Petition for Writ of Certiorari — Angel Mesa Madueno, Petitioner v. California

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

NO.______________

_______________________________________

ANGEL MESA MADUENO, Petitioner

vs.

STATE OF CALIFORNIA, Respondent

_______________________________________

PETITION FOR WRIT OF CERTIORARI

TO

THE CALIFORNIA COURT OF APPEAL

Fifth Appellate District

_______________________________________

KIERAN D. C. MANJARREZ

[kcmanjarrez@yahoo.com]

1535 Farmers Lane 133

Santa Rosa, CA 95405

Tel: 415 / 520 0440

[CBN: 62000]

Attorney for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether an independent contractor legitimately working in another's back yard has standing to

contest a warrantless and non-exigent entry onto the property; or, alternatively, whether the

consenusal encounter doctrine extends to private premises.

1

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW................................................................................1

PETITION FOR CERTIORARI..................................................................................................2

OPINIONS BELOW......................................................................................................................2

JURISDICTIONAL STATEMENT.............................................................................................2

FACTUAL SYNOPSIS..................................................................................................................2

STATEMENT OF CASE.............................................................................................................3

STATEMENT OF FACTS...........................................................................................................4

REASONS FOR GRANTING WRIT.......................................................................................8

I.

REVIEW SHOULD BE GRANTED TO EXPLAIN WHAT CONSTITUTES A

“MEANINGFUL CONNECTION” TO PREMISES SUCH AS GIVES RISE TO A

SOCIALLY ACCEPTED EXPECATATION OF PRIVACY IN THE FOURTH

AMENDMENT CONTEXT........................................................................................... 8

CONCLUSION ….....................................................................................................................18

APENDICES

A.

Court of Appeal Opinion ...............................................................................29

B.

Order denying Review........................................................................................65

C

Provisions Involved .......................................................................................... 66

Proof of Service

i

TABLE OF AUTHORITIES CITED

CONSTITUTIONAL PROVISONS

United States Constitution, Fourth Amendment:.............................................................................2

United States Constitution, Fourteenth Amendment, Section One..................................................2

SUPREME COURT CASES

Brown v. Plata (2011) 563 U.S. 493...............................................................................................4

Byrd v. United States, (2018) 584 U.S. ___, 138 S.Ct. 1518...............................................9, 12, 17

California v. Ciraolo (1986) 476 U.S. 207................................................................................... 12

Carpenter v. United States (2108) 585 U.S. ___ 138. S.Ct. 2206.................................................. 9

Florida v. Jardines (2013) 569 U. S. 1..........................................................................................12

Florida v. Riley (1989) 488 U.S. 445............................................................................................12

Florida v. Royer, (1983) 460 U.S. 497...........................................................................................16

Graham v. Florida (2010) 560 U.S. 48............................................................................................4

Harris v. United States (1968) 390 U.S. 234.................................................................................12

Hayes v. Florida (1985) 470 U.S. 811...........................................................................................13

Katz v. United States (1967) 389 U.S. 347................................................................................9, 12

Hiibel v. Sixth Judicial District Court of Nevada (2004) 542 U.S. 177........................................13

Jackson v. Virginia (1979) 443 U.S. 307.........................................................................................3

Mapp v. Ohio, (1961) 367 U.S. 643................................................................................................3

Minnesota v. Carter (1998) 525 U.S. 83.......................................................................7 & passim

Minnesota v. Olson (1990) 495 U. S. 91.................................................................................11, 12

Oliver v. United States (1984) 466 U.S. 170................................................................................ 13

Rakas v. Illinois, (1998) 439 U.S. 128........................................................................................... 9

ii

Silverthorne Lumber Co., Inc. v. United States (1920) 251 U.S. 385............................................ 3

Soldal v. Cook County (1992) 506 U.S. 56.................................................................................... 9

Terry v. Ohio (1968) 392 U.S. 1............................................................................................ 13, 14

United States v. Hensley (1985) 469 U.S. 221....................................................................... 14, 15

Vale v. Louisiana (1970) 399 U.S. 30........................................................................................... 13

Warren v. Hayden (1967) 387 U.S. 294..........................................................................................9

Weems v. United States (1910) 217 U.S. 349..................................................................................4

FEDERAL CASES

United States v. Tolar (7th Circ. 2001.) 268 F.3d 530 ............................................................8, 15

CALIFORNIA CASES

In re Tony C., (1978) 21 Cal.3d 888.............................................................................................15

Lorenzana v. Superior Court (1973) 9 Cal.3d 626.......................................................................12

People v. Camacho (2000) 23 Cal.4th 824..................................................................................15

People v. Cowan (1994) 31 Cal.App.4th 795 ..............................................................................15

People v. Moreno (1992) 2 Cal.App.4th 577............................................................................8, 11

People v. Ray (1999) 21 Cal.4th 464............................................................................................15

STATUTES

28 U.S.C. section 1257, sub. (a). …............................................................................................2, 3

Cal. Penal Code, § 114....................................................................................................................3

Cal. Penal Code, § 187, subd. (a)....................................................................................................3

Cal. Penal Code, § 209.012, subd. (a).............................................................................................3

Cal. Penal Code, § 288, subd. (b)(1) .............................................................................................3

Cal. Penal Code, § 1385..................................................................................................................3

Cal. Penal Code, § 1538.5...............................................................................................................3

iii

Cal. Penal Code, § 211….............................................................................................................3, 4

Cal. Penal Code, § 1111…...............................................................................................................4

Cal. Pen. Code, § 12022.5, subd. (a)(1)….......................................................................................4

Cal. Pen. Code, § 12022.53, subd. (b)…..........................................................................................4

Cal. Pen. Code, § 667, subds. (b)-(i)…............................................................................................4

Cal. Pen. Code, § 667, subd. (a)…...................................................................................................4

OTHER AUTHORITIES

Traynor, The Riddle of Harmless Error (1969) .................................................. ..........................4

iv

QUESTION PRESENTED FOR REVIEW

Whether an independent contractor legitimately working in another's back yard has standing to

contest a warrantless and non-exigent entry onto the property; or, alternatively, whether the

consenusal encounter doctrine extends to private premises.

1

PETITION FOR CERTIORARI

Petitioner, ANGEL MESA MADUENO respectfully petitions for a writ of certiorari to

review the judgement of the California Court of Appeal, Fifth Appellate District, affirming his

conviction & sentence in the Superior Court of Stanislaus County, California.

OPINIONS BELOW

The reported opinion of the California Court of Appeal, Fifth Appellate District appears

as Appendix A.

The order of the California Supreme Court dismissing the petition for review appears as

Appendix B.

JURISDICTIONAL STATEMENT

The judgement of the California Court of Appeal, Fifth Appellate District was entered on

14 January 2019 A timely petition for review was filed on 22 February 2019. The petition was

denied on 1 May 2019 . The jurisdiction of this Court is invoked pursuant to 28 U.S.C. section

1257, subd. (a).

FACTUAL SYNOPSIS

While working as a sub-contractor making repairs in a private back yard, petitioner was

accosted by a sheriff's deputy who was responding to a citizen's report of a person sitting in a

“suspicious vehicle” outside the premises. Speaking in Spanish, the deputy asked petitioner his

name and inquired what he was doing in the yard. Petitioner responded to both questions. The

deputy then demanded written identification from petitioner to prove his identity.

Petitioner

turned over patently fake and inconsistent documents whereupon his detention was prolonged for

additional investigation which revealed that petitioner had re-entered the country illegally and

had failed to register as a sex offender.

2

STATEMENT OF CASE

Following denial of his Fourth Amendment motion to suppress evidence obtained as a

result of his warrantless entry and illegal detention (Pen. Code, § 1538.5), petitioner's case was

tried to a jury which found him guilty of Count I, using false documents to conceal alien status

(§ 114) and Count II, failing to annually update his registration as a convicted sex offender (§

209.012, subd. (a)). Petitioner's motion to strike prior convictions was denied and, based on his

prior strike convictions for murder in 1980 (Pen. Code, § 187, subd. (a)) and lewd acts on a child

in 2002 (Pen. Code, § 288, subd. (b)(1)), petitioner was sentenced to concurrent terms of 25

years to life on each count. (CT 288-290; RT 243-245. )

On timely appeal, petitioner contended that the deputy's entry onto the premises, wherein

petitioner was legitimately working, was made without a warrant and that his subsequent

detention and the deputy's demand for written identification was made without any probable

cause, reasonable suspicion, exigency or community care-taking justification.

Petitioner also

contended that his conviction for failing to register was without substantial evidence and that his

life term for a trivial offense at age 64 constituted cruel and unusual punishment.

The Court of Appeal rejected all claims, holding inter alia, that petitioner lacked standing

to contest the deputy's warrantless entry, that the open-gate invited entry and that the initial

encounter with the deputy was consensual.

A petition for rehearing was filed to correct various incorrect assumptions of fact in the

appellate opinion. The petition was denied.

Petitioner re-asserted his constitutional claims1 in a petition for review from the state

1

To wit: his Due Process and Fourth Amendment rights against unreasonable searches and

seizures. (Mapp v. Ohio, (1961) 367 U.S. 643; Silverthorne Lumber Co., Inc. v. United States

(1920) 251 U.S. 385); his due process rights to sufficient proof beyond a reasonable doubt

(Jackson v. Virginia (1979) 443 U.S. 30) and his Due Process and Eighth Amendment rights

3

supreme court. On 1 May 2019, grant of review was denied. This petition follows.

STATEMENT OF FACTS

For purposes of this petition, it is assumed that petitioner was adequately advised of his

sex-offender registration requirements and that he knowingly failed to update his registration

when required. The facts relating to the violation of his Fourth Amendment rights are as follows.

Acting on a dispatch report of an Hispanic person seated in a car in front of a house,

sheriff's deputies proceeded to the location in question at 7004 Sawgrass Court, in Riverbank.

(CT 66, 79; RT 101-103.) The caller, one Rita Durham, did not report witnessing any specific

violation of law but simply stated that there was “a suspicious person sitting in the vehicle for an

extended period of time and they thought it was suspicious and requested [the deputies] look into

it.” (CT 79; 82-83.) The call was placed at lunchtime at approximately 12:22 in the afternoon.

(CT 66.)

Deputy Sigala testified that he did not believe that “sitting in a car for an extended period

of time” was against the law. (CT 79.) Sigala made no attempt to interview the reporting person.

(CT 82.) Nevertheless, he proceeded to the reported location on the averred ground that “many

times in my line of work, a suspicious activity such as someone sitting in a vehicle for an

extended period of time where the residents or the people, in this case the reporting party, does

not recognize them may be an indication of a criminal act afoot.... So, I was actually out there

investigating potentially even a residential burglary.” (CT 84-85.)2

When Sigala and his partner, Deputy John Gingerich, arrived, no one was sitting in the

against cruel and unusual punishment. (Weems v. United States (1910) 217 U.S. 349;

Graham v. Florida (2010) 560 U.S. 48; Brown v. Plata (2011) 563 U.S. 493.)

2 It is unclear whether he meant he was reporting to the scene in order to decide whether an

investigation ought to be undertaken or whether he thought he was investigating a possible

burglary.

4

vehicle.3 (CT 67.)

Gingerich approached the front of the house and knocked on the door but

no one answered. (Ibid.) Meanwhile, without obtaining a warrant or permission from anyone,

Sigala walked into the backyard through the north gate that was “ajar or slightly open.” (CT 67,

79.)4

Once inside the backyard, Sigala noticed petitioner sitting on a chair or bench next to the

rear, sliding glass door of the house. (CT 68.)

Sigala initially addressed petitioner in English

until realizing that petitioner didn't speak English. Speaking in Spanish, Sigala asked petitioner

what he was doing. Petitioner pointed to a rock fountain in the yard and stated that he was there

to fix it. (CT 68.)

Sigala noticed that there was indeed a fountain in the yard, which was

obviously being worked on. (CT 67, 80.)

Sigala told petitioner “why” he “was there talking to him.” (CT 67-68, 69, 80.) In

response, petitioner verbally identified himself as “Luis Duarte Cendejas” (CT 69.) 5

After

petitioner provided his “verbal name” (ibid), Sigala asked him for his date of birth to which

petitioner replied 2 February 1970. After obtaining this information, Sigala “asked him if he had

an ID Card.” (Ibid.) In response petitioner produced “a photocopy of a driver's license” which

3 A tan Saturn with an indicated license number.

4 Two answers later, Sigala described the gate as “open.” (CT 67.) On rehearing prior to trial,

the trial judge found that “the gate to the back fence was left partially open.” (RT 7-8.)

Although the appellate opinion did footnote the testimony that the gate was left “ajar” (opn,

fn. 5, p. 4) it was impressed with Sigala's second statement and found it significant that

petitoner had left the gate “open” (see opn. pp. 2, 4, 25, 26). On petition for rehearing,

petitioner sought correction of the mis-impression. “Occasionally an appellate court affirms

the trier of fact on isolated evidence torn from the context of the whole record.” (Traynor,

The Riddle of Harmless Error (1969) p. 27.) The prosecution's own oppositions to the

motion to suppress and to the pretrial motion to dismiss repeatedly referred to the gate as

being “ajar.” (CT 39, 47, 121, 132, 133.)

5 Sigala subsequently clarified that the name petitioner “had provided” was “Luis Cendejas

Duarte.” (CT 71-72.)

5

in Sigala's opinion was fake. (CT 70.) Sigala asked petitioner to provide further identification,

at which point petitioner produced a Social Security card in the name of Luis Cendejas Duarte.

(CT 71.)

When Sigala asked for another I.D., petitioner produced a resident alien card also in

the name of Luis Cendejas Duarte, with an indicated date of birth of 2 February 1970. (CT 72.)

But, again, in Sigala's opinion, the photograph appeared to be that of a different person. (Ibid.)

Sigala asked petitioner if he was willing to go to the police department to have his

fingerprints checked. (CT 72.) At that point, petitioner stated that his real name was Angel

Martinez Silva and he produced a “work employee identification card” with a matching

photograph that, in Sigala's opinion, established petitioner's true identity. (CT 73.)

Sigala

handcuffed and arrested (“detained”) petitioner for having provided a false name. (CT 74.) As

he walked him to the patrol vehicle, Sigala advised petitioner of his Miranda rights in Spanish.

(Ibid.)

At his preliminary hearing, petitioner moved to suppress all evidence obtained as a result

of Sigala's warrantless entry and detention of petitioner. (CT 16, 56, 61.) The magistrate denied

the motion ruling that petitioner had no expectation of privacy in an open air backyard where he

was working as a subcontractor. (CT 101-102.) Petitioner renewed his suppression motion prior

to trial (CT 112, 119.) The motion was heard on the basis of the evidence adduced at the

preliminary hearing and on the pleadings and exhibits submitted. (RT 7.) Upon hearing, motion

was again denied. (CT 135.) The court ruled,

“Mr. Madueno was in the backyard of somebody's residence, and he was fixing

the fountain. He was doing that because he was hired to do that. And that the gate

to the back fence was left partially open. To me, that's a sign that that was not a

private place. That wasn't his house. It wasn't even a place where the gate was

closed when he was doing the work, and that the neighbors reported that they

thought there might be some suspicious activity with the person who didn't belong

to the property in the backyard. And so when the deputy went there, and the gate's

not closed, I don't think that he invaded the privacy of Mr. Madueno by going into

the back yard.” (RT 7-8.)

6

The Court of Appeal affirmed. As relevant to this petition, it held that petitioner could not

contest Sigala's warrantless entry (1) because he had no expectation of privacy in the “open air,”

back-yard of another's home (opn. pp. 3, 16-24) and (2) because he had invited entry by leaving

side gate “open” (opn. pp. 25-26.)

The court stated that there was no evidence to show the

“nature and circumstance of the homeowner's permission” for petitioner to be on the property,

(opn., pp., 24, 25) but, even assuming petitioner had been hired as a subcontractor, such a fact

only established “at most that defendant was a casual visitor who was lawfully on the premises

for a limited period of time.” (opn. at p. 25.) As in Minnesota v. Carter (1998) 525 U.S. 83,

90-91, petitioner only “used the premises “simply a place to do business”

in what was

“essentially” a transient business transaction. (Opn. p. 23, citing Carter at pp. 90-91.)

court then ruled that the encounter with Sigala was consensual

The

(Opn. pp. 30-31) and that

petitioner's presentation of obviously false identification justified his “temporary detention (Opn.

p. 3.)6

6 The appellate opinion stated that “the report with [contractor] Occhiocone's hearsay

statements was attached to defendant's suppression motion but not introduced into evidence.”

(Opn. pg. 25.) On petition for rehearing, it was pointed out that Deputy Sigala testified that,

after arresting petitioner, Mr. Ochicone arrived at the scene and explained that petitioner was

working for him. (PX, pp. 17-18.) Petitioner's original suppression motion incorporated a

letter from the contractor verifying petitoner's employment on the job. When defence counsel

sought to introduce additional evidence, the magistrate stated, “I don't need additional

paperwork. And I'm happy to let you argue anything you want to argue regarding this case ...”

(PX , p. 5.) In submitting the matter, “on the motion” (PX 41), defence counsel stressed

petitioner's working on the property as a subcontractor. (PX p. 43) The magistrate found

that petitioner was a “subcontractor” who was “working on someone's back yard pond.” (PX,

p. 44) On rehearing, the superior court found: “I think the circumstantial evidence would

allow the Court to infer that he [petitioner] had a job, that he was hired by somebody, and that

he's been here for five days in order to have a job. .... Mr. Madueno was in the backyard of

somebody's residence, and he was fixing the fountain. He was doing that because he was

hired to do that.” (RT 7.) The findings below were that petitioner was working as a subcontractor or hired-hand. The prosecution never interposed a hearsay objection to petitioner's

exhibits and thus there was no objection or hearsay issue for the appellate court to rule upon.

7

REASONS FOR GRANTING WRIT

I.

REVIEW SHOULD BE GRANTED TO EXPLAIN WHAT CONSTITUTES A

“MEANINGFUL CONNECTION” TO PREMISES SUCH AS GIVES RISE TO A

SOCIALLY ACCEPTED EXPECATATION OF PRIVACY IN THE FOURTH

AMENDMENT CONTEXT.

Petitioner seeks certiorari from this Court on whether an independent contractor

legitimately working in another's

back yard has standing to contest a warrantless and non-

exigent entry onto the property; or, alternatively, whether the consensual encounter doctrine

extends to private premises.

As indicated, the Superior Court held that petitioner had no standing to contest Sigala's

warrantless entry into the backyard because “[t]hat wasn't his house” and “the gate to the back

fence was left partially open.” (RT 7-8.) Relying on Minnesota v. Carter, supra, 525 U.S. 83,

the Court of Appeal held that petitioner had no expectation of privacy “in the back yard of

another person's home” (opn. pp. 16, 23) and had left the gate open. (opn. pp. 25-26). Even

assuming petitioner had been hired as a subcontractor, such a fact only established “at most that

defendant was a casual visitor who was lawfully on the premises for a limited period of time.”

(Opn. at p. 25.) As in Carter, petitioner had used the premises “simply [as] a place to do

business” in what was essentially a transient business transaction. (Opn. p. 23; citing Carter at

pp. 90-91.)

In arriving at this conclusion, the appellate court contrasted petitioner's case from that of

babysitters who are accorded Fourth Amendment standing under California decisions

interpreting federal caselaw (See People v. Moreno (1992) 2 Cal.App.4th 577.) The appellate

court distinguished Moreno on the ground that babysitters “will likely have... the exclusive right”

to determine who may come and go. (Opn. p. 20.) “Control alone brings the baby sitter within

8

the Rakas7 principle that '[o]ne of the main rights attaching to property is the right to exclude

others, ... and one who owns or lawfully possess or controls property will in all likelihood have a

legitimate expectations of privacy....” (Opn. p. 20, citing Moreno at p. 584 and People v. Cowan

(1995) 31 Cal.App.795, 800 [defendant had “no authority to be in the apartment alone, to enter

without permission, to store anything there, to invite anyone... or to visit without notice.” ].)

Lastly, the court ruled petitioner could have no subjective expectation of privacy because [a]n

open gates invites entry.” (Opn. p, 25, quoting from United States v. Tolar (7th Circ. 2001.) 268

F.3d 530, 532.)

The appellate court's reliance on Rakas reveals the fallacy of its analysis.

It is true, as

Rakas stated, that “that '[o]ne of the main rights attaching to property is the right to exclude

others, ... and one who owns or lawfully possess or controls property will in all likelihood have a

legitimate expectations of privacy...” (Id., 439 U.S. 128, fn. 12 at p.143.) However, expectations

of privacy are not coterminous with property rights.

“[This] Court has recognized that 'property rights are not the sole measure of

Fourth Amendment violations.' Soldal v. Cook County, 506 U.S. 56, 64 (1992). In

Katz v. United States, 389 U.S. 347, 351 (1967), we established that 'the Fourth

Amendment protects people, not places,' and expanded our conception of the

Amendment to protect certain expectations of privacy as well.” (Carpenter v.

United States (2108) 585 U.S. ___ [slip p. 5], 138. S.Ct. 2206.)

In other words, in so far as Fourth Amendment standing is concerned, indicia of property

interests are a sufficient but not a necessary condition.

Neither the court of appeal decision

herein, nor for that matter its decisions in Moreno or Cowan moved off the dime.

Worse yet,

these decisions do precisely what Katz, supra, said ought not to be done; i.e. restrict standing to

the holding of real property interests. (Id., 389 U.S 347, at p. 353; Warren v. Hayden (1967) 387

U.S. 294, 304 [“The premise that property interests control the right of the Government to search

7 Rakas v. Illinois, (1998) 439 U.S. 128, 139-140.

9

and seize has been discredited.”]

Thus we are brought to the question at the heart of this petition: putting aside all indicia

of proprietary interests, does a person legitimately on the premises, temporarily, pursuant to a

commercial contract of hire, have an expectation of privacy as against inexcused, nonemergency, warrantless entries and ensuing detentions? Or, alternatively, as to that person, does

the consensual-encounter doctrine extend into private property?

As to the first question, petitioner submits that the answer is in the affirmative. There is

simply no rational basis for distinguishing temporary workers from baby sitters much less from

dinner guests. This Court's recent decision in Byrd v. United States, (2018) 584 U.S. ___, 138

S.Ct. 1518 is of no assistance because in that case the “expectation of privacy [derived] from

lawful possession and control” (id., slip opn. p. 11) and thus “[t]his general property-based

concept guides resolution of this case.” (Slip opn. p. 10.)

In the present case, it would be a

stretch to say that petitioner was “in possession” of the backyard. He was simply working in it,

by leave of the owner.

It would be a semantic artifice to characterize his position (or for that

matter, that of a guest) as a “gratuitous lessee.” The issue presented depends entirely on the

proper interpretation and import of Carter, in which this Court stated,

“Respondents here were obviously not overnight guests, but were essentially

present for a business transaction, and were only in the home a matter of hours.

There is no suggestion that they had a previous relationship with Thompson, or

that there was any other purpose to their visit. Nor was there anything similar to

the overnight guest relationship in Olson to suggest a degree of acceptance into

the household. While the apartment was a dwelling place for Thompson, it was,

for these respondents, simply a place to do business.” (Id., supra, 525 U.S., at p.

90.)

Clearly the home at Sawgrass court was not a business establishment open to the public

(with or without a sign) and thus holdings with respect to that situation are not apposite.

The

place in question here was a private home and the Court of Appeal expressed no doubt that the

10

owner o r residential occupant thereof would have had standing to complain of a warrantless

entry of the sort effected by Sigala.

Nor was it contested that either a dinner guest or an

overnight guest would have had standing to complain of a warrantless entry. (Opn p. 19, citing

Rakas, supra, 439 U.S., at p. 142 and Minnesota v. Olson (1990) 495 U.S. 91, 98-99.)

Nor

even babysitters. (Opn. p. 19, citing Moreno, supra.). Thus the question: If babysitters why not

gardeners or construction workers? Why should Carter apply to one and not the other?

A protracted exegesis is not required, at least at this point. It is submitted that there is no

basis for distinguishing petitioner from an invited guest. “Temporariness” or “transience”

provides no meaningful differentiation or standard.

Petitioner's day long work on the fountain

was certainly less temporarily transient than the ordinary dinner with guests.

“Commerce” likewise provides no significant distinction. A babysitter is an “independent

contractor” engaged in a “business transaction” for hire on a temporary basis, often for no more

than a couple of hours. As far as the sitter is concerned, she or he is using the place simply as a

“place to transact business.”

In terms of the relationship between the parties or the nature and

duration of the transaction there is no rational distinction between a baby sitter and a man hired

to repair a fountain.... or for that matter, fix the toilet.

It is one thing to say that there can be

expectation of privacy on commercial property open to the public; it is quite another to say that a

person engaged in a commercial activity on private property closed to the public can have no

expectation of privacy.

Because petitioner was working on the property does not mean that he

was working out of the property or that having a possessory right in it he was holding it out to the

public for commercial use.

Conjoining “transience” with “commerce” fares no better, unless one is prepared to say

that dinner guests loose their expecatition of privacy if, between courses, they temporarily focus

on discussing a financial transaction.

11

Distinguishing babysitters, the Court of Appeal seized upon such factors as the right to

exclude others, the right to pick up the phone or reach into the refrigerator and like indicia of

possessory control. Of course, if these indicia are to be given any actual credence a guest would

loose standing. Guests do not normally have a “right” to raid their hosts' refrigerators at will, or

to answer their phones, or peruse their closets or to exclude people who come knocking at the

door. More fundamentally, such factors are simply indicia of property ownership under another

name. They are specific instances of a general right to possession and control, which this Court

has stated is not the sole and exclusive determinant of Fourth Amendment socially accepted

expectations of privacy. As noted, this Court has repeatedly stated that expectations of privacy

are not coextensive with interests in property. (See Minnesota v. Olson, supra, 495 U. S. 91, 9899.) The Katz/Rakas rule “supplements, rather than displaces, the traditional property-based

understanding of the Fourth Amendment.” (Byrd v. United States, supra 584 U.S. ___, slip 7, 138

S.Ct. 1518. citing Florida v. Jardines (2103) 569 U. S. 1, 11.) But if, “[s]taying overnight in

another's home is a longstanding social custom that serves functions recognized as valuable by

society” (Olson, supra, at p. 98) so too, it is submitted, is cutting lawns or repairing ponds.

The distinguishing facts in Carter point to the proper resolution of the question. Although

this Court did not reach the issue, it appears that the initial observation of the police into the

premises from a public walkway were legitimate. (Id., at p. 104, conc. op., Breyer, J. citing

Florida v. Riley (1989) 488 U.S. 445, 448 and California v. Ciraolo (1986) 476 U.S. 207, 209;

see also Harris v. United States (1968) 390 U.S. 234, 236 [plain-view doctrine can be invoked if

officer makes observations from a position where he has a right to be]; Lorenzana v. Superior

Court (1973) 9 Cal.3d 626, 534 [question is whether observations made from a public vantage

point or a place on private property that has been opened, expressly or impliedly to public use].)

On this basis, the police in Carter had probable cause for and did obtain a warrant of arrest for

12

the defendants who were legally arrested in their car sometime after they had left the apartment.

What this Court rejected was the proposition that because the defendants had been in the

premises they had an expectation of privacy in a place to which they no longer had any present

connection. Given that the validity of the warrant was not reached, that holding was hardly

anomalous. In the case at bar, by contrast, petitioner did have a present connection with the

premises at the time the police intruded thereon without a warrant and began to demand (without

any reasonable suspicion of criminality or probable cause therefor) written identification from

him. If anything, petitioner had a double expectation of privacy: first against warrantless

invasions (Vale v. Louisiana (1970) 399 U.S. 30, 34) and second against arbitrary demands for

“paperz, please” without antecedent indications of criminality afoot. (Hiibel v. Sixth Judicial

District Court of Nevada (2004) 542 U.S. 177, 178.)8

Whatever societal expectations might be in North Korea, in this country they include the

expectation that police do not and will not intrude into back yards without exigency or a warrant.

(Oliver v. United States (1984) 466 U.S. 170, 180 [the area “immediately surrounding and

associated with the home” -- remains within the Fourth Amendment's protection ].)

There was no lawful basis for the deputy's invasion of the back yard or for petitioner's

detention therein.

The prosecution below did not rely on theories of exigency or community

caretaking. Since the Court of Appeal did not resort to such justifications, they need not be

addressed at this point. Suffice to state summarily that the facts would not support any such

theories. Instead, the prosecution sought to justify Sigala's conduct under Terry v. Ohio (1968)

392 U. S. 1.

8 Viz: [“Terry principles permit a State to require a suspect to disclose his name in the course

of a Terry stop”]. See also Hayes v. Florida (1985) 470 U.S. 811, 816 [“if there are articulable

facts supporting a reasonable suspicion that a person has committed a criminal offense, that

person may be stopped in order to identify him.”].)

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On this issue the Court of Appeal ruled that “Deputy Sigala did not seize or arrest

defendant when he initially spoke to defendant in the back yard and asked for his identification.

To the extent that he detained, defendant, Sigala had a reasonable suspicion to believe that

criminal activity was afoot in the backyard and defendant's presentation of [questionable

identification] justified Sigala's additional questions.” (Opn., p. 28 [italics added].) The opinion

then concluded that “there is no evidence that the encounter amounted to a custodial arrest or

even a Terry-type detention.” (Opn., 34 [italics added].) Nevertheless, the deputy's “request”

for identification was “appropriate under the totality of the circumstances.” (Ibid.) After all,

“'t]he ability to briefly stop [a suspect],9 ask questions or check identification in the absence of

probable cause promotes a strong government interest in solving crimes.... (United States v.

Hensley (1985) 469 U.S. 221,

229.)' .” (Opn. 32.) Finally “[c]onsensual encounters do not

trigger Fourth Amendment scrutiny. ... A detention does not occur when a police office merely

approaches an individual on the street and asks a few questions.” (Opn. 30 -31 [italics added],

cites omitted.)

The court's discussion is not persuasive. There was absolutely no basis for Terry Stop.

The police received no information as to what petitioner was suspected of. On reporting to the

area the deputies also saw nothing. They heard nothing. They smelled nothing. There were no

reports of missing cats, bizarre noises or unusual silences.

They did not run a records check on

the car parked in front to find out who the owner was and if that person had a criminal record.

While Terry, allows an officer's opinion, based on training and experience, to be factored into

the analysis, that opinion must be based on “specific and articulable facts” (Id., at p. 21.)

In

Terry itself, the officer observed the youths engaging in conduct (walking back and forth) that in

9 The original has “a person” but this references the previously mentioned “person suspected of

involvement in past crime.” (Hensley, at p. 29.)

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his experience was consistent with casing the premises. (Id., at p. 22.) Here there were no such

articulated observations.

Sigala's opinion that “many times” a person sitting in a car for a long

time “may be an indication of a criminal act afoot” (CT 84-85) was a rationalization specifically

rejected in by the California Supreme Court In re Tony C., (1978) 21 Cal.3d 888, 896 [officer

was “very aware that juveniles do commit crimes when they're supposed to be in school and

they're not.” Such a “justification is so easily subject to abuse that this fact alone should not be

deemed sufficient to support the intrusion.” (Id., at p. 897.)

Sigala's abstract speculation was

insufficient. The only inference he might have drawn was that the person who was seen to be

doing nothing in the parked car might be inside the property. That inference was meaningless.

The appellate court's reliance on Hensely was misplaced.

In Hensley the police had

stopped the defendant based on a teletyped “wanted” flyer that “described both Hensley and the

date and location of the alleged robbery.” (Id., at p. 223.) This Court upheld the search, ruling

that “if police have a reasonable suspicion, grounded in specific and articulable facts, that a

person they encounter was involved in or is wanted in connection with a completed felony, then

a Terry stop may be made to investigate that suspicion. (Id. at p. 229 [italics added].)

The appellate court's reliance on the supposed fact of an open gate was also misplaced,

since any supposed waiver of privacy would imply the holding of predicate expectation of

privacy.

But, in all events, as pointed out in the petition for rehearing there was no testimony

that the gate was “open.” (See fn. 4, supra.)

Even if “open,” the California Supreme Court has

held that not “every open door-even in an urban environment-will justify a warrantless entry to

conduct further inquiry.” (People v. Ray (1999) 21 Cal.4th 464, 477.)

There must be some

indication that “the public was invited to enter.” (People v. Camacho (2000) 23 Cal.4th 824,

828 .) It was precisely that “indication” which was referenced in Tolar. The facts in Tolar were

that the defendants were using “an apparently legitimate” business as a front for their drug

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dealings. Although the business was enclosed by a chain link fence, a “sign stated that the

business was open Monday through Friday from 8 a.m. to 6 p.m., and the gate to the lot was

open.” (Tolar, at p.

532.)

No such sign was posted in this case and the prosecution below

never relied on a theory of public invitation.

If the Fourth Amendment truly protects persons not places, then petitioner had a

presumptive right to be left alone no matter where he was; and, on the facts of this case, against

being detained without cause for identification purposes even on a public street or in a concourse

open to the public. The fact that his unlawful detention took place on private property can hardly

be ruled to excuse what would have been inexcusable even in a public place. Petitioner submits

that the same expectation of privacy against unlawful detentions in public applies to unlawful

intrusions onto private property wherein one is present at the time of the search or seizure,

regardless of how long or evanescently one's anticipated presence might be and regardless of its

commercial, social, religious or even criminal nature.

The Court of Appeal's alternative that police can effect a consensual encounter on private

property contravenes this expectation. Petioner's research has found no case allowing consensual

encounters on property not open to the public. (Florida v. Royer, (1983) 460 U.S. 497 [“law

enforcement officers do not violate the Fourth Amendment by merely approaching an individual

on the street or in another public place”] [italics added].)

The core of the Fourth Amendment is

rendered a shambles if police can make warrantless entries into homes and assert a consensual

encounter as to anyone save the title or mortgage holder.

Such a ruling constitutes an open

invitation to the police to intrude into private places at will leaving the lawfulness be sifted out

under the principle novit enim qui sunt eius.

It bears note that petitioner is not asserting an expectation of privacy with respect to the

residence or any place where he was not present.

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Had the deputies flash-banged the front door

and ransacked the house in search of the “suspicious” person who “might potentially” be present

inside, petitioner could hardly exert an expectation of privacy in the contraband drugs discovered

in plain view during a “safety check” under the bedroom mattress. But those were not the facts.

Petitioner asserted an expectation of privacy solely against an official intrusion into the backyard

where he himself was present and legitimately working with the owner's permission

In petitioner's view the total absence of grounds to detain petitioner does not moot the

warrant question but rather infuses the question of standing to complain of the warrant's nonexistence.

If expectations of privacy are not to be based exclusively on property considerations

and if standing is not to be addressed as a “preliminary” issue, akin to jurisdiction, (Byrd, supra,

at slip p. [it is not a jurisdictional question and hence need not be addressed before addressing

other aspects of the merits of a Fourth Amendment claim”]) then what society recognizes as a

valid expectation of privacy must be infused, not only with “common practice” but with common

expectations as to what kind of privacy interests are protected by the Fourth Amendment.

In

short, the “standing” question must be addressed last taking into consideration the totality of

circumstances and interests involved in light of both common society experience and the

experience of established legal precedent. Adopting that approach, it simply cannot be held that

petitioner had no standing to challenge a warrantless entry and detention that was totally devoid

of recognized authority.

Sigala's warrantless intrusion was not an “aspect” of this case, it was

the distillation and kernel of everything the Fourth Amendment protects against -- official

heedlessness of constraint.

Petitioner submits it is absurd to holds that he has no expectation of

privacy against the very quintessential evil the Amendment supposedly shields him from.

His

“temporary” presence on the property was no different than temporary baby-sitting, temporary

visiting, or temporary driving of a leased vehicle.

The Fourth Amendment applies to events

that occur within circumstances existing at a given time. Just as it would be absurd to invalidate

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a traffic stop on the grounds that the broken tail-light was only a “temporary” malfunction,

petitioner submits that characterizing presence and connection at a place as “temporary” provides

no objective guidance as to what amounts to a meaningful or substantial privacy expectation in

and at that place.

For the reasons discussed, petitioner does not believe that the decision in Carter was

actually driven by a “transient commercial” standard but rather by the fact that at the time of an

assumedly valid and warranted arrest, the basis of which was not put at issue, the defendants had

no present connection to the place as to which they asserted an expectation of privacy.

Nevertheless, this Court's referencing “the purely commercial nature” of the defendant's presence

over a “short period of time” (id,. supra, at p. 90) has given rise to an amorphous standard which

requires clarification from this Court.

CONCLUSION

For the foregoing reasons, petitioner therefore respectfully requests that his petition for

certiorari be granted.

Word Count Certification

I certify that the word count of this petition, exclusive of tables and appendices, is 6,800

words as estimated by computer word count.

Dated: 29 July 2019

Respectfully submitted

Kieran D. C. Manjarrez

Attorney for Petitioner

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