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THE PEOPLE v. FRANK MARTINEZ GONZALES

November 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANK MARTINEZ GONZALES, DEFENDANT AND APPELLANT.



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

P. v. Gonzales CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After his suppression motion was denied, appellant Frank Martinez Gonzales pled nolo contendere to possession of heroin. (Health & Saf. Code, § 11350, subd. (a).) Granted a three-year term of probation, he appeals. Gonzales contends that his suppression motion should have been granted because he was detained without justification at the time of the possession. We affirm the judgment.

I. FACTS

In the late afternoon of October 20, 2009, another Fairfield police officer asked Officer Adam Brunie to stop someone he suspected of possessing narcotics. In a marked police car, Officer Brunie went to the location described to him and saw on the sidewalk a man--later identified as appellant Frank Martinez Gonzales--matching the description given to him. At the time, Officer Brunie wore a uniform labeled with law enforcement insignia, was armed with a gun and had a radio on his person.

Officer Brunie parked his car behind the man, got out of it and approached Gonzales from behind, asking if he could speak with him. The officer did not identify himself as a police officer, as this was apparent from the circumstances. Gonzales turned around and said "Yeah, that's fine. What can I do for you?" At the same time, Officer Brunie reported through his radio that he was engaged in a consensual encounter with Gonzales.

Officer Brunie told Gonzales that neighbors had reported instances of loitering and had asked the police to assist them. When asked if he lived in the neighborhood, Gonzales replied that he did not, giving an address about a mile away. Officer Brunie asked if Gonzales had any identification and if he did, if he minded if the officer saw it. Gonzales said that he had some and that he had no problem with Officer Brunie looking at his identification. Officer Brunie asked if Gonzales would sit on the curb and the man did so, handing his identification to the officer.

The officer radioed his dispatcher with the name and birthdate on Gonzales's identification. Holding the identification card, Officer Brunie asked if Gonzales had ever been arrested before. Gonzales admitted that he was out on bail on a charge of domestic violence. Then, Officer Brunie asked if Gonzales had anything illegal on his person. Gonzales nodded and stated that he did. From the time that Officer Brunie received Gonzales's identification until this admission, no more than 30 seconds elapsed.

At this point, Officer Brunie considered detaining Gonzales, as he was uncertain what the illegal item was. He called for backup and while it was on its way, Officer Brunie asked what Gonzales had that he considered illegal. Gonzales replied that he had a small amount of heroin on him, loaded in a syringe. He moved to his back pocket as if to retrieve it, but the officer stopped him. When Officer Brunie said that he would remove the heroin, Gonzales indicated that it was in his sock. Once his backup officer arrived, Officer Brunie searched Gonzales, finding a loaded syringe with what appeared to be heroin in the man's left sock. The officer seized the syringe.

Gonzales was charged with possession of heroin and unauthorized possession of a hypodermic needle and syringe. (Health & Saf. Code, § 11350, subd. (a); Bus. & Prof. Code, § 4140.) Having entered a plea of not guilty, he moved to suppress evidence of the heroin and the syringe. (Pen. Code, § 1538.5 (section 1538.5).) At the November 2009 preliminary hearing, Officer Brunie testified about his encounter with Gonzales. It was stipulated that the syringe contained a useable amount of heroin. After the hearing, the magistrate denied the suppression motion and held Gonzales to answer for the two charges.*fn1 An information was soon filed charging him with these possession offenses.

Gonzales's renewed motion to suppress was denied by the trial court in February 2010. A week later, he entered into a plea agreement, pleading nolo contendere to the heroin possession charge in exchange for dismissal of the other charge and a grant of probation.*fn2 (Health & Saf. Code, § 11350, subd. (a).) In April 2010, he was placed on probation for three years.

II. DISCUSSION

A. Standard of ...


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