Filed 5/27/14 P. v. Glass CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063968

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245337)

KEVIN T. GLASS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Earll M. Pott, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
       Kevin Glass was charged with three counts of commercial burglary (Pen. Code,

§ 459)1 and one count of possession of methamphetamine (Health & Saf. Code,

§ 11377). After his motion to suppress evidence under section 1538.5, and a renewed

motion to suppress evidence under section 1538.5, subdivision (i), were both denied, he

pleaded guilty to one count of commercial burglary pursuant to a plea agreement.

       On appeal, Glass argues his motions to suppress should have been granted because

a Global Positioning System (GPS) device was placed on codefendant Jeffrey Wellnitz's

truck without a warrant, and this search violated Glass's Fourth Amendment rights

because Glass was a passenger in, and/or the driver of, Wellnitz's truck during the time

the GPS device was attached to it.

                                             I

            TRIAL COURT PROCEEDINGS ON MOTION TO SUPPRESS

       Glass moved to suppress all evidence obtained as the result of information

obtained from the GPS tracking device attached to Wellnitz's truck.

       A. Evidence Relevant to Motion to Suppress

       The testimony at a preliminary evidentiary hearing, which served as the factual

showing for Glass's motion to suppress, showed that in late November or early December

2012, police received two anonymous tips through a "Crime Stoppers" tip line that

Wellnitz was involved in thefts of copper in Poway, California. After San Diego

Sheriff's detective O'Brian verified Wellnitz was on probation and, as a condition thereof,



1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
had agreed to a Fourth Amendment waiver permitting warrantless searches of his vehicle,

and after verifying Wellnitz was the registered owner of a Dodge Ram pickup truck (the

truck), a sheriff's deputy placed a GPS monitoring device on the truck early in December

2012 without obtaining a warrant. The device would send a text message to O'Brian

when the truck was being driven, but would not show the identity of the driver. When

alerted, authorities would typically perform a spot check to see who was driving.

       On December 20, 2012, O'Brian followed the truck and saw Wellnitz remove

materials from a dumpster O'Brian knew was used as a repository for copper recycling

from nearby buildings. O'Brian followed the truck when it went to the Carmel Mountain

area of San Diego and, after momentarily losing sight of it, found it parked near a

business called "NuLite." When Wellnitz drove away, O'Brian directed Deputy Dollick

to make a traffic stop of Wellnitz. Dollick made the stop and eventually cited Wellnitz

for driving without a license. During the stop, Dollick observed and photographed the

contents of the truck bed. There was a tool bag, later identified as belonging to NuLite,

in the truck bed.

       Two days later, O'Brian went to a building undergoing deconstruction in Rancho

Bernardo that was surrounded by a secure fence. He saw Wellnitz's truck in the parking

lot and saw Wellnitz climb the fence and return to the truck. Wellnitz backed the truck

up to a gate and Glass began handing copper wire over the fence to him. After they

finished loading, Glass drove himself and Wellnitz to a recycling center in Poway.

O'Brian learned no one had permission to be in the building or to take materials from the



                                             3
building, and an employee told O'Brian that a yellow vest had been taken without

permission.

       On December 27, the GPS device alerted O'Brian that the truck was again at the

building in Rancho Bernardo. O'Brian went to the building and saw Wellnitz back his

truck up to the fence. Glass and Wellnitz handed material through the fence and loaded it

into the truck. O'Brian later saw Glass drive the truck away from the building.

       At 4:45 a.m. the next day, the GPS device again alerted O'Brian that Wellnitz's

truck was at the building in Rancho Bernardo. O'Brian arrived about an hour later and

saw the truck parked in a parking lot next to the building. Deputy Harrison, who relieved

O'Brian to keep watch on the truck, later saw Glass (wearing a construction safety vest)

open a gate to allow Wellnitz to drive it inside the fenced area. A short time later,

Harrison saw Glass open the gate and the two men left in the truck, with Wellnitz driving.

Harrison followed them to a Home Depot, where he saw them stripping wire in the bed of

the truck. When they finished, Wellnitz drove the two of them to a recycling center.

       On December 30, the GPS device alerted O'Brian that Wellnitz's truck had

returned to the building in Rancho Bernardo. O'Brian went to the site and saw Wellnitz's

truck inside the fenced area driving eastbound. A deputy stopped the truck, then being

driven by Wellnitz, ordered Wellnitz to the ground, and also detained Glass. The back of

the truck was filled with wire. O'Brian searched Glass, who had shed a yellow vest he

had been wearing, and found drugs along with a key that fit a new padlock used to close a

previously made cut in the chain securing the gate.



                                             4
       The GPS tracker was removed from the truck at the time of the arrest. Deputies

became aware of the presence of the truck at construction sites most of the time because

they received the GPS alert.

       Glass testified he and Wellnitz were best friends and lived together at a townhome.

Glass knew Wellnitz was on probation and had executed a Fourth Amendment waiver.

Beginning on December 21, 2012, Glass started driving Wellnitz's truck. On some

occasions, Glass drove it without Wellnitz being present but with his permission. Glass

did not have a set of keys but instead used Wellnitz's keys to drive the truck.

       B. Trial Court Rulings

       The court agreed the use of the GPS constituted a search, but denied Glass's

motion to suppress evidence because he did not have standing to challenge the search; he

had no reasonable expectation of privacy. The court also denied Wellnitz's motion to

suppress evidence. Glass and Wellnitz renewed the motion to suppress, pursuant to

section 1585.5, subdivision (i), arguing (1) the Fourth Amendment waiver did not grant

authorities permission to attach a GPS device to Wellnitz's truck without a warrant or

without notice to him; (2) even if Wellnitz's waiver was considered consent to placing a

GPS device on the truck, the prolonged use of the device was arbitrary, capricious and

harassing conduct; and (3) Glass had standing to challenge the violation of Wellnitz's

rights to be free of unreasonable searches. The court found attaching the GPS device to

Wellnitz's truck and monitoring it was a search, but the Fourth Amendment waiver

constituted implied consent by Wellnitz to the search. The court found that leaving it on

the truck for three weeks was not harassment because Wellnitz was not even aware of the

                                             5
monitoring, and it was not arbitrary and capricious because police had legitimate

investigatory reasons for the search. The court found Wellnitz had waived his

expectation of privacy as to searches of his truck and therefore denied the motion to

suppress as to Wellnitz.

       The court then considered Glass's claim. The court found he had no possessory or

ownership interest in the truck at the time the GPS was placed on it. Glass's only interest

in the truck arose when he drove it without Wellnitz being present, but he had no

possessory interest in it at all when he accompanied Wellnitz in the truck. Accordingly,

on those occasions when Glass and Wellnitz were traveling together, Glass had no

protectable interest in the truck itself that could supersede Wellnitz's implied consent to a

search of the truck itself, and therefore Glass did not have standing to complain the truck

was searched through the GPS monitoring.

                                               II

                                         ANALYSIS

       A. Standard of Review

       " ' "An appellate court's review of a trial court's ruling on a motion to suppress is

governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial

court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies

the latter to the former to determine whether the rule of law as applied to the established

facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these

inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's

resolution of the first inquiry, which involves questions of fact, is reviewed under the

                                               6
deferential substantial-evidence standard. [Citations.] Its decision on the second, which

is a pure question of law, is scrutinized under the standard of independent review.

[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is

however predominantly one of law, . . . is also subject to independent review." ' "

(People v. Ayala (2000) 23 Cal.4th 225, 255.)

       B. Relevant Substantive Framework

       The government's installation of a GPS device on a target's vehicle, when coupled

with the use of that device to monitor the vehicle's movements, is a search within the

meaning of the Fourth Amendment's proscription against unreasonable searches. (U.S. v.

Jones (2012) ___ U.S. ___ [132 S.Ct. 945, 949, 951 & fn. 5] (Jones).) Because

installation of a GPS device fell squarely within the traditional common law trespassory

test for a search, Jones found it unnecessary to decide whether the target also had a

reasonable expectation of privacy either in the exterior of the vehicle itself or in the

vehicle's locations on the roadways, both of which were visible to anyone, and therefore

rejected the government's argument that the search was valid because it did not violate

the reasonable expectation of privacy test enunciated in Katz v. U.S. (1967) 389 U.S. 347

for whether information gathered by a monitoring device installed without trespass could

constitute a "search" under the Fourth Amendment. (Jones, at pp. 950-951.)

       Jones was also careful to explain why two post-Katz "beeper" cases, U.S. v. Knotts

(1983) 460 U.S. 276 and U.S. v. Karo (1984) 468 U.S. 705, were consistent with the

conclusion in Jones. The government argued in Jones that, under Knotts and Karo,

installation of a GPS device on a target's vehicle was not a search, and no warrant was

                                              7
required. (Jones, supra, 132 S.Ct. at p. 951.) In Knotts, the court addressed the narrow

issue of whether the monitoring of beeper signals require a warrant. (Knotts, at p. 285.)

The Knotts court concluded that monitoring a beeper placed in a container, which was

used to track the movement of a vehicle transporting the container, was not precluded by

the Fourth Amendment because the information obtained "amounted principally to the

following of an automobile on public streets and highways." (Id. at p. 281.) Knotts

observed that "[a] person travelling in an automobile on public thoroughfares has no

reasonable expectation of privacy in his movements from one place to another . . .

[because] he voluntarily conveyed to anyone who wanted to look the fact that he was

travelling over particular roads in a particular direction, the fact of whatever stops he

made, and the fact of his final destination when he exited from public roads onto private

property" (id. at pp. 281-282), and reasoned the use of a beeper to obtain the same

information did not violate any reasonable expectation of privacy and therefore the

monitoring did not require a warrant. (Id. at pp. 282-283.) Jones concluded Knotts was

correctly decided but was distinguishable because, unlike the facts presented in Jones, the

owner of the container in Knotts had consented to the placement of the beeper into the

container (and the defendant in Knotts did not challenge the installation of the beeper)

while the defendant in Jones had standing to challenge the trespassory invasion of his

property required to install the GPS device. (Jones, at pp. 951-952.)

       In Karo, the court examined the issue not addressed by Knotts: whether

monitoring a beeper, installed in a container with the consent of the original owner,

constitutes a search or seizure within the meaning of the Fourth Amendment when the

                                              8
container is delivered to a buyer having no knowledge of the presence of the beeper.

(U.S. v. Karo, supra, 468 U.S. at p. 707.) As Jones recognized, the Karo court concluded

the target "accepted the container as it came to him, beeper and all, and was therefore not

entitled to object to the beeper's presence" (Jones, supra, 132 S.Ct. at p. 952), and Karo

reasoned that because "no Fourth Amendment interest of Karo . . . was infringed by the

installation of the beeper . . . any impairment of their privacy interests that may have

occurred was occasioned by the monitoring of the beeper." (Karo, at p. 713, fn. omitted.)

Karo, relying on Knotts, reasoned that any monitoring of the beeper to track the

movements of the automobile merely revealed information that "could have been

observed by the naked eye, [and therefore] no Fourth Amendment violation was

committed by monitoring the beeper during the [vehicle's] trip to the cabin." (Karo, at

p. 714.) As Jones subsequently confirmed, the court "has to date not deviated from the

understanding that mere visual observation does not constitute a search . . . [citation,]

[and] [w]e accordingly held in Knotts that '[a] person travelling in an automobile on

public thoroughfares has no reasonable expectation of privacy in his movements from

one place to another.' " (Jones, at p. 953.)

       C. Analysis

       We begin by acknowledging that, under Jones, placing the GPS device on

Wellnitz's truck and using that device to monitor the movements of Wellnitz's truck on

public thoroughfares is a "search" within the meaning of the Fourth Amendment.

However, Wellnitz consented to this search as a condition of his probation, because, as

quoted by the trial court, his probation included a Fourth Amendment waiver that

                                               9
required him to " '[s]ubmit [his] . . . vehicle . . . to search at any time, with or without a

warrant . . . .' " Such a waiver has been construed to convey consent to authorities to

conduct a warrantless search of a vehicle without notice (People v. Lilienthal (1978) 22

Cal.3d 891, 899-900), and Fourth Amendment waivers as conditions to probation have

been upheld as a valid consent to warrantless searches. (People v. Schmitz (2012) 55

Cal.4th 909, 917.) Because of his consent, Wellnitz could not claim a warrant was

required to place the GPS device on his truck. Moreover, under Knotts and Karo,

Wellnitz could not complain his Fourth Amendment rights were offended to the extent

the GPS device was used to monitor the truck's movements over public thoroughfares.

       Glass argues that, notwithstanding Wellnitz's Fourth Amendment waiver, the

length of the time the GPS device was on the truck, coupled with its round-the-clock

monitoring capacity, offended the Fourth Amendment right of a probationer to be free

from searches that are arbitrary, capricious, harassing, or undertaken in an unreasonable

manner. (See, e.g., People v. Woods (1999) 21 Cal.4th 668, 682.) As explained in

People v. Clower (1993) 16 Cal.App.4th 1737, 1741, "a parole search could become

constitutionally 'unreasonable' if made too often, or at an unreasonable hour, or if

unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct

by the searching officer." However, these observations do not assist Glass, for two

reasons. First, Glass may not assert that his arrest was the result of a violation of

Wellnitz's rights (Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [Fourth Amendment

rights are personal and may not be vicariously asserted]), but must instead prove his

arrest was the product of a violation of his own Fourth Amendment rights. (See People v.

                                               10
Madrid (1992) 7 Cal.App.4th 1888.) Moreover, even if Glass could raise this argument,

the trial court specifically found the monitoring was not harassing behavior (because

Wellnitz was not even aware of it), and was not arbitrary and capricious because police

had legitimate investigatory reasons for the search. These factual determinations are

supported by the evidence (People v. Ayala, supra, 23 Cal.4th at p. 255) and are fatal to

any claim that the length and breadth of the search became unreasonable within the

meaning of Woods, supra, 21 Cal.4th 668 or Clower, supra, 16 Cal.App.4th 1737.

       Because neither the placement of the GPS device on the truck, nor monitoring its

movements, involved a trespassory invasion of Glass's rights to be free of unreasonable

searches, Glass must demonstrate that the evidence he sought to suppress was the product

of a warrantless search which transgressed his legitimate and reasonable expectations of

privacy. However, the evidence Glass sought to suppress was evidence derived solely

from monitoring the movements of the truck on occasions when Wellnitz was at least one

of the drivers of the truck.2 As case law makes clear (see, e.g., People v. Carvajal,



2       Glass's motions to suppress below apparently did not seek to suppress any
evidence that was the product of tracking the truck when Glass was the sole driver of it,
i.e. when Glass drove the truck without Wellnitz being present. Accordingly, Glass's
reliance on People v. Leonard (1987) 197 Cal.App.3d 235 and People v Carvajal (1988)
202 Cal.App.3d 487 is inapposite. Both Leonard and Carvajal stand for the proposition
that a person who drives a vehicle with the owner's permission has a legitimate
expectation of privacy in the vehicle that may be invoked to challenge a search or seizure.
(Carvajal, at p. 495; Leonard, at p. 239.) However, as Leonard explained, "the inquiry is
not properly one of standing but is 'one involving the substantive question of whether or
not the proponent of the motion to suppress has had his own Fourth Amendment rights
infringed by the search and seizure which he seeks to challenge.' " (Leonard, at p. 239,
quoting Rakas v. Illinois, supra, 439 U.S. 129, 133, italics added.) Because Glass's
argument on appeal does not suggest he is challenging any search or seizure except to the
                                            11
supra, 202 Cal.App.3d at p. 495), Glass may challenge the searches of the truck in which

he was either a passenger while Wellnitz drove (e.g., the observations of police on

December 30 that resulted in Glass's arrest and the discovery of the contraband and stolen

material), or those searches in which both he and Wellnitz alternated the driving

responsibilities (e,.g. the observations by police on December 22, December 27 and

December 28). In each of those instances, Wellnitz was present, and Glass was

accordingly subject to the consent to search the car that arose from Wellnitz's Fourth

Amendment waiver. In analogous circumstances, the courts have adopted the "common

authority" theory of consent to permit searches of a residence occupied by a probationer

who has consented to a Fourth Amendment waiver even though a nonprobationer is also

present in the residence. (See People v. Woods, supra, 21 Cal.4th at pp. 675, 674-676

[search of residence occupied by probationer with Fourth Amendment waiver valid as

against nonprobationer because "[i]t long has been settled that a consent-based search is

valid when consent is given by one person with common or superior authority over the

area to be searched; the consent of other interested parties is unnecessary"]; People v.

Robles (2000) 23 Cal.4th 789, 798 [persons residing with probationer maintain normal

expectations of privacy over their persons and areas subject to their exclusive access or

control but "if persons live with a probationer, common or shared areas of their residence


extent he was in the truck while in Wellnitz's company, we need not determine the
question of whether a third person who did not consent to a probation waiver of Fourth
Amendment rights, but who borrowed a car owned by someone who had executed such a
waiver, would be entitled to suppress evidence that was the fruit of monitoring
movements of the truck when the probationer had ceded the truck to the sole use of the
third person.
                                             12
may be searched by officers"].) Because Wellnitz had "common or superior authority

over [the truck] to be searched" (Woods, at p. 675) and consented to the search, Glass's

challenge to the validity of the search necessarily fails.

                                       DISPOSITION

       The judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


BENKE, Acting P. J.


McINTYRE, J.




                                              13
