shoes located in the backseat. Rather, the court focused exclusively on whether the parolee had legal ownership ofthe car or control over the entire vehicle. The court ignored this Court’s previous holding that joint access to or use ofthe item searched are sufficient. The Court of Appeal’s decision failed to acknowledge that a passenger can own or possess items located in someoneelse’s car. The Court ofAppeal explicitly held that appellant “gave up none of his own expectation ofprivacy” by inviting a paroleeto ride in his vehicle. (Slip opn. at p. 11.) This is in direct contradiction to this Court’s holding in the context of a search of a homeshared with a parolee. In People v. Sanders (2003) 31 Cal.4th 318 (Sanders), this Court found that by living with a parolee subject to search terms, the nonparolee “had a reduced expectation of privacy.” (/d. at p. 330; see also Woods, supra, 21 Cal.4th at p. 684 [Those associating with a probationer assume the ongoingrisk that their property and effects in commonor shared areas of a residence may be subject to search”]; People v. Boyd (1990) 224 Cal.App.3d 736, 749 [by spending the night with one parolee in anotherparolee’s trailer, defendant (a non-parolee) had a lessened expectation of privacy]; People v. Triche (1957) 148 Cal.App.2d 198, 203 [by sharing space with “a parolee subject to special rules of supervision,” a nonparolee’s right to privacy “must be to some extent restricted in the public interest”’].) The Court of Appeal’s opinion creates a bright-line rule in this case that the front passenger’s parole status can only justify a search ofthe front passengerseat, and no other area of the car. This determination was not based on the individual facts of this case, but on the court’s own opinion that a front seat passengerhas no “right” to touch anythingin the rest of the car. The court should have lookedto the totality of the circumstances to determine whether it was reasonable for the officer to believe that the front seat passengerhad access, control, or was using the bag of chips or shoe located in the backseat. The Court ofAppeal opinion not only broke with prior law regarding the permissible search of a residence shared by a parolee and nonparolee, the decision contradicts well-established law regarding the sufficiency of the evidence establishing possession. Contrary to the Court ofAppeal’s holding that the front seat passenger had no “right” to control or use any items in the backseat area, the law is clear that an individual may possess items in a vehicle even when notin control of the vehicle as the driver. (See People v. Vermouth (1971) 20 Cal.App.3d 746, 755.) Furthermore, items in a vehicle may bejointed possessedbyall of its occupants. (/bid.) Whetherthere is sufficient evidence that an occupant of a vehicle is in possession of contraband found within it depends onthetotality of the facts in a given case. (See, e.g., People v. Tharp (1969) 272 Cal.App.2d 268, 273-274 [considering totality of circumstances, including the character of the bag searched, to determine whetherthere wassufficient evidence defendant possessed a case of drugs foundin a vehicle he co-occupied]; People v. Vermouth, supra, at p. 755 [Whetherthere is probable cause to arrest more than one occupantofa vehicle halted by the police on a public highway for a felony based upon possession of contraband observedin the car generally depends uponthe facts in a given case”].) The Court of Appeal’s bright-line rule limiting a parole search to the particular seat occupied by the parolee contradicts this well-established law holding that possession ofan item in a vehicle is determined by consideringthetotality of the circumstances. By breaking with the past case law andcreating a bright-line rule that limits a parole searchto the actualseat the parolee is occupying, the Court ofAppeal afforded far more constitutional protection to a vehicle than a residence. This contradicts well-established Fourth Amendment jurisprudence. The law is clear that individuals have far less privacy interests in a vehicle than in a home. (See South Dakota v. Opperman (1976) 428 U.S. 364, 368 [96 S.Ct. 3092, 49 L.Ed.2d 1000]; Wyoming v. Houghton (1999) 526 U.S. 295, 304-305 [119 S.Ct. 1297, 143 L.Ed.2d 408]; In re Arturo D. (2002) 27 Cal.4th 60, 68 [“individuals generally have a reduced expectation ofprivacy while driving a vehicle on public thoroughfares’’].) Onehasa lesser expectation ofprivacy in a motor vehicle becauseits function is transportation and it seldom servesas one’s residenceor as the repository of personaleffects. ... It travels public thoroughfares where both its occupants andits contents are in plain view. (South Dakota v. Opperman, supra, 428 U.S.at p. 368.) The Court of Appeal’s decision fails to take into account the reduced expectation of privacy held in one’s vehicle. The Court of Appeal’s singular focus on consent law not only breaks with prior law,it has no constitutional underpinnings. The Court ofAppeal relied on multiple cases concerning consent searches, not parole searches. (Slip opn.at pp. 8-10, citing Ilinois v. Rodriguez (1990) 497 U.S. 177 [110 S.Ct. 2793, 111 L.Ed.2d 148]; United States v. Matlock, supra, 415 US.at p. 164.) But a parole search is not a consent search. In People v. Reyes (1998) 19 Cal.4th 743 (Reyes), this Court found California’s practice of searching parolees without a warrant is not based on the consent exception to the warrant requirement. (/d. at p. 749.) Instead, this Court found parole searchesare constitutionally justified based on the parolee’s reduced expectation of privacy. (Reyes, supra, 19 Cal.4th at p. 752.) The United States Supreme Court upheld this justification in Samson v. California (2006) 547 US. 843, 850-853 [126 S.Ct. 2193, 165 L.Ed.2d 250] (Samson) and specifically found that California parole searches are not consent searches. (/d. at p. 852,fn. 3.) Because a parole search in California is not a consent search, the court here was wrong to focus exclusively on whether the passenger had a legal right to consent to the search of defendant’s car. The court should have looked to whether appellant had a constitutionally protected reasonable expectation of privacy in the area searched. The court should have considered that appellant was subject to a reduced expectation of privacy because he wasin a vehicle and hadinvited a parolee to ride with him. In addition to this reduced expectation of privacy, society has a strong interest in regulating parolees, who have been released early from prison only on the condition that they will be extensively monitored, including through warrantless searches, in orderto protect the public and ensure successful reintegration. The Court ofAppeal’s opinion fails to take into accountthat a parolee could end-run the parole search condition simply by riding in a car with anon-parolee. According to the Court of Appeal’s opinion, even if the parolee was using the carto store his belongings, a parole search could not be conducted of any area besidesthe seat heis occupying. The court should have lookedto the totality of the circumstances to determine whetherit was reasonable for the officer to conclude that the parolee had access to the area and items searched. The court’s bright-line rule, untethered to any facts in this case, has no constitutional support. This Court should grant review of this caseto settle this important question of law and provide much needed guidance regarding the permissible scope of a parole search of a vehicle shared by a parolee and nonparolee. CONCLUSION For the foregoing reasons, respondent respectfully requests that this Court grant review ofthe instantcase. Dated: September 24, 2010 | Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General JAMES D. DUTTON Supervising Deputy Atto eneral EMILY R./HANK Deputy Attorney General Attorneysfor Plaintiffand Respondent ERH:nh $D2008802282 70349745 10 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWuses a 13 point Times New Romanfont and contains 2653 words. Dated: September24, 2010 EDMUND G. BROWN JR. Attorney General of California byKLE EMILY R. HANKS Deputy Attorney General Attorneysfor Plaintiffand Respondent COPY —S4N DIEGO DOCKFTING AUG 19 2010 | \°SD20D8 ___ BYMONICA Ootrey» CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SU Oct e a —— PELE DS THE PEOPLE, AUG 18 2010 Plaintiff and Respondent, G040641 Osnuty Cierk __ V. (Super. Ct. No. 06HF2342) DOUGLAS SCHMITZ, OPINION Defendant and Appellant. Appeal from a judgmentofthe Superior Court of Orange County, James H. Poole, Judge. Reversed and remanded. . William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attomeys General, for Plaintiff and Respondent. Distinguishing between friends and enemies can sometimes be more problematic than would be expected. Douglas George Schmitz was convicted of four misdemeanors, based on a search premised on the parolee status of a passenger in his car. He musthave had difficulty figuring out in which column — friends or enemies — he should list that passenger.' | Douglas George Schmitz appeals after pleading guilty to four misdemeanors. His guilty plea cameafter the court denied his motion to suppress evidence found onthe floor in the rear passenger area of his car. The evidence was discovered during a search predicated on the parolee status of the passenger riding in the vehicle’s front seat, and Schmitz argues the paroleestatus of a front seat passenger does not validate a warrantless search of the back seat area, as the parolee sitting in the front passenger seat cannot be viewed as having “joint access and control” over that backseat area. We agree. A mere passengerin a vehicle, who claims neither a possessory nor property interest therein, lacks the “common authority” over the vehicle which would allow him either to consent or object to its search. Consequently, the parole status of such a passenger cannotbe relied upon as thesole basis to justify such a search. The judgmentis reversed. FACTS” Deputy Sheriff Mihela Mihai testified that about 7:00 p.m. on November 24, 2006, she observed an older model Oldsmobile or Buick turn off a mainstreet into a smaller street which was lined on both sides by the garages of a condominium complex. She thought the driver might be lost, and pulled into the streetafter him. She saw the car } “Wert thou my enemy, O thou myfriend, “How wouldst thou worse, I wonder than thou dost “Defeat, thwart me?” (Gerard Manley Hopkins: Thou Art Indeed Just, Lord.) In accordance with well-established precedent, we must defer to the trial court’s factual findings, both express and implied, in reviewing its ruling on a motion to suppress evidence. “‘[TJhe power to judge the credibility ofthe witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in thetrial court. On appeal all presumptions favorthe exercise ofthat power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’” (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160.) 2 2 make a U-turn in the small street, and proceed back toward the main street. As the car was nearing her vehicle, she stopped, and the other car then stopped parallel to hers. There were three adults and a small child in the other car. The deputy askedthe driver, Schmitz, if he was lost. He responded that he was not, and explained he had simply pulled into the street with the intention of making the U-turn,as he did not believe he could do so on the main street. The deputy then parked her car and gotout. According to the deputy, Schmitz’s car was not obstructed by hers, and he was free to drive aroundit if he chose.’ The deputy then got out of her car and asked Schmitz where he was from. Hetold her “Long Beach.” She asked if he needed directions, and he responded “no.” She asked if he minded showingher his driver’s license. As he was getting out his license, she observed that his arms were covered with abscesses — a condition which her training in street narcotics suggested was indicative of possible drug use. The deputy then asked Schmitz if he was on probation or parole. He replied “no.” She asked if anyone else in the car was on parole and was told that the male passengerin the front seat was on parole. At that point, the deputy had witnessed no violation of the law, and had observed Schmitz do nothing suspicious other than make a U-turn. At some point, apparently in response to the information that the front passenger was onparole, the deputy called for backup. As she explainedit, “I already knewthat somebody in that vehicle was on parole, I already knew that my safety could be jeopardized so they needed to know I’m talking to somebody on parole who can be uncooperative, wanted, unwanted, and so on.” 3 Schmitz testified that he tried to drive awayafter telling the deputy he did not need help, butfelt unable to do so because she got out ofher car and was continuing to talk to him. Although he stated “at one point she yelled stop,” he never explained when that point was — other than it was “not that first instance.” 3 The deputy then asked Schmitz for permission to search his vehicle. He did not answer. Thereafter, she asked all the passengers to get out of the car and conducted a search, based uponthe front seat passenger’s parole status. The search included the entire passenger area ofthe car, as well as the interior of a purse belonging to the female back seat passenger. The search revealed a syringe cap located inside the purse, as well as two syringes (one without a cap) found inside a chip bag onthefloor of the rear passenger area, and some methamphetamine found imside a pair of shoes — also onthe floor of the rear passenger area. Based uponthat evidence, Schmitz was arrested. He then moved to suppress the evidence foundin the course of the automobile search pursuant to Penal Code section 1538.5, arguing the prosecutor had the burden ofjustifying the validity of any search carried out in the absence of a warrant. (People v. Williams (1999) 20 Cal.4th 119, 130.) In opposition to the motion, the prosecution argued the initial encounter between Schmitz and the deputy was consensual, and he was not seized or detained. The prosecutor then correctly asserted that police officers are free to ask a person for identification “without implicating the Fourth Amendment,” and suggested that the presence of abscesses on Schmitz’s arms was“indicative of drug use.” But the prosecutor also maintained that the parole status of the front seat passenger, who exhibited “rapid speech [and] fidgety behavior,” combined with the fact that both he and the back seat passenger (who was also “fidgety”) admitted to past drug usage andarrests, suggested “criminal activity was afoot.’* The prosecutor arguedthat once officers have “a particularized and objective basis for suspecting the person stopped of criminal activity,” or “probabl[e} cause to believe an automobile contains contraband or evidence ‘ Thealleged drug histories of Schmitz’s passengers, along with their “rapid speech” and “fidgety” behavior, although cited in the prosecutor’s brief, are not supported by the evidence in the record, and thus cannot be relied upon to support the search. of a crime, orisitself an instrumentality of a crime, they may search the vehicle for such contraband or evidence without a search warrant.” After hearing evidencepertaining to the motion to suppress, the court denied the motion. While acknowledging the issue was a “closecall,” the court stated “I don’t think that the officer has done anything inappropriate or anything that would negate the fact that the stop was entirely voluntary at the time and something a police individual would ask of someone whoappearedto be lost and whose behavior, or conduct, or physical appearance suggested there might be a rational reason for her to conduct further investigation.” After the court denied his motion to suppress, Schmitz pleaded guilty to counts of: (1) misdemeanordriving underthe influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)); (2) misdemeanordriving underthe influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); misdemeanor unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140); and (4) misdemeanor child abuse (Pen. Code, § 273a, subd. (b).) The court then suspended imposition of sentence, and placed Schmitz on informal probation for three yearson condition he spenda total of 90 days in county jail on counts one and two. Schmitz was also ordered to pay various fines and fees, and register as a narcotics offender pursuant to Health and Safety Code section 11590. DISCUSSION “The rules for review of denial of a motion to suppress are well established. This court reviews the explicit and implicit factual findings to determineifthey are supported by substantial evidence. (People v. Soun (1995) 34 Cal.App.4th 1499, 1507.) Wethen exercise our independentjudgment to determineifthe facts found bythetrial court establish a seizure in violation ofthe Fourth Amendment. (Jbid.)” (Peoplev. Hester (2004) 119 Cal.App.4th 376, 385.) Schmitz first argues the evidence should have been suppressed as the productof his unlawful detention by the deputy. Heasserts the deputy had no reasonable basis to believe any criminal activity was afootat the time she engaged him in conversation and requested his identification, and thus that he was unreasonably “seized” in violation of the Fourth Amendment. “A seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away.” (People v. Souza (1994) 9 Cal.4th 224, 229, quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) But Schmitz’s argument simply ignores the evidence indicating the encounter, at least initially, was a consensual one. “Unlike a detention, a consensual encounter betweena police officer and an individual does not implicate the Fourth Amendment. It is well established that law enforcementofficers may approach someoneonthestreet or in another public place and converse if the personis willing to do so. There is no Fourth Amendmentviolation as long as circumstances are such that a reasonable person wouldfeel free to leave or end the encounter.” (People v. Rivera (2007) 41 Cal.4th 304, 309.) Here, Schmitz’s own testimony supports the inference the encounter was consensual. He admits the deputy did not block his car with hers, and he testified he “could have driven on.” Hestated that, initially, her only words to him were an inquiry about whether he needed help. After answering “no,” he “attempted”to drive away, but wasthwarted whenshe “kept talking to me.” He acknowledged that when she got out of hercar, the deputy did not say anything to him “about stopping or staying there or waiting.” Instead, she “asked” him for identification. At that point, by Schmitz’s own description, he “put it in park; she said thank you, and I said you’re welcome.” Schmitz’s own testimony limns the encounter as not merely consensual, but cordial. It suggests that while he could have driven on, he would havefelt rude in doing so while the deputy wasstill speaking to him — so he chosenot to. Whatever constraint Schmitz felt appears to have been the product of his own exercise of good manners, rather than ofthe deputy’s assertion of authority; it was not a “seizure” for purposes of the Fourth Amendment. Ofcourse,the consensual nature ofthe encounter,at least from Schmitz’s perspective, changed whenthe deputy asked for permission to search his car. He did not giveit, and his silence cannot be construed as acquiescence. A “search cannot be validated upon an implied consentbased upon the failure of defendant. . . to protest the entry ....” (People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127; Peoplev. Baker (2008) 164 Cal.App.4th 1152, 1160.) The question, then, is whether the search of Schmitz’s automobile can be justified — as the prosecution attempts to do in this case — on the basis that Schmitz’s front seat passenger was on parole, and was thus subject to search at any time. “In California, a parolee remains in the legal custody ofthe Department of Corrections and Rehabilitation through the balance of his sentence and must comply with all of the terms and conditions ofparole, including a search condition requiring him to submitto a search, with or without cause, at any time.” (People v. Smith (2009) 172 Cal.App.4th 1354, 1361, citing Samson v. California (2006) 547 U.S. 843, 851-852.) Thus, as explained in People v. Sanders (2003) 31 Cal.4th 318, “[a] law enforcement officer who is aware that a suspectis on parole and subject to a search condition may act reasonably in conducting a parole search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation ofprivacy of the parolee.” (/d. at p. 333.) Butofcourse, the precise question raised in this case is not whether the search violated the parolee ’s expectation of privacy, but whetherit violated that of Schmitz, the owner anddriver ofthe car in which the parolee was riding as a passenger. The prosecution here argues the search of the vehicle’s passenger compartment was proper because a valid parole search may extend to areas that the parolee shares with nonparolees, over which the parolee has “‘common authority.”” (People v. Smith (2002) 7 95 Cal.App.4th 912, 916; citing United States v. Matlock (1974) 415 US. 164, 171.) However, neither Smith nor Matlock involves the search of a vehicle, despite thedriver’s refusal of consent, based uponthe parole status of apassenger who apparently lacks either a possessory or ownershipinterest therein. Thus, neither discusses whetherthe parolee’s mere presence as a passenger in a vehicle confers upon him the requisite “common authority”to justify its search. In United States v. Matlock, supra, 415 U.S. 164, which involved the search of a bedroom based upon consent of a woman whosharedit with the defendant, the U.S. Supreme Court explained that the “common authority” over property which confers the powerto consentto its search is founded “on mutualuse ofthe propertyby persons generally havingjoint access or controlfor mostpurposes so thatit is reasonable to recognize that any ofthe co-inhabitants has the right to permit the inspection in his own right and that the others have assumed therisk that one of their number might permit the commonarea to be searched.” (/d. at p. 172, fn. 7, emphasis added.) In People v. Woods (1999) 21 Cal.4th 668, 675, our own Supreme Court characterized the rule as allowing police to search an area based uponthe probationary status of a person “with commonor superior authority over the area to be searched,”as such authority renders “the consent of other interested parties ... unnecessary.” In the case of a probation-related search, that rule means the police may “only search those portions of the [property] they reasonably believe the probationer has complete orjoint control over.” (id. at p. 682,italics added.) It is well established that those who reside with either a probationer or parolee enjoy a reduced expectation of privacy in the premises they share. (People v. Sanders, supra, 31 Cal.4th at p. 330; People v. Robles (2000) 23 Cal.4th 789, 798-799.) However, that diminution is not coextensive with the limited privacy expectations of the probationer or parolee. “Even though a person subject to a search condition has a severely diminished expectation ofprivacy over his or her person and property, there is ‘no doubt that those whoreside with such a person enjoy measurably greater privacy expectations in the eyes of society. For example, those who live with a probationer maintain normal expectations ofprivacy over their persons. In addition, they retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as thereis no basis for officers to reasonably believe the probationer has authority over those areas. (See Illinois v. Rodriguez (1990) 497 U.S. 177, 188-189; Peoplev. Woods, supra, 21 Cal.4th at p. 682.) That persons under the same roof maylegitimately harbordiffering expectationsofprivacy is consistent with the principle that one’s ability to claim the protection of the Fourth Amendment depends upon the reasonablenessofhis or her individual expectations.” (People v. Robles, supra, 23 Cal.4th at p. 798.) Indeed, as our Supreme Court has recognized, an unduly restrictive view of the privacy expectations of those whoassociate with probationers or parolees might actually underminethe rehabilitative goals ofthose programs: “it must be remembered that probation is an ‘important aspect[] of the state’s penal system,’ the ‘optimum successful functioning’ of which ‘is of compelling public interest.’ [Citation.]... Many law-abiding citizens might choose not to open their homes to probationers if doing so wereto result in the validation of arbitrary police action. If increased numbers of probationers were not welcome in homes with supportive environments, higher recidivism rates and a corresponding decrease in public safety may be expected, both of which would detract from the ‘optimum successful functioning’ of the probation system.” (People v. Robles, supra, 23 Cal.4th at p. 799.) Unfortunately, while there are numerous cases applying this “common authority” standard to situations involving the search of residential premises shared between a parolee or probationer whois subject to a search condition, and another person whois not subject to such a condition, we have found no cases which analyze the rule in a situation involving the search ofa car as opposed to a residence, or based upon the parolee status of one whois merely a visitor to the premises searched. (But see Peoplev. 9 Baker, supra, 164 Cal.App.4th 1152 [involvingthe search of a purse belonging to a passengerin a parolee’s car]; and People v. Smith, supra, 172 Cal.App.4th 1354, [involving an intrusive search of a parolee’s person (which was objected to) as well as the car in which he occupied the driver’s seat (which was not objected to)].) Of course, residential searches strike at the very heart of the ptivacyinterest protected by the Fourth Amendment.’ “‘[T]he “physical entry of the homeis the chief evil against which the wording of the Fourth Amendmentis directed.” [Citations.]” (People v. Camacho (2000) 23 Cal.4th 824, 831.) By contrast, “individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.” (Jn re Arturo D. (2002) 27 Cal.4th 60, 68.) Nonetheless, those drivers do have a cognizable privacy interest in their cars, which cannot be searched without legal justification. (/bid.) The question, then, is whether Schmitz lost his legally protected privacy interest in the interior of his vehicle — the right to refuse consentto its search — simply because he allowed a parolee to ride as a passengerin the front seat. We conclude he did not. To reiterate the rule set forth in United States v. Matlock, supra, and followed by our Supreme Court in People v. Woods, supra, the “common authority” over property which confers the power to authorize its search is founded “on mutualuse ofthe property by persons generally havingjoint accessor controlfor mostpurposes so thatit is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed therisk that one of their number might permit the commonarea to be searched.” (United States v. Matlock, supra, 415 US.at p. 172, fn.7, italics added.) 5 The Fourth Amendment guarantees “[tJhe right ofthe people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” by police officers and other governmentofficials. (U.S. Const., 4th Amend.) 10 In this case, there was no evidence that Schmitz, merely by allowing a paroleeto ride as a passengerin his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle’s interior “in his own right.” Indeed, there was no evidence Schmitz knew his passenger was a parolee. Had Schmitz left the vehicle in the parolee’s possession, or allowed him to driveit, that would be different. (See People v. Ledesma (2006) 39 Cal.4th 641, 703 [“Cases from a number ofjurisdictions have recognized that a guest who has the run of the house in the occupant’s absence has the apparentauthority to give consent to enter an area where a visitor normally would be received.” (Italics added.)]; United States v. Morales (1988) 861 F.2d 396, 399 [“Under the Matlocktest, a driver of a vehicle has the authority to consentto a searchofthat vehicle. Asthe driver, he is the person having immediate possessionofand controloverthe vehicle.”].) But Schmitz did neither. Instead, he simply allowed the parolee to visit the car temporarily as a passenger. Under those — circumstances, the passenger/parolee himself would have had gained no expectation of privacy in the vehicle — and thus had nobasis himselfto either consentor objectto its search (Rakasv. Illinois (1978) 439 U.S. 128 [holding that mere passengers, who claimed neither a possessory nor any property interest in the vehicle searched, or in the items seized from it, could not object to the search or seizure]) — while Schmitz gave up none of his own expectation of privacy, nor of his authority to prevent the officer’s search ofthe vehicle. Schmitz clearly had a reasonable expectation ofprivacy in his glove box, his console, his door pockets, his own seat, the back seat — indeed every part of his car except the front passenger seat where the parolee was sitting. The parolee, by contrast, had no expectation of privacy anywherein the car and no standing to contest his own search. Nothing Schmitz did could reasonablyhave been viewed as ceding authority over his back seat to the parolee. The parolee had noright to open packages, eat food, or even read magazines he found in the back seat. He could only obtain authority over the chip 11 bagat issue here by claiming ownership, which — givenhislack of search and seizure rights — would have been bootless. | Because Schmitz, as the driver, at all relevant times had possession and control of the vehicle which was searched, and his parolee/passenger never gained or exercised any apparent authority over the vehicle which might have given the police officer the reasonable impression he hadthe right to permitits inspection, the officer could notsearchthe interior of the vehicle based upon the passenger’s parole status. As there appears to be nootherjustification for the warrantless search ofthe vehicle’s interior, the court erred in refusing to suppress the evidence obtained duringthat search. Thejudgment against Schmitz is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. BEDSWORTH, ACTINGP.J. WE CONCUR: O’LEARY,J. MOORE,J. 64:6 WY 61 ONY 0102 09315 RVS TWW¥ERIO LENYOLLYV 12 DECLARATION OF SERVICEBY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Douglas George Schmitz Case No.: Appellate District, Division Three Court, Case No.: G040641 Orange County Superior Court, Case No.: 06HF2342 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On September 24, 2010, I served the attached PETITION FOR REVIEWbyplacing true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: William D. Farber Alan Carlson Attorney at Law Chief Executive Officer 369-B Third Street #164 Orange County Superior Court San Rafael, CA 94901 Central Justice Center Counsel for Appellant 700 Civic Center Drive West (2 Copies) Santa Ana, CA 92701 For Delivery to: The Honorable John S. Adams The Honorable Tony Rackauckas California Court of Appeal District Attorney , Fourth Appellate District, Division Three Orange County District Attorney's Office 601 W. Santa Ana Blvd. 401 Civic Center Drive West Santa Ana, California 92701 Santa Ana, CA 92701 and J furthermore declare, I electronically served a copy of the above documentfrom Office of the Attorney General's electronic notification address ADIEService@doj.ca.gov on September 24, 2010 to Appellate Defenders, Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. I declare under penalty ofperjury under the lawsofthe State of Califo and correct andthat this declaration was executed on September California. ig the foregoingis true N. Hernandez ( Declarant $D2008802282 70354380.doc
