People v. Lavery CA6

Filed 6/30/14 P. v. Lavery CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039778 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F23525)

v.

JAMES ROBERT LAVERY,

Defendant and Appellant.

Defendant James Robert Lavery appeals from an order denying his motion under Penal Code section 1538.5, subdivision (m) to suppress controlled substances seized from a fanny pack during an investigatory detention. Defendant contends that the trial court erred by finding that he lacked standing to assert a Fourth Amendment expectation of privacy in the fanny pack. He argues further that the fanny pack search was not supported by probable cause. For the reasons explained below, we will affirm the judgment. I. FACTS1 AND TRIAL COURT PROCEEDINGS On September 14, 2012, Lieutenant Larry Richard, a twelve-year veteran with the City of Santa Cruz Police Department, responded to a dispatch in the Harvey West area of Santa Cruz. Richard knew that area for its drug activity, having made previous arrests

1 The facts are drawn from the hearing on defendant’s motion to suppress.

there for possession of heroin, methamphetamine, and other illegal drugs. The dispatch concerned a street disturbance involving yelling and screaming among five people, including one person on a bicycle and another person associated with a white truck with a red camper shell. The dispatch also indicated that the subjects possibly were dealing drugs, “handing small stuff to a subject in a white pickup with a red camper shell.” Finding no one at the referenced location, Richard drove through the area and spotted a white pickup truck with a red camper shell parked a few blocks away, at Encinal and Dubois Streets. Richard also noticed three people crouched behind a garbage can near a picnic table across the street from the truck, at 399 Encinal Street. It was after 9 p.m. and the business at that address was closed. The group appeared to be hiding, “not looking to be seen, especially when there’s a marked patrol car right there at the intersection.” Richard believed the group was involved in illegal drug activity. Richard stepped out of his patrol car, announced himself, and told the subjects, who had started to walk in two directions, to come to him. The group—one female and two males including defendant—complied. Richard directed the group to sit on the sidewalk as a second officer, Matthew Mulvihill, arrived at the scene. After the three verbally identified themselves, Richard left Mulvihill with the group and walked to the garbage can to see if anyone had left anything behind. Richard found a black fanny pack on the ground next to the garbage can. He returned to the group with the fanny pack in hand, and turned over the investigation, including the fanny pack, to Officer Mulvihill. Mulvihill showed the fanny pack to the group and asked whom it belonged to. All three denied ownership. When Mulvihill told the group he was going to search the pack to find out whom it belonged to, defendant said the pack belonged to him. Mulvihill searched the pack. First he found documents containing defendant’s name and date of birth. His continued search uncovered drugs and drug paraphernalia. Before searching the pack, Mulvihill had verified that defendant was the registered owner of the white truck. 2