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The People v. Antonio Sizer

August 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANTONIO SIZER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01231)

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

P. v. Sizer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Antonio Sizer pleaded no contest to possession of a firearm by a convicted felon and carrying a weapon concealed within a vehicle. The trial court sentenced him to 16 months in state prison.

Defendant contends on appeal that the trial court erred in denying his motion to suppress evidence. He argues that the initial stop of the car he was driving was without reasonable suspicion of criminal activity, that his detention was unlawful, that his arrest was without probable cause to believe that he unlawfully possessed a prohibited weapon, and that the inventory search of the car was unauthorized.

Viewing the record in the light most favorable to the trial court's ruling, we conclude that Officer Kossow had reasonable suspicion to make the initial vehicle stop, that the duration of defendant's detention was reasonable based on the totality of the circumstances, that his arrest was based on probable cause to believe defendant possessed a prohibited weapon, and that the inventory search was lawful.

We will modify the judgment to award defendant one additional day of presentence conduct credit and affirm the judgment as modified.

BACKGROUND

On February 19, 2010, at about 10:40 a.m., Sacramento County Deputy Sheriff Kimberly Kossow, a 21-year police veteran, was on patrol near the intersection of Madison Avenue and Primrose Drive when she observed a red Pontiac G6 with a rear window broken out or missing. Officer Kossow noticed that the Pontiac's male driver, defendant, was wearing latex gloves. Officer Kossow had not often seen a driver wearing latex gloves. Officer Kossow ran the Pontiac's license plate through her computer Department of Motor Vehicles (DMV) system, which indicated that the Pontiac was registered to a female. The Pontiac was not reported as stolen.

As Officer Kossow ran the Pontiac's license plate, defendant made a sudden right-hand turn onto a small residential street in what appeared to be an evasive maneuver. Officer Kossow made the next right-hand turn and began searching for the Pontiac. Officer Kossow requested a backup unit to help her locate the vehicle. Based on her experience and the circumstances she observed, including the missing rear window, the latex gloves, and the sudden right-hand turn, Officer Kossow suspected that the Pontiac was stolen.

Upon finding the Pontiac, Officer Kossow pulled behind it and effectuated a stop. Officer Kossow conducted a "felony vehicle stop" and had defendant exit the Pontiac at gunpoint. Defendant verbally identified himself as "Antonio Sizer." According to Officer Kossow, defendant was acting very "paranoid" and said that people were following him and were after him. Officer Kossow patsearched defendant for weapons.

Defendant provided Officer Kossow with his California driver's license. Defendant indicated that the Pontiac belonged to him or his mother whom he verbally identified as "Elizabeth Sizer." Officer Kossow's license plate check had revealed that the Pontiac's registered owner was, in fact, Elizabeth Sizer.

A backup unit had not arrived and Officer Kossow decided to place defendant in the back of her patrol car without handcuffs. Officer Kossow closed the door on her patrol car with defendant inside and continued her investigation. Officer Kossow still believed the Pontiac could be stolen. According to Officer Kossow, vehicles can be stolen by individuals who share the same name as the registered owner. Furthermore, even though the Pontiac was not reported as stolen, Officer Kossow understood that a vehicle could be stolen without the owner's knowledge, such as during the day when the owner is at work. In addition to possible vehicle theft, Officer Kossow wanted to further investigate defendant's statements that people were following him and were after him.

As defendant was sitting in Officer Kossow's patrol car, a backup officer, Deputy Carl Griffiths, arrived on the scene. Officer Kossow relayed to Officer Griffiths that defendant was acting paranoid. Officer Kossow asked Officer Griffiths to check the vehicle identification number (VIN) on the Pontiac while Officer Kossow ran a records check on defendant.

Officer Kossow had Officer Griffiths obtain the VIN on the Pontiac to rule out a tactic known as "cold plating." In cold plating, an individual takes a license plate from a vehicle that is not reported as stolen and places it on a similar vehicle that he/she steals. To determine if this has occurred, officers will compare the VIN on the vehicle to see if it matches the VIN associated with the license plate.

While Officer Griffiths was looking through the Pontiac's window to obtain the VIN, he noticed a black nylon bag in the front passenger seat with the handle of an aluminum youth T-ball bat sticking out. Officer Griffiths noted that the bat had masking tape on the handle, was in close proximity to the driver, and there were no other sports-related items in the vehicle. Officer Griffiths thought it was a "deadly weapon."

Meanwhile, Officer Kossow ran a records check on defendant. The records check revealed that defendant was not on probation or parole and had no warrants out for his arrest. He did, however, have a previous conviction related to the possession of a dangerous weapon. Officer Kossow asked defendant if she could search the Pontiac. Defendant declined. Defendant stated something like "for most of his life he really didn't have any rights, but now that he was off of probation and parole, he wanted to exercise them."

Officer Kossow telephoned Elizabeth Sizer to determine whether defendant had permission to use the Pontiac. Elizabeth Sizer confirmed that the Pontiac was registered in her name and that defendant was using it. Officer Kossow asked Elizabeth Sizer if they could search the Pontiac, and she responded, "I don't see why not."

During Officer Kossow's conversation with Elizabeth Sizer, Officer Griffiths was still obtaining the Pontiac's VIN. After getting off the phone with Elizabeth Sizer, Officer Kossow met back with Officer Griffiths. At some point, Officer Griffiths informed Officer Kossow of the baseball bat.

Standing at the passenger side of the Pontiac, Officer Kossow observed the youth baseball bat on the front passenger seat within reach of the driver. The bat was sticking out of the open gym bag with its handle facing up. From her vantage point, Officer Kossow could not see whether the bat had been modified. She also observed other items on the front passenger seat that looked suspicious including a box of latex gloves, a roll of duct tape, and a pair of binoculars. Officer Kossow further observed ...


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