P. v. Stephenson

Filed 7/12/06 P. v. Stephenson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the former Mun. Ct. for Tulare County assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant was charged with violating Health and Safety Code sections 11379, subdivision (a) (transportation of crystal methamphetamine in count 1) and 11378 (possession for sale of crystal methamphetamine in count 2).

Defendant filed a motion to suppress on May 9, 2005, claiming he was wrongfully detained and searched. The trial court denied the motion. On June 7, 2005, defendant pled guilty to count 2 pursuant to a plea agreement, which provided for the imposition of three years' formal probation. On June 17, 2005, the trial court dismissed count 1, placed defendant on probation for three years, and ordered that he serve 365 days in county jail.

A notice of appeal was filed on June 22, 2005, challenging the denial of defendant's suppression motion.

FACTS^[1]

On December 17, 2004, Officer James Gruwell of the Murrieta Police Department noticed a Honda sedan with expired registration tags. In addition to the expired registration tags, Officer Gruwell testified the vehicle was making an unusually loud noise from the exhaust pipe (referred to as modified exhaust), which is also a Vehicle Code violation. Officer Gruwell ran a check on the vehicle and, upon discovering the registration as well as the yearly registration tag had expired, conducted a traffic stop of the vehicle.

The vehicle had three occupants: the driver, Wesley Roth, defendant in the front passenger seat, and Kristin Swanson in the backseat. Officer Gruwell first spoke to Wesley Roth, who told the officer he was on probation for auto theft and subject to search at any time by a police officer. Roth gave Officer Gruwell permission to search the vehicle. In order to search the vehicle, the officer had the occupants get out of the vehicle. All occupants cooperated. Officer Gruwell noticed defendant appeared extremely nervous and was wearing loose-fitting clothing; however, the officer did not write this fact in his report. Officer Gruwell testified he called for backup at this time, but also did not write this fact in his report.

As Roth exited the vehicle, Officer Gruwell noticed he was wearing loose-fitting clothing, which makes it easy to conceal a weapon. Officer Gruwell testified he conducted a patdown search of Roth because he feared for his safety, but did not write this in his report. Officer Gruwell then conducted a visual check of Swanson, who was not wearing loose-fitting clothing, by having her lift her shirt so he could see her waistband. Last, Officer Gruwell conducted a patdown search of defendant because he too was wearing loose-fitting clothing, which included an untucked shirt. Officer Gruwell testified he was concerned for his safety because loose-fitting clothing makes it easy to conceal a weapon and defendant was in the vehicle with someone who was on probation for auto theft. Based on those reasons, Officer Gruwell conducted a patdown search of defendant. Officer Gruwell testified that he routinely conducted a patdown search if occupants he had asked to exit a vehicle were wearing loose-fitting clothing or untucked shirts since that made hiding weapons easier.

During the patdown search of defendant, a black canvas bag dropped out of defendant's pants and fell on the ground. When Officer Gruwell asked defendant what was in the bag, he responded, â€