P. v. Lamont

Filed 2/9/07 P. v. Lamont CA4/3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW GORDON LAMONT,
Defendant and Appellant.
G032369
(Super. Ct. No. 02NF1341)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Carla M.
Singer, Judge. Affirmed.
Edward A. Hoffman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry J. T. Carlton and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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After the trial court denied Matthew Gordon Lamont’s motion to suppress,
he pleaded no contest to possessing a destructive device or explosive on a public street,
possessing a destructive device or explosive with the intent to injure or destroy property,
transporting a destructive device, and possessing materials with the intent to make a
destructive device or explosive. The court sentenced him to three years in state prison.
On appeal, Lamont challenged the trial court’s denial of his suppression
motion. Lamont argued that as a passenger in the car, he was seized when the police
officer illegally stopped the car in which he was riding in violation of his Fourth
Amendment rights. In this court’s prior published opinion People v. Lamont (2004)
125 Cal.App.4th 404 (Lamont), we agreed and reversed the judgment.
The California Supreme Court granted review in Lamont1 and has now
remanded the case to this court with directions to vacate our decision and reconsider our
decision in light of People v. Brendlin (2006) 38 Cal.4th 1107 (Brendlin) and People v.
Saunders (2006) 38 Cal.4th 1129 (Saunders). We have followed the court’s directions
and now reject Lamont’s challenge to the trial court’s denial of his suppression motion.
We affirm the judgment.
FACTS2
Long Beach Police Officer Erik Herzog was conducting surveillance of the
“Southern Kalifornia Anarchist Alliance” (SKAA) at its headquarters in the City of Long
Beach because of reports SKAA might try to disrupt a celebration of Adolf Hitler’s
birthday being held by the Aryan Nation in Orange County. Herzog saw Lamont
standing outside SKAA’s headquarters, talking with a small group of people. Lamont is
1 Review granted March 30, 2005 (S131308).
2 Because Lamont pleaded no contest, the facts are taken from the transcript
of the preliminary hearing, the transcript of the motion to suppress, and the police reports.

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a member of SKAA, and Herzog knew Lamont because he was arrested at a
demonstration turned riot the previous year.
Lamont walked towards a parking lot carrying clothes and two white plastic
jugs. One jug appeared to be a three-gallon water jug with a spout and the other a
one-gallon milk jug, both jugs looked to be empty. Lamont, Maxwell Lucas, and another
unidentified male got into a car and left. Herzog followed. They drove to a “hard-core
punk concert” at the Unitarian Church in the City of Anaheim. The unidentified male
stayed at the church, and Lucas and Lamont drove to a nearby grocery store. Lamont and
Lucas went into the store, exited the store, got into the car, and drove towards the
presumed location of the Aryan Nation celebration.
Lucas and Lamont stopped at a gas station. Herzog saw the car next to a
gas pump, but he could not see what they were doing. Lucas and Lamont left the gas
station, and Herzog briefly lost sight of them. When Herzog found them, the car was
parked alongside a curb with the passenger door opened slightly. Lucas was sitting in the
driver’s seat and Lamont was sitting in the back passenger seat. Herzog called the City
of La Habra Police Department and asked them to stop the car. Lucas and Lamont drove
away.
La Habra Police Officer Kim Razey stopped Lucas and Lamont. Lucas was
driving and Lamont was sitting in the rear passenger seat. Razey asked Lucas for his
driver’s license and he complied. Razey told Lucas he pulled him over because there was
a strong odor of gasoline coming from the car. Lucas said the gas cap was leaking.
Razey asked Lucas and Lamont whether they had ever been arrested or were on parole or
probation. They said, “no.” Razey asked them to get out of the car so he could
investigate where the gasoline odor was coming from. Two undercover detectives
arrived.
Razey asked Lamont and Lucas whether he could search them for safety
reasons. Lamont consented to a pat down and Lucas consented to be searched. Razey

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asked them again whether they had ever been arrested. Lamont said he had been arrested
and was on probation, but he did not know whether he was subject to a search and seizure
condition.3 One of the detectives searched Lamont and found three cigarette lighters in
his pants pocket. Razey looked inside the car and saw an unopened bottle of Tequila
Rose on the floor of the right passenger side of the car. Because Lamont and Lucas were
under the age of 21, Razey conducted a full search of the car for contraband. Razey
searched the rear passenger portion of the car where Lamont was sitting and found the
following: a one-gallon jug with flammable liquid; two sponges soaked with flammable
liquid, one of which had two candles embedded in it; a pair of rubber gloves; a bandana;
anarchist materials; and articles on nazi gatherings.
DISCUSSION
In his opening brief, Lamont argued the trial court erroneously denied his
motion to suppress evidence because as a passenger in the car, he was seized when Razey
illegally stopped the car in violation of his Fourth Amendment rights. The Attorney
General, relying on People v. Cartwright (1999) 72 Cal.App.4th 1362 (Cartwright),
contended Lamont, a passenger in the car Razey stopped, was not seized within the
meaning of the Fourth Amendment.
In Lamont, supra, 125 Cal.App.4th 404, after reviewing and considering
the relevant decisional authority on both sides of the issue, the majority opinion, over
Justice Sills’ dissent, concluded Lamont was seized within the meaning of the Fourth
Amendment, and because the district attorney conceded the stop was illegal, all evidence
seized as a result of the stop should have been suppressed under the “‘fruit of the
poisonous tree’” doctrine. (U.S. v. Kimball (1st Cir. 1994) 25 F.3d 1, 6; People v. Butler
3 In his opening brief, Lamont states, “Razey’s claim that [he] acknowledged
being on probation appears to be demonstrably false in light of a subsequent discussion
between the [trial] court and the [district attorney], in which the court said to the [district
attorney], ‘ . . . [Lamont] does not have a criminal record. Is that correct?’ and the
[district attorney] responded, ‘Yes, that’s correct, Your honor.’”

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(1988) 202 Cal.App.3d 602, 607.) The California Supreme Court granted review in
Lamont, and subsequently issued its opinion in Brendlin, supra, 38 Cal.4th 1107. The
Supreme Court transferred Lamont back to us to reconsider our decision in light of
Brendlin. Although authorized by California Rules of Court, rule 8.200(b)(1) to do so,
Lamont did not file a supplemental opening brief. As we explain below, based on the
California Supreme Court’s holding in Brendlin, supra, 38 Cal.4th 1107, we conclude
Lamont, a passenger in the car in which Razey illegally stopped, was not seized within
the meaning of the Fourth Amendment.
In ruling on Lamont’s suppression motion, the trial court stated: “The
question for the court is whether you can distinguish what happened with . . . Lamont
from the holding in [Cartwright, supra, 72 Cal.App.4th 1362], based on the fact that
there is a concession by the [district attorney] that there was no probable cause nor
reasonable suspicion, or traffic violation, that preceded the stop of the vehicle. [¶] Now,
I have read and reread Cartwright, and I do think that Cartwright does apply. And I
think that the emphasis in Cartwright is what can a passenger in a vehicle expect in terms
of [a] legal obligation on the part of the officer. And I don’t see that the court should not
consider Cartwright in determining this issue. [¶] So having considered all of the
arguments and all of the items that I identified on the record, and in light of the
stipulation that has been presented to this court as a factual basis on which the court
should rule, the court now denies the motion . . . .” (Italics added.)
“‘In ruling on a motion to suppress, the trial court must find the historical
facts, select the rule of law, and apply it to the facts in order to determine whether the law
as applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]’ [Citation.] In evaluating whether the fruits of a search
or seizure should have been suppressed, we consider only the Fourth Amendment’s

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prohibition on unreasonable searches and seizures. [Citation.] ‘The proponent of a
motion to suppress has the burden of establishing that his own Fourth Amendment rights
were violated by the challenged search or seizure.’ [Citation.]” (Brendlin, supra,
38 Cal.4th at pp. 1113-1114, fn. omitted.)
Both parties spend much time discussing whether Lucas’s and Lamont’s
conduct justified the traffic stop, i.e., whether Herzog saw Lucas and Lamont commit
Vehicle Code violations and informed the La Habra Police Department of the violations
or whether Razey smelled gasoline coming from the car before stopping them. However,
the district attorney stipulated “there was no reasonable suspicion that justified the
vehicle stop.” Therefore, Razey’s stop was illegal. We must now consider what effect, if
any, this fact has in light of Brendlin.
As the Brendlin court thoroughly explained, there is a split of authority in
federal and state courts as to whether a passenger in a vehicle has a reasonable
expectation of privacy4 and may challenge the legality of a traffic stop. (Brendlin, supra,
38 Cal.4th at pp. 1114-1115.) In Brendlin, an officer stopped a car with expired
registration tabs. Prior to the stop, the officer confirmed “the car’s registration had
expired two months earlier but that [a renewal] application was ‘in process[.]’” Although
the officer observed that a valid temporary operating permit was “taped to the rear
window, he could not determine . . . whether the permit matched the [car] and decided to
stop [it] to investigate . . . .” The officer approached the car’s driver’s side and asked the
driver for her driver’s license. “He also asked the defendant, the passenger, to identify
himself, since he recognized [him] as” someone who “had absconded from parole
supervision.” The officer “observed receptacles in the car containing substances used [to
4 The United States Supreme Court and California Supreme Court have
directed all other courts to abandon use of the word “‘standing’” in Fourth Amendment
discussions. (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3 [avoid the term
“‘standing’” but nature of inquiry remains the same].)

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produce] methamphetamine. In response to the [officer’s] inquiry, the defendant falsely
identified himself,” and the officer returned to his car and verified the defendant “was a
parolee at large and had an outstanding no-bail warrant for his arrest. During this period,
[the] defendant opened and then closed the passenger door of the [car]. [¶] After
requesting backup, [the officer] pointed his weapon at [the] defendant, ordered him out of
the car, and placed him under arrest for the parole violation.” (Id. at pp. 1111-1112.)
After noting the Attorney General abandoned its argument the officer had
“articulable suspicion” for the stop, the Brendlin court noted the Attorney General argued
the defendant, “a passenger [in the car], was not seized within the meaning of the Fourth
Amendment” as a result of the traffic stop, but only as a result of being ordered out of the
car, which was lawful because of the “no-bail warrant[.]” (Brendlin, supra, 38 Cal.4th
at p. 1114.) The court stated the issue turned on “the definition of a seizure in the Fourth
Amendment’s prohibition on ‘unreasonable searches and seizures.’” (Id. at p. 1115.) “A
seizure occurs when the police, by the application of physical force or show of authority,
seek to restrain the person’s liberty [citations]; the police conduct communicated to a
reasonable innocent person that the person was not free to decline the officer’s request or
otherwise terminate the encounter [citation]; and the person actually submitted to that
authority [citation] for reasons not ‘independent’ of the official show of authority
[citation]. [¶] . . . [¶] [A]n officer causing a vehicle to pull over in transit is conducting
an investigatory stop of the driver.’ [Citations.] ‘[T]he display of authority and control
is directed at the driver, not the passenger.’ [Citation.] [¶] More importantly, [the]
defendant, as the passenger, had no ability to submit to the deputy’s show of
authority. . . . ‘The passenger simply has no say in the matter.’ [Citation.]”
(Id. at pp. 1118-1119.)
The court explained a critical factor was why the passenger’s freedom was
curtailed. The court stated a passenger’s freedom is curtailed because it is unsafe to exit
a moving vehicle or the passenger “prefer[s] to await the completion of the traffic stop

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and continue en route in the company of the driver[,]” but neither factor means “the
passenger has been seized within the meaning of the Fourth Amendment.” (Brendlin,
supra, 38 Cal.4th at p. 1119.) The court reasoned the liberty contemplated by the
definition of seizure refers to whether a person “feel[s] free to depart or otherwise
conduct his or her affairs as though the police were not present[]” and not whether the
person “has the physical capacity to leave the scene.” (Ibid.) The court said, “Absent
some directive from the police, and as long as the rules of the road are otherwise obeyed,
the passenger is free to do what the driver cannot—i.e., exit the vehicle or dismount from
the motorcycle or bicycle and thereby terminate the encounter with the officer.
[Citation.]” (Id. at p. 1120.)
After addressing the dissent’s 5 argument that the majority’s decision will
lead to anomalous consequences because the driver, who has been seized, can suppress
the fruits of an unlawful search, but the passenger, who has not been seized, cannot, the
court explained passengers are not without constitutional protection. “We emphasize that
passengers who are in vehicles subjected to unjustified traffic stops are not without
constitutional protection. Once the vehicle has been stopped, the passenger may not be
detained thereafter without reasonable suspicion the passenger is involved in criminal
activity. [Citations.] Furthermore, neither the passenger nor the passenger’s belongings
in the vehicle may be searched without lawfully acquired cause to justify an arrest
[citation] or a search [citation]. A passenger in a car subjected to an unjustified stop may
also be able to prosecute a civil suit against the police under the rubric of substantive due
process. [Citation.]” (Brendlin, supra, 38 Cal.4th at p. 1123.) The court concluded, “We
therefore hold that because the deputy effected a traffic stop of [the driver’s] vehicle
5 Justices Corrigan, Werdegar, and Moreno dissented. On November 28,
2006, Brendlin filed a petition for writ of certiorari with the Supreme Court of the United
States.

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without any indication [the] defendant, the vehicle’s passenger, was the subject of his
investigation or show of authority, [the] defendant was not seized when [the driver]
submitted to the deputy’s show of authority and brought the vehicle to a stop.” (Ibid.)
Here, Lamont has not shown that he, as the passenger, was the subject of
Razey’s show of authority or that he actually submitted to it. Razey’s flashing lights
were directed at the driver, Lucas, and not at Lamont. Once the car came to a stop, Razey
approached the driver’s side of the car, without blocking Lamont’s exit, brandishing a
weapon at him, or making any intimidating movements towards him. In these
circumstances, one cannot say that Lamont was the subject of Razey’s investigation or
show of authority.6
DISPOSITION
The judgment is affirmed.
O’LEARY, J.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.
6 Because Lamont claims only the traffic stop itself constituted a seizure, we
need not consider whether any of Razey’s actions subsequent to that constituted a seizure.
Therefore, we need not discuss Saunders, supra, 38 Cal.4th 1129.

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