1

Filed 1/25/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALD RORABAUGH,

Defendant and Appellant.

C090482

(Super. Ct. Nos. STK-CRFECOD-2015-0006547 & 

SF131576A)

APPEAL from a judgment of the Superior Court of San Joaquin County, Charlotte 

J. Orcutt, Judge. Reversed with directions.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. 

Martinez, Chung Mi Choi, and Christopher J. Rench, Deputy Attorneys General, for 

Plaintiff and Respondent.
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When executing a search warrant at defendant Donald Rorabaugh’s home, police 

learned that one of his cars was a short distance away, at a ranch. Police went to the 

ranch and towed the car away to be stored until they could obtain a warrant to search it. 

Later, the trial court denied defendant’s motion to suppress evidence found in the car. In 

closing argument to the jury, the prosecution argued DNA evidence found in the car

corroborated its theory of defendant’s culpability for murder. 

After the jury found defendant guilty of first degree murder, the trial court 

imposed a term of 25 years to life in prison. 

On appeal, defendant contends the trial court erroneously denied (1) his 

suppression motion and (2) his motion for acquittal. We agree with defendant’s first 

claim and disagree with his second claim. 

We conclude police violated the Fourth Amendment when they conducted a 

warrantless seizure of defendant’s unattended car on private property. We further 

conclude the trial court’s failure to suppress evidence obtained after a search of the car 

was prejudicial error. Accordingly, we reverse defendant’s conviction and remand for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Around 2:30 a.m. on May 24, 2015, several dogs belonging to a husband and wife 

that lived on a property in rural San Joaquin County began barking and woke up the 

couple. The wife heard a vehicle and let the dogs outside. The dogs kept barking after 

she heard the car turn off. About 15 minutes later, she heard the car start up again and 

“peel[] out.” The dogs stopped barking, and she let them back into the house.

Later that morning, the wife saw a body in an irrigation canal that bordered her 

property.

Police found drag marks from a road to the location in the canal where the body 

was found and red marks consistent with blood nearby.
3

An autopsy noted the victim, Edward Magana, had broken ribs, bruising on his left 

lung and eyelids, and abrasions on his face, abdomen, and arms. Bleeding in the whites 

of his eyes and injuries to his neck indicated Magana was strangled, and large bruises on 

the scalp and temple and bleeding on the surface of the brain indicated he received 

forceful blows to the head. 

The pathologist who conducted the autopsy testified that either strangulation or 

blunt force trauma to the head could have killed Magana, but “[c]ertainly together these 

two caused his death.”

An acquaintance of defendant’s testified that he ran into defendant at a bar (called 

“108 Sports Lounge” or “108 bar”) the night before Magana’s body was found, around 

11:00 p.m. At the bar, located in Riverbank, California, the acquaintance introduced 

defendant to the man who would later become a codefendant in this case, Joseph Denner.

The manager of the bar testified that Magana frequented the bar, and that both

defendant and Denner were at the bar the night Magana was killed.

Magana’s wife testified she knew defendant but not Denner, and that defendant 

and Magana occasionally drank together at the 108 bar.

A bartender who worked the night of Magana’s death testified she knew defendant 

from before but met Denner for the first time that night. She recalled that defendant left 

the bar around 1:45 a.m., but Denner stayed and helped clean up. Denner left in a car 

with three males who had been at the bar earlier wearing tuxedos.

A witness testified that he went to 108 bar that night dressed in a tuxedo and gave 

Denner a ride a few blocks from the bar.

Two women who were at the bar together that night testified that, around 

2:00 a.m., they gave defendant a five-minute ride from the bar to defendant’s home in 

Riverbank. They testified that, when defendant got out of the car, he greeted a male, who 

one of the women recalled was wearing a backpack that she “would guess” was black.
4

A Riverbank resident with whom Magana lived for two years (around 2012-2014) 

testified that after Magana moved out of her home, she periodically continued to see 

Magana in town, sometimes out “walking or . . . at the bar.” Magana had no fixed 

address, and was living “place to place.” She testified that the last time she saw Magana 

was several days before May 24, 2015. Magana was “just walking down the street,” with 

a black backpack. “Every time I’d see him walking he would have [that backpack] with 

him,” the witness said.

Defendant’s father testified that defendant lived with him at a house in Riverbank. 

Defendant had a 1966 Oldsmobile Cutlass, which was “very loud” due to its engine and 

muffler. Around 2:30 a.m. on May 24, 2015, defendant’s father heard defendant being 

dropped off in a car and then saw defendant enter the garage of the house, where he 

normally slept. Then, around 4:30 a.m., he heard loud noises that he associated with his 

son’s car.

Defendant’s father insisted at trial that during a recorded jail conversation with 

defendant, he was referring to the following morning, not the morning Magana’s body 

was found, when he told defendant he had heard a car trunk slamming or someone 

kicking the car two or three times at 4:30 a.m.

Video surveillance from a Riverbank business showed a light-colored Cutlass 

being driven in town at 2:54 a.m. on May 24, 2015.

At 2:28 p.m. on May 28, 2015, Stanislaus County Sheriff’s officers obtained

search warrants for defendant’s home, Denner’s home, and “[u]nknown vehicles” at the 

addresses. Officers immediately executed the search warrant at defendant’s home, and 

learned that defendant’s Cutlass was less than a three-minute drive away, on a ranch on 

the other side of a local river. They went directly from defendant’s home to the ranch,

found defendant’s Cutlass, and towed it to the Stanislaus County Sheriff’s Office in 

Modesto to be stored until a search warrant could be obtained for the vehicle.
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Blood in the trunk of the car matched Magana’s DNA profile. A DNA swab from 

the steering wheel matched defendant’s DNA profile, and Denner was a possible major 

contributor to DNA on a passenger door handle.

Codefendant Denner’s Testimony

Denner did not recall being introduced to defendant at the bar that night or ever 

meeting him. The first time he remembered seeing defendant, he was on top of another 

man punching him in the face, when Denner was walking in Riverbank after the 108 bar 

closed. Denner tried to intervene to help the man defendant was assaulting, but defendant 

shoved him to the ground, told Denner he had a gun, and told Denner he “had to help” 

defendant.

Defendant forced Denner to: assault Magana; help defendant put Magana into the 

trunk of a car; and sit in the front passenger seat of defendant’s car.

Defendant drove the car to a canal and made Denner help him lift Magana out of 

the trunk. Magana was moaning and blood was coming from his nose. Denner saw 

blood in the trunk. Defendant put Magana in the canal, making a splash of water.

Defendant’s Testimony

Defendant testified he is six feet two inches tall and weighs 380 pounds. On the 

evening of May 23, 2015, he had been drinking at a friend’s house. He drove his Cutlass 

home around 6:00 p.m. He returned to his friend’s house in his friend’s car, and stayed 

until around 10:00 p.m., when he walked to a first bar, and then walked to the 108 bar, 

arriving around 11:00 p.m.

He left the 108 bar at closing time, around 2:00 a.m., and got a ride home from 

friends. He did not recall being introduced to Denner that night, explaining that he was 

sometimes “introduced to 20 or 30 people a night” at the 108 bar. He had no knowledge 

of ever meeting Denner.
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And he did not recall greeting anyone when he was dropped off, explaining that he 

had “been drinking an excessive amount that day. . . . I possibly could have seen 

somebody and shook their hand, I’m not one hundred percent sure.”

Defendant testified that after his friends dropped him off, he went to bed, and 

woke up the next morning around 8:00 a.m.

The following day, Memorial Day, he took his Cutlass to the ranch of a friend of 

the family where he had been keeping it “for years.” Though the Cutlass did not have 

“tags on it” at the time, defendant “had maybe been driving it for about two weeks, three 

weeks, because [he] blew the motor up in” his other car. So he “took the chance of 

driving it.”

Defendant took the Cutlass to the friend’s ranch, so that he could work on another 

car in his driveway in Riverbank. “[A]t the house, it’s blacktop and concrete. At the 

ranch it’s all loose gravel and big chunky rocks, so laying on the ground [didn’t] feel too 

good.”

Defendant knew Magana. They drank beer and played pool in bars. Defendant 

saw Magana “maybe once every couple months at the bar,” or “walking around.”

Defendant had the only set of keys to the Cutlass. Defendant agreed that his 

Cutlass’s engine was loud, and testified that he did not hear his car leave his home 

between 2:30 a.m. and 3:00 a.m. He “imagine[d] [he] would have heard it,” if the 

Cutlass started and left without him, but he “was pretty drunk . . . though.” 

The last time defendant saw Magana was two weeks before the night he died. 

Defendant had no idea how Magana’s blood got in the trunk of his car or how Denner’s 

DNA got inside the car.

He believed the video showing a car that looked like his Cutlass was from the 

previous day, not May 24.
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Verdicts and Judgment

In December 2017, a jury found defendant guilty of first degree murder, and found 

“not true” the allegation that defendant committed the murder while engaged in the 

commission of kidnapping. Denner was found not guilty of first degree murder and 

guilty of second degree murder.

In June 2019, defendant filed a motion for a new trial, arguing, inter alia, there 

was insufficient evidence for the jury’s verdict and the trial court erred in denying his 

motion for acquittal.

In September 2019, the trial court denied the new trial motion and sentenced 

defendant to a term of 25 years to life in prison.

Defendant timely appealed.

DISCUSSION

I

Motion to Suppress Evidence

A. Parties’ Arguments and Trial Court Ruling

In July 2016, defendant filed a motion to suppress evidence pursuant to Penal 

Code section 1538.5, arguing that the “warrantless seizure of the car from private 

property where it was rightly stored” violated the Fourth Amendment, as explained in 

Coolidge v. New Hampshire (1971) 403 U.S. 443 (Coolidge). Defendant argued that 

officers “could easily have adapted the warrants” they had already obtained “for the

seizure of the car. But instead they chose to go behind the warrant requirement of the 

Fourth Amendment and conduct their own extra-judicial procedure without the signature 

of a neutral and detached magistrate.”

Acknowledging defendant’s “legitimate property right to the vehicle seized,” the 

People opposed the motion, arguing the seizure was “well within the automobile 

exception.”
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David Christensen, owner and resident of the rural property where defendant’s car 

was found, was the sole testifying witness at the October 2016 suppression hearing. He 

explained that pursuant to a long-standing arrangement with defendant’s family, 

defendant repaired and maintained Christensen’s farm equipment and personal vehicles, 

and in exchange, Christensen allowed defendant to keep his car just inside the “edge of 

the property line,” a place visible from Christensen’s “front door or front window or a 

bedroom window.” Christensen sometimes saw defendant on the property, working on 

the car. No one outside defendant’s family had permission to store their vehicles on the 

property.

The property was not accessible by public road, but by a “[p]rivate driveway,” 

which was three-quarters of a mile long. The driveway had a gate, but the gate was not 

locked at the time of the seizure.

On the day of the seizure, Christensen was home when an officer approached him 

around 3:00 p.m. and told him law enforcement was “[l]ooking at [the] car” and would 

tow it. No one asked for permission to tow the car.

Defendant’s car was about 200 yards from Christensen’s home, and had been there 

for about six months before it was seized. Christensen did not have keys to the car, had 

no ownership interest in it, and never agreed with defendant that he would “keep an eye 

on” it. He did not tell law enforcement not to take the car and did not try to stop them 

from taking it.

In argument at the hearing, defense counsel argued that under Coolidge, the 

evidence obtained via seizure of the car had to be suppressed. 

The prosecutor argued Coolidge was “a 1971 case, [that] ha[d] been eviscerated 

for th[e] particular proposition” that defendant relied on: “the idea of getting a warrant 

for [a] vehicle because the person had been arrested.” This was so, the prosecutor 

argued, because subsequent case law “says the automobile exception . . . is basically, in 

and of itself, the exigent circumstances . . . because of the inherent mobility of the 
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vehicle, whether the defendant . . . is right there in proximity to the vehicle.” “[O]n top 

of that,” the prosecutor argued, defendant’s car “was on somebody else’s private 

property,” which meant that defendant had “no expectation of privacy” vis-à-vis the 

seizure of his car.

The trial court denied the suppression motion, explaining that “since Coolidge” the 

United States Supreme Court “created the automobile exception. That exception says 

that officers can search a car independent of the detention or arrest of the defendant when 

there is probable cause to believe the vehicle contains evidence of a crime. So what is the 

probable cause in this case?” After the trial court and the parties discussed the sequence 

of events of the murder investigation leading up to the warrantless seizure of defendant’s 

vehicle in San Joaquin County by Stanislaus County law enforcement, the trial court 

explained that “probable cause for evidence of a crime also applies to parked cars . . . .”

The trial court continued: “So what we have is we have a vehicle that has been 

parked at a house that does not belong to the defendant, so there is a reduced expectation 

of privacy, and the vehicle was seized the same day that [law enforcement] got the 

information about [d]efendant” from Denner, and then obtained “the search warrant for 

[d]efendant Rorabaugh’s house,” during the search of which, defendant’s father “tells 

them about the car” a short distance away. “In this vehicle police can expect to find 

possibly bodily fluids, maybe items belonging the victim, since it is alleged that the 

victim was transported in the trunk of the vehicle. [¶] There is very little expectation of 

privacy in a vehicle left in somebody else’s house when that person does not have the 

keys and he can only see the vehicle from certain vantage points within the house.”

The trial court denied the suppression motion, ruling the case fell “squarely 

within” the automobile exception, despite “[t]he case relied on by the defense,” which 

was “old law.”
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B. Parties’ Arguments on Appeal

In initial briefing, defendant argued the trial court erred by denying his 

suppression motion because “it was unlawful for law enforcement to enter the curtilage 

of [the] farm and seize” defendant’s car, as the automobile exception “is limited to the 

vehicle itself and does not . . . allow law enforcement to invade the space outside of the 

automobile without a warrant when that space is part of the curtilage of the home.” For 

that proposition, defendant relied on Collins v. Virginia (2018) 584 U.S. ___ 

[201 L.Ed.2d 9] (Collins), which was decided after the jury found him guilty and before 

he filed a new trial motion.

The People argued the trial court properly denied the suppression motion, because 

“police officers [had] sufficient probable cause to seize” defendant’s car “under the 

automobile exception to conduct a search for evidence of” the murder. Defendant’s car 

was not in the “curtilage” of landowner’s home, the People argued. Rather, it was found 

“200 yards away.”

Further, the People argued the car “itself was evidence of the commission of the” 

murder, rendering warrantless seizure of the car “lawful[] . . . under the instrumentality of 

the crime exception.” And, defendant “had no reasonable expectation of privacy in the 

[landowner’s] home and property,” as he “did not reside” there, “was not an overnight 

guest,” and “society is [un]willing to recognize as reasonable” a “subjective expectation 

of privacy in an open fields area.” 

After initial briefing was complete, we asked the parties to address in 

supplemental briefing whether the warrantless seizure of defendant’s car on private 

property was lawful under Coolidge, and whether the automobile exception applied to the 

seizure.

In supplemental briefing, defendant argues “Coolidge and Collins make clear that 

based on longstanding Fourth Amendment precedent, the automobile exception does not

apply in the present case because the vehicle seized was parked on private residential 
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property in which appellant had a legitimate expectation of privacy. Accordingly, it was 

unlawful for law enforcement to enter the curtilage of the farm to seize appellant’s 

vehicle without a warrant.”

The People argue in supplemental briefing that the automobile exception applies 

to the warrantless seizure of defendant’s vehicle, “because the car was readily mobile and 

officers had probable cause to believe the vehicle contained evidence of a crime.”

C. Legal Principles

“The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized.” (U.S. Const., 

4th Amend.) 

In Chambers v. Maroney (1970) 399 U.S. 42, the Supreme Court “held that where 

police have probable cause to stop and search a car without a warrant, a subsequent 

search of the car after it has been driven to a police station is also permissible without a 

warrant. [Citation.] Chambers observed that the high court had long adhered to the rule 

that a warrantless search of an automobile is permissible so long as the police have 

probable cause to believe the car contains evidence or contraband. [Citations.] This 

exception to the warrant requirement, Chambers said, is justified by the ease with which 

an automobile might be moved out of the jurisdiction before a warrant can be obtained. 

[Citation.] Although Chambers recognized that the problem of mobility might be solved 

by first seizing the car and then seeking a search warrant, the high court declined to adopt 

such a rule: ‘For constitutional purposes, we see no difference between on the one hand 

seizing and holding a car before presenting the probable cause issue to a magistrate and 

on the other hand carrying out an immediate search without a warrant. Given probable 

cause to search, either course is reasonable under the Fourth Amendment.’ ” (Robey v. 

Superior Court (2013) 56 Cal.4th 1218, 1225-1226, italics added.)
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The next year, in Coolidge, the court ruled the “automobile exception” to the 

Fourth Amendment’s warrant requirement did not apply to seizure and subsequent search 

at a police station of a car that was parked in plain view in the defendant’s driveway, 

when defendant already had been arrested inside his home. (Coolidge, supra, 403 U.S. at 

pp. 456, 458-464.) This was so despite probable cause to search the car. (Id. at p. 458 

[“even granting that the police had probable cause to search the car, the application of the 

[automobile exception] to these facts would extend it far beyond its original rationale”]; 

id. at p. 464 [“Here there was probable cause, but no exigent circumstances justified the 

police in proceeding without a warrant.”].)

The court explained that the “underlying rationale” of the automobile exception to 

the Fourth Amendment’s warrant requirement -- that it is “ ‘not practicable to secure a 

warrant because the vehicle can be quickly moved out of the locality or jurisdiction in 

which the warrant must be sought’ ” -- was inapplicable in the case, because “[t]he 

opportunity for search” was not “ ‘fleeting,’ ” and “[t]he objects that the police are 

assumed to have had probable cause to search for in the car were neither stolen nor 

contraband nor dangerous.” (Coolidge, supra, 403 U.S. at pp. 459-460.)

The court explained: “The word ‘automobile’ is not a talisman in whose presence 

the Fourth Amendment fades away and disappears. And surely there is nothing in this 

case to invoke the meaning and purpose of the [automobile exception articulated in 

earlier precedent] -- no alerted criminal bent on flight, no fleeting opportunity on an open 

highway after a hazardous chase, no contraband or stolen goods or weapons, no 

confederates waiting to move the evidence, not even the inconvenience of a special police 

detail to guard the immobilized automobile. In short, by no possible stretch of the legal 

imagination can this be made into a case where ‘it is not practicable to secure a warrant,’ 

[citation], and the ‘automobile exception,’ despite its label, is simply irrelevant.” 

(Coolidge, supra, 403 U.S. at pp. 461-462, fn. omitted.)
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Coolidge also rejected the government’s argument for “warrantless seizure and 

search of the [defendant’s] car . . . [as] an ‘instrumentality of the crime,’ . . . [that] might 

be seized by the police on [defendant’s] property because it was in plain view.” 

(Coolidge, supra, 403 U.S. at p. 464.) The court explained the “ ‘plain view’ ” exception 

was inapplicable because the doctrine applies only when a police officer has “a prior 

justification for an intrusion in the course of which he came inadvertently across a piece 

of evidence incriminating the accused,” “whether it be a warrant for another object, hot 

pursuit, search incident to lawful arrest, or some other legitimate reason for being present 

unconnected with a search directed against the accused.” (Id. at p. 466, italics added.)

“The criteria that generally guide ‘plain view’ seizures were set forth in 

Coolidge . . . .” (Horton v. California (1990) 496 U.S. 128, 134 (Horton).) The opinion

“described the two limitations on the [plain view] doctrine . . . implicit in its rationale: 

First, ‘that plain view alone is never enough to justify the warrantless seizure of 

evidence,’ [citation]; and second, ‘that the discovery of evidence in plain view must be 

inadvertent.’ [Citation.]” (Id. at p. 136.) “It is, of course, an essential predicate to any 

valid warrantless seizure of incriminating evidence that the officer did not violate the 

Fourth Amendment in arriving at the place from which the evidence could be plainly 

viewed. There are, moreover, two additional conditions that must be satisfied to justify 

the warrantless seizure. First, not only must the item be in plain view, its incriminating 

character must also be ‘immediately apparent.’ [Citations.] Thus, in Coolidge, the cars 

were obviously in plain view, but their probative value remained uncertain until after the 

interiors were swept and examined microscopically. Second, not only must the officer be 

lawfully located in a place from which the object can be plainly seen, but he or she must 

also have a lawful right of access to the object itself.” (Id. at pp. 136-137, fn. omitted,

italics added.) 

Horton emphasized that “[t]he right to security in person and property protected 

by the Fourth Amendment may be invaded in quite different ways by searches and 
14

seizures. A search compromises the individual interest in privacy; a seizure deprives the 

individual of dominion over his or her person or property.” (Horton, supra, 496 U.S. at 

p. 133.)

The different interests that the Fourth Amendment protects were discussed in 

Soldal v. Cook County (1992) 506 U.S. 56 (Soldal), wherein the court explained that even 

though “no invasion of personal privacy has occurred” if police “lawfully enter a house,” 

and “come across some item in plain view and seize it,” further “scrupulous[] . . . 

inquiry” is necessary to vindicate the Fourth Amendment. (Soldal, at pp. 65-66.) “[I]n 

the absence of consent or a warrant permitting the seizure of the items in question, such 

seizures can be justified only if they meet the probable-cause standard, [citation], and if 

they are unaccompanied by unlawful trespass, Horton, 496 U.S. at [pp.] 136-137. That is 

because, the absence of a privacy interest notwithstanding, ‘[a] seizure of the article . . . 

would obviously invade the owner’s possessory interest.’ ” (Id. at p. 66, fns. omitted.)

Recently, in Collins, the Supreme Court ruled that “the automobile exception does 

not permit an officer without a warrant to enter a home or its curtilage in order to search a 

vehicle therein.” (Collins, supra, 584 U.S. at p. ___ [201 L.Ed.2d at p. 24].) In reaching 

that result, the court reaffirmed the “plain-view seizure” principles articulated in Horton 

and Soldal. (Collins, at p. ___ [201 L.Ed.2d at p. 20].)

Thus, Coolidge, as amplified by Horton and Soldal, continues to stand for the 

proposition that if (a) police do not have an otherwise lawful right of access to an

unattended car on private property, and (b) it is not impracticable to obtain a warrant,

then (c) warrantless seizure of the car accomplished by trespassing on private property 

(and subsequently searching the car at another location) is a violation of the Fourth 

Amendment, and does not fall within the automobile exception, even if there is probable 

cause to search it.
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D. Analysis

i. Coolidge Claim

Applying Coolidge and its progeny, we conclude the trial court should have 

granted defendant’s suppression motion. 

Here, the record reflects that around 2:30 p.m., on May 28, 2015, officers obtained 

and executed a search warrant for defendant’s home in Riverbank, California, and any 

unknown vehicles at the home. During execution of the warrant, officers learned that 

defendant’s Cutlass was a short drive away, on a ranch. Officers went directly to the 

ranch, via a gated private driveway that was three-quarters of a mile long. Around 

3:00 p.m., officers encountered Christensen at his home on the ranch. They also found 

defendant’s car, which was about 200 yards away and visible from the home, just inside 

the edge of Christensen’s property line. Officers did not ask Christensen for permission 

to be on his land or to tow the car. Officers towed the car to a police station in Modesto 

to be stored until a search warrant could be obtained for the car.

The record is devoid of any indication police had a lawful right of access to

defendant’s car that was on Christensen’s private property with the latter’s knowledge 

and consent. The record is also devoid of any suggestion that it was impracticable to 

secure a warrant once police located and identified defendant’s unattended vehicle on 

Christensen’s land at 3:00 p.m., around one hour after they obtained a warrant for 

“[u]nknown vehicles” at defendant’s home. 

Accordingly, the warrantless seizure of defendant’s car was in violation of the 

Fourth Amendment, regardless of the “automobile exception” applicable in other 

contexts, and evidence obtained through a subsequent search of the car should have been 

suppressed.

The People attempt to distinguish Coolidge, arguing “the record shows that it was 

not practicable for the police to secure a warrant before seizing the vehicle.” The record 
16

shows no such thing.1 We can discern no way in which it would have been impracticable 

to return to the judge who authorized the search warrant in order to obtain authorization 

to seize the car sitting on Christensen’s land. 

The People’s contention that the car was “readily mobile” also lacks support in the 

record. The People concede for purposes of the Fourth Amendment issue that defendant 

had already been arrested at his home, and was in custody before police towed the car,

and Christensen did not have a key to the car.

Cases the People rely on in supplemental briefing are distinguishable. Florida v. 

White (1999) 526 U.S. 559 was a case about warrantless seizure of a car, where “the 

vehicle itself was contraband under” state law. (Id. at p. 565.) No such principle applies 

here. Further, the high court emphasized that the warrantless seizure at issue occurred in 

a “public area,” whereas here, the car was on private property. (Id. at pp. 565-566.) 

In Pennsylvania v. Labron (1996) 518 U.S. 938 (Labron), the high court reversed 

two decisions by the Supreme Court of Pennsylvania that -- due to the absence of exigent 

circumstances -- suppressed evidence found during warrantless searches of automobiles. 

(Id. at pp. 939-940.) 

In the first case, “police observed respondent Labron and others engaging in a 

series of drug transactions on a street in Philadelphia,” “arrested the suspects, searched 

the trunk of a car from which the drugs had been produced, and found bags containing 

1 The record on appeal does not support the People’s list of possible destructions of 

evidence that police “had to act swiftly” to prevent -- including that the vehicle “could 

have been quickly driven” away or “easily destroyed” by a fire. (See People v. Hall

(2020) 57 Cal.App.5th 946, 957, fn. 7 [“Our Supreme Court has ‘cautioned that appellate 

courts should not consider a Fourth Amendment theory for the first time on appeal when 

“the People’s new theory was not supported by the record made at the first hearing and 

would have necessitated the taking of considerably more evidence . . .” or when “the 

defendant had no notice of the new theory and thus no opportunity to present evidence in 

opposition.” ’ [Citation.]”].)
17

cocaine.” In the second case, “an undercover informant agreed to buy drugs from 

respondent Randy Lee Kilgore’s accomplice, Kelly Jo Kilgore. To obtain the drugs, 

Kelly Jo drove from the parking lot where the deal was made to a farmhouse where she 

met with Randy Kilgore and obtained the drugs. After the drugs were delivered and the 

Kilgores were arrested, police searched the farmhouse with the consent of its owner and 

also searched Randy Kilgore’s pickup truck; they had seen the Kilgores walking to and 

from the truck, which was parked in the driveway of the farmhouse. The search turned 

up cocaine on the truck’s floor.” (Labron, supra, 518 U.S. at p. 939.) 

The Supreme Court observed that its “first cases establishing the automobile 

exception to the Fourth Amendment’s warrant requirement were based on the 

automobile’s ‘ready mobility,’ an exigency sufficient to excuse failure to obtain a search 

warrant once probable cause to conduct the search is clear,” and explained that “[m]ore 

recent cases provide a further justification: the individual’s reduced expectation of 

privacy in an automobile, owing to its pervasive regulation.” Thus, “[i]f a car is readily 

mobile and probable cause exists to believe it contains contraband, the Fourth 

Amendment . . . permits police to search the vehicle without more.” (Labron, supra, 

518 U.S. at p. 940.)

Labron does not implicate the proposition in Coolidge that is relevant here, 

because neither of the two cases discussed in Labron concerned (a) seizure of an 

unattended automobile accomplished by (b) unlawful trespass on private property. First, 

Labron concerned car searches, not car seizures. Second, the first case in Labron

concerned a car search on a public street, while the second case involved a search of a 

vehicle parked in the driveway of the farmhouse, after the owner of the farmhouse 

consented to search of the farmhouse.

United States v. Brookins (4th Cir. 2003) 345 F.3d 231, which the People cite in 

support of a proposition that “[p]olice may seize vehicles that are located on private 

property, pursuant to the automobile exception” relies on Labron, and its emphasis of the 
18

importance of “ready mobility” vis-à-vis the automobile exception. (Brookins, at pp. 

235, 237-238.) And, as we explained above (i) there is no support in the record for the 

notion that defendant’s car was “readily mobile” when police seized it, and (ii) the facts 

here are quite different from those present in Labron.

As our discussion above makes plain, and contrary to the prosecutor’s argument 

and the trial court’s reasoning at the suppression hearing in this case, the Supreme Court 

did not create the automobile exception after it decided Coolidge. The court has 

elaborated and clarified the contours of the exception since Coolidge, but not in a way 

that undermines the continuing viability of the reasoning of Coolidge that is applicable 

here. 

ii. Other Theories Advanced for Warrantless Seizure 

The People argue defendant’s car was properly “seized and examined without a 

warrant under the instrumentality exception to the warrant requirement.”

But as Coolidge explains, when an item is seized on private property, the 

“instrumentality of the crime” exception to the Fourth Amendment’s warrant requirement 

applies only if police have “a prior justification for [the] intrusion” and see the item in 

plain view. (Coolidge, supra, 403 U.S. at p. 466; cf. Trent v. Wade (5th Cir. 2015) 

776 F.3d 368, 386 [because an officer “was lawfully on the [private] property when he 

observed the [all-terrain vehicle], which had just been used as an instrumentality in the 

crime of evading arrest,” the officer “did not violate clearly established law by effecting a 

seizure of the automobile”]; People v. Balint (2006) 138 Cal.App.4th 200, 205, fn. 2 

[noting the “prosecution did not argue that investigators could seize” an incriminating 

item under the plain view doctrine, as an instrumentality of a crime].) 

Here, police had no prior justification for their trespass on Christensen’s private 

property. Accordingly, the “instrumentality of the crime” exception is inapplicable.

The People also argue defendant’s Fourth Amendment rights were not violated 

because defendant “did not have a reasonable expectation of privacy” in Christensen’s 
19

property, as he “did not reside on the property and was not an overnight guest.” Further, 

the people maintain that a “subjective expectation of privacy in an open fields area is not 

an expectation that society is willing to recognize as reasonable.”

These arguments are unpersuasive, because they fail to grapple with the notion --

suggested in Coolidge and fully articulated in Horton and Soldal -- that the Fourth 

Amendment protects more than just privacy: “[T]he absence of a privacy interest 

notwithstanding, ‘[a] seizure of [an] article . . . would obviously invade the owner’s 

possessory interest,’ ” (Soldal, supra, 506 U.S. at p. 66) thereby “depriv[ing] the 

individual of dominion over his or her . . . property.” (Horton, supra, 496 U.S. at p. 133.)

iii. Collins Claim

Initially, we observe that because defendant -- in conjunction with his June 2019 

filing for a new trial -- did not pursue a new suppression ruling in light of Collins

(decided in May 2018), he has forfeited the claim on appeal. (See In re Sheena K. (2007) 

40 Cal.4th 875, 880-881 [“Ordinarily, a criminal defendant who does not challenge an 

assertedly erroneous ruling of the trial court in that court has forfeited his or her right to 

raise the claim on appeal,” and “ ‘[t]he purpose of this rule is to encourage parties to 

bring errors to the attention of the trial court, so that they may be corrected.’ ”]; People v. 

Superior Court (Edmunds) (1971) 4 Cal.3d 605, 611 [Pen. Code, § 1538.5, subd. (h) 

permits defendant to bring a new suppression motion “if there occur[s] an intervening 

change in the applicable law . . . in support of suppression”].)2

2 The parties had an opportunity to brief forfeiture, a rule that is always implicated when 

a party raises an argument for the first time on appeal. (See People v. Alice (2007) 

41 Cal.4th 668, 679 [“The parties need only have been given an opportunity to brief the 

issue decided by the court, and the fact that a party does not address an issue, mode of 

analysis, or authority that is raised or fairly included within the issues raised does not 

implicate the protections of section 68081.”].)
20

Further, the Collins claim lacks merit because we agree with the People the record 

provides no support for a conclusion that defendant’s car -- 200 yards away from 

Christensen’s home -- was within the “curtilage” of a home. (See People v. Lieng (2010) 

190 Cal.App.4th 1213, 1223-1224 [while “the extent of curtilage on rural properties . . . 

will be greater than that in a densely populated urban setting,” “even in rural areas, it is 

rare for curtilage to extend more than 100 feet beyond the home”].)

For support of the proposition that a home’s curtilage can extend to a distance 

approximating the 200 yards, defendant provides nothing other than a dissenting opinion 

in a federal appellate case.

iv. Prejudicial Error

We agree with the parties that we must decide whether admission of the evidence 

obtained via the unlawful seizure and subsequent search of defendant’s car was harmless 

beyond a reasonable doubt, under Chapman v. California (1967) 386 U.S. 18, 24. (See 

People v. Moore (2011) 51 Cal.4th 1104, 1128-1129.) The burden to demonstrate 

harmless error is the People’s. (People v. Ford (2020) 56 Cal.App.5th 385, 392.)

The People argue any error was harmless because “the jury would have convicted” 

defendant “[e]ven in the absence of the evidence obtained from the car.”

We disagree, because the prosecutor specifically relied on the DNA evidence 

found inside defendant’s car in closing statements to the jury, arguing the evidence 

corroborated Denner’s testimony.

The prosecutor told the jury: “You may not believe everything Mr. Denner said, 

but you have to look at what he said and see what is corroborated, what may not be 

corroborated. [¶] So in this case Mr. Denner says the defendant . . . struck [Magana] on 

the face. He kicked and stomped . . . Magana. . . . He also says they drove to Henry and 

River Road. He said he was in the passenger seat. His DNA is on the interior of the

passenger door handle. He says he helps [defendant] retrieve a body from the trunk. He 

took the body from the trunk and helped retrieve it. . . . And he sees some blood in the
21

trunk. Well, there was blood in the trunk that belonged to . . . Magana. Okay, that 

corroborates the DNA that’s found in the car . . . .”

Given the prosecutor’s closing statement and the conflicting testimonies of 

defendant and Denner, the People have not carried their burden to demonstrate that 

erroneous admission of evidence obtained from the car was harmless beyond a reasonable 

doubt.3

II

Motion for Judgment of Acquittal

Defendant argues the trial court violated his Fourteenth Amendment right to due 

process when it erroneously denied his motion for acquittal under Penal Code section 

1118.1.4 The People argue the trial court properly denied the motion. We agree with the 

People.

Additional Background

When the People rested, defendant moved for a judgment of acquittal pursuant to 

Penal Code section 1118.1,

5 arguing there was “no evidence tying [defendant] to the 

killing of . . . Magana in any manner.” The trial court denied the motion, explaining: 

3

 We note the trial court, when denying defendant’s motion for judgment of acquittal, 

specifically referenced the “significan[ce]” of evidence (1) the victim’s blood was in the 

trunk of defendant’s car, and (2) Denner’s DNA “was found on the passenger interior 

door handle as opposed to the driver door handle.”

4

 Because defendant limits his argument to the substantive murder charge, and does not 

contend there was insufficient evidence for the kidnapping allegation associated with the 

murder charge (which the jury found “not true”), we likewise limit our discussion to the 

murder charge.

5

 The provision provides, in relevant part, “In a case tried before a jury, the court on 

motion of the defendant . . . at the close of the evidence on either side and before the case 

is submitted to the jury for decision, shall order the entry of a judgment of acquittal . . . if 

the evidence then before the court is insufficient to sustain a conviction . . . .” (Pen. 

Code, § 1118.1.)
22

“Mr. Rorabaugh was at the 108 Club in the evening hours, and he stayed there 

until closing. He left around 2:00 a.m. He was dropped off outside his home . . . in 

Riverbank a little after 2:00 a.m. Mr. Rorabaugh gets out of the vehicle and greets 

someone who is walking on the sidewalk. And it’s been testified to that this person had 

on a backpack. We know that the victim and the defendant do know each other. We 

know that the victim was transient at the time of his death, and he was a transient in 

Riverbank who often walked places, and he was known to carry a backpack. The victim 

was seen alive at least two days before the body was found, and his body was found in a 

canal. And the pathologist testified that his body had not been in a canal very long due to 

the condition of the body. 

“The defendant’s vehicle, which is a very distinctive vehicle, a 1966 Oldsmobile 

Cutlass, primer, with the front – I believe it’s the driver’s side quarter panel is a green 

color which stands out from the primer color. Defendant’s car is seen heading in the 

direction of the canal in the early morning hours around 2:30 on the night of the murder. 

There was testimony that the defendant is the only one who had the keys to the vehicle, 

and the defendant’s father testified that he heard the defendant come back in that vehicle 

the night of the murder. 

“The victim’s blood was found in the trunk of the defendant’s vehicle. It’s 

significant to me that it was blood that was found other than some other bodily fluid, and 

it’s significant to me that the blood was found in the trunk which, you know, which 

would be an unusual place to find someone’s blood, which leads the Court to believe that 

the victim was injured prior to going into the trunk.

“It’s also significant that the codefendant, Joseph Denner’s DNA was found on the 

passenger interior door handle as opposed to the driver door handle, which leads one to 

believe that Denner wasn’t driving the vehicle. There was no evidence that the 

defendant’s car was reported stolen. And it’s also significant that the victim’s blood was 

found on the pavement by the canal near the drag marks that led to the body.
23

“The Court finds that there is sufficient evidence to sustain a conviction beyond a 

reasonable doubt connecting the defendant to the murder.”

General Principles

“In considering whether the trial court erred in failing to grant the motion for 

judgment of acquittal under [Penal Code] section 1118.1 . . . we ask whether ‘there is any 

substantial evidence, including all reasonable inferences to be drawn from the evidence, 

of the existence of each element of the offense charged.’ [Citation.] When, as here, the 

motion under [Penal Code] section 1118.1 was made ‘at the close of the prosecution’s 

case-in-chief, the sufficiency of the evidence is tested as it stood at that point’ in the trial 

[citation] -- in other words, based on the prosecution’s case alone . . . . [¶] In assessing 

such a claim, we review the record ‘in the light most favorable to the judgment below to 

determine whether it discloses substantial evidence -- that is, evidence which is 

reasonable, credible, and of solid value -- such that a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘The federal standard of 

review is to the same effect: Under principles of federal due process, review for 

sufficiency of evidence entails . . . whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.’ ” (People v. Watkins (2012)

55 Cal.4th 999, 1019-1020, fns. omitted.)

Analysis

Here, there was substantial evidence defendant murdered Magana at the close of 

the prosecution’s case-in-chief. 

There was evidence that when defendant was dropped off outside his home around 

2:00 a.m., he greeted a man carrying a backpack. Defendant knew Magana, and Magana 

was known to carry a backpack. Around 2:30 a.m., several dogs belonging to a married 

couple that lived by the canal where Magana’s body was found hours later began barking 

and woke up the couple. The wife heard a vehicle drive away about 15 minutes later. 
24

Video evidence from around 2:50 a.m. on the night of the murder showed a car 

resembling defendant’s moving around Riverbank. Around 4:30 a.m., defendant’s father 

(who was at the home he shared with defendant) heard loud noises that he associated with 

his son’s car. Magana’s blood was found in the trunk of the defendant’s car. This 

evidence reasonably supports the conclusion defendant murdered the victim. 

DISPOSITION

The judgment is reversed. On remand, the trial court is directed to enter an order 

granting defendant’s motion to suppress.

 /s/

HOCH, J.

We concur:

 /s/

RAYE, P. J.

 /s/

BLEASE, J.