Tuesday, September 16, 2008
No Privacy Expectation in Home Shown by Realtor—C.A.
By STEVEN M. ELLIS, Staff Writer
A police officer who posed as a prospective home buyer so a real estate agent would allow him to enter a home listed for sale did not violate the Fourth Amendment, the Fifth District Court of Appeal ruled yesterday.
Explaining that the homeowner had “undoubtedly contemplated” that members of the public would enter with a realtor, whether bona fide purchasers or not, Justice Rebecca A. Wiseman wrote that the officer violated no legitimate expectation of privacy when he concealed his identity and viewed the home to corroborate an informant’s tip, and upheld a man’s drug convictions based on evidence obtained from the officer’s observations.
Detective Michael Benas of the police department of the City of Porterville, located between Bakersfield and Fresno, sought entry into the house in 2006 after other officers arrested a man in possession of methamphetamine who agreed to provide information as a confidential informant.
The man told officers he obtained the drugs at a local residence, describing the house’s color and a green Nissan Altima in a detached garage, and said that he had seen two large white plastic bags in the car’s trunk containing about four pounds of methamphetamine. The house was vacant, but the informant said an unknown Hispanic male slept in the garage in a sleeping bag located on a wooden shelf.
Benas found the house and, observing a “for sale” sign, called the listed realtor, acting interested. The realtor agreed to show him the house and, once inside, Benas confirmed the presence of the green Altima and the sleeping bag on the shelf.
The detective obtained a search warrant, and officers found Alberto Lucatero and another man present when the residence was searched.
The officers found drugs hidden in the attic and in the Altima in a compartment where the passenger air bag was supposed to be located, as well as in a duffle bag containing an identification card belonging to Lucatero, and on the person of Lucatero, whom the house’s owner said was staying to protect against break-ins while the sale process remained pending.
Lucatero was charged with possession of more than 28.5 grams of methamphetamine for sale and use of a false compartment with the intent to conceal a controlled substance, but contended that the warrant lacked probable cause and that the evidence against him was the tainted product of an invalid search.
Tulare Superior Court Judge Joseph A. Kalashian concluded probable cause had existed, so Lucatero pled no contest and appealed, arguing that Benas’ entry was based on a ruse, and therefore unlawful.
But Wiseman, joined by Justices Bert Levy and Stephen Kane, flatly rejected Lucatero’s arguments and upheld Lucatero’s convictions.
Noting that courts reviewing the validity of entry by ruse apply a reasonableness standard, Wiseman wrote that any element of deceit “had no significant effect here because it did not diminish or violate the homeowner’s legitimate expectation of privacy.”
Reasoning that homeowners who list their houses do so with the understanding that any member of the public can enter in a realtor’s company, regardless of whether they actually intend to purchase a house, she explained:
“Benas concealed his identity as a law enforcement agent when he expressed interest in the house, but he did not use the ruse to gain consent to enter, and he did not exceed the scope of the consent. He entered the home as a prospective buyer would and limited his activities once inside to that of a prospective buyer….
“This is not a case in which the officer is invited in under the ruse that he is a meter reader, and then does not read the meter, or that he is a friend of the repairman, but then engages in investigatory behavior inconsistent with a friend’s visit…. Benas did not violate any reasonably held expectation of privacy when he entered the home as a prospective buyer.”
The case is People v. Lucatero, F053221.
Copyright 2008, Metropolitan News Company