P. v. Smith

Filed 8/15/06 P. v. Smith CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

INTRODUCTION

Defendant Donald Wiley Smith appeals from a judgment of conviction after a guilty plea, following denial of a motion to suppress evidence under Penal Code section 1538.5, subdivision (m).[1] Smith argues that the motion to suppress evidence should have been granted because the search was not supported by probable cause or in reliance on Smith's probation status. We disagree, and affirm the trial court's ruling.

BACKGROUND

On the night of January 18, 2004, a California Highway Patrol officer noticed Smith's vehicle parked on a pedestrian walkway of a rest area off-ramp. The officer approached the vehicle and discovered Smith sleeping in the driver's seat. The officer tapped on the window, waking Smith, who rolled down the window. The officer asked him why he was parked on the pedestrian walkway, which was a parking violation. (Veh. Code, § 22500, subd. (f).) While speaking with Smith and obtaining his driver's license (Smith had no registration or insurance documents), the officer smelled the odor of burnt marijuana coming from inside the vehicle. The officer asked Smith if he had any marijuana inside the vehicle, which Smith denied. The officer then asked Smith if he was on probation or parole. Smith admitted that he was on probation in Alameda County and was subject to a search condition. The officer then radioed dispatch to check on Smith's probation status out of Alameda County. After receiving a mistaken response that Smith was not on probation, the officer inquired a second time. Again, dispatch responded that Smith was not on probation. At that point, the officer had Smith leave the vehicle and began searching the vehicle.[2]

The officer found no marijuana inside the passenger compartment. In the trunk, he found a fraudulent California driver's license and three fraudulent credit cards. The fraudulent license and credit cards were inside a wallet that was in the pocket of a brown leather jacket. Smith was placed under arrest and later charged with one count of forgery of a driver's license (§ 470, subd. (a)) and one count of possession of a forged license (§ 470, subd. (b)).

At the preliminary hearing, Smith brought a motion to suppress the evidence found in his trunk, including the forged license. Both the officer and Smith testified. The officer testified that he did not â€