Metropolitan News-Enterprise


Wednesday, November 8, 2017


Page 1


Court of Appeal:

Defendant May Challenge Fruit of Unlawful Detention


By a MetNews Staff Writer


The First District Court of Appeal has held that while a passenger in a car owned by another had no reasonable expectation of privacy in that vehicle, he can still challenge the lawfulness of the detention of the occupants which preceded a warrantless search, resulting in the discovery of gun owned by him.

Defendant Lamonte Brewer is charged with three gun-related offenses. The magistrate at the preliminary hearing erred in declining to suppress the gun as evidence, and the superior court judge erred in denying a Penal Code §995 motion seeking a dismissal of the information, Acting Presiding Justice Maria Rivera said in her opinion for Div. Four.

Contra Costa Superior Court Judge Charles B. Burch denied the motion—while finding it was “clear” that the officers effected a detention in the absence of reasonable suspicion—based on Brewer’s lack of an expectation of privacy.

Rivera’s opinion, filed late Monday, announces the granting of a writ of mandate directing the superior court to vacate the order denying the §995 motion and to conduct further proceedings.

Unlawfulness of Detention

The opinion declares:

“It has long been established that an individual cannot challenge the introduction of evidence obtained in an allegedly unlawful search unless the individual had a reasonable expectation of privacy in the object seized or the place searched….Defendant, however, is not challenging the lawfulness of the search that yielded the gun. He is arguing that he was unlawfully detained by police, and that the gun found in the subsequent search should be suppressed as the fruit of the unlawful detention.

“We agree with defendant that he may challenge the gun evidence as the fruit of an unlawful detention. The parties have not cited any cases from California holding that a defendant may move to suppress evidence as the fruit of an unlawful detention even if the defendant lacked an expectation of privacy in the vehicle where the evidence was found. But there is an abundance of authority from other jurisdictions that supports defendant’s argument.”

Supreme Court Decision

Rivera pointed to the U.S. Supreme Court’s 2007 decision in Brendlin v. California where it was held that a traffic stop results in a passenger being “seized,” for Fourth Amendment purposes. She wrote:

“Although the high court was not called upon to address whether the passenger could challenge any evidence found in a subsequent search as fruit of an unlawful traffic stop, it strongly implied that a passenger could make such a challenge.”

Adding emphasis, Rivera quoted the court in Brendlin as saying:

“Holding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal. The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of ‘roving patrols’ that would still violate the driver’s Fourth Amendment right.”

The case is Brewer v. Superior Court of Contra Costa County, 2017 S.O.S. 5371.


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