(Super. Ct. No. 09F07375)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his suppression motion at his preliminary hearing was denied, defendant Lavell Johnny Wright pleaded no contest to possession of marijuana for sale. (Health & Saf. Code, § 11359.) He later withdrew the plea and resubmitted the suppression motion to the trial court sitting as a superior court. (See Pen. Code, § 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 895-897.) When the motion was again denied, defendant reentered the no contest plea. Imposition of sentence was suspended and defendant was placed on probation for five years with conditions including 90 days of incarceration with credit for three days.*fn1
On appeal, defendant contends the warrantless search of his person was not supported by probable cause and his admission that he had marijuana on his person was the fruit of an "unlawful search that was about to occur." We shall affirm the judgment.
FACTS FROM SUPPRESSION HEARING
On September 30, 2009, at approximately 4:20 p.m., Sacramento Police Officer Adam Feuerbach was working as a School Resource Officer at Kennedy High School in Sacramento County. A gardener at a nearby apartment complex flagged down Feuerbach and told him that several juveniles were smoking marijuana at an intersection. Feuerbach went to the area and saw several people huddled together behind a wrought iron fence at the apartment complex. While still outside the fence, Feuerbach called out to defendant and asked him to come over.
Defendant walked toward Officer Feuerbach, staying behind the wrought iron fence. When defendant reached him, Feuerbach observed that defendant smelled of marijuana; his eyes were red, bloodshot, and watery; and he appeared to be under the influence of marijuana. At Feuerbach's request, defendant came around to the other side of the fence. He was wearing a backpack that he, or Feuerbach, removed. Based on defendant's behavior, the odor of marijuana on his person, and his red, bloodshot, and watery eyes, Feuerbach concluded that defendant was under the influence of marijuana.
Officer Feuerbach placed defendant in a "standing modified position," which involved placing defendant's hands on top of his head and Feuerbach's hand on top of defendant's hands. Feuerbach next asked defendant if he had "anything illegal, guns, knives, needles, anthrax, dynamite, or narcotics" on his person. Defendant answered that he had some baggies of marijuana in his pants pocket.
Officer Feuerbach searched defendant's person and found three "dime size"*fn2 baggies of marijuana in his front right pants pocket, another baggie of marijuana in his lower right pants pocket, and a vial on his belt buckle containing marijuana stems and marijuana "shake." The parties stipulated that a total of 6.37 grams of marijuana, a useable amount, was recovered from defendant.
After "detaining" defendant, Feuerbach searched defendant's backpack and found $69 in cash, a silver knife, two smoking pipes with marijuana residue, a marijuana grinder, 112 empty narcotics baggies, a nail file, a handkerchief, a plastic baggie with marijuana residue on it, two letters, a hookah pipe (water pipe), and a film canister that contained marijuana. In defendant's pants pocket, Feuerbach found a cellular telephone that contained several text messages related to the sale of marijuana.
Officer Feuerbach later spoke to C.L., whom Feuerbach recognized as a member of the group that had been with defendant. C.L. told Feuerbach that the group had been smoking a marijuana joint that one of his friends had purchased from defendant. C.L. acknowledged that defendant had sold them marijuana in the past. Based on the items recovered from defendant's person and ...