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The People v. Kevin Lloyd Hubert

April 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN LLOYD HUBERT, DEFENDANT AND APPELLANT.



Super. Ct. No. CRF100297

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

P. v. Hubert

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the trial court denied his motion to suppress, defendant Kevin Lloyd Hubert pled no contest to transporting methamphetamine and admitted a prior drug conviction. The trial court placed him on Proposition 36 probation for three years. On appeal, defendant contends the trial court erred in denying his suppression motion because: (1) the patdown search was unjustified because the officer did not have reasonable suspicion defendant was armed and dangerous; and (2) the search exceeded the scope of determining if defendant had weapons.

We agree with defendant that the patdown search for weapons in this case was unlawful. Accordingly, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 16, 2010, at around 10:45 p.m., Yolo County Sheriff's Deputy Gary Richter stopped his police car behind a Camaro parked in the back of the Wayside Market in Knights Landing. Defendant and passenger Bonnie Wyniarczuk stepped out of the Camaro. Deputy Richter recognized Wyniarczuk from a previous drug arrest. He called out to defendant and Wyniarczuk and asked to search them both. Wyniarczuk walked back toward his police car and allowed Deputy Richter to search her because she "was on searchable OR from the court." Defendant, however, did not consent to the search and stayed next to the car.

When Wyniarczuk approached Deputy Richter, he noticed she had red, bloodshot eyes and was fidgeting and moving around, leading him to believe she was under the influence of a "central nervous system stimulant." Deputy Richter then informed defendant that due to the time of night and Wyniarczuk's behavior he was going to pat defendant for weapons. During the patdown, Deputy Richter felt something "hard and cylindrical" in defendant's left pocket. Deputy Richter "manipulated the object [and] noticed it was approximately four inches long with a large bulbed end." He reached into the pocket and found a glass pipe. Deputy Richter then further searched defendant's pocket and found a cigarette package, opened it, and found methamphetamine.

Defendant moved to suppress the evidence. At the suppression hearing, Deputy Richter testified that he patted down defendant because he thought defendant might have weapons because of the time of night and the fact that Wyniarczuk might have been under the influence. Deputy Richter further testified that in the past Wyniarczuk had a pocket knife on her, but had never been aggressive or given him reason to fear his safety. However, Deputy Richter also testified that he did not recognize defendant.

The trial court denied defendant's motion to suppress, stating, "one of the appellate cases said that -- how do they say it-- weapons and drugs are like sharks and remoras. I[f] you find the remora, you better start looking for the shark. That's what Deputy Richter did. [¶] Suppression motion denied."

After the trial court denied his suppression motion, defendant pled no contest to one count of transportation of methamphetamine and admitted a prior drug conviction. The court granted ...


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