Filed 8/16/16 P. v. Borger CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142682
v.
PHILIP VINCENT BORGER,                                               (Mendocino County
                                                                     Super. Ct. No.
         Defendant and Appellant.                                    SCUKCRCR1374654002)



         After he was charged with possession of methamphetamine for sale, appellant
Philip Vincent Borger moved under Penal Code section 1538.51 to suppress certain
evidence that had been seized by law enforcement officers. Once the trial court denied
the motion, Borger pleaded no contest to the charge and was placed on probation.
         On appeal, he challenges the denial of his motion to suppress. We have examined
his arguments and find them unmeritorious. Accordingly, we will affirm the order from
which this appeal is taken.
                                FACTUAL AND PROCEDURAL BACKGROUND
         In a warrant affidavit filed October 2, 2013, Officer Peter Hoyle sought a warrant
to search two properties owned by Burke Miller, one of which was 9150 Laughlin Way in
Redwood Valley. Officer Hoyle explained that in May he had executed a search warrant
there and seized 194 marijuana plants, 8.7 kilograms of processed marijuana, a scale,

1
    All further undesignated statutory references are to the Penal Code.

                                                             1
firearms, and over $47,000 and that Miller had text messages consistent with selling
drugs on his cell phone. In September, another officer had flown over the other property
and had seen marijuana. A few days later, Officer Hoyle looked at photographs from that
flyover and saw marijuana on the property. That same day, Officer Hoyle also looked at
photographs from Google Earth taken in August and saw marijuana on both of Miller’s
properties. The affidavit sought authorization to search a variety of locations, including
“all vehicles under the control of by [sic] the occupants.”
       The magistrate issued a warrant to search both properties for a variety of items,
including: marijuana; “personal property tending to establish and document the
possession, sales, and cultivation of marijuana,” “a conspiracy to cultivate and sell
marijuana,” or “the identity of persons in control of areas where said contraband may be
found” ; and “any video or audio media, any picture and text messaging, which tends to
show evidence of criminal activity pertaining to manufacture, processing or sales of
controlled substances.” The warrant also authorized a search of a number of containers
and locations, including “all vehicles under the control of by [sic] the occupants.”
       According to testimony given at the preliminary hearing, Officer Hoyle executed
the warrant at the Laughlin Way property on September 26, 2013. During the execution
of the warrant, Hoyle contacted Miller and Borger. The latter was in a bedroom in the
residence on the property. The officer spoke to Miller about a billy club that had been
found on the location and questioned him about Borger’s stay. According to Miller,
Borger was “a house guest,” a fact Borger himself acknowledged.
       Borger gave Officer Hoyle the keys to a motor home on the north end of the
property, and Hoyle’s search of the motor home revealed metal knuckles, ammunition, a
magazine for a pistol, and plastic bags that were found to contain methamphetamine.
Borger admitted to the officer that his fingerprints would be found all over the bags. In
addition to the items found in the motor home, in a bedroom in the Miller residence
Officer Hoyle discovered a camera Borger claimed was his. In the same room, there was
also a bag of clothing belonging to Borger.



                                              2
       On October 28, 2013, the Mendocino County District Attorney filed a criminal
complaint charging Borger with one count of possession of methamphetamine for sale
and one count of being a felon in possession of ammunition, the latter count being based
upon a 1976 Ohio conviction. A preliminary hearing was held on January 28, 2014, and
based upon the evidence introduced at the hearing, Borger was held to answer for
possession for sale of methamphetamine.2 An information filed January 31, 2014,
charged Borger with possession of methamphetamine for sale (Health & Saf. Code,
§ 11378).
       On April 10, 2014, Borger moved to suppress various pieces of evidence,
including the methamphetamine from his motor home. Borger contended the search of
the motor home exceeded the scope of the warrant because he was not an “occupant” of
the residence at 9150 Laughlin Way. He also argued that if the term “occupant” were
more broadly construed, the warrant would not satisfy the Fourth Amendment’s
particularity requirement. The district attorney’s opposition contended Borger was an
occupant and that the search was proper under the warrant’s vehicle provision or its
appurtenant building provision. Finally, the district attorney asserted that the evidence
should not be suppressed because Officer Hoyle had relied in good faith on the warrant.
       At the hearing on the motion to suppress, the court took judicial notice of the
preliminary hearing transcript, warrant, affidavit, and return. Borger’s counsel argued
the warrant was “tailored” to a “class of people’s vehicles who [sic] could be searched,”
and was “limited to people who had an ability to control the property” because “[t]hat’s
what ‘occupant’ means.” Thus, searching the motor home exceeded the scope of the
warrant, amounting to a warrantless search.
       The court then conducted an evidentiary hearing at which Borger testified. He
claimed he did not live at Miller’s Laughlin Way residence. He said he had arrived at
Miller’s home the day before the search in a pickup truck. By the time Borger arrived,
the motor home had already been at Miller’s property for five or six days. Borger

2
 The court found insufficient evidence of the 1976 Ohio conviction, and it therefore did
not hold Borger to answer on the possession of ammunition charge.

                                              3
planned to leave the truck and depart in the motor home. He said he had called Miller
and asked him if he could come down and do his laundry before leaving the next day for
Oregon, and Miller agreed. Borger testified he told the police the motor home was his
but refused to give the police permission to search. He testified he had had a video
camera that “contained some pictures of a garden” and some “other pictures.” Borger
denied possessing the methamphetamine.
       Officer Hoyle testified that the property was approximately two acres, with a
residence at the southern edge. When he executed the warrant, the motor home was
“probably 250 feet or so, maybe a little further” from the residence and about 100 feet
from a workshop. The motor home appeared to be mobile, as it was not tethered to
utilities, was not surrounded by the kind of clutter he had seen when such vehicles have
been converted into residences, and was not on blocks.
       When Officer Hoyle executed the warrant, Borger was in a bedroom in the house.
A camera in that room had images of a marijuana garden. The officer asked Borger
about the camera, and Borger admitted it was his. The officer also asked about access to
the motor home, and “[t]here was some conversation that he’d been staying there for a
couple of days at the residence.” The officer searched the motor home “because [Borger]
claimed to be a short-term resident – or occupant of the residence. [¶] [The officer]
suspected that Mr. Miller was involved in a large-scale marijuana operation,” and he
knew “that the person in charge or the owner many times has people working for him,”
including as guards, and that motor homes are used by guards and to transport marijuana.
Based on Borger’s admission that the camera with the images of a marijuana garden was
his, Officer Hoyle “believed he had some ties to the marijuana garden; and, as such, . . .
wanted to search the vehicle to see if there was marijuana in the vehicle.”
       During argument on the motion, Borger’s counsel stressed that Borger was not an
“occupant.” He argued the warrant would be overbroad if it were not construed to
require “control and dominion” by a person living at the property. The district attorney
responded “that an occupant includes anyone who’s occupying the residence, not just an
owner, but a houseguest as well.” She also asserted probable cause to search existed


                                             4
based on “an automobile exception to the warrant [requirement].” Borger’s counsel
noted the automobile exception had not been briefed and asked for time to brief the issue
and argued there was not probable cause as to the motor home.
       The court found Borger had left “the motor home on the property several days
beforehand. He was sleeping there. His personal effects were there. He can exercise
some dominion and control over whether someone’s going to go into his room or over the
premises in general. If the owner or occupant’s gone, he would be the one in charge, I
think, that’s a natural inference. [¶] So I think that for purposes of the Fourth
Amendment issues presented, that he is an occupant and, therefore, the mobile home is
within the scope of the warrant as a vehicle of an occupant that’s on the premises. And
it’s on that basis that I’m going to deny the motion to suppress.” The court said it did not
need to reach the district attorney’s automobile exception argument.
       On May 15, 2014, Borger pleaded no contest to the charge. On July 22, 2014, the
court placed Borger on probation. Borger then filed a timely appeal.3
                                        DISCUSSION
       Borger raises a single argument on appeal. He contends the trial court erred in
denying his motion to suppress the evidence found in his motor home. As we explain, we
find no merit to his contentions.
I.     Standard of Review
       “In reviewing the trial court’s ruling on the suppression motion, we uphold any
factual finding, express or implied, that is supported by substantial evidence, but we
independently assess, as a matter of law, whether the challenged search or seizure
conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27
Cal.4th 287, 327.) “Thus, while we ultimately exercise our independent judgment to
determine the constitutional propriety of a search or seizure, we do so within the context
of historical facts determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952,

3
 Although defendant pleaded no contest to the charged offense, his appeal is authorized
even in the absence of a certificate of probable cause. (Cal. Rules of Court,
rule 8.304(b)(4)(A).)

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979.) We must view the evidence in the light most favorable to the order denying the
motion to suppress, and we must accept the trial court’s resolution of disputed facts and
its assessments of credibility. (Ibid.) We are bound by the trial court’s factual findings
even though we might have reached a different conclusion had we been the finders of
fact. (People v. Woods (1999) 21 Cal.4th 668, 674.)
II.    Substantial Evidence Supports the Trial Court’s Finding that Borger Was an
       “Occupant” of Miller’s Property.
       Borger notes he was not named in the warrant and that it does not describe the
personal property of anyone other than Miller, except for its reference to “all vehicles
under the control of . . . the occupants.” Relying on Martin Marietta Corp. v. Insurance
Co. of North America (1995) 40 Cal.App.4th 1113 (Martin Marietta), an insurance
coverage case, and the opinion in McNeece v. Wood (1928) 204 Cal. 280, Borger
contends he was not an “occupant” of Miller’s residence because there was no evidence
he had a right to possess or control the premises.
       We find these cases entirely inapposite. Martin Marietta discussed the definition
of the word “occupancy” in an insurance policy, but in the end, the court decided it did
not need to determine the scope of coverage under the term and concluded the phrase in
which the word was used, “ ‘other invasion of the right of private occupancy,’ ” was
subject to numerous interpretations. (Martin Marietta, supra, 40 Cal.App.4th at p. 1134.)
The case therefore has no bearing on the question before us. McNeece v. Wood, a case
involving the forfeiture of a lease, concerned the interpretation of the term “occupant” as
used in the Volstead Act. (McNeece v. Wood, supra, 204 Cal. at p. 285.) The Volstead
Act was the “national prohibition law . . . intended to prevent the manufacture and sale of
intoxicating liquors for beverage purposes.” (United States v. Yuginovich (1921) 256
U.S. 450, 460.) Discussing the term “occupant,” the California Supreme Court made
clear it was construing the word only as it was used in the Volstead Act, explaining, “It
may well be questioned whether an employee or a guest or a licensee of the lessee or
tenant in possession is an ‘occupant’ of the premises as contemplated by the section
relied upon.” (McNeece v. Wood, supra, 204 Cal. at p. 285, italics added.)


                                             6
       Neither the meaning of a similar term in an insurance policy nor the intent of a
long-ago Congress in including the word “occupant” in the Volstead Act is of any
relevance here. As the People correctly point out, “[t]echnical requirements of elaborate
specificity once exacted under common law pleadings have no proper place” in the
context of search warrants. (Illinois v. Gates (1983) 462 U.S. 213, 235.) Instead, “the
warrant’s language must be read in context and with common sense.” (People v.
Eubanks (2011) 53 Cal.4th 110, 134.)
       Although we have found no California case construing the term “occupant” in a
warrant, the People refer us to People v. Sinclair (1974) 36 Cal.App.3d 891 (Sinclair).
Sinclair considered whether a deputy sheriff who entered a residence in response to
report of a burglary, encountered the burglar, struggled with him at the front door, and
was stabbed by the burglar was an “occupant” for purposes of the then-existing burglary
statute, which provided greater punishment if the defendant intentionally inflicted great
bodily injury on an occupant.4 (Id. at pp. 894-895 & fn. 2.) The defendant contended the
statutory term “occupant” “has a special meaning which includes some kind of a
possessory right, but in any event does not include persons in the position of [a deputy
sheriff] who was present only temporarily while in the performance of his official
duties.” (Id. at p. 895.) The Sinclair court disagreed, explaining, “In our opinion the evil
which the Legislature intended to reach by the 1967 amendment of Penal Code section
461 was the evil of inflicting ‘great bodily injury’ on human beings during the course of a
burglary and the word ‘occupant’ was intended to refer to any human being who was
present within the ‘premises burglarized,’ i.e., the structure, even though temporarily
there, as distinguished from someone who might be on the real property, but outside the
structure. In our opinion the word ‘occupant’ was not intended to distinguish between
people who held some type of legal possessory interest and those who did not.” (Id. at


4
  With no apparent sense of irony, Borger, who places great reliance on a case decided
under the Prohibition-era Volstead Act, calls the far more recent statute construed in
Sinclair “antiquated.” We find the reasoning of Sinclair sound, the age of the statute
there at issue notwithstanding.

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p. 897.) The court went on to note that the term occupant is “ ‘not always susceptible of
precise definition, its meaning varying according to the context[.]’ ” (Ibid.)
       Like the court in Sinclair, we decline to apply an overly technical definition to the
term “occupant” as used in the search warrant. We further agree that the word
“occupant” is not limited to those who have a legal possessory interest in the property.
(See Sinclair, supra, 36 Cal.App.3d at p. 897.) Here, the trial court specifically found
Borger was able to exercise some dominion and control over his room and over the
premises in general. That finding is supported by substantial evidence, and we conclude
Borger met the common-sense definition of an “occupant.” Moreover, since the police
could hardly have been expected to know the precise details of Borger’s relationship to
Miller or the extent of Borger’s right to be present on Miller’s property, they would have
been hard pressed to describe Borger’s status “with any greater particularity[.]” (People
v. Bryant (2014) 60 Cal.4th 335, 370.) We hold “ ‘the breadth of the warrant . . . was
commensurate with the scope of the investigation.’ We therefore conclude the language
in the challenged warrant[] . . . was sufficiently particularized under the circumstances[.]”
(People v. Eubanks, supra, 53 Cal.4th at p. 135.)
III.   Because Borger Was an “Occupant” Within the Meaning of the Warrant, Case
       Law Regarding Searches of Nonresidents Is Irrelevant.
       Borger also contends he lacked a sufficient relationship to Miller’s property to
allow a search of his personal effects under authority of the warrant. He contends he was
not a resident of the property. He agrees that if he had been a “ ‘resident’ ” found at
home during the execution of a search warrant, “his personal effects could be searched if
they were ‘. . . plausible repositories of the contraband described in the warrant.’ (People
v. McCabe (1983) 144 Cal.App.3d 827, 830 [McCabe].)” But Borger argues a
nonresident’s personal property may be searched “only if someone within the premises
has had an opportunity to conceal contraband within the personal effects of the
nonresident immediately prior to the execution of the search warrant.” (Ibid.) He asserts
there was no evidence anyone could have concealed marijuana in his motor home
immediately prior to Officer Hoyle’s arrival.


                                             8
       There are a number of flaws in Borger’s argument. Initially, we note it is
premised on a wholesale acceptance of his testimony at the suppression hearing. He
contends he was not a resident of Miller’s property because he rented a cabin elsewhere
and was visiting Miller only temporarily to do his laundry. He did so testify, but the trial
court was not obligated to accept Borger’s version of events. In addition, Borger’s
objection that he was not a “resident” of Miller’s property seems to us beside the point.
The warrant at issue here permitted a search of all vehicles under the control of occupants
of the property. We have already determined Borger met the definition of an occupant as
described in the warrant. Thus, whether Borger was a resident—whatever that term
might mean in this context—is not relevant to our analysis. As a result, we need not
explore whether there was evidence someone on the premises had an opportunity to
conceal contraband in Borger’s effects immediately prior to Officer Hoyle’s execution of
the warrant. (Cf. McCabe, supra, 144 Cal.App.3d at p. 830.) Instead, we may simply
rely on the trial court’s finding that Borger was an occupant of Miller’s property to
conclude the search of Borger’s motor home was within the scope of the warrant.
IV.    Borger Forfeited Any Argument Regarding the Search of His Camera, and the
       Argument Is Meritless Even if Properly Preserved.
       On appeal, Borger seeks to raise an argument he did not make below. He
contends the “warrantless search” of his camera was unlawful. He specifically concedes
that the issues during the suppression hearing did not include “the legality of the search
of [his] camera.” He further acknowledges that his counsel below “challenged only the
scope of the search warrant and the search of appellant’s motor home.” Despite these
concessions, Borger argues his counsel did not forfeit any issue concerning the search of
the camera. We disagree.
       A motion to suppress under section 1538.5 “shall be made in writing and
accompanied by a memorandum of points and authorities and proof of service. The
memorandum shall list the specific items of property or evidence sought to be . . .
suppressed and shall set forth the factual basis and the legal authorities that demonstrate
why the motion should be granted.” (§ 1538.5, subd. (a)(2), italics added.) In making


                                             9
such a motion, “defendants must specify the precise grounds for suppression of the
evidence in question[.]” (People v. Williams (1999) 20 Cal.4th 119, 130.) They may not
“lay a trap for the prosecution by remaining completely silent until the appeal” about
matters they should have presented to the trial court. (Id. at p. 131.) Here, Borger’s
motion included a list of items he sought to have suppressed, but neither the camera nor
the photographs on it are among them. We therefore conclude Borger has forfeited any
claim regarding suppression of the camera by failing to raise it below.5
       Even if Borger’s argument had been preserved, it would be meritless. He
contends the evidence found in his motor home was the product of the unlawful search of
his camera. Borger apparently argues that Officer Hoyle was led to search the motor
home by the photographs of a marijuana garden found on appellant’s camera. Officer
Hoyle’s motive for searching the motor home is not relevant. As the United States
Supreme Court has explained, “[s]ubjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.” (Whren v. United States (1996) 517 U.S. 806, 813.)
The issuing magistrate had already made the necessary probable cause determination and
had concluded the search could extend to the vehicles of occupants. Thus, the only
relevant question was whether Borger was an occupant. On its face, the warrant
authorized Hoyle to search the vehicles of occupants, and as we have previously
explained, substantial evidence supports the conclusion that Borger was an occupant.
       Furthermore, the search of the camera was lawful. As the People point out in their
brief, the camera fell within the express terms of the warrant, which authorized the search
and seizure of “any video or audio media, any picture and text messaging, which tends to
show evidence of criminal activity pertaining to manufacture, processing or sales of


5
  Borger claims his counsel did not have the opportunity to challenge the legality of the
search of his camera, but he cites to nothing in the record that would support this claim.
He also contends the trial court’s “refusal to allow [his] counsel to brief the issues
concerning probable cause to search the motor home made any further attempt to address
this issue an exercise in futility.” But the trial court’s ruling clearly indicated it did not
reach the probable cause issue. Thus it is unclear to us how further briefing on this issue
could have affected the trial court’s ruling, and Borger offers no explanation.

                                              10
controlled substances.” Despite the People’s argument, Borger does not even respond to
this point in his reply brief. We therefore conclude that even if Borger’s claims regarding
the search of the camera had been properly presented, they would fail.6
                                       DISPOSITION
       The order denying the motion to suppress is affirmed.




                                                        _________________________
                                                        Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




6
  Our determination that the argument is meritless obviates the need to address Borger’s
claim of ineffective assistance of counsel based on failure to include the camera in the
motion to suppress. And since we uphold the search on other grounds, we also need not
address the parties’ contentions regarding the automobile and good faith exceptions to the
exclusionary rule. (See California v. Acevedo (1991) 500 U.S. 565 [automobile
exception]; United States v. Leon (1984) 468 U.S. 897 [good faith exception].)

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