Appeal from a judgment of the Superior Court of Orange County, James H. Poole, Judge. Reversed and remanded. (Super. Ct. No. 06HF2342).
The opinion of the court was delivered by: Bedsworth, Acting P. J.
CERTIFIED FOR PUBLICATION
Distinguishing between friends and enemies can sometimes be more problematic than would be expected. Douglas George Schmitz was convicted of four misdemeanors, based on a search premised on the parolee status of a passenger in his car. He must have had difficulty figuring out in which column - friends or enemies - he should list that passenger.*fn1
Douglas George Schmitz appeals after pleading guilty to four misdemeanors. His guilty plea came after the court denied his motion to suppress evidence found on the floor in the rear passenger area of his car. The evidence was discovered during a search predicated on the parolee status of the passenger riding in the vehicle's front seat, and Schmitz argues the parolee status of a front seat passenger does not validate a warrantless search of the back seat area, as the parolee sitting in the front passenger seat cannot be viewed as having "joint access and control" over that back seat area. We agree. A mere passenger in a vehicle, who claims neither a possessory nor property interest therein, lacks the "common authority" over the vehicle which would allow him either to consent or object to its search. Consequently, the parole status of such a passenger cannot be relied upon as the sole basis to justify such a search. The judgment is reversed.
Deputy Sheriff Mihela Mihai testified that about 7:00 p.m. on November 24, 2006, she observed an older model Oldsmobile or Buick turn off a main street into a smaller street which was lined on both sides by the garages of a condominium complex. She thought the driver might be lost, and pulled into the street after him. She saw the car make a U-turn in the small street, and proceed back toward the main street. As the car was nearing her vehicle, she stopped, and the other car then stopped parallel to hers.
There were three adults and a small child in the other car. The deputy asked the driver, Schmitz, if he was lost. He responded that he was not, and explained he had simply pulled into the street with the intention of making the U-turn, as he did not believe he could do so on the main street. The deputy then parked her car and got out. According to the deputy, Schmitz's car was not obstructed by hers, and he was free to drive around it if he chose.*fn3
The deputy then got out of her car and asked Schmitz where he was from. He told her "Long Beach." She asked if he needed directions, and he responded "no." She asked if he minded showing her his driver's license. As he was getting out his license, she observed that his arms were covered with abscesses - a condition which her training in street narcotics suggested was indicative of possible drug use.
The deputy then asked Schmitz if he was on probation or parole. He replied "no." She asked if anyone else in the car was on parole and was told that the male passenger in the front seat was on parole. At that point, the deputy had witnessed no violation of the law, and had observed Schmitz do nothing suspicious other than make a U-turn. At some point, apparently in response to the information that the front passenger was on parole, the deputy called for backup. As she explained it, "I already knew that somebody in that vehicle was on parole, I already knew that my safety could be jeopardized so they needed to know I'm talking to somebody on parole who can be uncooperative, wanted, unwanted, and so on."
The deputy then asked Schmitz for permission to search his vehicle. He did not answer. Thereafter, she asked all the passengers to get out of the car and conducted a search, based upon the front seat passenger's parole status.
The search included the entire passenger area of the car, as well as the interior of a purse belonging to the female back seat passenger. The search revealed a syringe cap located inside the purse, as well as two syringes (one without a cap) found inside a chip bag on the floor of the rear passenger area, and some methamphetamine found inside a pair of shoes - also on the floor of the rear passenger area.
Based upon that evidence, Schmitz was arrested. He then moved to suppress the evidence found in the course of the automobile search pursuant to Penal Code section 1538.5, arguing the prosecutor had the burden of justifying the validity of any search carried out in the absence of a warrant. (People v. Williams (1999) 20 Cal.4th 119, 130.)
In opposition to the motion, the prosecution argued the initial encounter between Schmitz and the deputy was consensual, and he was not seized or detained. The prosecutor then correctly asserted that police officers are free to ask a person for identification "without implicating the Fourth Amendment," and suggested that the presence of abscesses on Schmitz's arms was "indicative of drug use." But the prosecutor also maintained that the parole status of the front seat passenger, who exhibited "rapid speech [and] fidgety behavior," combined with the fact that both he and the back seat passenger (who was also "fidgety") admitted to past drug usage and arrests, suggested "criminal activity was afoot."*fn4 The prosecutor argued that once officers have "a particularized and objective basis for suspecting the person stopped of criminal activity," or ...