(San Mateo County Super. Ct. No. SC065141)
The opinion of the court was delivered by: Haerle, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a jury trial, appellant was convicted of two counts charged in an information filed against him, i.e., possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and misdemeanor possession of marijuana for sale. (Health & Saf. Code, § 11359.) He was subsequently sentenced to a term of six (6) years in state prison. He appeals, claiming that he was searched by the police in violation of his Fourth Amendment rights and received ineffective assistance of counsel because his trial counsel failed to file a timely motion to suppress evidence recovered from his person, and that he suffered prejudice as a result thereof.
We agree that the record strongly suggests both an improper search of appellant and ineffective assistance of counsel for not litigating that issue, and thus conditionally vacate the trial court's judgment of conviction and remand the matter to that court for further proceedings as noted hereafter.
II. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 7:30 p.m. on the evening of September 15, 2007, San Mateo Police Officers Schlegel and Murphy were on uniformed patrol in the theatre district of San Mateo. Shortly before, the manager of the Century 12 Theatre had told those officers that she had "observed [appellant] smoking marijuana" while talking with a young woman (later identified as his then-girlfriend, Tiera Horton) in a courtyard area between the theatre entrance and B Street in San Mateo. As the officers approached appellant (then age 19) and Horton, they smelled burnt marijuana, though they had not seen, and did not see, anyone smoking it. One of the officers testified that the closer they got to appellant "the stronger the burnt scent of freshly burnt marijuana got." Officer Murphy explained to appellant why they had approached him and asked for identification. Appellant replied that he had no identification on him and then "raised his hands up and said . . . 'it was just a little doobie'" (i.e., a slang term for marijuana). At the time, appellant was wearing a black jacket.*fn1
The officers then advised appellant they were going to conduct a search of him for a wallet or other form of identification on him, and then commenced to pat him down to see if he was carrying a wallet in one of his pockets. According to the officers, appellant immediately became "somewhat uncooperative," and while one officer checked for a wallet the other "took control" of appellant's left hand. Appellant protested that the officers were wrong in having contacted or stopped him, and turned again, this time making a "grab towards his right side with his right hand to his waistband area . . . by his-part of his jacket." The officers were then able to gain control over both of appellant's hands, and did so to prevent appellant from possibly reaching for a weapon. They then located "some items in the front jacket pocket." The two items retrieved from that jacket pocket turned out to be (1) a "baggie full of unburned marijuana buds" and (2) "a baggie full of off-white colored substance commonly known as rock cocaine."
Altogether, the officers recovered from appellant's jacket pocket from 12 to 15 individually wrapped rocks of cocaine and marijuana and, later, $1,756 in cash from his pants' pocket. The officers handcuffed and arrested appellant.
Two other officers were called to the scene by the arresting officers; during the short time before they arrived, appellant gave his name as "Bobby Byers" to one of the officers, although in fact his true name is Bobby Byers McWoodson. Appellant provided the same incorrect name to one of the new officers, Detective Riccardi.
Riccardi took appellant to the San Mateo police station and gave him a Miranda warning, which appellant stated he understood. At that point, appellant gave his true name. Appellant explained to Riccardi that he and his girlfriend had come to the theatre in a car, had been having a fight, and that in exiting the car he had grabbed a jacket without paying attention to it, and then had taken the marijuana out of his pants pocket and put it in the jacket pocket. Then, per his testimony, he reconnected with his girlfriend Horton near the theatre, where they "made up," and then smoked some marijuana before being contacted by the two other police officers. Appellant conceded to Riccardi that the marijuana was his but the cocaine was not, and denied using cocaine. Regarding the $1,756 in cash found in his pants pocket, appellant said that Horton "had given him the money to purchase a vehicle" for her.
On October 18, 2007, a complaint was filed in San Mateo County Superior Court charging appellant with three counts, i.e., the two counts noted above and, as a third, providing false identification to a peace officer. (Pen. Code, § 148.9, subd. (a).)
On November 27, 2007, a preliminary hearing was held. The only witness appearing at that hearing was Detective Riccardi, who testified about what Officers Murphy and Schlegel had told him about their detention, search, and subsequent arrest of appellant, his later questioning of appellant at the police station, what the tests showed as to the two different drugs recovered from appellant's jacket pocket, and appellant's initial misidentification of himself. On cross-examination, Riccardi was questioned principally about his Miranda warning to appellant, and what additional information he had given appellant regarding his rights, and any inquiries appellant had on that subject, etc. After that testimony, appellant's counsel argued to the court that appellant had not been given the opportunity to make a "knowing and intelligent" waiver of his Miranda rights. The trial court rejected this argument and ordered appellant to be held for arraignment.
On December 10, 2007, the San Mateo District Attorney's office filed an information charging appellant with the same three counts as were charged in the complaint. Trial was scheduled to start on November 17, 2008. However, a few days before, specifically on November 13, 2008, appellant's trial counsel moved for a continuance, asserting that he had recently visited the "scene of the arrest and search" and that during that visit had "learned information which under the standards of professional representation require a motion to suppress be made," stated that he had "made a mistake" in not seeking such, and moved for a continuance of the trial to do so. The trial court denied the motion as untimely.
Trial commenced as scheduled on November 17. During the trial, the prosecution dismissed the false identification count, leaving only the two drug-related charges. After four days of trial, the jury found appellant guilty of those two counts; however, it found that appellant's possession of marijuana for sale to be a misdemeanor, and not a felony. The court thereafter found the allegation of a prior strike of appellant to be true.
On March 6, 2009, the trial court sentenced appellant to six years in state prison. On September 22, 2009, this court granted appellant's motion to file a late notice of appeal, which he did on October 6, 2009.
On appeal, appellant argues that the record on appeal (1) establishes, or at the very least strongly suggests, that there was an improper search of appellant, i.e., a patdown for purposes of finding some identification and (2) also shows ineffective assistance of counsel because appellant's trial counsel should have filed a motion under Penal Code section 1538.5 (section 1538.5) to suppress the drug evidence taken from the pocket of the jacket he was wearing on the day of his detention and arrest.
The record before us shows, as noted above, that those officers searched appellant's jacket pockets and found both cocaine and marijuana, as well as (later, apparently) $1,756 in cash in one of his pants' pockets. That evidence supported appellant's conviction for possessing both cocaine and marijuana for sale. Although appellant effectively concedes (by not arguing otherwise) that the two San Mateo officers had reasonable grounds to suspect he was involved in criminal activity, i.e., smoking marijuana immediately before they confronted him outside the movie theatre, he argues that the record on appeal establishes that those officers' initial patdown violated his Fourth Amendment rights.
We agree in part. We do not think the record unconditionally proves a Fourth Amendment violation, but it certainly raises significant Fourth Amendment issues, i.e., whether those officers were justified in conducting their initial patdown search of appellant, whether appellant consented to that search, and/or whether the search was conducted pursuant to a valid arrest. But because no motion to suppress the September 15 evidence was ever timely brought or heard, the issue of whether the search violated appellant's Fourth Amendment rights was never properly explored. But, as just noted, the testimony of both of the San Mateo police officers at the trial suggests rather strongly that their first patdown of appellant was to determine if he had a wallet in his clothes which might establish his identification.
Officer Schlegel was the first one to testify on this issue. Under direct examination by the Deputy District ...