{"id":4569,"date":"2011-01-07T08:46:21","date_gmt":"2010-08-21T00:45:07","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-08-20T10:05:07","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4569","title":{"rendered":"Cal.4th: By letting a probationer ride in the car, the owner did not become subject to a probation search"},"content":{"rendered":"

By permitting a parolee\/probationer to ride in his car, the defendant did not reduce his expectation of privacy such that his car could be searched under the parole-probation search exception. To reduce a citizen’s expectation of privacy for associating with parolee or probationers would ultimately be harmful to society. People v. Schmitz<\/a>, 187 Cal. App. 4th 722 (4th Dist. 2010):<\/p>\n

In this case, there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle’s interior \u201cin his own right.\u201d Indeed, there was no evidence Schmitz knew his passenger was a parolee. Had Schmitz left the vehicle in the parolee’s possession, or allowed him to drive it, that would be different. (See People v. Ledesma (2006) 39 Cal.4th 641, 703 [47 Cal. Rptr. 3d 326, 140 P.3d 657] [\u201cCases from a number of jurisdictions have recognized that a guest who has the run of the house in the occupant’s absence has the apparent authority to give consent to enter an area where a visitor normally would be received.\u201d (Italics added.)]; United States v. Morales (1988) 861 F.2d 396, 399 [\u201cUnder the Matlock test, a driver of a vehicle has the authority to consent to a search of that vehicle. As the driver, he is the person having immediate possession of and control over the vehicle.\u201d].) But Schmitz did neither. Instead, he simply allowed the parolee to visit the car temporarily as a passenger. Under those circumstances, the passenger\/parolee himself would have had gained no expectation of privacy in the vehicle\u2014and thus had no basis himself to either consent or object to its search (Rakas v. Illinois (1978) 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 [holding that mere passengers, who claimed neither a possessory nor any property interest in the vehicle searched, or in the items seized from it, could not object to the search or seizure])\u2014while Schmitz gave up none of his own expectation of privacy, nor of his authority to prevent the officer’s search of the vehicle.<\/p>\n

Schmitz clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his own seat, the back seat\u2014indeed every part of his car except the front passenger seat where the parolee was sitting. The parolee, by contrast, had no expectation of privacy anywhere in the car and no standing to contest his own search. Nothing Schmitz did could reasonably have been viewed as ceding authority over his back seat to the parolee. The parolee had no right to open packages, eat food, or even read magazines he found in the back seat. He could only obtain authority over the chip bag at issue here by claiming ownership, which\u2014given his lack of search and seizure rights\u2014would have been bootless.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4569","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4569","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4569"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4569\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4569"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4569"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4569"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}