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State v. Bissegger7/17/2003
(For Official Publication)
Lacy Bissegger appeals the trial court's order denying her motion to suppress evidence from Bissegger's personal property seized during a warrantless search of a car in which she was a passenger. We reverse and remand for proceedings consistent with this opinion.
BACKGROUND
On the evening of November 5, 2001, appellant Lacy Bissegger was riding as a passenger in her boyfriend's car. Bissegger and her boyfriend were stopped by Provo Police because the car's registration had expired. Before the initial stop, Officer Wolken did not observe impaired driving or any other illegal activity. During the stop and the concomitant questioning, Officer Wolken testified that he smelled alcohol coming from the driver's breath. Officer Wolken saw no other signs of impairment, and knew both the driver and Bissegger were over the age of twenty-one. Based upon the odor of alcohol, Officer Wolken asked the driver to exit the car to perform a field sobriety test. The driver passed the field sobriety test. Officer Wolken then asked the driver if there were any open containers of alcohol in the car. The driver said that there were none and Officer Wolken observed none. However, Officer Wolken asked the driver for consent to search the car for open containers of alcohol. The driver consented to the search.
Before searching the car, Officer Wolken ordered Bissegger out of the car. Bissegger exited, but left behind some of her personal belongings, including a small opaque lip-balm container. Officer Wolken discovered this container on the dashboard during the search, but could not see inside the container and could not tell what, if anything, was inside. Officer Wolken testified that he knew the lip-balm container was Bissegger's. Officer Wolken unscrewed the lid of the lip-balm container and found methamphetamine inside. Bissegger was subsequently charged with possession of a controlled substance.
Bissegger moved to suppress the methamphetamine found in the lip-balm container. After a hearing, the trial court denied Bissegger's motion on the ground that she lacked Fourth Amendment standing to contest the search. Thereafter, Bissegger timely appealed.
ISSUE AND STANDARD OF REVIEW
Bissegger argues the trial court erred in denying her motion to suppress. "In examining a denial of a motion to suppress, we review the trial court's findings of fact 'under a clearly erroneous standard' and the trial court's 'ultimate legal conclusions' based on those findings 'under a correctness standard.'" State v. Sepulveda, 842 P.2d 913, 914 (Utah Ct. App. 1992) (quoting State v. Lopez, 831 P.2d 1040, 1043 (Utah Ct. App. 1992)) (other quotations omitted). The central issue raised in this appeal is whether the trial court erred in concluding Bissegger, as a passenger, lacked Fourth Amendment standing to challenge the search of her personal belongings in the car. Thus we must determine, as a matter of law, whether Bissegger's "expectation of privacy" was objectively reasonable and legitimate. Id. at 915.
ANALYSIS
I. Standing
Bissegger argues that as a passenger in a car she has Fourth Amendment standing to challenge the search of the car. The Fourth Amendment guarantees " he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961,
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