Filed 1/22/14 P. v. Patterson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072256

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F03027)

         v.

DINETTE EUGENE PATTERSON,

                   Defendant and Appellant.




         Defendant Dinette Patterson was convicted of being a felon in possession of a
firearm. During a traffic stop for a Vehicle Code violation, the police found a gun in his
passenger’s purse. On appeal, defendant contends the trial court erred in denying his
motion to suppress the evidence because: (1) the People were estopped from arguing that
he did not have “standing” to challenge the search of the purse; and (2) the search of the
purse was not supported by probable cause. We affirm.




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                   FACTUAL AND PROCEDURAL BACKGROUND
       On April 26, 2012, Officer Mark Callaghan of the Sacramento Police Department
was on patrol with Officer Scott Hall when they passed a vehicle driving with “dark
window tinting in the . . . front windows.” Because tinted front windows violate the
Vehicle Code, Officer Callaghan stopped the vehicle.
       In addition to the driver, the car contained a male passenger in the front seat and a
female passenger in the backseat. After the driver verbally identified himself as Dinette
Patterson (defendant), the officers returned to their patrol car to do a records check. The
check showed defendant was on probation and was driving with a suspended license.
       Both officers then reapproached the vehicle, Officer Callaghan on the driver’s side
and Officer Hall on the passenger’s side. As Officer Hall “got near the . . . rear area of
the passenger side [of the] car,” he observed movement within the car. He saw defendant
“lean a little bit towards his right” and “turn[] slightly” while the rear passenger
“appeared to reach out with her right arm as to give or receive something.” As the rear
passenger’s arm “came back,” a gold colored purse was visible in her left hand. Officer
Hall could not “tell what, if anything, was passed.”
       Meanwhile, or shortly thereafter, Officer Callaghan returned to the driver’s side of
the car and informed defendant they would be doing a probation search. Defendant said
he was not on probation. Officer Callaghan stated, “we are going to do a probation
search and you need to put your hands behind your head.” Officer Callaghan saw
defendant make “an eye movement towards the front passenger and then towards the
back passenger [¶] . . . [¶] . . . almost like he was signaling or illustrating something.”
Defendant then put his hands behind his head. Officer Callaghan removed defendant
from the car and placed him in handcuffs.
       Officer Hall told both passengers to exit the vehicle. As the female passenger
stepped out of the car, she picked up her purse. Officer Hall told her three times to set
her purse down before she finally “left her purse and stepped out of the vehicle.” When

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Officer Hall asked if the purse belonged to her, she responded, “[W]ell, it’s my purse.” A
subsequent search of the purse revealed a gun, “upside down” in the purse with a scarf
bunched over it. No other contraband was found in the vehicle.1
       Defendant was charged with being a felon in possession of a firearm and
unlawfully carrying a loaded firearm in a public place.
       Defendant moved to suppress evidence of the gun found in his passenger’s purse.
He argued (among other points) that the warrantless search conducted by the police was
unjustified because he was not on probation at the time of the search.
       The prosecutor argued defendant did not have a reasonable expectation of privacy
in the passenger’s purse because only the female passenger claimed ownership of the
purse. The prosecutor further contended defendant had no subjective expectation of
privacy in the purse because he “denied any interest in the property located inside [the
passenger’s] purse” and “purport[ed] to not know the contents of the purse.”2 The
prosecutor also argued the search of the purse was lawful because it was supported by
probable cause.
       The trial court denied defendant’s motion to suppress, finding that while
“defendant was not actually on probation at the time of the search,” “defendant had no
reasonable expectation of privacy as to someone else’s purse.”3 The court emphasized


1      In a subsequent interview with another officer, the female passenger said that
when the officers returned to their police car, defendant “reached into his front waist area
and pulled out a dark colored firearm and gave it to her.” She stated she “panicked, and
she put it in her purse.”
2       According to the People’s opposition to the motion to suppress brief, while sitting
in the backseat of Officer Callaghan’s patrol car, defendant stated, “ ‘I don’t know where
that gun came from. You just came back with that gun. It was that girl’s gun.’ ”
3      The issue of defendant’s probation status in relation to the search of the car is
irrelevant on appeal because defendant’s argument is limited to the search of the
passenger’s purse.

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that “the only person who has [a] reasonable expectation of privacy as to one’s purse
content is the owner of the purse and not someone else.” In denying defendant’s motion,
the court also suggested the search of the purse was supported by probable cause.
       Defendant subsequently pled no contest to the charge of being a felon in
possession of a firearm. He was sentenced to 16 months in prison.
                                       DISCUSSION
       Defendant makes two arguments on appeal. First, he contends the People were
estopped from arguing that he “lacked a reasonable privacy interest in the passenger’s
purse” while simultaneously charging him with possession of the gun found inside the
purse. Second, he argues the search of the purse was not supported by probable cause.
These are the only two arguments identified in defendant’s opening brief and are the only
ones we consider on appeal. To the extent defendant makes additional arguments in his
reply brief, we do not consider them because they were not contained in his opening
brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766 [“We refuse to consider the
issues raised by [the] defendant in his reply brief which were not raised in his opening
brief”]; People v. Mitchell (1995) 36 Cal.App.4th 672, 674 fn. 1 [declining to consider
arguments raised for the first time in the appellant’s reply brief].)
       Defendant contends that because he “was charged with possession of the gun
found in the passenger’s purse[,] the claim that [he] lacked a possessory interest in the
purse sufficient to permit him to challenge the search . . . is contradictory.” Thus, he
contends “the prosecution should be estopped from arguing that [he] lacked a reasonable
privacy interest in the passenger’s purse.” Defendant’s argument is unpersuasive.
       Relying on People v. Dees (1990) 221 Cal.App.3d 588, defendant contends “the
prosecution is estopped from arguing that a defendant may not challenge the search,
where the evidence tying a defendant to a crime is the same evidence that the prosecution




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argues is insufficient to establish a reasonable expectation of privacy for Fourth
Amendment purposes.” Dees, however, is inapposite. “In Dees, the prosecution
contended that a defendant’s statement to police that he owned a Cadillac was evidence
supporting his conviction for possession of the drugs the police found when they
searched the car.” (People v. Dachino (2003) 111 Cal.App.4th 1429, 1432 [summarizing
Dees].) The sole evidence tying the defendant to the crime was his statement that he
owned the car. (Dees, at pp. 597-598.) “When the defendant later denied he owned the
car, the prosecution successfully argued to the trial court that because of that denial he
lacked standing to challenge the search.” (Dachino, at p. 1432.)
       The Court of Appeal reversed and held that the People were “estopped” from
arguing that the defendant did not carry his burden to prove standing to challenge the
search. (People v. Dees, supra, 221 Cal.App.3d at p. 598.) Because the People’s
“unequivocal position was that the car and its contents belonged to [the defendant]
because he said so,” “the People in effect conceded [his] connection to the car and his
expectation of privacy therein.” (Ibid.) Thus, “the prosecution could not take the
contradictory positions that his admission of ownership was evidence of his guilt and his
subsequent disavowal of ownership defeated his Fourth Amendment interest.” (People v.
Dachino, supra, 111 Cal.App.4th at p. 1432 [summarizing Dees].)
       Defendant’s case is distinguishable from Dees. Whereas in Dees the fundamental
inconsistency was the prosecution’s contradictory argument that the defendant both
owned the car and did not own the car, the People here make no such contradictory
argument. Instead, the People have consistently contended defendant did not own the
purse where the gun was found.
       Furthermore, unlike in Dees, where ownership of the car was essential to proving
the defendant was in possession of the drugs, the prosecution here had no need to prove,




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and did not attempt to prove, that defendant owned the purse in which the gun was found.
This is because ownership of the purse was not what tied defendant to the crime of
possessing the gun. Thus, there is no inconsistency in the People’s position that
defendant possessed the gun but at the same time did not own or have a privacy interest
in the purse where the gun was found.
       Dachino is likewise unhelpful to defendant’s argument. In Dachino, a police
officer claimed the defendant said he had a gun in his waistband and the officer searched
the defendant and found the gun. (People v. Dachino, supra, 111 Cal.App.4th at
p. 1431.) The defendant claimed the officer planted the gun and that he actually never
had one. (Ibid.) The prosecution argued that because the defendant testified the officer
did not find the gun on him, no search occurred. (Ibid.) The trial court accepted the
prosecutor’s position: in denying the suppression motion, the court “reason[ed] that
‘based on the testimony of the defendant . . . he lacks standing [to challenge the
search].’ ” (Id. at pp. 1432, 1433.) Relying on Dees, the appellate court reversed,
explaining that “the prosecution may not rely on [the defendant’s] denial that he
possessed the gun to defeat his Fourth Amendment interest.” (Dachino, at p. 1433.)
       Defendant’s case is again distinguishable. In Dachino, the prosecution
inconsistently asserted that the defendant possessed the gun (for purposes of the charge
against him) and that he did not possess the gun (for purposes of the suppression motion).
As discussed previously, there is no such inconsistency in the People’s assertion here that
defendant possessed the gun but did not own or exercise dominion and control over the
purse in which it was found. Dachino also is inapposite.
       Defendant next claims the facts of United States v. Issacs (1983) 708 F.2d 1365
are analogous to his case. We disagree. In Issacs, police found journals inside the
defendant’s safe and offered the journals as evidence of the defendant’s guilt. (Id. at




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pp. 1366-1367.) The defendant claimed ownership of the safe itself but disclaimed
ownership of the journals inside the safe. (Ibid.) Because the government conceded the
defendant had a legitimate expectation of privacy in his safe, the court held the
government could not rely on the defendant’s disavowal of ownership of the journals to
defeat his ability to challenge the search of the safe. (Id. at p. 1368.)
       Unlike in Issacs, the People here do not concede defendant had a legitimate
expectation of privacy in the purse where the gun was found. Moreover, language in
Issacs specifically supports the People’s argument in the instant case: “The government
may properly contend that a defendant owned drugs which, moments before the
challenged search, he had placed in his girlfriend’s purse, in which he had no legitimate
expectation of privacy.” (United States v. Issacs, supra, at p. 1368 [citing Rawlings v.
Kentucky (1980) 448 U.S. 98 [65 L.Ed.2d 633]].) This is precisely what happened here
except it was a gun in the purse.
       Finally, defendant relies on U.S. v. Singleton (9th Cir. 1993) 987 F.2d 1444 for the
proposition that the People may not “ ‘argue possession but deny expectation of privacy
where the circumstances of the case make such positions necessarily inconsistent.’ ” As
discussed previously, the People’s argument in this case is not inconsistent. The People
argue defendant possessed the gun but did not have a reasonable expectation of privacy in
the purse where the gun was found. As the Singleton court specifically recognized, even
“a defendant in legal possession of an item does not necessarily have a legitimate
expectation of privacy in the place from which the item is seized.” (Id. at p. 1447, italics
added.)
       In view of the above, there is no need to reach the second argument of whether the
search of the purse was supported by probable cause. Because he had no legitimate
expectation of privacy in the passenger’s purse, defendant had no right to challenge the
search of the purse. (See People v. Hernandez (1988) 199 Cal.App.3d 1182, 1190.)



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                                 DISPOSITION
     The judgment is affirmed.



                                          ROBIE   , Acting P. J.



We concur:



     MAURO              , J.



     DUARTE             , J.




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