Filed 3/29/13 P. v. Castro CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A131168, A131508
v.
JONATHAN CASTRO et al.,                                              (San Mateo County Super. Ct.
                                                                     Nos. SC071424A & SC071424D)
         Defendants and Appellants.

         Police officers, acting without a search warrant, attached a global positioning
system (GPS) device to the undercarriage of a car owned by defendant Jonathan Castro.
Data from the GPS device was used to track the car and led to evidence linking Castro
and his accomplices to a jewelry robbery. After both the magistrate and the trial court
denied their motion to suppress the evidence, defendants―Jonathan Castro, Jesus Ortiz-
Hernandez, Nicolas Granados Mojica, Jose Miguel Figueroa, Juan Felix Sanchez, and
Juan Martinez―pleaded no contest to felony taking of personal property from a victim
(Pen. Code, § 212.5, subd. (c)). All defendants except Martinez appeal. (Pen. Code,
§ 1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b)(4)(A).) Defendants primarily
contend the installation and use of the GPS device was a search in violation of the Fourth
Amendment. We reject defendants‟ contentions and affirm.
                           I. PROCEDURAL BACKGROUND & FACTS
         Los Angeles Police Detective Daniel Nee, a member of the Interstate Theft Task
Force, testified at the preliminary hearing as an expert on organized theft gangs,
including those comprised of Columbian nationals. Certain Columbian theft gangs


                                                             1
specialize in stealing from travelling jewelry salesmen, using mobile surveillance of their
movements by multiple accomplices in multiple cars. Such gangs tended to sacrifice
getaway cars, switch to “lay-off,” or secondary, vehicles, switch license plates on
vehicles, and engage in counter surveillance including last-minute freeway entrances and
exits, multiple turns, and abrupt starts and stops.
       On January 6, 2010, Los Angeles Police Detectives Carol Mosher and Marcelo
Raffi, also members of the Interstate Theft Task Force, along with FBI Agent Aimaro,
conducted surveillance of a white Ford Explorer.1 They suspected the
occupants―defendants Ortiz-Hernandez and Mojica and a third man―of casing jewelry
businesses as part of a theft group. The officers saw the Explorer near several jewelry
stores in La Puente and then at the Fullerton Jewelry Mart, where Ortiz-Hernandez and
Mojica got out of the vehicle. Ortiz-Hernandez walked to a jewelry store window,
looked inside, and made a hand signal to Mojica. The two men returned to the Explorer
and drove to the Asian Jewelry Mart in Westminster.
       At the Asian Jewelry Mart, the Explorer parked near My Kim Jewelry. Ortiz-
Hernandez got out, walked to the store window, and looked inside. The Explorer moved
closer to the store, and then Ortiz-Hernandez got back inside. He got back out and stood
in front of the store. The Explorer moved again, and Ortiz-Hernandez again got back
inside. The Explorer drove off after the occupants were confronted by security guards.
Detectives Baez and Barnes, also part of the surveillance team, saw the Explorer heading
toward 4th Street and Virgil Avenue in Los Angeles.
       On January 7, Detectives Baez and Barnes went to the area of Virgil Avenue and
saw the three men who had been in the Explorer the previous day―but this time they
were in a silver Acura MDX. This vehicle, a four-door SUV, was registered to defendant
Castro. Detective Mosher saw the Acura enter the 101 freeway and travel north. The
Acura left the freeway and rendezvoused with a silver Infiniti. Detective Raffi saw the
three men leave the Acura, speak to two other people, and return to the Acura. The two

       1
           In this statement of facts, all dates are in 2010.


                                                 2
vehicles, traveling together, drove to the 405 freeway and entered it. On the freeway,
they drove close together, changing lanes at the same time, for 15 miles. The vehicles
exited the freeway in opposite directions and were lost by the surveillance team. Later
that day, a silver Acura MDX was used in a jewelry robbery in the Westminster area.
       On January 8, Detectives Barnes and Marentez went to 4th Street and Virgil
Avenue. They saw the Ford Explorer and followed it to the Panorama City Mall, where it
met with a second Explorer. Defendant Juan Martinez left the second Explorer and spoke
to an occupant of the first Explorer.2
       The detectives on the surveillance team concluded Castro‟s Acura MDX was a
“working vehicle”―which means a vehicle the theft group “would go out and hunt
in”―and focused on it.
       Early in the morning of January 12, Detectives Nee and Raffi saw the Acura
parked in the underground parking garage of an apartment building at 411 South Virgil
Avenue. The Acura was not registered to that Los Angeles address, but to an address in
Van Nuys. The garage had 70 stalls, contained no storage or residential units, and was
completely visible from the street through gaps in the building‟s structural supports. The
garage had a moveable vehicle gate that stayed open for about a minute and a half when a
car entered. Detectives had previously observed a pedestrian walk into the garage behind
a car entering through the vehicle gate.
       During prior surveillance, detectives learned that members of the public could
directly access the garage through both the unlocked exterior vehicle gate and an
unlocked interior door which led to a common area. So on the morning of January 12,
Detectives Nee and Raffi walked through the unlocked exterior gate―but discovered that
the interior door was locked. The detectives jimmied the door with a “Slim Jim”―in
other words, broke into the garage―and entered the parking area. It is undisputed the
officers forced entry into the garage without a search warrant.


       2
        Martinez was charged with the other five defendants in this case. As noted in the
lead paragraph, he is not a party to this appeal.


                                             3
       Detective Raffi placed a GPS device on the undercarriage of the Acura. It is
undisputed Raffi had no search warrant authorizing the placing of the GPS device on
Castro‟s car.
       Between 8:07 a.m. January 12 and 5:17 p.m. January 13, Los Angeles Police
Detectives with the Interstate Theft Task Force remotely tracked the Acura by
periodically calling the GPS device and obtaining latitude and longitude coordinates for
the vehicle. At 10:48 a.m. January 13, Detective Nee determined that Castro‟s Acura was
located in Burlingame, California, a city in the San Francisco Bay Area.
       About an hour later, Le Lin Huang, a travelling jewelry salesman, was robbed in
the parking lot of his Burlingame hotel. He was robbed at gunpoint by two men who
relieved him of a shoulder bag containing about $200,000 in jewelry. One man was
wearing a black hooded sweatshirt, a ski mask, and gloves, and was about five feet, nine
inches and 160 pounds. The other was blond and 25 to 30 years old. Both men wore
gloves. The robbers fled in a silver four-door sedan―not an SUV―which had paper
license plates with black stars.
       Later that day, Detective Nee learned of the Huang jewelry robbery, and that the
getaway car might be a silver sedan. The Interstate Theft Task Force detectives
continued to track the Acura using the GPS device. They determined the Acura had left
Burlingame and was proceeding southbound on Interstate 5 toward Los Angeles.
       At 4:15 p.m. that day, Nee saw the Acura travelling southbound on Interstate 5 in
Santa Clarita and began to follow it. He saw a white Chrysler Town and Country
travelling in tandem with the Acura, changing lanes when the Acura did. The Acura was
always in the lead.
       Detective Raffi also followed the two vehicles down Interstate 5, for about 30 to
40 minutes. He drove alongside the Acura and noticed the face of the driver in the
following Chrysler Town and County. Raffi identified the driver as defendant Ortiz-
Hernandez. The license plates of both cars were loosely attached and kept flapping up
and down at freeway speeds. Nee testified the suspects he typically encountered “quite
frequently are taking on, removing license plates.”


                                            4
       The two vehicles left the interstate and were detained by police after attempting to
flee police vehicles that were closing in. Defendant Castro was driving the Acura. His
passengers were defendants Mojica, Figueroa, and Martinez. Defendant Ortiz-Hernandez
was driving the Chrysler. His passenger was defendant Sanchez.
       All defendants were arrested on January 13, and both cars were searched incident
to those arrests. Officers found a black Puma bag in the Acura containing jewelry stolen
in the Burlingame robbery. The bag was on the floorboard, wedged between the second
row of seats and the folded down third row of seats.
       On January 15, Detective Nee searched both vehicles pursuant to a search warrant.
Among other things, he found a cylindrical metal tool in the Acura and a cell phone, two
black hooded sweatshirts, and two baseball caps in the Chrysler.
       Detective Nee testified the police would not have found the Acura were it not for
the GPS device.
       All six defendants were jointly charged by felony complaint with three felonies:
conspiracy to take personal property from a victim by means of force or fear (Pen. Code,
§§ 182, subd. (a)(1), 212.5, subd. (c)), count 1;3 taking of personal property from a victim
with force or fear (§ 212.5, subd. (c)), count 2; and receiving stolen property (§ 496,
subd. (a)), count 3.
       Prior to the preliminary hearing, defendant Martinez filed a written motion to
suppress. Martinez argued the detectives lacked probable cause to detain the Acura and
to search it without a warrant. The other defendants joined in the motion and the
motion‟s scope expanded to include the detention and search of both vehicles.
       The preliminary hearing proceeded. Evidence of the GPS tracking device was
presented in camera because of a claim of official privilege. The Attorney General
concedes defendants were initially unaware of the existence of the GPS device when they
first argued their motion to suppress to the magistrate. After extensive argument, during
which defendants argued the police had observed no behavior establishing probable cause


       3
           Subsequent statutory citations are to the Penal Code.

                                               5
they had committed any crime, or even a violation of the Vehicle Code, the magistrate
initially denied the motion:
       “As to the detention of the two vehicles, I overrule or deny the motion to suppress
the detention.
       “As to the search of the vehicles, I overrule or deny the motion to suppress
anything found in the vehicles.
       “As to the arrest of the defendants, I find there was probable cause for that
purpose. All six. Find the circumstances presented here would justify the arrest of all
six. And their search―the search of their persons would not be suppressed as well.”
       Subsequently, the magistrate released to defendants the evidence taken in camera,
finding the official privilege had been waived. Defendants expressly declined to
introduce any further evidence, including evidence regarding the GPS device and its
placement on the Acura, but asked to re-argue the motion to suppress in light of the
release of the in camera evidence. Defendants conceded the magistrate could consider
the in camera evidence with regard to the motion to suppress. Defendants did not raise
the issue of whether the placement of the GPS device and its use to track the Acura
violated the Fourth Amendment. They apparently also failed to explicitly argue that the
breaking into the garage constituted a search. The magistrate again denied the motion to
suppress.
       Defendants were held to answer, and the People filed an information alleging the
three offenses set forth in the complaint against all six defendants.
       Defendants then filed a new motion to suppress in the superior court.4 They
argued that breaking into the apartment building‟s garage with a burglary tool and
placing the GPS device on the Acura constituted searches under the Fourth Amendment
and required either consent or a warrant, both of which were lacking. They further
argued they had a reasonable expectation of privacy in the locked garage. Finally,



       4
           Defendant Castro filed the motion, in which the other defendants joined.


                                              6
defendants re-argued the issue of whether the police had sufficient grounds to detain the
two vehicles.
       The People opposed the motion. The People first argued that defendants were
precluded from raising new legal theories not raised before the magistrate under the
decision in People v. Bennett (1998) 68 Cal.App.4th 396 (Bennett), and thus were limited
to the issues of reasonable suspicion to detain the vehicles and probable cause to arrest
and search. On the assumption that defendants were precluded from raising the issue of
garage entry and the issue of the installation of the GPS device and its use to track
defendants, the People argued the evidence before the magistrate showed the defendants
were properly detained, arrested with probable cause, and there was probable cause to
search the two vehicles.5
       On the assumption that the superior court would allow defendants to raise the GPS
issues, the People argued that no defendant had a reasonable expectation of privacy in the
locked garage; the entry into garage, installation of the GPS device on the exterior of the
Acura and its use to track the vehicle were not searches and were lawful in any event; and
the evidence should not be suppressed because the detectives were acting in good faith
given the state of the Fourth Amendment law at the time regarding the installation and
use of GPS tracking devices.
       In their reply brief, defendants addressed, inter alia, the Bennett issue and argued
that case did not preclude them from raising new issues in their second motion. In
particular, defendants noted the evidence regarding those issues was part of the
preliminary hearing transcript and they were not seeking to present new evidence in
superior court.
       After oral argument, the trial court rendered a detailed ruling. First, the court
ruled that Bennett did not preclude defendants from raising the GPS issues, because “the
evidence of the GPS device was presented at the [preliminary] hearing and is part of the

       5
         In the course of this opinion, a reference to “the GPS issues” means the entry
into the garage, the placement of the GPS device on the Acura, and the use of the device
to track the vehicle.


                                              7
preliminary hearing transcript. I believe that their argument can be supported by
evidence at the first hearing as shown by the preliminary hearing transcript.”
       The court then resolved other issues before reaching the one it believed was
controlling: the legality of the entry into the garage. First, the court concluded the use of
the GPS device was not a search, or at least did not “offend[] the Fourth Amendment . . . .
It was in a public place. I think that conduct was reasonable.” The court concluded all
defendants had standing to contest the vehicle stops and subsequent police conduct “due
to any illegality of the entry into the garage.” The court relied on Brendlin v. California
(2007) 551 U.S. 249 (Brendlin), which we discuss below. Next, the court concluded
“there was probable cause to stop, detain and arrest all defendants,” based on the factual
findings of the magistrate―and “even if I had to do a complete de novo review.” And
the court concluded the detective‟s subjective knowledge of Fourth Amendment law was
“irrelevant,” and if there was a Fourth Amendment violation “Leon would not save it.”6
       With regard to the garage entry, the superior court stated, “if that was illegal I
believe the evidence should be suppressed as to all defendants. . . . If there was no
expectation of privacy, then the reverse is true.” Noting there was no California case
directly on point, the superior court found United States v. Nohara (9th Cir. 1993) 3 F.3d
1239 (Nohara) was persuasive. That case involved common hallways in the defendant‟s
apartment building. The superior court cited a passage in Nohara noting, “ „[a]n
expectation of privacy necessarily implies an expectation that one will be freed of any
intrusion, not merely unwarranted intrusion. The common hallways . . . were available
for use of residents and their guests, the landlord and his agents, and others having
legitimate reasons to be on the premises. That the DEA agent was a technical trespasser
in a common hallway is of no consequence since appellants had no reasonable
expectation that conversations taking place there would be free of intrusion.‟ ” (Nohara,



       6
        This is a reference to United States v. Leon (1984) 468 U.S. 897, 922 (Leon),
which held that the exclusionary rule did not apply when police conduct a search in
objectively reasonable reliance on a warrant later found invalid.

                                              8
supra, at p. 1242, quoting United States v. Eisler (8th Cir. 1977) 567 F.2d 814, 816
(Eisler), original italics.)
       Following this reasoning, the superior court noted various factors supporting the
conclusion defendants lacked a reasonable expectation of privacy in the apartment
building garage:
       “The number of parking spaces it had, which was 70. The vehicles could be seen
from the outside of the apartment building. There was a car gate which would remain
open for about a minute and a half after the gate was activated. Detective Nee saw the
pedestrians enter the parking lot through the open car gate. The parking lot did not
connect directly to any residential area. There was on one occasion where the pedestrian
gate was unlocked when Detective Nee tried to open it. And Detective Nee did not
damage the gate.”
       Noting the issue was “a close call,” the superior court concluded “there was no
reasonable expectation of privacy, [and] that [the] placing of [the] tracking device was
proper . . . .” The court denied the second motion to suppress. Defendants then entered
their no contest pleas.
                                    II. DISCUSSION
       Defendants primarily contend the warrantless entry into the apartment garage, and
the warrantless installation of the GPS device and its use to track the Acura, constituted a
Fourth Amendment violation. For the reasons set forth below, we reject their contentions
and affirm.
                                  A. Standard of Review
       A magistrate ruling on a motion to suppress made at the preliminary hearing sits as
the finder of fact, resolving credibility issues and conflicts in the evidence, and weighing
the evidence and drawing appropriate inferences. (People v. Shafrir (2010) 183
Cal.App.4th 1238, 1244 (Shafrir).) When the motion to suppress is renewed in superior
court, the factual findings of the magistrate are binding on the superior court except to the
extent the court allows new evidence. (People v. Trujillo (1990) 217 Cal.App.3d 1219,
1223.) In determining a renewed suppression motion, the superior court sits as a


                                             9
reviewing court. (Ibid.; cf. Shafrir, supra, at pp. 1244–1245 [superior court reviewing
magistrate‟s suppression motion on a section 995 motion bound by magistrate‟s factual
findings and sits as a reviewing court].)
       Where, as in this case, the superior court sits as a reviewing court, we as an
appellate court review the factual determinations of the magistrate except where new
superior court evidence is involved. (See People v. Ramsey (1988) 203 Cal.App.3d 671,
679, & fn. 2.) Our review is governed by familiar principles. The magistrate‟s
determinations of fact are governed by the substantial evidence standard of review. The
magistrate‟s selection of the rule of law is a pure question of law, which we review de
novo. The magistrate‟s application of the law to the facts, a mixed question of fact and
law, but predominantly a question of law, is likewise subject to de novo review. (People
v. Ayala (2000) 23 Cal.4th 225, 255 (Ayala).) And where, as here, we review legal issues
raised for the first time in a renewed motion in superior court but based on facts before
the magistrate (see Part II-B, post), we exercise our independent review.
                                       B. Forfeiture
       The People renew their procedural objection that defendants have forfeited their
right to raise the GPS issues by failing to raise them before the magistrate after the in
camera evidence was released. The People again rely on Bennett. We conclude the facts
of the present case show Bennett can be read too broadly, and did not prevent these
defendants from raising the GPS issues before the superior court.
       Section 1538.5, subdivision (i), allows a felony defendant to make a motion to
suppress in the superior court, to be heard at a special hearing. But if the defendant had
made a motion to suppress at the preliminary hearing, “evidence presented at the special
hearing shall be limited to the transcript of the preliminary hearing and to evidence that
could not reasonably have been presented at the preliminary hearing, except that the
[P]eople may recall witnesses who testified at the preliminary hearing. . . . The court
shall base its ruling on all evidence presented at the special hearing and on the transcript
of the preliminary hearing, and the findings of the magistrate shall be binding on the



                                             10
court as to evidence or property not affected by evidence presented at the special
hearing.” (§ 1538.5, subd. (i).)
       Bennett interpreted this language in a case presenting the following facts. The
defendant‟s attorney filed a suppression motion at the preliminary hearing, raising three
distinct theories. At the time when evidence was presented on the suppression motion,
defendant‟s counsel “never elicited facts relevant to” two of the three grounds, and
expressly disavowed those two theories. (Bennett, supra, 68 Cal.App.4th at p. 399.) The
magistrate denied the motion and defendant was held to answer. (Id. at p. 400.)
       The defendant renewed his suppression motion in superior court, and advanced the
same three theories he raised at the preliminary hearing. The People objected that
defendant had abandoned two of the three theories at the preliminary hearing. (Bennett,
supra, 68 Cal.App.4th at p. 400.) The superior court determined that the evidence
presented at the preliminary hearing was “ „sparse and inadequate.‟ ” Because it was a
serious case involving a potential life sentence, the court allowed a full evidentiary
hearing on all three issues, involving evidence not presented at the preliminary hearing.
The full evidentiary hearing lasted more than three months. (Id. at pp. 400–401, 404.)
       The Bennett court noted the purpose of section 1538.5, subdivision (i), was to
allow a defendant one full evidentiary hearing on his suppression motion―in large part
to conserve judicial resources. (Bennett, supra, 68 Cal.App.4th at pp. 404–405.) The
court quoted the 1991 California Judges Benchbook on search and seizure, which noted
“ „[a]llowing the parties to shift ground in superior court would seriously undercut the . . .
provisions [in section 1538.5] that give binding effect to the magistrate‟s factual
determinations.‟ ” (Cal. Judges Benchbook: Search and Seizure (Cont.Ed.Bar 1991)
§ 1.55, p. 43, quoted at 68 Cal.App.4th at p. 406.) The court further noted the Benchbook
authors noted, in the same section and on the same page, that “if the court permits the
raising of new theories, it will be under pressure also to permit new testimony in support
of the theories. This would weaken the apparent objective of the [legislative]
amendments to get away as much as possible from having two evidentiary hearings.”
(Quoted at Bennett, supra, at p. 406.)


                                             11
       The Bennett court then concluded that when a defendant makes a motion at the
preliminary hearing and renews it in superior court, “it makes no sense to permit a
defendant to raise theories at the second hearing which were not litigated at the first. To
do so would not only run counter to the usual rule on review, which typically construes a
failure to raise an issue in the lower court as a waiver [citations], it would also seriously
draw down public resources by necessitating the repeated appearance of law enforcement
officers . . . .” The court also concluded that allowing a defendant to raise new theories at
the second hearing would violate the purpose of section 1538.5, subdivision (i.) (Bennett,
supra, 68 Cal.App.4th at pp. 406–407.)
       Bennett is distinguishable on at least two grounds: in that case the defendant
expressly waived at the preliminary hearing the new issues raised in superior court; and
that case involved new evidence raised in superior court. The present case involves
neither situation. All the evidence on the GPS issues was brought before the magistrate
and was a part of the preliminary hearing. No new evidence was necessary, so
defendants did not get a second bite at the evidentiary apple.7 And, interestingly, the
People themselves addressed the GPS issues, albeit briefly, in a supplemental
memorandum of points and authorities filed with the magistrate.
       We see no statutory ban on raising new issues based on evidence before the
magistrate, at least not under the circumstances of this case. We conclude defendants
have not forfeited their challenge to the suppression denial based on those issues.8



       7
        Detective Nee testified briefly at the superior court suppression hearing,
apparently with the consent of the People. His testimony tracked his testimony before the
magistrate.
       8
          To the extent the Bennett rationale relies on waiver for failure to raise an issue in
the lower court, we find it uncompelling in this case. An appellate court may consider for
the first time on appeal a legal issue based on uncontested facts, on which it would
exercise independent review―especially where the opposing party, as here, addressed the
issue on the merits in the lower court. (See People v. Mattson (1990) 50 Cal.3d 826, 854;
People v. Wade (1996) 48 Cal.App.4th 460, 464.) When the superior court sits as a
reviewing court, we would assume the same principles would apply.


                                              12
                                       C. Standing
       The People contend none of the defendants have standing to raise the issues of the
warrantless entry into the garage and the placement of the GPS device on the Acura,
because no defendant had a reasonable expectation of privacy in the garage. The People
further contend no defendant other than Castro has standing to raise the issue of the
installation of the GPS device on Castro‟s vehicle, because those four defendants lack a
possessory or property interest in the Acura. For the reasons set forth below, we find―as
did the trial court―that all five defendants have standing to raise the GPS issues.9
       We review the issue of standing as a question of law, against the factual backdrop
of the case. (People v. Leonard (1987) 197 Cal.App.3d 235, 239.)
       It is well established that Fourth Amendment rights are personal and cannot be
asserted vicariously. (Rakas v. Illinois (1978) 439 U.S. 128, 133–134 (Rakas).) The
purpose of the exclusionary rule is to vindicate Fourth Amendment rights; since those
rights are personal, only defendants whose rights have been violated may benefit from the
rule. (Rakas, supra, at pp. 133–134.) A defendant whose Fourth Amendment rights have
not been violated, but is aggrieved only by the introduction of evidence seized from
another, lacks standing to challenge the search and seizure of that third party‟s person or
property. (Rakas, supra, at p. 134; see United States v. Padilla (1993) 508 U.S. 77, 81–
82.)
       Whether or not a given defendant‟s Fourth Amendment rights have been violated,
thus giving him standing to challenge the violation as an unreasonable search, turns on
whether the defendant had a reasonable expectation of privacy in the space searched or

       9
         We are aware our Supreme Court has cautioned against using the term
“standing” in Fourth Amendment cases, as opposed to discussing the “inquiry . . .
whether the defendant, rather than someone else, had a reasonable expectation of privacy
in the place searched or the items seized.” (Ayala, supra, 23 Cal.4th at p. 254, fn. 3.) But
“standing,” a term commonly used for some considerable time in Fourth Amendment
analyses, does offer a convenient verbal shorthand so long as it is properly understood.
(See, e.g., United States v. Pack (5th Cir. 2010) 612 F.3d 341, 347 (Pack) [“for brevity‟s
sake, courts often refer to the question of whether or not a defendant is asserting a
violation of his own Fourth Amendment rights as one of „standing.‟ [Citations.]”].)


                                             13
the item seized. (People v. Hernandez (1988) 199 Cal.App.3d 1182, 1188–1189
(Hernandez); see Rakas, supra, 439 U.S. at pp. 148–149.) A reasonable expectation of
privacy is defined as (1) a subjective expectation of privacy in the object of the
challenged search which (2) society would define as a reasonable expectation.
(California v. Ciraolo (1986) 476 U.S. 207, 211.) Factors pertinent to a determination of
a reasonable expectation of privacy “include „ “whether the defendant has a [property or]
possessory interest in the thing seized or 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.” ‟ [Citations.]”
(Hernandez, supra, at p. 1189.)
       In our view, it is not necessary to delve into the question whether defendants had a
reasonable expectation of privacy in the apartment garage for purposes of standing.
Under the rationale of Brendlin, all defendants have standing to challenge the
constitutionality of the traffic stop.
       It is true that Rakas held a passenger in a vehicle lacked standing to challenge a
search of that vehicle when he had no possessory or ownership interest in either the
vehicle or the items seized. (Rakas, supra, 439 U.S. at pp. 129–130, 132–140.) But
Rakas involved a challenge to a probable cause vehicle search, not a challenge to a traffic
stop. (Id. at pp. 130–131; see id. at pp. 150–151 [conc. opn. of Powell, J.] [passengers
did not challenge constitutionality of traffic stop, but only warrantless search of car‟s
interior].)
       In contrast, Brendlin involved a challenge to the constitutionality of a traffic stop.
The stop led to the search of the vehicle and the seizure of evidence. (Brendlin, supra,
551 U.S. at p. 252.) That case held that a passenger in a car, like the driver, is seized for
purposes of the Fourth Amendment because his freedom is restrained or a reasonable
person under the circumstances would not feel free to leave. (Brendlin, supra, at pp. 251,
254–259.) The court made it clear that under the circumstances of a traffic stop the
passenger is “seized from the moment [the] car [comes] to a halt on the side of the road


                                              14
. . . .” (Id. at p. 263.) As such, “a passenger is seized as well [as the driver] and so may
challenge the constitutionality of the [traffic] stop.” (Id. at p. 251.) The passenger could
thus argue the evidence seized was tainted by the unconstitutionality of the stop. (Id. at
pp. 256–259.)
       Lower courts have readily followed the Brendlin decision “[I]n Brendlin . . . , the
[c]ourt held that a passenger with no ownership interest in a vehicle could challenge
evidence discovered as a result of an allegedly illegal traffic stop of the vehicle, because
the stop and the detention that followed constituted a seizure of the persons of everyone
in the vehicle. [Citation.] Since everyone in the vehicle was seized, the passenger‟s
challenge was directed against a purported violation of his own Fourth Amendment
rights. [Citation.]” (Pack, supra, 612 F.3d at p. 348; accord, United States v. Diaz-
Castaneda (9th Cir. 2007) 494 F.3d 1146, 1150 [passenger has standing to challenge
constitutionality of traffic stop]; United States v. Twilley (9th. Cir. 2000) 222 F.3d 1092,
1095 [passenger has no standing to challenge a search of a vehicle per se, but “may
challenge a stop of a vehicle on Fourth Amendment grounds even if she has no
possessory or ownership interest in the vehicle”].)
       Here the installation of the GPS device, and its use to monitor and track the
Acura‟s movements, were the means essential to the locating and detaining of the Acura,
the Chrysler, and the occupants―both drivers and passengers―of both vehicles. The
evidence is clear that without the GPS device the vehicle would not have been located
and stopped. Therefore, it stands to reason that if the installation and use of the GPS
device constitutes a search, defendants have standing to challenge the constitutionality of
that search because the GPS was instrumental in their detention. And if the traffic stop
was unconstitutional, any evidence seized as a result of the stop would be tainted by that
unconstitutionality and should be suppressed.
       “ „If either the stopping of the car, the length of the passenger‟s detention
thereafter, or the passenger‟s removal from it are unreasonable in a Fourth Amendment
sense, then surely the passenger has standing to object to those constitutional violations
and to have suppressed any evidence found in the car which is their fruit‟. . . .”


                                             15
(Brendlin, supra, 551 U.S. at p. 259, quoting 6 LaFave, Search and Seizure (4th ed. 2004
and Supp. 2007) § 11.3(e), pp. 194, 195 & n. 277, fn. omitted, italics added by this court.)
In United States v. Ellis (6th Cir. 2007) 497 F.3d 606 (Ellis), the court essentially
harmonized Rakas and cognate cases, both pre- and post-Brendlin, by distinguishing
between a direct challenge to a vehicle search by a passenger with no property or
possessory interest in the vehicle, and a challenge to a traffic stop and the subsequent
suppression of evidence found in a subsequent vehicle search tainted by an
unconstitutional stop. (Ellis, supra, at p. 612; see United States v. Jones (D.C. Cir. 2005)
374 F.Supp.2d 143, 154.)
       We note that in their supplemental memorandum filed below, the People conceded
the standing issue regarding the traffic stop: “The People concede that all defendants, as
drivers and as passengers, have the right to challenge their detentions in the Acura and
Chrysler, respectively, on 1/13/10 (Brendlin[, supra,] 551 U.S. 249).” Accordingly, all
defendants would have standing to seek suppression of the evidence seized from the two
vehicles as the fruit of an unconstitutional detention based on the installation and use of
the GPS device.
       But the People now argue on appeal, at least regarding all defendants other than
Castro, that Brendlin “provides to a passenger” standing to “protest the reasonableness of
the stop itself,” but not “standing at points previous in the timeline to the stop.” This is a
narrow reading of Brendlin and a crabbed approach to logic. Fourth Amendment
reasonableness is not always subject to neat temporal compartmentalization. If the
installation and use of the GPS was constitutionally unreasonable, it would of course taint
the vehicle stops and any evidence seized as a result. Events antecedent to a traffic stop
are generally pertinent to a determination of constitutional reasonableness.10

       10
          The People rely on several cases which are inapposite. In United States v.
Crippen (8th Cir. 2010) 627 F.3d 1056, 1063, the defendant challenged the search of the
vehicle in which he was a passenger―but did not challenge the traffic stop. In United
States v. Moody (5th Cir. 2009) 564 F.3d 754, 761–762, a defendant tried to apply the
Brendlin ruling to the search of a home, not a vehicle. In United States v. Soriano-
Jarquin (4th Cir. 2007) 492 F.3d 495, 499–500, the defendant did not challenge the

                                              16
       We conclude all defendants have standing to raise the GPS issues.
                                       D. The Merits
       On January 23, 2012, subsequent to the installation and use of the GPS device in
the present case, the United States Supreme Court held that “the Government‟s
installation of a GPS device on a target‟s vehicle, and its use of that device to monitor the
vehicle‟s movements, constitutes a „search.‟ ” (United States v. Jones (2012) ___ U.S.
___, 181 L.Ed.2d 911, 918 (Jones), fn. omitted.) The court upheld the District of
Columbia Court of Appeal‟s determination that installation and use of a GPS device
without a warrant violated the Fourth Amendment. (Jones, supra, at pp. 917, 923.)
       We need not discuss Jones‟s Fourth Amendment analysis. The present case turns
on whether the officers who installed and used the GPS device on Castro‟s Acura were
acting on an objective good faith reliance on existing binding precedent holding such
actions did not constitute a Fourth Amendment violation. We conclude that they were so
acting, and suppression of the seized evidence is unwarranted.
       In Davis v. United States (2011) ___ U.S. ___, 180 L.Ed.2d 285 (Davis), the court
held that “searches conducted in objectively reasonable reliance on binding appellate
precedent are not subject to the exclusionary rule.” (Davis, supra, at p. 290.) The court
confirmed that the exclusionary rule was “a „judicially created remedy‟ of this [c]ourt‟s
own making. [Citation.]” (Id. at p. 294.) The court also stressed the rule was designed
to deter future Fourth Amendment violations which generally result from deliberate,
reckless or grossly negligent disregard of Fourth Amendment rights. (Davis, supra, at
pp. 293–295.)
       In that vein, the court noted it had previously held that under certain circumstances
involving the good faith conduct of law enforcement agents, the exclusionary rule would
not apply. (Davis, supra, 180 L.Ed.2d at p. 295, citing Leon, supra, 468 U.S. at p. 922


traffic stop, but only a request for identification during the stop. And in State v. Gilbert
(Kan. 2011) 254 P.3d 1271, 1271–1275, the defendant was a passenger in a parked car,
and was arrested on an outstanding warrant. The car, which he had no property or
possessory interest, was then searched.

                                             17
[exclusionary rule does not apply when officers conduct search in objectively reasonable
reliance on a warrant later held invalid]; Illinois v. Krull (1987) 480 U.S. 340, 349–350
[same result when officers conduct search in reasonable reliance on statutes which are
subsequently invalidated]; Arizona v. Evans (1995) 514 U.S. 1, 14 (Evans) [same result
when police reasonably rely on erroneous information regarding an arrest warrant in a
database maintained by judicial employees]; Herring v. United States (2009) 555 U.S.
135, 137, 144 [Evans extended to erroneous information in a database maintained by
police employees].) The theme of these cases is simple: the error did not rest with the
officer acting on the warrant, statute, or database information―thus the deterrent value of
the exclusionary rule did not come into play. (Davis, supra, at p. 295.)
       Under Davis, the officers in the present case are not subject to the exclusionary
rule if they acted in objectively reasonable reliance on binding appellate precedent
authorizing the warrantless installation and use of a GPS device on an automobile.
       There was such precedent. In People v. Zichwic (2001) 94 Cal.App.4th 944
(Zichwic), police officers attached an electronic monitoring device to the undercarriage of
defendant‟s truck while it was parked in his driveway. They used the device to monitor
the truck‟s movements, and tracked defendant to a PG&E yard where he was caught in
the act of a burglary. (Zichwic, supra, at pp. 948–950.) Defendant was on parole and
subject to a standard search condition. (Id. at p. 951.) The Sixth District first held that
“if we assume that attaching an electronic tracking device to the undercarriage of
defendant‟s truck constituted a search, it was authorized by defendant‟s parole search
condition[]” because it was reasonable, and not arbitrary, capricious, or harassing under
the standard set forth in People v. Reyes (1998) 19 Cal.4th 743, 752. (Zichwic, supra, at
p. 953.)
       The Zichwic court then held as follows: “If defendant was not subject to a parole
search condition, we would conclude, on the record before us, that installing an electronic
tracking device on the undercarriage of defendant‟s truck did not amount to a search
within the meaning of the Fourth Amendment.” (Zichwic, supra, 94 Cal.App.4th at p.
953.) The court observed that the defendant had no reasonable expectation of privacy in


                                             18
his driveway, despite the fact that it may have been within the curtilage of his home,
because it was accessible and visible from a public street―even if the officers trespassed
into the curtilage to plant the device. (Id. at pp. 953–954; see id. at pp. 949–950.) The
court also observed the defendant had no reasonable expectation of privacy in the
undercarriage of his truck, because it was part of the vehicle‟s exterior. The court cited
with approval the reasoning of U.S. v. McIver (9th Cir. 1999) 186 F.3d 1119, 1127.11
(Zichwic, supra, at pp. 954–956.) The Zichwic court concluded: “While the
undercarriage of a vehicle is not as readily seen as the hood, doors, and other parts of its
exterior, the undercarriage is part of the exterior that is ordinarily exposed to public view.
It does not amount to a search to examine the undercarriage, to touch it, or to attach a
tracking device, so long as a police officer does so from a place where the officer has a
right to be.” (Id. at p. 956, italics added.)
       The Zichwic court also noted defendant challenged only the installation of the
device, not its use to track his movements, but that “[t]he United States Supreme Court
has concluded that monitoring electronic signals does not amount to a search when the
only information provided is what could be obtained through visual surveillance, such as
the movements of an automobile on public thoroughfares. [Citation.] Monitoring does
amount to a search when it reveals information about otherwise hidden activities inside a
residence. [Citation.]” (Zichwic, supra, 94 Cal.App.4th at p. 956.)
       In the quoted passage, the Zichwic court cited United States v. Knotts (1983) 460
U.S. 276, 281–282 (Knotts), and United States v. Karo (1984) 468 U.S. 705, 715 (Karo),
respectively. In Knotts, a beeper was placed in a can of chloroform in cooperation with
law enforcement. The can was later sold to the defendant and the beeper inside was used
to trace his movements. (Knotts, supra, at pp. 277–279.) The United States Supreme
Court held there was no expectation of privacy in vehicle movements on a public
thoroughfare. (Id. at pp. 281–282, 285.) In Karo, a beeper was placed in a can of ether,

       11
         In United States v. Pineda-Moreno (9th Cir. 2012) 688 F.3d 1087, 1091, the
Ninth Circuit noted United States v. McIver, supra, 186 F.3d 1119 was “at least partially
overrule[d]” by Jones, supra, 181 L.Ed.2d 911.

                                                19
also in cooperation with law enforcement. (Karo, supra, at pp. 708–710.) The court held
it violated the Fourth Amendment to monitor the beeper inside a private residence
without a warrant. (Karo, supra, at pp. 714–715.)
       The Zichwic court then concluded: “For all the reasons above, we conclude that
the trial court did not err in denying defendant‟s suppression motion.” (Zichwic, supra,
94 Cal.App.4th at p. 956, italics added.)
       The record shows the officers in the present case reasonably relied on binding
precedent. While not mentioning Zichwic specifically, Officer Nee testified at the
superior court suppression hearing that he “attempted to remain current with the law on
the subject of Fourth Amendment rights and the use of electronic [trackers] for
surveillance.” He noted the Los Angeles Police Department, the Los Angeles County
and Orange County District Attorneys‟ Offices, and the Department of Homeland
Security periodically published training bulletins and legal briefs for law enforcement
personnel, which include the subject of premises entry for the purpose of attaching
electronic trackers for surveillance. The superior court believed that Officer Nee‟s
knowledge of Fourth Amendment law to be irrelevant―this is a question of law on which
we respectfully disagree.
       Defendants argue the Zichwic decision cannot be binding precedent for three
reasons. First, they contend the Fourth Amendment analysis in Zichwic presupposing the
absence of a parole search condition is merely dicta. We disagree. As we read the
opinion, the language is an alternative holding. “It is well settled that where two
independent reasons are given for a decision, neither one is to be considered mere dictum,
since there is no more reason for calling one ground the real basis of the decision than the
other. The ruling on both grounds is the judgment of the court and each is of equal
validity.” (Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 650; see 9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 512, pp. 577–578.) The Zichwic decision
devotes considerable attention to both grounds discussed, and explicitly refers to both the
search condition analysis and the “pure” Fourth Amendment analysis as the basis for its
ultimate conclusion: “For all the reasons above, we conclude that the trial court did not


                                             20
err in denying defendant‟s suppression motion.” (Zichwic, supra, 94 Cal.App.4th at p.
956, italics added.)
       Second, defendants argue the GPS used in this case presents a qualitatively more
severe intrusion into privacy than the beeper used in Zichwic. (The Zichwic opinion
consistently refers to an “electronic tracking device,” but there is at least one reference to
a “beeper.” [Zichwic, supra, 94 Cal.App.4th at p. 950.]) They refer to a passage from the
lower appellate court opinion in Jones, which described GPS technology as “a heretofore
unknown type of intrusion into an ordinarily and hitherto private enclave.” (United
States v. Maynard (D.C. Cir. 2010) 615 F.3d 544, 565 (Maynard), affd. sub nom. Jones,
supra, 181 L.Ed.2d 911.) But the passage refers to the intrusion caused by intensive,
long-term surveillance of private lives and private movements using GPS technology.
(Maynard, supra, at pp. 561–565.) For purposes of basic Fourth Amendment analysis,
the relatively short-term surveillance employed in Zichwic and the present case are
virtually indistinguishable. The officers in the case before us were entitled to believe it
was not unconstitutional to attach a GPS to the undercarriage of Castro‟s Acura and use it
to monitor his movements for a period of approximately 33 hours.
       Finally, defendants argue Zichwic is not binding precedent because in the present
case the officers did not install the GPS device from a place where they had a right to be.
Defendants stress that the officers essentially broke into the apartment garage and did not
ask the manager for permission to enter. But, as the trial court found, defendants did not
have a reasonable expectation of privacy that the garage would be free from government
intrusion. Common areas of apartment buildings, including garages, are generally not
cloaked in a reasonable expectation of privacy. (See, e.g., People v. Terry (1969) 70
Cal.2d 410, 427; Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 763 (Cowing).)
This is true even if the common areas are locked. (See, e.g., Cowing, supra, at pp. 762–
763; United States v. Correa (3d Cir. 2011) 653 F.3d 187, 190–191 (Correa); United




                                              21
States v. Barrios-Moriera (2d Cir. 1989) 872 F.2d 12, 14.)12 The locks are designed for
the security of occupants, not to provide a reasonable expectation of privacy in common
areas. (See Eisler, supra, 567 F.2d at p. 816; see also Correa, supra, at pp. 190–191.)
And a reasonable expectation of privacy does not turn on the question whether law
enforcement trespassed on the common areas. (Correa, supra, at p. 191; Nohara, supra,
3 F.3d at p. 1242.)13
         We are bound by, and agree with, the factual findings of the superior court when it
listed the factors showing a lack of a reasonable expectation of privacy in the garage:
“The number of parking spaces it had, which was 70. The vehicles could be seen from
the outside of the apartment building. There was a car gate which would remain open for
about a minute and a half after the gate was activated. Detective Nee saw the pedestrians
enter the parking lot through the open car gate. The parking lot did not connect directly
to any residential area. There was on one occasion where the pedestrian gate was
unlocked when Detective Nee tried to open it. And Detective Nee did not damage the
gate.”
         We would add the obvious inference that, assuming full occupancy of the
apartment building, the 70-space garage was accessed by at least 69 other people―and
quite possibly two to three times that much, accounting for families, significant others,
and visiting friends―all of whose comings and goings were visible from the street.
Defendants simply had no reasonable expectation of privacy in the garage, anymore than
         12
          We are aware that United States v. Carriger (6th Cir. 1976) 541 F.2d 545, 549–
552, is to the contrary. We find the position of the decisions we have cited in the text to
be more persuasive.
         13
         The only case we have found where police officers actually broke into a locked
residence is McDonald v. United States (1948) 335 U.S. 451. The court suppressed the
evidence, but it appears the officers pried open a window into a bedroom―not shimmied
open a locked door into a common area. (See Id. at pp. 458–459 [conc. opn. of Jackson,
J.].) The opinion is factually distinguishable from the case before us, and predates the
accepted body of jurisprudence establishing a lack of a reasonable expectation of privacy
in common areas. And if defendants had no reasonable expectation of privacy in the
apartment garage, we do not believe the officers‟ trespass amounted to a violation of the
Fourth Amendment.


                                             22
they would if the Acura were parked in a private driveway visible from the public
thoroughfare.
       We therefore conclude the officers in this case were acting in reasonable reliance
on binding appellate precedent―Zichwic and Knotts―authorizing their actions in
installing the GPS device and using it to monitor the Acura‟s movements.14
       Finally, we conclude the officers had probable cause to arrest defendants after they
detained their two vehicles. Probable cause to arrest exists “if facts known to the
arresting officers would lead a person of ordinary care and prudence to entertain an
honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft
(2000) 23 Cal.4th 978, 1037.) Here, the officers had conducted surveillance of
defendants Martinez, Mojica, and Ortiz-Hernandez and of the Acura, and had seen
several defendants and the occupants of the Acura casing jewelry stores. This was
consistent with the behavior of Los Angeles jewelry theft gangs. A robbery involving a
silver Acura was reported at one of the areas where the defendants had been casing. The
Acura was in Burlingame close to the time of the Huang jewelry robbery, and left
Burlingame for Los Angeles driving in tandem with the Chrysler driven by Ortiz-
Hernandez. The license plates of both vehicles were loosely attached, and presumably
could be easily removed. Given the officers‟ expertise with the behaviors of jewelry theft
gangs, and these observable facts, we agree with the magistrate and the superior court
that the officers had sufficient probable cause for the arrest of defendants―and to search
the vehicles incident to those arrests. “If probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every part of the vehicle and its contents that
may conceal the object of the search.” (United States v. Ross 1982) 456 U.S. 798, 825;
see Chambers v. Maroney (1970) 399 U.S. 42, 48–52.)15


       14
           We therefore reject the arguments of some defendants that the traffic stop of
their two vehicles was unconstitutional because it was tainted by the unconstitutional
installation and use of the GPS device to find the Acura.
       15
          In light of our conclusion based on these authorities we need not address any
issues raised by Arizona v. Gant (2009) 556 U.S. 332.


                                              23
      In light of the foregoing, the motion to suppress evidence in superior court was
properly denied.
                                 III. DISPOSITION
      The judgments are affirmed.




                                                ______________________
                                                 Margulies, Acting P.J.


We concur:


______________________
 Dondero, J.

______________________
 Banke, J.




                                           24
