P. v. Brown

Filed 12/31/09 P. v. Brown CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Wesley David Brown appeals from an order denying his motion to suppress evidence. (Pen. Code,  1538.5.)[1] Following entry of that order, appellant pled no contest to felony possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a), and was sentenced to probation. Appellants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the trial courts order.

FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2008, an information was filed charging appellant with a felony violation of Health and Safety Code section 11350, subdivision (a), possession of cocaine.

On January 5, 2009, appellant filed a motion to suppress evidence seized from his person by Officer Jason Joannides of the Antioch Police Department at the time of his arrest ( 1538.5). At the subsequent hearing on that motion, Officer Joannides testified that, at about 2:00 a.m. on September 18, 2007, he was travelling northbound on Garrow Drive in Antioch when he noticed a red Ford Mustang speeding in the opposite direction on the same road. Appellant was the lone occupant in the red Ford Mustang. Based on his training in visual speed estimation, Officer Joannides believed appellant was traveling at a rate of about 35 to 40 miles per hour (mph) on a stretch of road with a posted speed limit of 25 mph. Officer Joannides at no time lost sight of appellants vehicle during the three to four seconds that he observed appellant speeding.

Officer Joannides immediately made a U-turn on Garrow Drive in order to cite appellant for a speeding violation. Officer Joannides did not recall seeing any other vehicles on the road during this period of time. Recognizing appellant as a possible probationer, Officer Joannides advised appellant that he had been speeding and requested his drivers license. Appellant could not provide his license, but gave Officer Joannides enough identifying information to allow him to conduct a license check. The license check revealed that appellants license had been suspended until July 2008. As such, Officer Joannides cited appellant for driving on a suspended license and arranged to have his vehicle towed for 30 days (Veh. Code,  14602.6).

Before the vehicle could be towed, Officer Joannides received information from dispatch that appellant was on active felony probation with a search clause. Officer Joannides then conducted an inventory search of the vehicle while appellant was seated on the curb. During the search, Officer Joannides found a wallet on the drivers seat, which he picked up and looked inside. In addition to an identification card and some bank cards, Officer Joannides found a check from Raymond Silva, dated a month earlier, made out to appellant in the amount of $700. Because he found it strange that the check had not yet been cashed, Officer Joannides requested that dispatch call Raymond Silva to inquire about the check. Before dispatch responded to this request, however, Officer Joannides had appellant sign a citation for driving with a suspended license, returned his wallet with the check still inside, and released him. Appellant then proceeded to walk away from the scene southbound on Garrow Drive.

A short time later, after the tow truck had arrived for appellants vehicle, Officer Joannides received a call from dispatch advising that the check from Raymond Silva made out to appellant had been stolen. Accordingly, Officer Joannides went in search of appellant, locating him on Garrow Drive. Officer Joannides then searched appellant and removed the wallet containing the stolen check from his pocket. Officer Joannides thus arrested appellant for possession of a stolen check and searched his person incident to the arrest. During this search, Officer Joannides discovered on appellants person a clear plastic baggie containing a white powder narcotic substance.

Elvis Meeker, appellants friend for five years, testified in his defense. Meeker advised that he had been following appellant in a 2005 Cadillac southbound on Garrow Drive on the night in question. Meeker claimed there is a bend on Garrow Drive between Limewood and Davison that obstructs the view of vehicles. Meeker observed Officer Joannides make a U-turn after appellant passed through the intersection of Garrow and Limewood. Officer Joannidess vehicle then followed Meekers vehicle, which was about 14 to 15 feet behind appellants vehicle, as appellant approached a stop sign and stopped without slamming on the brakes. As appellant crossed the intersection, Officer Joannides went immediately after appellant and pulled him over. Meeker denied that appellant had been speeding when this occurred.

Following the hearing, the trial court denied appellants motion to suppress evidence, finding credible Officer Joannidess testimony that appellant had been speeding, which justified the initial traffic stop. Further, because appellant had a suspended license, the officer was justified in having his vehicle towed and searched to inventory its contents. The subsequent arrest was supported by probable cause given the officers discovery during the inventory search that a wallet in appellants vehicle contained a stolen check. Finally, the cocaine found on appellants person was lawfully seized during a search incident to his arrest.

After the trial court denied the motion to suppress evidence, appellant pled no contest to the sole charge against him. The trial court thereafter suspended imposition of a sentence and, pursuant to the plea agreement, admitted appellant to a 90-day period of probation subject to several terms and conditions, including serving a 90-day term in county jail. The trial court also gave appellant the option of electronic home detention, granted him three days of presentence custody credit, and ordered him to pay a restitution fine of $200. Appellant thereafter filed this timely appeal of the denial of his motion to suppress evidence.

DISCUSSION

As we previously stated, appellants appointed counsel has filed an opening brief setting forth the material facts, but raising no issue for our consideration. Counsel requests that we independently review the record to decide whether there exists any nonfrivolous issue for appeal. (People v. Wende, supra, 25 Cal.3d 436; People v. Kelly, supra, 40 Cal.4th 106.) Counsel has also attested that appellant was advised of his right to file a supplemental brief with this court. Appellant declined to do so.

After an independent review of the record, we agree with appellants counsel that there are no reasonably arguable legal or factual issues for our consideration. The trial court denied appellants motion to suppress evidence that was seized from his person after the police lawfully detained him for a speeding violation, cited him for driving with a suspended license, and then ordered his vehicle towed. Before the vehicle was towed, the officer made an inventory of the items in the vehicle, and located a wallet containing a check made out to appellant which, according to information received from dispatch, was stolen. Appellant was thus arrested for possession of a stolen check and was searched incident to that arrest, at which time the officer found an illegal narcotic on his person. Given this record, we conclude the trial courts order denying the motion to suppress evidence was lawful. (People v. Lim (2000) 85 Cal.App.4th 1289, 1296 [When reviewing the grant or denial of a motion to suppress, an appellate court must uphold the trial courts express or implied findings of fact if the facts are supported by substantial evidence]; People v. Brown (1990) 216 Cal.App.3d 1442, 1447 [the legality of a search and seizure is measured by the facts, as found by the trier [of fact], against the constitutional standard of reasonableness].)

Having ensured appellant received adequate and effective appellate review, we thus affirm the trial courts ruling. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)

DISPOSITION

The order denying appellants motion to suppress evidence is affirmed.

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Jenkins, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

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[1] Unless otherwise stated, all further statutory references herein are to the Penal Code.