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United States v. Browne

United States District Court, C.D. California, Southern Division

February 10, 2017





         Defendant Glenn Deshawn Browne has been charged with one count of conspiracy to receive, possess, conceal, store, sell and dispose of stolen firearms in violation of 18 U.S.C. § 371; one count of receipt, possession, concealment, storage, sale and disposal of stolen firearms in violation of 18 U.S.C § 922(j); and one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). (Dkt. 14 (Indictment).) Before the Court is Defendant's motion to suppress evidence, namely, “[a]ny and all observations of a Glock (Serial Number ZFR859) blue steel semi automatic handgun with black plastic grips, a black plastic Glock magazine with a 150 round capacity, and 6 live 9 mm Luger rounds of ammunition.” (Dkt. 44 [Motion, hereinafter “Mot.”] at 2.) For the following reasons, the motion is DENIED.


         On August 20, 2016, at 8:13 p.m., a woman called 911 and said “Please send a police officer, right now. To [address]. There's a man in the back with a gun.” (Dkt. Dkt. 48-1 [Declaration of Scott Tenley, hereinafter “Tenley Decl.”] Ex. 1-A at 1:8-9.) After clarifying her address, the 911 operator asked for a description of the man, and the caller responded, “He's black with a black hat. All black. And a black Camaro.” (Id. at 1:20-21.) The operator then asked if the suspect was in the car or walking around, and she responded “He's at my door now. He's in the back.” (Id. at 1:22-23.) When the operator asked “He's in your backyard?” and she responded “Yeah, hurry.” (Id. at 1:24- 25.) The caller then identified herself as “Lisa” and provided her telephone number.[1](Id. at 2:1-4.) When the operator asked, “Do you know him? Do you know his name?” the caller frantically responded “Come on, please, hurry up” before providing his name (Darquisse[2]) and stating that he was her 36-year old ex-boyfriend. (Id. at 2:7-15.) After some dispatch information was shared on the call, the caller repeated her plea, “Please hurry up” and “He's at my door.” (Id. at 2:21-3:12.) The operator then broadcast to officers “415[3] man with a gun. [Caller's address]. Suspect is a male black wearing a black hat. 36 years old. Black clothing. Armed with a hand gun. It's code three incident.” (Id. at 3:5-9.) In the background of the call, someone then asked “Who's that n***** with a gun?” before the call was disconnected and police continued their dispatch communications. (Id. at 3:15-23.) The police tried to call her back but reached an automated voicemail message that repeated her telephone number. (Id. at 3:23-4:3.)

         A Los Angeles Police Department (“LAPD”) helicopter responded to the scene. (Dkt. 48-3 [Declaration of Jonathan Delgadillo, hereinafter “Delgadillo Decl.”] ¶ 6.) An officer in the helicopter confirmed that an individual matching the suspect's description and the Camaro were near the caller's address. (Tenley Decl. Ex. 1-A at 3:5-9; 3:19-20, 4:4-5.) He reported that the suspect was getting “in and out” of the driver's seat of the Camaro. (Delgadillo Decl. ¶ 6.) Officers Jonathan Delgadillo and David Dixon were on their way to the scene when they heard the reports from the helicopter concerning Defendant's description and whereabouts. (Id. ¶¶ 4, 6.) They arrived at 8:16 p.m. with their sirens blaring and saw Defendant sitting in the driver's seat of the Camaro, and a woman (later identified as his girlfriend, Jonhesha White) standing outside the passenger door. (Delgadillo Decl. ¶ 7; Tenley Decl. Ex. 10.) They drew their weapons and ordered Defendant out of the car and then told him to lie on the ground face-down. (Delgadillo Decl. ¶ 7.) They told the woman to come close to the police unit. (Id. ¶ 9.) The officers then detained Defendant and placed him in their vehicle. (Id.) The officers had requested backup, which came soon after Delgadillo and Dixon's arrival. (Id. ¶ 10; Dkt. 48-4 [Declaration of Alejandro Puche, hereinafter “Puche Decl.”] ¶¶ 4-5.)

         Officer Rene Santos conducted a frisk of Defendant's outer clothing for weapons and did not discovery any. (Mot. Ex. A at 229.) Instead Officer Santos found multiple denominations of currency in his pocket. (Id. at 230.) As soon as Defendant was detained, Officers Delgadillo, Dixon, Puche, and Armendariz searched the Camaro for weapons. (Delgadillo Decl. ¶ 10; Puche Decl. ¶¶ 5-6; Tenley Decl. Ex. 10 at 2:40.) Officer Puche first searched the driver's side of the car and did not find any weapons, so he moved on to the passenger side. (Puche Decl. ¶ 7.) He probed underneath the passenger seat using a flashlight and saw three white tube socks. (Id.; id. Ex. A.) He felt the socks and they were “bulgy;” he “suspected that the socks contained narcotics, but also believed they could have held a weapon.” (Id. ¶ 7.) The socks actually contained bindles of U.S. currency wrapped in rubber bands (later determined to total about $26, 000). (Id.; Mot. at 6; id. Ex. A at 229; Dkt. 48 [Opposition, hereinafter “Opp.”] at 5.) Officer Puche then checked the center console area and radio area and did not find anything there. (Puche Decl. ¶ 8.) Finally, he checked the glove box. (Id. ¶ 9.) Based on his police experience and prior experience as an automobile mechanic, Officer Puche knew that a “glove box tray can be quickly and easily removed by hand.” (Id.) With his hands he pressed the sides of the glove box and it popped off. (Id.) At the suppression hearing, he testified that it took little force to accomplish this-he likened it to the amount of force necessary to squeeze a toilet paper roll. When he shined his flashlight into the area behind the glove box, he saw the butt of a firearm in the upper left of the cavity with the barrel directed toward the passenger seat “as if the driver had reached across and hidden the firearm.” (Id. ¶ 10; id. Exs. B, C.) He testified that the gun was easily accessible and that he found it within seconds.

         Officer Anchondo also spoke to the female witness, “Jonhesha, ” and asked if she knew why they were there, to which she responded that she did not. (Mot. Ex. A at 230.) She said that Defendant was her boyfriend and they had one child together. (Id.) She said she was at the house, her aunt's residence, to pick up her son. (Id.) When asked if she knew anything about the firearm, she said that she did not. (Id.) When asked if she knew anything about money in the vehicle, she said that her boyfriend had just won it in Las Vegas. (Id.)

         Based on the presence and packaging of the U.S. currency found in the car, Officer Delgadillo formed the opinion that narcotics might be stored in the vehicle. (Delgadillo Decl. ¶¶ 15-16.) The Camaro was towed to the LAPD station, where it was subject to a K-9 search. (Id. ¶ 17.) The K-9 unit alerted to the rear of the vehicle for narcotics. (Id. ¶ 18.) The police then searched the car for narcotics but none were found. (Id.) The K-9 also sniffed the money recovered from the Camaro and again alerted for the scent of narcotics. (Id.)


         A. Standing

         “In order to contest the legality of a search or seizure, the defendant must establish that he or she had a ‘legitimate expectation of privacy' in the place searched or in the property seized.” United States v. Kovac, 795 F.2d 1509, 1510 (9th Cir. 1986). “The term ‘standing' is often used to describe an inquiry into who may assert a particular fourth amendment claim. Fourth amendment standing is quite different, however, from ‘case or controversy' determinations of article III standing. Rather, it is a matter of substantive fourth amendment law; to say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed.” United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 1991) (internal citations omitted). “The defendant has the burden of establishing that, under the totality of the circumstances, the search or seizure violated his legitimate expectation of privacy in a particular place.” Kovac, 795 F.2d at 1510.

         In the context of an automobile search, a defendant who has “neither a property nor a possessory interest in the automobile, nor an interest in the property seized” lacks Fourth Amendment standing. Rakas v. Illinois, 439 U.S. 128 (1978) (defendants lacked standing “since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers.”); see also United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980) (“Under the facts of this case, Portillo is in the same position as were the petitioners in Rakas. He was merely a passenger in the Dodge. He ‘asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.'”). On the other hand, “a defendant may have a legitimate expectation of privacy in another's car if the defendant is in possession of the car, has the permission of the owner, holds a key to the car, and has the right and ability to exclude others, except the owner, from the car.” United States v. Thomas, 447 F.3d 1191, 1198 (9th Cir. 2006). The Ninth Circuit has also recently held that an unauthorized driver of a rental car “only has standing to challenge the search of a rental automobile if he received permission to use the rental car from the authorized renter.” Id. at 1199 (“[I]t is undisputed that Thomas failed to show that he received McGuffey's permission to use the car. Therefore, the district court properly concluded that Thomas lacks standing to challenge the search.”).

         In this case, the Camaro is owned by and registered to an uninvolved third party identified as “G.B.” (Tenley Decl. ¶ 9; id. Ex. 7.) In or around June 2016, “G.B.” lent the Camaro to “Tanisha, ” a woman he knew through a mutual friend, because he was not using it and she needed a car.[4] (Id. Ex. 2 at 1:40, 2:50.) “G.B.” regained possession of the car approximately two months later when he was notified that the vehicle was impounded and went to recover it. (Id. at 1:26, 2:53.) In an interview with the police, “G.B.” said “I guess her ...

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