Metropolitan News-Enterprise


Friday, September 19, 2003


Page 1


Court of Appeal Rules:

Claim of Planted Evidence No Bar to Standing to Challenge Search


By a MetNews Staff Writer


A defendant who claims that police actually planted the evidence they claim to have seized from the accused’s person has standing to challenge the search, the Court of Appeal for this district has ruled.

Div. Six Wednesday reversed Jules Dachino’s conviction for possession of a firearm by a convicted felon and sent the case back to Los Angeles Superior Court for a new suppression hearing.

Dachino was arrested after an encounter with two officers who stopped him for driving at an excessive speed in a residential zone. One of the officers, Shawn Hetherington, testified at the suppression hearing that his partner recognized Dachino as a convicted felon with the street name “Dancer.”

Officer’s Testimony

Hetherington testified that he asked Dachino if he “could pat him down.” The defendant responded that he “had a gun in his back waistband,” Hetherington testified, and the officer then removed a .40-caliber handgun from the rear waistband of Dachino’s pants.

Dachino testified that he was not speeding, and had no gun. Hetherington said he was being detained in connection with a robbery, Dachino claimed, while his partner went into Dachino’s residence, then came down the stairs from his apartment holding a gun.

Judge Alice Altoon denied the motion to suppress, saying Dachino’s testimony established that he lacked standing since he denied that a search of his person had taken place. The case went to trial, and Dachino was convicted and sentenced by Altoon to 33 years to life in state prison based on six prior serious or violent felony convictions.

Presiding Justice Arthur Gilbert, writing for the Court of Appeal, gave that reasoning short shrift. 

“Under this theory, if a dishonest police officer lies about the existence of evidence seized from a defendant, the defendant would lack standing in a suppression hearing to contest the officer’s testimony,” Gilbert wrote. “The obvious constitutional infirmity of such a rule requires no further discussion.”

Precedent Cited

The jurist cited People v. Dees (1990) 221 Cal.App.3d 588, which held that a defendant whose statement to police that he owned a particular vehicle was used to prosecute him for drug possession had standing to challenge the search of the car, even though he later denied it was his.

The prosecution, the court said, could not argue that the defendant owned the car, for purposes of establishing that he possessed what was found inside, while also arguing that he lacked the requisite possessory interest to challenge the search under the Fourth Amendment.

In Dachino’s case, Gilbert wrote, the search was more intrusive than in Dees, and the defendant’s interest greater, since he “did nod disavow his interest in the places the police searched, his person and his home.”

The case is People v. Dachino, 03 S.O.S. 5058.


Copyright 2003, Metropolitan News Company