Opinion
E054509
12-19-2012
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW PAUL BLEECKER, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF147458)
OPINION
APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of his motion to suppress, defendant, Matthew Bleecker, pled guilty to unlawfully taking/driving a vehicle (Veh. Code, § 10851, subd. (a)), resisting a police officer (Pen. Code, § 148, subd. (a)(1)), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), unlawfully obtaining personal identifying information of another (Pen. Code, § 530.5, subd. (a)) three counts of receiving stolen property (Pen. Code, § 496, subd. (a)) and six counts of first degree burglary (Pen. Code, § 459), during three of which a person other than an accomplice was present (Pen. Code, § 667.5, subd. (c)(21)) He also admitted having suffered a serious prior conviction (Pen. Code, § 667, subd. (a)) and two strike priors. (Pen. Code, § 667, subds. (c) & (e)(1).) He was sentenced to prison for 25 years to life plus five years and appeals, claiming his motion to suppress was erroneously denied. We reject his contentions and affirm.
He admitted these only in relation to one of the first degree burglaries.
PROCEEDINGS BELOW
In his written motion to suppress, defendant represented that on December 25, 2008, a police officer responded to the scene of a hit and run involving a stolen car whose occupants had left the scene. Inside the car were four credit cards, a California driver's license and a Department of Motor Vehicles form with defendant's name on it. A check revealed that defendant had outstanding one felony and two misdemeanor warrants. The officer took a photograph of defendant to a motel near the hit and run scene and the clerk said defendant was in room number 120 with a female. The officer and others went to that room to serve the felony warrant on defendant. After announcing themselves, they saw the curtains inside the room move and heard the door being locked from within. A male matching defendant's description climbed out the bathroom window in the back, was chased and arrested by officers. The officer returned to the room and ordered the two occupants, who were lying on the bed, to open the door. They did not. Eventually, the woman got up and unlocked the door. She was ordered to the ground at gunpoint. After a struggle with officers, the man was taken into custody. The officers saw stolen property and methamphetamine in the room, which was later seized.
According to the People's written response to defendant's motion, two of the credit cards were in the name of the person whose driver's license the woman had used when she registered at the motel, as will be described later.
In their written response to defendant's motion, the People represented that this occurred at 5:00 a.m. (The woman testified that it was 3:00 or 4:00 a.m.) The People also represented that another police officer had told this officer that the victim of a December 12, 2008 residential burglary had given a description of the burglar that matched defendant's and the description of the car taken matched the car involved in the hit and run.
According to the People's written response to defendant's motion, while other officers were attempting to arrest defendant, the officer returned to the room and eventually the female and the other man were arrested inside. Also according to the People, when the officers entered the room to do this, they observed, in plain view, a number of items which appeared to have been stolen, along with methamphetamine. While attempting to arrest defendant, the officers discovered that defendant was on probation in several misdemeanor cases, with search terms for stolen property, although the officer who inquired about this information and received it could no longer recall having done so. The police confiscated the suspected stolen items, the drugs and the personal property belonging to defendant, the woman and the man.
We note that during the preliminary hearing, the officer testified that ten seconds after defendant had been arrested, the former returned to the motel room and eventually entered. However, see the last two paragraphs of footnote five, post, pp. 4-5.
The woman who rented the motel room testified at the hearing on the motion that she rented it by herself on December 25th, showing the clerk a stolen driver's license and she signed the name of the person to whom the license had been issued. She paid cash for the room, it was "just her[s]" and it contained one bed. She was to check out the next day, December 26. She had personal belongings in a bag in the room, along with her purse. Defendant and another man stayed in the room with her—defendant arrived in the room at some point before midnight on the 25th. She could not recall if either defendant or the other man had an overnight bag with them or if defendant had any items normally used by an overnight guest. During the morning of December 26, she awoke to knocking on the door and yelling by the police and she noticed that defendant was no longer there. He had gone out the bathroom window. She assumed he had done so in response to the knocking on the door, but she did not recall because she was asleep. A couple of minutes later, she opened the door and the police came in.
The woman testified that when she checked in she did so "just as [her]self, . . . one person, just [her]." She added that defendant was not checked in and it was just her room. Later, she was asked, "[A]t what point did the defendant show up into the room?" She responded, "Sometime that night . . . [¶] . . . [¶] before midnight." This implies that defendant was not present when she checked in and that he joined her in the room sometime before midnight. This is consistent with the representation in the People's written opposition to defendant's motion that, "[The woman] checked into the [motel] . . . without any other guest information on the [m]otel paperwork. The defendant was not registered at the [m]otel." Defendant, on the other hand in his opening brief, asserts that he was present with the woman when she checked in. In support, he cites a page of the preliminary hearing transcript. First, although defendant, in his moving papers, said he was relying on, inter alia, the "contents of the court file" in this case, he never expressly referred to the preliminary hearing transcript and he provided, in his written motion, a statement of facts that did not cite to that transcript. (The People, likewise, provided a statement of facts in their written opposition that did not cite to the preliminary hearing transcript.) Moreover, the page of the Preliminary Hearing Transcript which defendant cites does not support his assertion. On that page, the following colloquy occurred between the magistrate and the officer,
"Q. The [MAGISTRATE]: . . . [T]he motel clerk says [to the officer when he showed him defendant's picture], ['Y]eah, I've seen that dude.[']
"A. The [OFFICER]: Yes.
"Q. The [MAGISTRATE]: And he's checked into the room?
A. The [OFFICER]: Well, I asked him if he was with the female and he said, 'Yes.'"
Contrary to defendant's assertion, the foregoing does not prove that defendant was with the female when she checked into the room. It only shows that at some point, the clerk saw them together. We note that at no point did defense counsel below assert that defendant was present when the woman checked into the room.
Later on in the preliminary hearing transcript, the officer testified that "two individuals checked into that room." However, he did not say whether the clerk identified the other person as defendant or the other man. Still later, the officer testified that the clerk told him that he had seen the defendant earlier on the 26th. Since the woman checked in on the 25th, defendant could not have been the person who was with the woman when she checked in.
Defendant's references, throughout his opening brief, to testimony adduced at the preliminary hearing, cannot be relied upon because defendant did not expressly rely on it below as the basis for his motion and the People did not expressly rely on it as the basis for their opposition, nor did either party stipulate to it for purposes of the motion. When the trial court began the hearing on the motion, it said, "[B]ased upon the facts that are set out in the motion, as well as in the opposition, I have a question as to standing . . . ." As the People correctly point out, defendant may rely only on evidence adduced at the hearing on the motion. (Pen. Code, § 1538.5, subd. (i); People v. Neighbours (1990) 223 Cal.App.3d 1115, 1119-1120.) We have allowed representations made by the parties in their briefs to be considered here because the trial court considered them, without objection by the other party, and, therefore, they are akin to stipulations.
In his reply brief, defendant asserts that we should consider evidence adduced at the preliminary hearing because if the officers who testified there had been called to testify at the hearing on the motion, they would have testified identically and it is somehow a violation of due process for us not to consider all that evidence. The fact remains that defense counsel below was in control of what it wanted the trial court to consider in making its ruling on the motion. It neither submitted the issue on the transcript of the preliminary hearing, stipulated to it or cited it in its moving papers or at the hearing on the motion. We cannot reach a conclusion on the propriety of the trial court's ruling based on facts that were not made known to it by the parties at the time it ruled. That is not our function. Additionally, the only fact to which defendant calls our attention that he claims was adduced at the preliminary hearing, but was not in either party's factual statement relative to the motion, was a detective's testimony that the owner or manager of a drug recovery home, from which televisions had been stolen, told him that defendant and the woman were boyfriend and girlfriend. However, in their brief below, the People stated that defendant was the woman's "new boyfriend." The fact that he may have been does not change our analysis that defendant failed to carry his burden as discussed in this opinion.
Thus, defendant's assertion that he was asleep in the room when the police arrived has no basis in the record. The woman was the only one who testified as to what went on in the room and she never said that defendant was asleep when the officers arrived or even that he had slept at all in the room. Further, there was no assertion in defendant's motion below or in the response by the People that defendant was asleep when the officers arrived.
At the hearing on the motion, the trial court concluded that defendant had "no right to be in that room to begin with because he ha[d] not entered into any kind of agreement with the innkeeper concerning his being in the room." Further, to the extent defendant had an expectation of privacy in the room as long as he was in it, once he abandoned it, by going out through the bathroom window, he no longer had that expectation. Therefore, he lacked standing to contest the search of the room and the seizure of items taken from it. Defendant here challenges this ruling.
In his reply brief, defendant makes much of the fact that the trial court used the word "standing." He appears to assert that because the United States Supreme Court and California Supreme Court authority have suggested that the word no longer be used, the rule that defendant bears the burden of demonstrating a reasonable expectation of privacy no longer applies, and it is the People who must demonstrate that the search was pursuant to a warrant or an exception the warrant requirement. Defendant is incorrect. In People v. Ayala (2000) 23 Cal.4th 225, the California Supreme Court commented, "It should be noted that since Rakas v. Illinois (1978) 439 U.S. 128 . . . the United States Supreme Court has largely abandoned use of the word 'standing' in its Fourth Amendment analyses. [Citation.] It did so without altering the nature of the inquiry: whether the defendant, rather than someone else, had a reasonable expectation of privacy in the place searched or the items seized. Despite the federal high court's change in terminology, some California cases have continued to use the word 'standing' in discussing the Fourth Amendment. [(There followed a long list of cases.)] [¶] In the future, to avoid confusion with the federal high court's terminology, mention of 'standing' should be avoided when analyzing the Fourth Amendment claim. [Citation.]" (Ayala, at p. 254, fn. 3, italics added.) Defendant cites no authority holding that his burden to demonstrate a reasonable expectation of privacy in the motel room is not still the law, and certainly the foregoing demonstrates that it is. Indeed, "Government activity constitutes a 'search' for Fourth Amendment purposes only if the person claiming an illegal search exhibits an actual (i.e., subjective) expectation of privacy in item searched, and that expectation is one society recognizes as reasonable (i.e., objectively). [Citation.]" (People v. Gallego (2010) 190 Cal.App.4th 388, 395.) Despite the trial court's use of the word, "standing," what defendant's reasonable expectation was is precisely what the trial court determined here. Defendant will note that we have assiduously avoided using the word "standing" in our analysis of the issue.
ISSUES AND DISCUSSION
"'"An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.'" [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 254-255 (Ayala).)Whether a defendant has a reasonable expectation of privacy is a mixed question of law and fact which we review independently. (People v. Brendlin (2006) 38 Cal.4th 1107, 1113.)
1. Reasonable Expectation of Privacy
"'In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally had an expectation of privacy in the place searched, and that his expectation is reasonable, i.e., one that has a 'source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" [Citation.] 'In other words, the defendant must show that he or she has a subjective expectation of privacy that was objectively reasonable.' [Citation.] (Ayala, supra, 23 Cal.4th at p. 255.)
"Defendant bears the burden of showing a legitimate expectation of privacy. [Citation.] Among the factors to be considered are '"'whether the defendant has a [property or] possessory interest in the . . . place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.''" [Citation.]" (People v. Roybal (1998) 19 Cal.4th 481, 507.)
The Fourth Amendment's protection against unreasonable searches and seizures extends to motel and hotel rooms in which the occupant has a reasonable expectation of privacy. (Stoner v. California (1964) 376 U.S. 483, 490; People v. Williams (1988) 45 Cal.3d 1268, 1297.)
Although a homeowner's overnight guest has a reasonable expectation of privacy in the homeowner's home (Minnesota v. Olson (1990) 495 U.S. 91, 98-99 (Olson))the female here never testified that she had invited defendant to be an overnight guest at her motel room nor could she recall whether he had brought into the room any personal items or items one would reasonably expect an overnight guest to have. Defendant bore the burden of proof in this regard. There was no evidence that defendant slept in the room, a major factor relied upon in Olson for its holding that a defendant's status as an overnight guest alone is enough to establish a reasonable expectation of privacy. (Id. at p. 99.)Moreover, even if defendant could be considered an overnight guest because the woman testified he was in the room before she fell asleep prior to midnight and was there when the police arrived at either 3:00, 4:00 or 5:00 a.m., he offered no evidence that he used the motel room as a temporary residence, as envisioned in Olson —in other words, that he was the type of overnight guest who would have a reasonable expectation of privacy. Absent establishing this, he offered no evidence that he had authority to be in the motel room alone, to enter without permission, or to invite anyone in, with or without the woman's consent. There was no evidence he had the right to exclude anyone from the room. In particular, there was no evidence that defendant knew the other man in the room or that he had any say over his presence in the room. In short, there was no evidence that he had control over the room. Additionally, there was no evidence that he was legitimately in the room. Motels normally charge one rate for one occupant and another for two, primarily to compensate for the extra cleaning required by the presence of an additional person and the added liability that flows from having that additional person on the premises. Thus, defendant's presence in the room, as an unregistered "guest" of the motel, even if a presumed guest of the female, was akin to cases in which motel residents use a stolen credit card to register for the room and, upon being caught, say they have no money to pay for the room (People v. Satz (1998) 61 Cal.App.4th 322, 324, 325) or fail to pay, even though they remain in the room or overstay their paid-for tenancy. (United States v. Huffhines (9th Cir. 1992) 967 F.2d 314, 318; United States v. Larson (8th Cir. 1985) 760 F.2d 852, 854, 855.) In such cases, the person loses his or her right to privacy in the room, which then becomes shared with the hotel management's right to control and maintain the premises. (Huffhines at p. 318; Larson at pp. 854-855; United States v. Croft (10th Cir. 1970) 429 F.2d 884, 887.) Contrary to the cases defendant cites in his opening brief, we are not talking about a homeowner in his home. We are talking about a person who has not carried his burden of showing that he had a right to be in the motel room. The trial court correctly so concluded because defendant had no agreement with the management of the motel as to his presence there. Additionally, in light of the fact that defendant abandoned the room and the property inside, he failed to carry his burden of showing that he took normal precautions to maintain his privacy and had a subjective expectation that the room and its contents would be free of government invasion. Therefore, defendant failed to carry his burden of showing that he had a reasonable expectation of privacy in the room.
"From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those this host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend." (Olson, supra, 495 U.S. at p. 99.)
See footnote six, ante, page six.
2. Abandonment
In People v. Parson (2008) 44 Cal.4th 332 (Parson), the defendant checked into a motel and paid for one night, although he advised management he might stay another night or two. (Id. at p. 343.) The following day, he disappeared without paying for an additional day and without checking out by the 11:00 a.m. deadline. (Ibid.) That afternoon, it was discovered that the defendant had left the room through the back bathroom window and management entered the room and confirmed that the defendant was not there. (Ibid.) Later that day, the police entered the room to check for the defendant and to serve an arrest warrant on him. (Ibid.) Although the defendant had left personal possessions in the room, the bed did not look like it had been slept in. (Ibid.)Items from a murder case were seen inside the room. (Id. at p. 344.) A search warrant was obtained and the room and the defendant's car, which was parked in the hotel's lot, were searched. (Ibid.)
The California Supreme Court said of the initial entry by the police into the room, " . . . [A] warrantless search and seizure involving abandoned property is not unlawful, because a person has no reasonable expectation of privacy in such property. [Citations.] Thus, 'when a day-to-day room guest of a . . . motel departs without any intention of occupying the room any longer and without making any arrangement for payment of his bill, an inference arises that he has abandoned his tenancy. . . . This is so even though the guest leaves some of his personal belongings behind.' [Citations.] [¶] 'The intent to abandon is determined by objective factors, not the defendant's subjective intent. "'Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.'" [Citations.]' [Citation.] 'The question whether property is abandoned is an issue of fact, and the [trial] court's finding must be upheld if supported by substantial evidence.' [Citation.] [¶] . . . [¶] Viewed in the light most favorable to the trial court's ruling, th[e] evidence amply demonstrated an intent on defendant's part to abandon the motel room and the items left behind. The circumstances were all objective indications that defendant, who fled [the city where the murder occurred] after [it occurred] had decided to surreptitiously leave the motel room and the . . . area [in which it was located] in a hurry. [¶] . . . [¶] . . . U.S. v. Ramirez (5th Cir. 1987) 810 F.2d 1338, . . . characterize[d] the hotel room in that case as 'abandoned' when the defendants did not return to the room due to their lawful arrest [citation] . . . ." (Parson, supra, 44 Cal.4th at pp. 345-347.)
Defendant seeks to distinguish the facts in Parson from those here because, in Parson, some hours had elapsed between checkout time and the time the police entered the room, during which management knocked on the door but received no response and entered the room to confirm that defendant was not there. There is no logic to distinguishing Parson from this case on that basis. Once defendant abandoned the room, there would have been no point to anyone knocking on the door from time to time or going into the room to see if defendant was there because everyone knew he was under arrest. The determination in Parson that the defendant had abandoned the room and the property in it had nothing to do with whether management had attempted to determine, over the course of hours, whether the defendant was still there. Of course, in that case, the passage of time during which the defendant was a no-show suggested that he had abandoned the room. In this case, the fact that defendant left the room under circumstances immediately suggesting that he would not return, i.e., he was under arrest, demonstrated then and there that he had abandoned the room and its contents.
Defendant also cites United States v. Young (9th Cir. 2009) 573 F.3d 711, appearing to suggest that the fact he was detained and arrested by the police somehow vitiated his abandonment of the room and its contents. Young does not so hold. In Young, the defendant, a registered hotel guest, was suspected of stealing items from another room, whose key he had accidentally been given. (Id. at pp. 713-714.) Management went to the defendant's room to search it for the stolen goods and to talk to him, but he was not there. (Id. at p. 714.) Management searched his room and found a firearm. (Id. at p. 713.) Pursuant to hotel policy, which had not been disclosed to the defendant, management locked down the defendant's room so he could not reenter it with the key he had been given upon check-in. (Id. at p. 714.) Management called the police, showed them the defendant's room and the gun and he was arrested. (Id. at pp. 714-715.) The Government argued that the defendant did not have a reasonable expectation of privacy in the room because he had been effectively evicted by the lock down. (Id. at p. 713.) The Ninth Circuit rejected the Government's argument that the defendant had been evicted from the room when he was arrested by the police. (Id. at p. 716.) The appellate court concluded that the defendant had not been evicted from his room at the time of the search, therefore, he retained a reasonable expectation of privacy in it. Young is not a case about abandonment—it is a case about whether a defendant has been evicted from a place, thereby losing his reasonable expectation of privacy in it.
Defendant cites no cases holding that when a person abandons a place in order to evade lawful arrest by police officers, there is no abandonment for purposes of him having a reasonable expectation of privacy in the place. In fact, in People v. Daggs (2005) 133 Cal.App.4th 361, 365 (Daggs), the appellate court observed, "It is . . . well established that property is abandoned when a defendant voluntarily discards it in the face of . . . imminent lawful detention or arrest, to avoid incrimination." (Accord, People v. Brown (1990) 216 Cal.App.3d 1442, 1451.) Defendant here voluntarily abandoned the motel room—the police did not arrest him and force him to leave it. He left it of his own accord.
The fact that had defendant eluded the police, he would have been free to return to the room, which defendant also points out, is of no moment. The fact remained that defendant did not elude capture and he did not return to the room to reclaim whatever expectation of privacy he had in it. Moreover, we sincerely doubt that had defendant eluded the police, he would have returned to the room given the fact that contraband was inside in plain sight, which would provide a disincentive for defendant to either return to it or to assert an expectation of privacy in it.
A similar argument was rejected by the appellate court in Daggs, thusly, "[The] [d]efendant . . . argues that his failure to make any attempt to reclaim [the property] should not be considered as a factor indicating abandonment because he testified he would have attempted to reclaim it, were it not for his fear that doing so would incriminate him. . . . [However,] 'a guilty conscience cannot create an expectation of privacy that would not otherwise exist. Where an ordinary person could fairly be said to have abandoned his privacy interests by failing to come forward, a reasonable expectation of privacy cannot be thought to have been retained solely by virtue of the fact that the person happens to be guilty of a crime. . . . [¶] That [the defendant] may have entertained a feeble hope of regaining possession of the [contraband] is hardly enough to vitiate the finding of abandonment." [Citation.] . . . [I]rrespective of his subjective reasons, the failure of defendant to attempt to retrieve the [item seized] is an objective circumstance indicated that it had been abandoned." (Daggs, supra, 133 Cal.App.4th at p. 367.)
Moreover, abandonment can occur even if the defendant does not intend to permanently relinquish control over the object. (People v. Baraka H. (1992) 6 Cal.App.4th 1039, 1048.)
Citing no authority, defendant argues that given the incentive for people in possession of contraband to flee from places where the contraband is located, i.e., to disassociate themselves from it and to elude the police, it would undercut Fourth Amendment's protections to apply the abandonment doctrine. However, the defendant in Parson abandoned his motel room in an effort to elude capture by the police and the California Supreme Court did not find that considering this to be a termination of his reasonable expectation of privacy somehow undercut his Fourth Amendment protections. Neither did the court in Daggs. Both here and in those cases, the defendant voluntarily abandoned the places or items to be searched or seized. The fact that this was done to escape criminal liability is of no consequence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: HOLLENHORST
J.
MILLER
J.