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The People v. Marlon Brown

December 15, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARLON BROWN, DEFENDANT AND APPELLANT.



(San Francisco City & County Super. Ct. No. 208397)

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

P. v. Brown

CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Police detained defendant Marlon Brown, discovered he was subject to a probation search condition, and found quantities of three different controlled substances in his car and house. After unsuccessfully moving to suppress the evidence as the product of an illegal detention, defendant pleaded guilty to possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The trial court sentenced him to three years in prison. Defendant contends the motion to suppress should have been granted. We disagree because the detention was valid and not unduly prolonged. We affirm.

I. FACTS

We take the facts from the transcript of the preliminary hearing.

On February 14, 2009, San Francisco Police Officers Constantine and Perez were on routine patrol near 76 Sixth Street. That area of Sixth Street, which both officers had patrolled for several years, was a seedy and depressed area, a "skid row," known for the sale and use of narcotics, drunkenness, street crime, loitering, threats, public urination and littering. In the 11 years he had patrolled the area, Officer Constantine had seen narcotics violations "several times a week, every week."

Shortly after noon, the officers saw defendant and two other men sitting on folding chairs in the alcove, or recessed front doorway, of 76 Sixth Street. The business at 76 Sixth Street was closed, its doors and windows covered with white paper. Next door, at 74 Sixth Street, was the Baldwin Hotel, which was open. Two days earlier, Officer Perez had received complaints from employees of the Baldwin Hotel about people "hanging out" in the 76 Sixth Street alcove, "leaving trash behind, urinating, doing drugs, selling drugs, all of the above." One of the maintenance workers at the Baldwin went into the alcove to hose it down and encountered a woman in the alcove injecting heroin. The woman "became very hostile."

The officers approached defendant and his two companions. Officer Constantine, who had seen defendant sitting in the alcove earlier in the day, recognized him in connection with a car defendant drove in the neighborhood. Six to eight months earlier, Officer Constantine had received information about defendant from an "unknown citizen," had run a computer check on defendant, and had learned he was a registered sex offender and had a pending charge of possession of crack cocaine for sale.

The officers noted that the alcove smelled of urine. They did not see any drug paraphernalia or anything unusual, except a small amount of litter and the fact that three men were sitting on folding chairs. Officer Constantine had no reason to believe that the three men were urinating or littering in the alcove. Neither officer saw anything to make them believe defendant was engaging in any criminal activity. The complaints from the Baldwin Hotel employees to Officer Perez did not specifically mention defendant.

Officer Perez approached the three men and announced that the police had received complaints about persons loitering in the alcove. The officers asked the three men for identification. The men "cooperated fully." Defendant produced a driver's license, which Officer Constantine took to the patrol car to run a warrant check. The check revealed that defendant was on probation with a warrantless search condition. The warrant check of defendant took about one minute. During the warrant check, Officer Perez and two beat officers who had walked up were standing by defendant in the alcove.*fn1

Officer Constantine returned to the alcove and asked defendant why he was on probation. Defendant replied his probation was for a narcotics offense. Officer Constantine asked defendant the location ...


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