P. v. Limon

Filed 1/23/07  P. v. Limon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Tulare County.  Joseph  A. Kalashian and Patrick J. O'Hara, Judges.^†

            Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Albert Limon appeals after judgment on his no contest plea to drug possession charges, challenging the denial of his motion to suppress evidence.  We affirm. 

FACTS AND PROCEDURAL BACKGROUND

            Lawrence Brooksher and Jeffrey Detwiler, police officers employed by the City of Tulare, were patrolling a high crime area in an unmarked vehicle within the city during the late evening of July  7, 2005.  They noticed a Honda vehicle parked at the curb with its headlights on and its passenger door open.  A male individual was standing 12 to 15 feet away from the Honda where he was urinating.  Within the Honda were defendant, in the driver's seat, and a rear passenger. 

            Brooksher, the driver of the police vehicle, made a U-turn and parked behind the Honda.  He activated his vehicle's solid red emergency light and, as he stepped out, advised the occupants of the Honda he was a police officer.  At the same time, Detwiler walked toward the man who was urinating, but before he could reach him, the man ran away. As Detwiler unsuccessfully pursued the man, Brooksher ordered the other two individuals to make their hands visible.

            After Detwiler's returned to Brooksher's general location, Detwiler approached the Honda's passenger side, while Brooksher approached the driver side.  Both officers smelled a strong odor of marijuana coming from the interior of the vehicle.  Looking through the open passenger window, Detwiler observed a clear container holding a green leafy substance and bags of white crystal-like material.  Believing the leafy substance to be marijuana, Detwiler searched the car; Brooksher ordered defendant out of the vehicle and pat searched him.

Defendant was charged with possession of a controlled substance (methamphetamine) for purpose of sale and possession of marijuana for purpose of sale.  His motion to suppress the evidence was denied.  Defendant reached a plea bargain, pleading no contest to both charges in exchange for a grant of probation, including the condition that he serve a stipulated 180 days in custody. 

DISCUSSION

            Defendant contends the trial court erred in denying his suppression motion because he was detained and such detention was not supported by a reasonable suspicion of criminality.  He claims that once the officers pulled behind him, activated their emergency lights, announced their presence and ordered him to show his hands, a detention occurred.  This detention, he asserts, was not supported by anything known to the officers, including their observation of an apparent passenger of defendant's vehicle urinating in public. 

            The People argue that the initial contact was not a detention at all.  The contact, they claim, was consensual until such time as the officers smelled and saw evidence of narcotics justifying the arrest that occurred shortly after experiencing those sensations.  

            Thus the question becomes whether the officers' smelling and viewing of narcotics occurred at such a time that the encounter in question was of a consensual nature or, if not, whether the deprivation of defendant's liberty was justified by facts known to the officers before that point in time.  We agree with the People that no detention had occurred at that point, making the initial encounter consensual. 

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