SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

fn. 9 [58 L.Ed.2 nd 387, 399-400]; People v. McPeters (1992) 2
Cal.4 th 1148, 1171; People v. Shepherd (1994) 23 Cal.App.4 th 825,
828; People v. Cowan (1994) 31 Cal.App.4 th 795, 798; United
States v. Caymen (9 th Cir. 2005) 404 F.3 rd 1196, 1199-1200;
United States v. $40,955 in United States Currency (9 th Cir. 2009)
554 F.3 rd 752, 756; People v. Magee (2011) 194 Cal.App.4 th 178,
183.)
However, the court has the discretion to order the
prosecution to present its evidence before the defendant
proves his standing. (People v. Contreras (1989) 210
Cal.App.3 rd 450.)
Although the prosecution may not take “contradictory
positions in order to defeat an asserted expectation of
privacy,” the defendant is “not ‘entitled to rely on the
government's allegations in the pleadings, or positions the
government has taken in the case, to establish standing.’”
(United States v. Long (9 th Cir. 2002) 301 F.3 rd 1095, at p.
1100, citing United States v. Zermeno (9 th Cir. 1995) 66
F.3 rd 1058, 1062.)
Factors to consider:
Whether the defendant has a property or possessory interest
in the thing seized or the place searched;
Whether he has a right to exclude others from that place;
Whether he has exhibited a subjective expectation that the
place would remain free from governmental invasion;
Whether he took normal precautions to maintain his
privacy;
Whether he was legitimately on the premises; and
Whether the defendant was present at the place searched
“for a commercial purpose” (no standing) or was there as
an “overnight guest” (standing) with the knowledge and
permission of an identifiable host.
(People v. Shepherd (1994) 23 Cal.App.4 th 825, 828;
United States v. Silva et al. (9 th Cir. 2001) 247 F.3 rd 1051;
© 2012 Robert C. Phillips. All rights reserved
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