(Super. Ct. No. 08F02853)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert Andrew Collins was a passenger in a vehicle law enforcement officers stopped after the driver ran through two stop signs. An officer ordered defendant out of the car and asked him if he had any drugs. Defendant eventually admitted he did and began to reach into his pants pocket. The officer reached into the pocket and retrieved a plastic baggie holding six wrapped baggies containing cocaine.
Officers searched the vehicle and discovered loaded firearms under the driver's and front passenger's seats. They also found clothing and a box of plastic baggies in the back seat, and a digital scale and mail addressed to defendant in the trunk.
At trial, defendant stipulated he had a prior felony conviction. Also at trial, the trial court denied defendant's motion to suppress the evidence found on him and in the vehicle.
Following trial, a jury convicted defendant of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(1)), and possession of a loaded firearm (Pen. Code, § 12031, subd. (a)(1)). With respect to the transportation conviction, the jury found true a personal arming enhancement (Pen. Code, § 12022, subd. (c)).*fn1
The trial court sentenced defendant to a state prison term totaling three years, calculated as follows: the low term of three years on the transportation count based on finding the drugs were possessed for personal use, plus a concurrent low term of 16 months on the felon in possession of a firearm count. The court struck the personal arming enhancement, and it stayed sentencing on all other counts under Penal Code section 654.
Defendant appeals, claiming (1) the trial court erred when it denied his motion to suppress evidence; (2) convicting him of transporting a controlled substance when the trial court found he possessed the substance only for personal use violated the governing statute or, if not that, his constitutional rights; and (3) the trial court committed misconduct and violated his constitutional rights by commenting on defendant's potential punishment.
We affirm the judgment. We remand solely for correction of sentencing and order that an amended abstract of judgment be prepared.
Denial of Motion to Suppress Evidence
Defendant contends the trial court erred in denying his motion to suppress evidence. He claims the questioning by the officer about drugs and obtaining the drugs from him, as well as the search of the vehicle, violated his Fourth Amendment rights because (1) the search of his person was not related to a lawful, temporary detention; (2) the search of the car was not a lawful search incident to an arrest; (3) no standard police procedures on inventory searches existed to validate the vehicle search; and (4) the doctrine of "inevitable discovery" does not apply in this instance.
We conclude the warrantless search of defendant's person and the vehicle did not violate the Fourth Amendment. Both were incident to a lawful detention and arrest. In addition, discovery of the evidence recovered from the searches was inevitable. Officers would have searched defendant upon learning he had an outstanding warrant for his arrest and would have found the cocaine at that time. Officers also conducted a lawful inventory search upon the arrest of the driver and would have found the weapons then.
A. Additional background information
On April 9, 2008, Sacramento County law enforcement officers were conducting a "narcotics sweep" or "warrant sweep." Sheriff's Detective Chris Maher described the warrant sweep as "a high impact directed patrol. We had probation, parole, warrants and searches already lined up, and we were going around with our directed patrols contacting offenders, anywhere from traffic to warrants and probation."
Detective Maher's team included Detective Joseph Miller, Sergeant Scott Hays, Deputy County Probation Officer Solomon, and Deputy United States Marshal Michael Caverly. The team members wore plain clothes with gun belts and raid vests. The black vests had the word "Sheriff" printed on the front and back in large yellow letters and their badges were visible. The members were using unmarked vehicles.
At about 1:15 p.m., the team members had just finished contacting a bicyclist at the intersection of Shadowcreek Drive and Hackberry Lane and were standing on the side of the street when they observed a four-door, gold Mercury Sable fail to stop at the intersection's stop sign. The team members immediately got into their cars to make a vehicle stop on that car. Detective Maher rode in Sergeant Hays's vehicle.
Falling behind the Sable as it traveled down Hackberry Lane, Detective Maher watched as it rolled through another stop sign while making a right-hand turn. Sergeant Hays caught up, activated hidden lights on his car, and stopped the Sable. Four people were riding in the Sable: Brian Huey was driving, defendant was seated in the front passenger seat, and two female juveniles were seated in the rear.
Detective Maher approached the Sable's driver's side. He informed Huey he had stopped the vehicle for running the stop signs and asked to see Huey's driver's license. Huey said he did not have a driver's license and, in fact, he had never had one. Detective Maher ordered Huey out of the Sable, told him he was under arrest for being an unlicensed driver, and handcuffed him.
Meanwhile, Detective Miller had approached the Sable's passenger side to make contact with defendant. Within "[f]ive, ten seconds" after Detective Maher contacted Huey, Detective Miller contacted defendant and asked him to get out of the car. After obtaining defendant's name, Detective Miller asked him if he was on probation or parole. Defendant said no. Detective Miller asked him whether he had any warrants that he knew about. Defendant said he did not.
Next, Detective Miller asked defendant if he had any narcotics on him. Defendant "kind of took a deep breath and then said no." Detective Miller noticed that defendant seemed a little nervous, was fidgety, and he kept touching his front left pants pocket with his hand and putting his hand in that pocket. This behavior raised Detective Miller's suspicions. He instructed defendant to keep his hands out of his pockets, and he asked defendant again if he had any narcotics on him. Defendant said no, but at the same time he shook his head yes. He nodded his head up and down in an affirmative manner.
Detective Miller asked defendant a third time whether he had any narcotics on him. Defendant nodded his head yes without saying anything. He started to put his hand in his front left pants pocket, but Detective Miller told him to keep his hand out of the pocket and he would retrieve the item. Detective Miller reached into defendant's left pants pocket and retrieved a plastic baggie. Inside that baggie were six additional baggies each containing a white powdery substance. Detective Miller asked defendant what was the white substance, and defendant said it was "coke." Detective Miller did not pat search defendant before retrieving the drugs from defendant's pocket.
Detective Miller arrested defendant, placed him in handcuffs, and sat him down on the ground. Somewhere about this time, Detective Miller learned from another officer there was an outstanding misdemeanor traffic arrest warrant for defendant. He estimated anywhere from 30 seconds to one minute elapsed from the time he first approached defendant until he obtained the drugs.
After defendant was placed under arrest, the officers removed the females from the Sable and had them sit on the ground. A school resource officer eventually ...