P. v. Miller

Filed 8/1/06 P. v. Miller CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

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Defendant was charged with multiple felony narcotics violations (Health & Saf. Code, §§ 11350, subd. (a), 11351, 11352, subd. (a), 11357, subd. (a), 11360, subd. (a), 11377, subd. (a), 11379, subd. (a)) and one misdemeanor count of driving with a suspended or revoked driver's license. (Veh. Code, § 14601.1.) After his motion to suppress was denied, defendant filed a motion to set aside the subsequently filed information pursuant to Penal Code section 995. When this motion was denied, defendant entered a plea of nolo contendere to transportation of cocaine in violation of Health and Safety Code section 11352, subdivision (a) and the remaining charges were dismissed. Imposition of sentence was suspended and defendant was placed on probation for three years pursuant to Proposition 36. (Pen. Code, § 1210 et seq.) Defendant appeals contending the trial court erred in denying his motion to suppress. We shall affirm the judgment.

FACTUAL BACKGROUND

Defendant's motion to suppress was heard concurrently with his preliminary hearing and the following facts were brought forth.

Nevada City Police Reserve Officer Kenneth Anspach testified he was on patrol duty in the evening on December 7, 2003, when he noticed a tan, mid-1970's Cadillac directly in front of him make a right turn without using a turn signal. Officer Anspach followed the car and noticed the car's registration was expired. Officer Anspach was not focused on looking at the driver and did not recognize defendant. The area was not well lit and it was after dark. After the car turned into the parking lot of Bank of America, Officer Anspach used his emergency lights and a short blast of his emergency siren to initiate a traffic stop of the car. Numerous other cars were parked in the lot, which was used as general parking for various businesses in the area.

Officer Anspach contacted the driver of the Cadillac, who identified himself with a California identification card as defendant. Officer Anspach told the driver he stopped him for his failure to use his turn signal and having expired registration tabs. At this point Officer Anspach recognized defendant. He had had one previous contact with defendant a year to 18 months earlier. On that occasion defendant had been on foot. Officer Anspach had also issued a parking citation for defendant's Volkswagen bus approximately a month before this incident. Officer Anspach noticed the listed address on defendant's identification card was a post office box. When asked about this, defendant told Officer Anspach that he did not have a permanent residence, but stayed at friends' houses. Officer Anspach requested dispatch to run a records check of defendant, which revealed defendant's driving privilege had been suspended since 2002 for a failure to appear. Officer Anspach placed defendant under arrest for driving on a suspended license. Officer Anspach handcuffed defendant.

At the time Officer Anspach arrested defendant, he advised defendant he was going to impound the car and he took defendant's keys. He did not give defendant any other option such as having a friend or family member come and take the car. Officer Anspach did not consider other options. He knew he had authority under the Vehicle Code to tow a vehicle when the driver was driving on a suspended license.

Nevada City Police Reserve Officers Mason and Mullenax arrived on the scene^[1] and Officer Anspach asked Officer Mullenax to assist in placing defendant in the back of his patrol car. During a patdown search of defendant, Officer Mullenax located a large bundle of money, approximately $4,050, in defendant's pants pocket. Defendant said he worked for a land company and had just gotten paid. Officer Mullenax put the money back in defendant's pocket and placed defendant in the patrol car. Officer Anspach testified the presence of the money did not lead him to suspect the sale of contraband.

Officer Anspach started filling out a CHP Vehicle Report 180 form for the impound of the vehicle, while Officers Mason and Mullenax conducted an inventory search of the car in accordance with the police department's written policy that when a vehicle was impounded an inventory search was to be conducted of all areas of the vehicle, including locked and unlocked containers and compartments.^[2] Officer Mason searched the passenger compartment of the car and Officer Mullenax used a key to open the trunk.

Officer Mason found a backpack on the front passenger floorboard. In the left side pocket of the backpack, Officer Mason found a clear ziplock baggie containing what appeared to look like psilocybin mushrooms. Inside the unlocked backpack Officer Mason found plastic baggies of packaged marijuana inside a Tupperware container and a scale. Inside the car, Officer Mason also found a purple jar containing what appeared to be more marijuana, an electronic scale, numerous plastic baggies, and a marijuana pipe.

Officer Mullenax took the keys to the car, which were on the front seat, and opened the trunk. Inside the trunk, he found miscellaneous trunk items and a small portable safe. Officer Mullenax asked defendant about the safe. Defendant said it was his. When asked, defendant said he had the keys and indicated they were located in his pants pocket. Officer Mullenax took the keys and opened the safe. Inside the safe were two clear glass jars containing marijuana, two vinyl bank deposit bags containing several thousand dollars in cash, and a Camel cigarette pack containing four ziplock baggies containing a white powdery substance, which turned out to be cocaine. Officer Anspach contacted dispatch and a number of narcotics officers responded to the scene.

While numerous people were coming and going in the area, Officer Anspach testified no one came up to speak with him, his co-officers, or defendant during the time he was at the scene. He denied anyone came up and made an offer to drive defendant's vehicle away for defendant. Officer Anspach did remember hearing a female yell to defendant, â€