P. v. Perry

Filed 11/30/09 P. v. Perry CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant appealed after he was placed on probation following his plea. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

After denial of his motion to suppress below, defendant pleaded no contest to one felony count of unlawful possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)). He was placed on probation for two years on the condition that he successfully complete a Proposition 36 rehabilitation program.

According to evidence presented at a combined preliminary hearing and hearing on defendants motion to suppress pursuant to Penal Code section 1538.5,[1] Officer Charles Blazer was conducting a narcotics investigation with Detective Phil Galer around 4:00 p.m. on August 21, 2008, in Pittsburg. They were focusing on a specific person (not defendant), who was in a wheelchair. Over the course of about 45 minutes, Officer Blazer saw people he recognized from prior contacts drive up, and the man in the wheelchair would approach their windows and speak to them for a short time before they drove away. At a certain point, the man in the wheelchair began waving [people] off, as if he were out of narcotics to sell. The man in the wheelchair eventually boarded a bus and traveled to a shopping mall.

Officers followed the bus to the mall. When they arrived, they saw a person who had approached the man in the wheelchair on Marina Boulevard was already there, standing outside his vehicle. When a white pickup truck drove into the parking lot, the man waiting outside his vehicle walked to the pickup truck, got into the passenger seat, and stayed in the truck for about 30 seconds. Based on his experience, Officer Blazer believed that a drug transaction had taken place in the truck, because it appeared that the person who had entered the truck had originally tried to buy narcotics from the man in the wheelchair, but that he had been unable to do so and left to buy narcotics elsewhere. Blazer also based his conclusion on the fact that he knew the person who entered the pickup truck from previous arrests for drug possession and other charges, and on the fact that the subject was in the truck for such a brief period.

After the subject exited the pickup truck, the truck immediately drove out of the parking lot. Officer Blazer noticed that the driver, later identified as defendant, was not wearing a seat belt, in violation of the Vehicle Code. Defendant drove to his residence and stopped the truck. Officer Blazer approached the drivers side window of the truck and began asking defendant questions. When asked if he had just come from the shopping mall, defendant said no. According to Officer Blazer, defendant was being very vague, almost to the point of not speaking to me which was heightening my suspicions even more. Because Officer Blazer was suspicious, and because he could not see defendants waist band, he ordered defendant out of his vehicle for safety reasons. A patsearch revealed no weapons.

While Officer Blazer was pat searching defendant, Detective Galer said he saw  some coke on the drivers seat  of the truck defendant had been driving. Officer Blazer looked at the drivers seat through the open truck window and saw several white crumbs of what he believed, based on his 11 years of training and experience, to be cocaine. The crumbs covered the drivers seat. Blazer described the crumbs as pretty distinct compared to, if youre looking at bread crumbs. But sitting on a seat, you can pretty much tell what they are. He explained that when cocaine is sold, it must be broken into pieces, which creates flakes. The chunky substance found on the drivers seat weighed 0.01 grams but was not tested. Defendant was placed under arrest. A police narcotics dog sniffed the car and indicated that there was something hidden on the drivers side of the vehicle. A search of the vehicle revealed a small aspirin pill bottle containing a useable amount (0.48 grams) of base cocaine on the drivers side floorboard.

The trial court denied defendants motion to suppress, and held defendant to answer. It concluded that officers properly stopped defendants vehicle and ordered him out of the truck, and that they had probable cause to search defendants vehicle. Defendant filed a motion to dismiss ( 995), renewing his argument that the seized evidence should be suppressed. The trial court denied the motion to dismiss, concluding that there was sufficient evidence presented that the stop was valid and that officers had probable cause to search the vehicle.

Defendant was advised of his constitutional rights prior to the entry of his plea and waived those rights; he also was advised of the consequences of his plea. No error appears in the entry of defendants plea, or in the decision to place defendant on probation. The trial court properly denied defendants motion to suppress pursuant to section 1538.5 and his subsequent motion to dismiss pursuant to section 995.[2] Defendant was represented by counsel at all times.

There are no meritorious issues to be argued on appeal. The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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[1] All statutory references are to the Penal Code unless otherwise specified.

[2] The trial courts factual findings when ruling on the motion to suppress are supported by the record. As the court found that Officer Blazer had expertise in the area of narcotics transactions and that he testified credibly that defendant had committed a seat belt violation, the initial detention of defendant was reasonable. Once defendants vehicle was lawfully detained, officers were permitted to order defendant out of the vehicle without violating the Fourth Amendment. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 & fn. 6.) The officers questions about where defendant had been did not convert the encounter into something other than a lawful seizure, because the inquiries did not measurably extend the duration of the stop. (Arizona v. Johnson (2009) __ U.S. __, 129 S.Ct. 781, 788.) Once Officer Blazer, who had training and experience in narcotics, saw what he believed to be crumbs of cocaine on the drivers seat, he had probable cause to search the vehicle for suspected narcotics, and the warrantless search of the vehicle did not violate the Fourth Amendment. (United States v. Ross (1982) 456 U.S. 798, 824.)