P. v. Avellaneda

Filed 4/3/06 P. v. Avellaneda CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Perfecto Avellaneda appeals from a judgment after he pleaded nolo contendere to possessing a controlled substance for sale. He contends the trial court erred when it denied his motion to suppress. We affirm.

BACKGROUND

The facts are taken from the hearing on defendant's motion to suppress evidence. Shortly before 1:00 a.m. on June 3, 2004, Sergeants Price and Hensley of the Daly City Police Department were driving south on Reiner Street when they saw a car parked on the opposite side of the street. Defendant was sitting in the driver's seat. Sergeant Price observed defendant looking down and moving his upper body.

The closest house, 30 to 35 feet to the south of the car, was 43 Reiner Street. Sergeant Price was familiar with the address from numerous prior contacts and arrests he made there for drug and theft offenses.

Sergeant Price made a U-turn and parked a car's length behind defendant's car. After he parked he turned on the patrol car's spotlight and aimed it at the driver's side mirror so the defendant could not see him approach. Sergeant Price approached the driver's side, while Sergeant Hensley approached on the passenger's side. Sergeant Price greeted defendant. In a normal tone of voice, he asked if defendant had a driver's license and, if so, could he see it. Defendant responded by handing the sergeant his license. Sergeant Price returned to the patrol car and conducted a records check, while Officer Hensley remained near defendant's passenger side window. The records check revealed that defendant had a valid license and no outstanding warrants.

After a few minutes Sergeant Price returned to defendant's car and asked the defendant if he would get out. He did not order defendant to do so or raise his voice. Defendant got out of the car and both sergeants walked with him to the sidewalk. Sergeant Price asked the defendant what he was doing there. Defendant replied that he was at a friend's house getting his computer fixed, but when asked he could not provide his friend's name. When Sergeant Price asked where his friend lived, the defendant pointed to 43 Reiner Street.

The defendant appeared nervous. When Sergeant Price asked him if he used any drugs, he replied that he took allergy medication. Sergeant Price observed that defendant's pupils did not react to light, his tongue was coated with a white film, and his heart rate was elevated. Sergeant Price recognized these signs as indications the defendant may have been under the influence of a controlled substance. When asked whether he had any drugs on his person defendant initially would not answer. But when Sergeant Price asked a third time, defendant said that he did not.

At this point, three or four minutes after their initial contact, Sergeant Price asked defendant if he could search him. He spoke in the same tone of voice and demeanor he used in testifying and did not raise his voice. Defendant replied â€