Filed 6/27/16 P. v. Reisweig CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C080075

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF130576B)

         v.

BRAD REISWIG,

                   Defendant and Appellant.




         After the motion to suppress the evidence against him was denied, defendant Brad
Reiswig pled no contest to possessing for sale a controlled substance. The court placed
him on informal probation for five years. On appeal, defendant contends: (1) we should
review the police personnel records considered by the trial court its in-camera review,
and if appropriate, order them produced; and (2) the trial court erred in denying his
motion to suppress evidence. As to the second issue, he contends his detention was not
based on reasonable suspicion, there was no valid inventory search of the truck in which



                                                             1
he was a passenger, and his detention during the inventory search was unconstitutionally
prolonged.
       We agree in part and disagree in part. First, our review of the police personnel
records shows no abuse of discretion. Second, as to defendant’s motion to suppress
evidence, defendant’s detention was unlawful, so any evidence obtained from the search
of his person must be suppressed as “fruit of the poisonous tree.” Therefore, we reverse
the trial court’s denial of defendant’s motion to suppress to that extent. However,
defendant did not have a legitimate expectation of privacy in the truck or its contents
sufficient to permit him to contest the reasonableness of the inventory search. Therefore,
we affirm the court’s denial of defendant’s motion to suppress with respect to evidence
found in the truck.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On January 20, 2015, Stockton Police Officer Richard Oster and his partner,
Officer Melissa White, were riding in a marked patrol car, responding to a missing person
report. As they reached their destination and pulled up to the curb and parked, a small
white pickup truck also pulled up and parked approximately 50 feet in front of their
patrol car. Neither officer had activated the lights or siren as they had not made any
effort to pull the truck over. As the officers got out of their patrol car, the driver of the
truck also got out and walked back toward them and asked if they were there for him.
Officer Oster told the driver he was not there for him, so the driver walked away in the
opposite direction. Officer Oster did not notice anyone else in the truck. Officer Oster
walked to the nearby house regarding the unrelated missing person report.
       About 45 minutes later, Officer Oster returned to the patrol car and was
approached by a woman who lived next door to the house he just left. She said that
someone was in her backyard and she was afraid this stranger was going to break into her
house. The officers investigated and found a man hiding in the backyard. Officer Oster
detained the man and took him back to his patrol car. Officer Oster asked the man for his

                                               2
name and what he was doing in the backyard. The man identified himself and explained
he was hiding because he thought the officers were there for him because he had a
suspended license. At that point, Officer Oster recognized him as the driver of the truck.
Officer Oster ran his driver’s license information and confirmed his driver’s license was
suspended and the registration on the truck had expired. Officer Oster told the driver that
his truck would be towed. He chose to have the truck towed because the vehicle
registration was over six months expired and the driver was operating it with a suspended
license.
       Officer Oster’s partner, Officer White, went to check the vehicle and discovered
defendant sitting in the passenger seat. This was the first time Officer Oster realized that
there was somebody else in the truck. Officer Oster considered defendant detained at that
point although he did not have reason to believe defendant had committed a crime. It
was standard procedure to remove occupants during a pretow inventory search for officer
safety reasons. When asked why defendant was detained during the vehicle search,
Officer Oster replied, “When we do searches of the vehicle, we don’t just allow people to
wander away in case we found something that would indicate that they committed a
crime,” adding it was standard out of concern for officer safety.
       At the suppression hearing, defendant testified that Officer White “was startled
when she saw me” and “[s]he asked me to get out. I got out and she said to sit down on
the curb until we figure this out. I go ‘what’s going on?’ She said, ‘sit there and we’ll
figure this out.’ ”
       Officer White stayed with defendant while Officer Oster conducted the inventory
search of the truck. Officer Oster located a brown backpack on the passenger side
floorboard and inside it was a little black pouch containing a scale and a “white crystal-
like substance” that he believed was crystal methamphetamine. Officer Oster arrested
defendant due to his proximity to the contraband while sitting in the truck, and then
conducted a search of defendant’s person incident to arrest. Officer Oster found in

                                             3
defendant’s pocket a small scale and a foam note that stated that the author of the note
“needed to sell three sacks.” 1
       Officer Oster testified that the time between finding defendant inside the truck and
his arrest was “approximately three to five minutes.” Defendant estimated the time
between when Officer White took him to the patrol car and when Officer Oster searched
him as “[t]en minutes, maybe.”
                                       DISCUSSION
                                              I
             The Court Did Not Abuse Its Discretion In Denying Defendant’s
                   Discovery Request Of The Police Personnel Records
       Defendant filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d
531 for discovery of police personnel records and citizen complaints against Officers
Oster and White for dishonesty. The trial court granted the motion regarding Officer
Oster, but not Officer White, and determined in an in camera hearing that there were no
discoverable materials that needed to be produced to defendant.
       “[B]oth Pitchess and the statutory scheme codifying Pitchess require the
intervention of a neutral trial judge, who examines the personnel records in camera, away
from the eyes of either party, and orders disclosed to the defendant only those records
that are found both relevant and otherwise in compliance with statutory limitation.”
(People v. Mooc (2001) 26 Cal.4th 1216, 1227.) “The statutory scheme carefully
balances two directly conflicting interests: the peace officer’s just claim to
confidentiality, and the criminal defendant’s equally compelling interest in all
information pertinent to the defense.” (City of San Jose v. Superior Court (1993) 5
Cal.4th 47, 53.) “A trial court’s decision on the discoverability of material in police



1      Officer Oster described the object as a “small rectangular piece of foam, not like
paper, but spongy orange foam that had writing on it.”

                                              4
personnel files is reviewable under an abuse of discretion standard.” (People v. Jackson
(1996) 13 Cal.4th 1164, 1220.)
       Our review of the in camera hearing and police personnel records of Officer Oster
show that there were no records or citizen complaints regarding dishonesty, and that the
trial court therefore did not abuse its discretion in denying defendant’s discovery request.
                                               II
                         Defendant’s Motion To Suppress Evidence
       Defendant contends that the trial court abused its discretion when it denied his
motion to suppress evidence because his detention was unlawful and unconstitutionally
prolonged, and the inventory search of the truck was invalid.
                                               A
                                     Standard Of Review
       A defendant may move to suppress as evidence any tangible or intangible thing
obtained as a result of a search or seizure where the warrantless search or seizure was
unreasonable. (Pen. Code, § 1538.5, subd. (a)(1)(A).) “ ‘A warrantless search is
presumed to be unreasonable, and the prosecution bears the burden of demonstrating a
legal justification for the search. [Citation.] “The standard of appellate review of a trial
court’s ruling on a motion to suppress is well established. We defer to the court’s factual
findings, express or implied, where supported by substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment.” ’ ” (People v. Suff (2014) 58
Cal.4th 1013, 1053.) In other words, “ ‘we view the record in the light most favorable to
the trial court’s ruling and defer to its findings of historical fact, whether express or
implied, if they are supported by substantial evidence. We then decide for ourselves what
legal principles are relevant, independently apply them to the historical facts, and
determine as a matter of law whether there has been an unreasonable search and/or
seizure.’ ” (People v. Gemmill (2008) 162 Cal.App.4th 958, 963.)

                                               5
                                               B
                   Defendant’s Detention Was Unlawful Because It Was
                          Not Supported By Reasonable Suspicion
       The Fourth Amendment prohibits unreasonable detentions of persons by law
enforcement officers. (Terry v. Ohio (1968) 392 U.S. 1, 19 [20 L.Ed.2d 889, 904]; see
also People v. Celis (2004) 33 Cal.4th 667, 673.) Our state Constitution has a similar
provision. (Cal. Const., art. 1, § 13.) Generally, a person is detained when the words and
actions of a police officer, whether by means of physical force or show of authority,
“ ‘ “restrains the liberty of a person to walk away” ’ ” and would make a reasonable
person believe that “ ‘ “he was not at liberty to ignore the police presence and go about
his business.” ’ ” (People v. Rios (2011) 193 Cal.App.4th 584, 592.)
       A detention is reasonable under the Fourth Amendment “when the detaining
officer can point to specific articulable facts that, considered in the light of the totality of
the circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) The specific
and articulable facts must cause a reasonable police officer, in a like position, drawing on
his or her training and experience, to believe activity relating to a crime has taken place,
is occurring or is about to occur, and the person he or she intends to detain is involved in
that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.) “The corollary to this rule, of
course, is that an investigative stop or detention predicated on mere curiosity, rumor, or
hunch is unlawful, even though the officer may be acting in complete good faith.” (Ibid.)
       Here, defendant contends he was detained and the People concede this point. The
issue in controversy is whether Officer White’s conduct was objectively reasonable under
the circumstances and supported by specific articulable facts that “provide some
objective manifestation that the person detained may be involved in criminal activity.”
(People v. Souza, supra, 9 Cal.4th at p. 231.) Defendant argues that he was detained



                                                6
without reasonable suspicion that he may have been engaged in criminal activity. We
agree.
         The People point to six factors the trial court relied on in denying defendant’s
motion to suppress: “(1) that the driver . . . exhibited a consciousness of guilt when first
contacting the officers; (2) [the driver] had an expired driver’s license and expired
registration, thus providing a legal basis to tow the truck and to conduct an inventory
search; (3) that [defendant] had to be removed from the truck so officers could conduct
the inventory search; (4) Officer White was startled to find [defendant] in the vehicle and
the officers needed time to figure out what was going on; (5) the inventory search led to
the discovery of the contraband; (6) the discovery of the contraband established probable
cause to arrest [defendant], and the search of [defendant’s] person was incident to arrest.”
The People contend that the trial court “believed the brief detention was objectively
reasonable under the totality of the circumstances.” The People point to the trial court’s
characterization of the detention as “essentially a law enforcement timeout” while they
tried to “figure out if there’s something else nefarious going on here.” We are not
persuaded.
         These six factors raise an objectively reasonable suspicion in the driver, but not
defendant. The People fail to identify specific articulable facts that support the
reasonable suspicion that defendant may be engaged in any criminal activity. Officer
White found defendant sitting in a parked truck -- not a per se suspicious activity.
Everything else cited by the trial court as giving rise to reasonable suspicion relates to the
conduct of the driver. However, reasonable suspicion in the driver cannot be imputed to
defendant unless there are facts that link the driver’s suspicious conduct to defendant.
Here, the People did not present facts linking defendant’s innocuous conduct -- sitting in
the truck -- with the driver’s suspicious conduct.
         The People attempt to overcome its lack of specific articulable facts by
emphasizing the need to take into account the totality of the circumstances. The People

                                               7
cite cases that support the idea that reasonable suspicion can be based on a series of
innocent activities. (See United States v. Arvizu (2002) 534 U.S. 266, 274 [151 L.Ed.2d
740, 750] [“Although each of the series of acts [in Terry] was ‘perhaps innocent in itself’
we held that, taken together, they ‘warranted further investigation’ ”]; United States v.
Sokolow (1989) 490 U.S. 1, 9 [104 L.Ed.2d 1, 11] [holding that although each of
defendant’s actions by itself might have been innocent, the totality of all the
circumstances together with all of defendant’s actions were sufficient for DEA agents to
have a reasonable suspicion that defendant was committing a drug crime].)
       This case is clearly distinguishable on its facts. For example, in Sokolow, the
innocent acts that the court cited to support reasonable suspicion were, “(1) [defendant]
paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name
that did not match the name under which his telephone number was listed; (3) his original
destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48
hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he
appeared nervous during his trip; and (6) he checked none of his a luggage.” (United
States v. Sokolow, supra, 490 U.S. at p. 3 [104 L.Ed.2d at pp. 7-8].) The court reasoned
that “any one of these factors is not by itself proof of any illegal conduct and is quite
consistent with innocent travel. But we think taken together they amount to reasonable
suspicion.” (Id. at p. 9 [104 L.Ed.2d at p. 11].)
       Another example is found in our Supreme Court’s reasoning in Souza, where the
officer, on patrol in “total darkness” at 3:00 a.m. in a high-crime area “known for
burglary and drug activities,” discovered two people talking to the occupants of a car and,
when he directed his spotlight on the group, the car’s occupants bent down while the
defendant immediately fled. (People v. Souza, supra, 9 Cal.4th at pp. 242, 228.) The
court found that these facts “justified a brief, investigative detention to enable the officer
to resolve the ambiguity in the situation and to find out whether the activity was in fact
legal or illegal.” (Id. at p. 242.)

                                               8
       Here, the People failed to cite a series of “innocent acts” attributable to defendant
that, taken together, constitute a basis for a finding of reasonable suspicion that defendant
may be engaged in wrongdoing. The only fact concerning defendant’s conduct was that
he was found sitting in a parked vehicle for an unknown amount of time. The trial court
incorrectly relied on the driver’s suspicious conduct as a basis for finding reasonable
suspicion in defendant.
       In its ruling, the court acknowledged that defendant was not seen in the truck prior
to Officer White’s start of the inventory search, yet it stated that “there’s circumstantial
evidence that he was in the [truck] for that [45 minute] time period.” The court reasoned,
“It just fits with the facts that the co-defendant essentially abandoned -- it appears
abandoned [defendant] and went. And when all of a sudden they see [defendant] there,
the officers have got to figure out what’s going on. They know that one occupant of the
vehicle went and hid in the backyard of someone [who] he didn’t know for a 45-minute
period, and then all of a sudden there’s this other person who at least the officers
appeared to have [thought] stayed in that vehicle. That’s odd.” The court characterized
defendant’s detention as a “law enforcement timeout” so the officers could figure out if
something else nefarious was going on. Defendant’s “odd” behavior -- sitting in a parked
truck for potentially 45 minutes -- is not by itself sufficient articulable facts that would
lead a reasonable officer, based on his training and experience, to possess a reasonable
suspicion that defendant may be engaged in criminal activity.
       Alternatively, the People argue that even if defendant was unlawfully detained, the
fruit of the poisonous tree doctrine does not apply because the search of defendant
occurred after the officers discovered drugs in the truck. The People claim the
warrantless search fell under the “search incident to arrest” exception. (See Weeks v.
United States (1914) 232 U.S. 383, 392 [58 L.Ed. 652, 655]; see also Arizona v. Gant
(2009) 556 U.S. 332, 338 [173 L.Ed.2d 485, 493].) However, absent the unlawful
detention, defendant might have left the area when ordered out of the truck, and the

                                               9
officers would not have been able to search him, unless they could have tracked him
down through further investigation. Because he was detained, he was accessible to
search. Because the detention was unlawful, the search of defendant’s person was the
fruit of that poisonous tree. Consequently, the trial court erred in denying defendant’s
motion to suppress with respect to the evidence found on his person.
       Because we find defendant’s detention to be unlawful due to the absence of
reasonable suspicion, we need not address defendant’s contention that his detention was
unconstitutionally prolonged.
                                             C
  Defendant Cannot Contest The Inventory Search Of The Truck Because He Failed To
        Assert A Legitimate Expectation Of Privacy In The Truck Or Its Contents
       Defendant contends that the People failed to meet their burden regarding a
reasonable inventory search of the truck because they failed to establish “that the
impound was necessary as part of the officers’ community caretaking function, and that
the officers were acting in conformance with departmental policy.” The People respond
that defendant “lacks standing to contest the inventory search of the vehicle” because he
had no ownership interest in the truck, and in the alternative, “assuming standing, the
suspension of the [driver’s] license coupled with the vehicle’s expired registration of the
vehicle justified the towing and inventory search of the vehicle.” We agree with the
People that defendant lacks standing to contest the vehicle search.
       “Fourth Amendment rights are personal rights which, like other constitutional
rights, may not be vicariously asserted.” (Alderman v. United States (1969) 394 U.S.
165, 174 [22 L.Ed.2d 176, 187].) “The established principle is that suppression of the
product of a Fourth Amendment violation can be successfully urged only by those whose
rights were violated by the search itself, not by those who are aggrieved solely by the
introduction of damaging evidence. Coconspirators and codefendants have been
accorded no special standing.” (Id. at pp. 171-172 [22 L.Ed.2d at pp. 185-186].)

                                             10
       The capacity to claim the protection of the Fourth Amendment does not depend
upon a property right in the invaded space but upon whether the person who claims the
protection has a legitimate expectation of privacy. (Katz v. United States (1967) 389 U.S.
347, 353 [19 L.Ed.2d 576, 583].) The burden is on the proponent of the motion to
suppress to establish that his own Fourth Amendment rights were violated by the
challenged search or seizure. (People v. Cowan (1994) 31 Cal.App.4th 795, 798.) The
moving party, by his conduct, must have “ ‘exhibited an actual (subjective) expectation
of privacy,’ . . . [and the] subjective expectation of privacy is ‘one that society is prepared
to recognize as “reasonable.” ’ ” (Smith v. Maryland (1979) 442 U.S. 735, 740 [61
L.Ed.2d 220, 226-227], citing Katz v. United States, supra, 389 U.S. at p. 361 [19
L.Ed.2d at pp. 587-588] (conc. opn. of Harlan, J.).)
       In Rakas v. Illinois (1978) 439 U.S. 128 [58 L.Ed.2d 387], police stopped and
searched a vehicle driven by robbery suspects, and found a rifle under the seat and shells
in the glove compartment. The Supreme Court held that the passengers had no legitimate
expectation of privacy in the vehicle because “they asserted neither a property nor a
possessory interest in the automobile, nor an interest in the property seized.” (Id. at p.
148 [58 L.Ed.2d at p. 433].)
       Here, defendant lacked standing to challenge the search of the truck because he
did not assert any valid ownership or possessory interest in the truck or assert a legitimate
expectation of privacy in the contents of the vehicle in general, or the brown backpack in
particular. Therefore, defendant cannot contest the validity of the inventory search of the
truck because his Fourth Amendment rights were not implicated by the search.
Consequently, the trial court did not err is denying defendant’s motion to suppress with
respect to the evidence discovered in the search of the truck.
                                       DISPOSITION
       We affirm the denial of defendant’s Pitchess discovery request for police
personnel records. The order denying defendant’s motion to suppress evidence is

                                              11
reversed in part and affirmed in part. The evidence found on defendant’s person must be
suppressed. However, the evidence found during the search of the truck was admissible.
The trial court is directed to allow defendant to withdraw his no contest plea, and if he
does, to conduct possible further proceedings consistent with our holding in this case.



                                                  /s/
                                                  Robie, J.



We concur:



/s/
Nicholson, Acting P. J.



/s/
Hoch, J.




                                             12
