P. v. Bowler

Filed 7/26/07 P. v. Bowler CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant John V. Bowler appeals from a judgment convicting him of possession of methamphetamine (Health & Saf. Code  11377, subd. (a); undesignated section references are to the Health & Safety Code) following entry of a no contest plea. On appeal, defendant contends his suppression motion was wrongly denied and that the alcohol-use condition of his probation was wrongly imposed. We reverse and remand.

Factual and Procedural Background

On September 29, 2005, at 11:49 p.m. a Sheriffs deputy was on patrol in a residential neighborhood when he observed a yellow Datsun pickup truck in front of him. The truck turned and the officer followed. As the officer came up behind the truck, the driver of the truck (later identified as the defendant) made another, quick turn and came to an abrupt stop, parking with his tires at least one foot on the sidewalk. At some point, either during the trucks second turn or after it parked on the sidewalk, the officer turned on his take down light.^[1]

With the take down light illuminating the area, the officer approached defendant, and asked defendant whether he lived in the area. The officer then asked to see defendants drivers license. Instead, defendant showed him a California identification card. Taking the identification, the officer asked defendant whether he was on parole or probation. Defendant said he was on probation for a marijuana-related conviction.

The officer then asked defendant if he would step out of the car so the officer could pat him down for weapons. Defendant said nothing, but got out of the truck. While patting him down, the officer noticed bulges in defendants pockets. The officer asked defendant what was in his pockets and defendant said it was money. The officer asked defendant if he would take the money out of his pockets and he did.

The officer then asked defendant to stand by the front of the patrol car while he ran a records check. The records check confirmed that defendant was on probation for conviction on a marijuana-related offense. The records check also revealed that defendant was driving with an expired drivers license.

The officer returned to defendant and asked if there was anything illegal in the truck. Defendant said, there was some marijuana and possibly some methamphetamine. At that point, the officer put defendant in the back seat of his patrol car and searched the truck. The search turned up marijuana, methamphetamine, a hand-held scale, glass pipes typically used for smoking methamphetamine, and 55 small plastic coin bags.

Defendant was arrested and subsequently charged with felony possession of methamphetamine ( 11378), felony transportation of methamphetamine ( 11379, subd. (a)), and felony possession of marijuana for sale ( 11359). Before trial defendant filed a Penal Code section 1538.5 motion to suppress. Defendant argued that his consent to the search was invalid because it was the result of an illegal detention. The trial court denied his motion and defendant pled no contest to felony possession of methamphetamine.

In exchange for defendants plea, the remaining charges were dropped and defendant was sentenced to three years probation. The following was made a condition of defendants probation: Defendant shall abstain from the consumption of any alcoholic beverages in any amount whatsoever, and shall not possess nor be in places where alcohol is the chief item of sale. At sentencing, defendant moved to strike this alcohol-use condition of probation. The trial court denied his motion.

On appeal, defendant argues the court improperly denied his suppression motion. Defendant further argues the alcohol-use condition should not be a part of his probation. We reverse the trial courts judgment and remand for further proceedings consistent with this opinion.

DISCUSSION

I.

Defendants Motion to Suppress

The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

There are two issues raised by defendants appeal on the motion to suppress: (1) Was defendant detained; and (2) if defendant was detained, was that detention lawful?

A detention occurs when a police officer, by means of physical force or show of authority, intentionally restrains an individual's liberty in such a manner that, in view of all the circumstances surrounding the incident, a reasonable person would believe that he is not free to leave. (See United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509]; see also California v. Hodari D. (1991) 499 U.S. 621, 628 [113 L.Ed.2d 690, 698-699].)

Here, defendant contends he was detained because he pulled over in response to the officer turning on his take down light. The People contend it was a consensual encounter and not a detention because defendant was already stopped when the officer turned on his take down light. Evidence was presented at the suppression hearing to support both versions of events. The trial court, however, found it unnecessary to rule on when the officer activated his take down light.^[2] We respectfully disagree that the trial court could avoid the issue.

In our view, there was insufficient erratic driving before defendant stopped his vehicle (with tires on the sidewalk) to justify detention of the vehicle and defendant at that point. Also, in our view, a citizen who has had a white light shined on his vehicle from behind by a police officer would reasonably construe the light as a command to stop his or her vehicle. So it is crucial to know whether the officer activated his take down light before defendant stopped as a signal to defendant, or after defendant had already stopped to illuminate the area for the officers safety.

We recognize the officer testified at the motion to suppress hearing that he did not turn on his take down light until after defendant stopped, but there was conflicting evidence and the trial court declined to rule on the issue. The trial court must do so. Accordingly, the judgment is reversed. The superior court is directed to vacate its decision denying the motion to suppress and to reconsider the motion in light of the determinations expressed in this opinion. Should the motion to suppress be granted, defendant shall be afforded an opportunity to withdraw his no contest plea. Should the motion to suppress be denied, the judgment shall be reinstated.

II.

Sentencing

For the benefit of the trial court we also address defendants claim that the alcohol-use condition of his probation was an abuse of the trial courts discretion and find that if on remand the trial court again denies defendants motion to suppress, we conclude the alcohol-use condition of defendants probation was properly imposed.

The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the conditions of probation imposed by the trial court for abuse of discretion.

The trial court abuses its discretion if it imposes a condition of probation that (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . (People v. Lent (1975) 15 Cal.3d 481, 486, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Whether the trial court abused its discretion is determined by the particular facts of each case. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644 (Lindsay).)

The Lindsay court affirmed an alcohol-use condition of probation on an admitted cocaine addict with an alcohol problem who was convicted of selling cocaine. (Lindsay, supra, 10 Cal.App.4th at p. 1644.) The court found a nexus between alcohol consumption and drug use that justified imposition of the alcohol-use condition of probation. (Ibid.)

In People v. Beal (1997) 60 Cal.App.4th 84, the court affirmed an alcohol-use condition of probation on a defendant convicted of possession and possession for sale of methamphetamine. (Beal, supra, 60 Cal.App.4th at

pp. 85-86.) In reaching its decision, the Beal court stated, It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. [Citation.] (Id. at p. 87.) Unlike the defendant in Lindsay, supra, 10 Cal.App.4th 1642, the defendant in Beal did not admit to an alcohol problem. (Id. at p. 87, fn.1.)

Like the defendants in Lindsay, supra, 10 Cal.App.4th 1642and Beal, supra, 60 Cal.App.4th 84, defendant here was convicted of a drug-related crime, and this was not the first time. In fact, defendant was on probation for a prior drug conviction when he was arrested. Notably, when the officer initially approached defendant the night of his arrest, the officer smelled alcohol. Given the nexus between drug and alcohol-use, and given that defendant appeared to have been drinking and driving on the night of his arrest, we find the trial court did not abuse its discretion in imposing an alcohol-use prohibition as a condition of defendants probation.

DISPOSITION

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

BUTZ , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] The officer testified at trial that the take down light is not the red and blue emergency lights. Rather, it is a white light used solely to illuminate the area for officer safety.

^[2] Whether or not he has his overhead light on as it makes the second abrupt turn or not I dont know. I dont think thats terribly relevant.