S.D.Tex.: Defendant had standing to challenge search of her own purse; when she was in the police car, SI was improper

While defendant may not have had standing to challenge the search of the car she was driving, she certainly did in her own purse in the car. The search of the car was also unjustified under Gant. United States v. Oliva, 2009 U.S. Dist. LEXIS 57293 (S.D. Tex. July 1, 2009):

However, defendant’s lack of possessory interest in the car does not end the standing inquiry. The evidence defendant seeks to suppress–the marijuana–was found in her purse when officers searched the vehicle. The Supreme Court has held that a bus passenger has a legitimate expectation of privacy in his luggage. Bond v. United States, 529 U.S. 334, 336, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000) (“Indeed, it is undisputed that petitioner possessed a privacy interest in his bag.”). Moreover, in Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999), the Court heard a challenge by a passenger in another person’s car to a search of her purse. Id. at 297-98. The Supreme Court concluded that “passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars,” implying that a passenger has a privacy interest in his property in a car separate from any interest in the vehicle itself. Id. at 303 (citations omitted); see also Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 2403, 168 L. Ed. 2d 132 (2007) (holding “that a passenger is seized as well and so may challenge the constitutionality of the stop”).

Additionally, the Fifth Circuit has explained that “[t]he owner of a suitcase located in another’s car may have a legitimate expectation of privacy with respect to the contents of his suitcase.” United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993) (citation omitted). In Buchner, the Fifth Circuit held that a defendant had standing to challenge the search of a vehicle in which his shoulder bag was found, although he did not own the vehicle and alleged no possessory interest therein. Id. Here, because the marijuana was discovered in defendant’s purse, and her ownership of that purse is undisputed, she has standing to challenge the search.

Defendant was locked in a police car, and the SI of the car was invalid:

In this case, during the suppression hearing, defense counsel asked Officer Stewart, “Was the search of the vehicle related to trying to find evidence of my client’s driving while intoxicated?” Officer Stewart answered, “Yes, sir yes to see if there was any open containers, anything that was suspect. We weren’t looking specifically for drugs. We were just making sure that there was no other contraband inside the vehicle.” This case is distinguishable from the facts presented in Gant where the defendant was arrested for a routine traffic violation. It would be reasonable for officers to search the vehicle for evidence of driving while intoxicated, including open or empty containers. The officer’s testimony establishes that the search sought evidence related to defendant’s arrest for driving while intoxicated.