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People v. Osborne

July 14, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHRISTOPHER LEE OSBORNE, DEFENDANT AND APPELLANT.



(Contra Costa County Super. Ct. No. 050713651). Trial Judge: Honorable Laurel Brady.

The opinion of the court was delivered by: Sepulveda, J.

CERTIFIED FOR PUBLICATION

Defendant was convicted*fn1 of possession of a controlled substance for sale (Health and Saf. Code § 11378) with an enhancement for being personally armed with a firearm (Pen. Code § 12022, subd. (c)), felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)),*fn2 with an enhancement for being personally armed with a firearm (Pen. Code § 12022, subd. (a)(1)), and was sentenced to six years in state prison.*fn3 He appeals, challenging the trial court's denial of his motion to suppress pursuant to Penal Code section 1538.5. We find no error and affirm.

BACKGROUND

The following evidence was adduced at the motion to suppress.*fn4 Officer Michael Malone of the Antioch Police Department was on patrol with his partner Officer Ryan Andelin on the afternoon of December 21, 2006. As they drove on West Sixth Street they observed defendant standing next to a green Lexus. The trunk of the Lexus was open and defendant appeared to be handling exposed wires in the trunk. Defendant looked up and, apparently seeing the patrol car, immediately shut the trunk of the Lexus and walked away from it. Defendant appeared "real nervous."

Officer Malone saw a second man in a driveway nearby; this individual ran when he observed the patrol car. The officers pursued this individual (later identified as "Pierce") and quickly apprehended him. Defendant approached the officers from the rear and Officer Malone ordered him to step back. Malone was concerned because defendant was quite large-approximately six feet tall and 240 pounds. Malone indicated that defendant was larger in stature than he.

Defendant walked back to the Lexus, about 10 yards away; he sat in the driver's seat. Meanwhile, Officer Andelin told Officer Malone that he thought defendant was on parole. Malone walked over to the Lexus and looked inside, observing that the interior front passenger door panel was stripped off, and that the trim on the dashboard around the stereo system had also been removed. There were loose wires protruding from both areas, and tools, including screwdrivers and pliers, were strewn about in the front passenger area. Officer Malone, who had been a police officer for some four years, suspected that defendant was burglarizing the Lexus, based upon his knowledge from investigating "thousands" of auto burglaries. While the type of tools observed could have been consistent with doing repair work on a car, they were also consistent with use in burglarizing a vehicle.

Officer Malone was concerned for his safety and asked defendant to get out of the Lexus; defendant complied. Malone prepared to patsearch defendant by placing defendant's hand toward the rear of his body, and noticed that defendant was "real nervous." The officer therefore handcuffed defendant and asked if he had a gun. Defendant indicated that he had a gun in his left front pants pocket and volunteered that he had been released from parole recently. When Officer Malone patted down defendant's left front pants pocket, he did not feel a gun, but did locate one in his right front pants pocket. Malone removed a loaded nine-millimeter semiautomatic handgun.

Officer Malone then removed a backpack from the right front floor of the Lexus and opened it, finding a pouch containing a loose, white crystal substance, a green plant-like substance, and several pills. He learned that the Lexus was registered to defendant and that defendant had been released from parole a few months earlier. Initially, Malone said he learned this information "contemporaneous with" the detention, but later indicated that it was shortly after the arrest of defendant. Malone did know that defendant owned the Lexus prior to his opening of the backpack. His patsearch of defendant occurred within 20 to 30 seconds of his approaching the Lexus.

Defendant testified at the motion to suppress, and he indicated that after he exited the Lexus at the officer's request, as soon as Malone started to move his hand behind his back, defendant raised his hands in the air and said, "I am not on probation or parole. I have my discharge card in my wallet. I refuse consent and you don't have a right to search me." Defendant testified that Officer Malone replied, "Oh, it doesn't matter," and then handcuffed and searched him.

Based on this evidence, the trial court denied defendant's motion to suppress, finding that the officer was justified in detaining defendant and in patsearching him. Once the officer located the gun on defendant's person, he had probable cause to arrest him and search the vehicle pursuant to arrest.

DISCUSSION

Defendant contends that Officer Malone's actions in detaining him and conducting a patsearch were in violation of the Fourth Amendment. Our standard of review on such issues is clear: we defer to the trial court's factual findings, whether express or implied, if supported by substantial evidence, and independently apply the law in evaluating the reasonableness of the police conduct. (People v. Glaser (1995) 11 Cal.4th 354, 362.) ...


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