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Name: People v. Schmitz
Case #: G040641
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/18/2010
Subsequent History: review granted 12/1/10 S186707

The search of a car, not consented to by the driver or owner, cannot be upheld based on the parole status of a passenger who has no possessory interest in the car or joint access or control over the areas searched. An officer saw appellant make a U-turn, so she followed him and asked if he was lost. Appellant said no and explained he turned down the street because he thought it might be illegal to make a U-turn on the main street. The officer exited her car, began questioning appellant, and requested his driver’s license. When appellant showed his license, the officer saw abscesses on his arms. Suspecting drug use, she asked if any of the adults in the car were on probation or parole. The front-seat passenger admitted he was a parolee, so the officer searched the car even though appellant did not affirmatively consent. She found methamphetamine hidden in a shoe on the back floor board, as well as two syringes inside a potato chip bag. This was an appeal from the denial of a motion to suppress. The appellate court reversed the denial. Although the encounter was initially consensual, its nature changed when the officer asked to search the car, and appellant did not consent. Appellant’s silence could not be construed as acquiescence. And the search could not be upheld based on the passenger’s parole status. Appellant did not lose the privacy interest in his car merely by letting a parolee ride as a passenger. Allowing a parolee to ride as a passenger does not cede authority or control of the car to him or her. Indeed, there was no evidence appellant even knew his passenger was on parole.