Opinion
NOT TO BE PUBLISHED
Super. Ct. No. INF054364
ORDER MODIFYING OPINION
MOORE, J.
The opinion filed in this case on April 27, 2011, is hereby modified as follows:
1. Delete the last two sentences of the second full paragraph on page 10, and insert in their stead: “The gun was stolen and defendant was convicted of knowingly possessing the stolen firearm. Defendant did not contend he had a proprietary interest in the weapon. He did, however, claim a possessory interest in the firearm. But a possessory interest in an item ‘is only one factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated[.]’ (People v. Root (1985) 172 Cal.App.3d 774, 778 [considered proprietary claim].) Unlike the situation in Rakas v. Illinois, supra, 439 U.S. at p. 130, where a gun and shells were secreted within the vehicle, which could evidence an attempt to create an expectation of privacy (see United States v. Chadwick (1977) 433 U.S. 1, 11 [‘By placing personal effects inside a doublelocked footlocker, respondents manifested an expectation that the contents would remain free from public examination’]; People v. Root, supra, 172 Cal.App.3d at p. 779 [‘a reasonable expectation of privacy may be found in a paper bag stapled shut and marked “private”’]), the gun in this case was in plain view. Looking through the driver’s window, Officer Sharpe saw the barrel of the gun sticking out from beneath the truck’s radio in the center console prior to searching the vehicle driven by the unlicensed driver, Gutierrez. One does not have a reasonable expectation of privacy in a gun lying about in plain view.
“Thus, defendant’s arrest was not the fruit of his unlawful detention. Rather, his arrest was the result of police observing the gun inside the vehicle in plain view prior to any search of the vehicle in which defendant lacked a reasonable expectation of privacy. Therefore, his subsequent confession was not the fruit of his detention either. (See U. S. v. Green (8th Cir. 2006) 442 F.3d 677, 680 [driver’s consent to search purged taint of allegedly unlawful stop involving passenger], cert. den. (2006) 549 U.S. 967.) Accordingly, we find the court did not err in denying defendant’s motion to suppress evidence.”
This modification does not effect a change in the judgment.
The petition for rehearing is DENIED.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.