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The People v. Barry Jerome Nottoli

September 26, 2011

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
BARRY JEROME NOTTOLI, DEFENDANT AND RESPONDENT. THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
REID WILLIAM NOTTOLI, DEFENDANT AND RESPONDENT.



(Santa Cruz County Super. Ct. No. F18672)

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

CERTIFIED FOR PUBLICATION

(Santa Cruz County Super. Ct. No. F18756)

After granting suppression motions, a magistrate dismissed complaints against Barry Nottoli (Barry) and Reid Nottoli (Reid), father and son.*fn1 The prosecution unsuccessfully brought a motion in the superior court "to compel the magistrate to reinstate the complaint[s]" pursuant to Penal Code section 871.5, subdivision (a).*fn2 The principal issue in these People's appeals is whether a warrantless search of Reid's vehicle and the cell phone discovered in the vehicle following a traffic stop were justified as searches incident to arrest under Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710] (Gant).*fn3

We conclude that the suppression motions were erroneously granted.

A. Procedural Background

On December 24, 2010, a seven-count complaint was filed against Reid in Santa Cruz County Superior Court case number F18672. It alleged that Reid had committed various drug and weapons offenses on or about December 16, 2009: possession of marijuana for sale (Health & Saf. Code, § 11359) (count one); cultivation of marijuana (Health & Saf. Code, § 11358) (count two); possession of a deadly weapon (§ 12020, subd. (a)(1)) (count three); possession of a controlled substance, specifically "Oxycontin and Morphin Sulfate" (Health & Saf. Code, § 11350, subd. (a)) (count four); possession of an assault weapon (§ 12280, subd. (b)) (count five); possession of a blowgun (§ 12582) (count six); and possession of a destructive device, specifically eight incendiary projectiles (§ 12303) (count seven).

On January 22, 2010, a five-count complaint was filed against Barry in Santa Cruz County Superior Court case number F18756. The complaint alleged that, on or about December 22, 2009, Barry had committed the following offenses: possession of marijuana for sale (Health & Saf. Code, § 11359) (count one), cultivation of marijuana (Health & Saf. Code, § 11358) (count two), possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)) (count three), possession of an assault weapon (§ 12280, subd. (b)) (count four), possession of a deadly weapon (§ 12020, subd. (a)(1)) (count five).

Reid filed a motion to suppress pursuant to section 1538.5 on the grounds that he had been unlawfully arrested on December 6, 2009 following a traffic stop and the ensuing warrantless searches of his vehicle and a cell phone found in the vehicle's passenger compartment violated the Fourth Amendment. He contended that the evidence seized during subsequent searches pursuant to warrants must be suppressed because they were based on evidence derived from unlawfully searching the cell phone. The exhibits attached to the motion indicated that, on December 8, 2009, Santa Cruz County Deputy Sheriff Steven Ryan obtained and executed a search warrant on Reid's cell phone based on the information obtained from the initial searches of the vehicle and cell phone. Deputy Ryan sought and obtained a warrant on December 9, 2009 to search 2001 Larkin Valley Road, Watsonville and executed the search on December 16, 2009. The motion sought to suppress all evidence obtained as a result of the allegedly unlawful arrest of Reid, including urine test results, a gun found under the seat of the vehicle that Reid had been driving, the cell phone found in the vehicle, the officers' observations, Reid's statements, narcotics paraphernalia, and the evidence obtained in executing the search warrants, which included additional guns, scales, cash and drugs.

Barry joined in Reid's suppression motion, arguing that the search of Barry's home was "fruit of the poisonous tree." Barry further argued that the warrant to search his home was not supported by probable cause and was not executed in good faith since his residence was separate from Reid's residence even though both residences were situated on the same large parcel of land.

In their opposing papers, the People maintained that Deputy Ryan had probable cause to arrest Reid for being under the influence, Deputy Ryan lawfully searched the area of Reid's car where Reid was sitting incident to arrest, the vehicle was lawfully inventoried and towed for safekeeping, and Deputy Gonzales conducted a lawful limited search of Reid's cell phone that was "substantially contemporaneous" with Reid's arrest, the search warrant for the Larkin Way property was based on probable cause, and, even if Deputy Gonzales's search of Reid's cell phone was unlawful, the same evidence would have been inevitably discovered because Deputy Ryan would have obtained a search warrant to search the cell phone based on the screensaver photo that showed someone who looked like Reid brandishing two assault weapons. As to the search of Barry's residence, the People contended that the search warrant for the Larkin Valley Road property was supported by probable cause and executed in good faith.

At the time set for the preliminary hearing, the magistrate heard and granted the suppression motion. The respondents were not held to answer. The prosecutor indicated that, based on the ruling, the People did not have sufficient evidence to proceed in either case and the magistrate dismissed the complaints.

The prosecutor subsequently moved to reinstate the complaints pursuant to section 871.5. (See § 1538.5, subd. (j).)*fn4 The prosecutor argued, among other things, that the searches of the vehicle and cell phone were lawful as searches incident to arrest and that the magistrate erroneously denied the People's request to call Deputy Gonzales to testify at the suppression hearing. The superior court denied the motions. In each case, the People filed a notice of appeal. (See §§ 871.5, subd. (f); 1238, subd. (a)(9).)

B. Motion to Suppress at the Preliminary Hearing

1. Evidence

Deputy Sheriff Stephen Ryan attended a six-month police academy that included 40 hours of narcotics enforcement training. The deputy had investigated over 300 persons for being under the influence and arrested "a little over 80" individuals.

Deputy Ryan had worked with the county narcotics enforcement team and he had assisted the team in an "auxiliary fashion on search warrants" and with paperwork but he had never been a member of the team. He had used the team's expertise as a resource. Deputy Ryan had done some work with Deputy Yanez, a team member who had produced a manual about identifying persons who are under the influence. Deputy Ryan recognized Deputy Yanez as an expert in the field. Deputy Ryan had learned from working with the team that drug addicts and casual drug users very often sell drugs either to maintain their habits or obtain income.

In Deputy Ryan's experience, drug paraphernalia or narcotics related to being under the influence are often found on persons under the influence, or somewhere close to them, or in their vehicles. In his experience, cell phones are the main communication device used by drug users and drug sellers. Cell phones can contain text messages related to acquiring and offering drugs. Text and voice mail messages, contact lists, call history, photos, and videos found in cell phones can be useful to investigations.

In the FTO Training Program, a trainee is paired with a more experienced deputy who teaches the trainee how to conduct a vehicle inventory in accordance with the policy of the Sheriff's Office and the California Vehicle Code. During Deputy Ryan's training, his FTO covered the inventory search protocol and Deputy Ryan was familiar with the policy of the Sheriff's Office on the subject of vehicle inventory.

At approximately 1:55 a.m. on December 6, 2009, Deputy Ryan was on duty in full uniform and traveling southbound on Highway 1 in a marked patrol car. As he was traveling at a speed of 65 miles per hour, the deputy observed a silver car, which was approximately a quarter mile ahead, pull away from his vehicle. He accelerated to get closer and then followed approximately 100 yards behind the vehicle, keeping pace with it at 90 miles per hour for approximately a quarter of a mile. When he moved closer to the vehicle, he determined that it was a silver Acura TL.

The speed limit in that area of Highway 1 was 65 miles per hour. When the vehicle exited, Deputy Ryan followed. When the Acura made a left onto Larkin Valley Road from the off ramp, the deputy initiated a vehicle stop by activating his overhead red stop lamp for the observed speeding violation of Vehicle Code section 22349, subdivision (a).

Deputy Ryan contacted the driver through the front driver's window, which was rolled down, and asked for his driver's license. The driver, identified as Reid at the hearing, told the deputy that he did not have it on him. Reid said that the vehicle did not belong to him. The deputy assumed it belonged to Reid's father.

Reid appeared "very nervous" but he was "also very alert and awake" which Deputy Ryan found odd "since it was pretty late at night." Reid was not able to sit still and he was noticeably perspiring and had a "noticeable body odor." His eyes were watery, slightly bloodshot, and darted around "in a really nervous kind of fidgeting fashion." He was rocking slightly in his seat and "seemed very, very ill at ease." His speech was rapid, "disjointed," and "very punctuated."

Reid informed Deputy Ryan that he had been up all night studying and the deputy took that fact into consideration in determining whether Reid was under the influence of a drug. Reid also said he had been drinking caffeinated energy drinks, which Deputy Ryan saw littered throughout the car. Based on his observations and training and experience, Deputy Ryan concluded that Reid was potentially under the influence of a controlled substance.

Deputy Ryan also observed that a woman slouched in the passenger seat of the vehicle was highly intoxicated. She spoke animatedly "in an exaggerated fashion" and slurred her words. Her eyes were red and watery and she informed the deputy that she had been drinking and Reid was taking her home.

Deputy Ryan walked back to his patrol vehicle and ran Reid's name for warrants and driver's license status. He learned that Reid's driver's license was expired. On the radio, Sergeant Carney, the watch commander for the night, told Deputy Ryan to call him on the cell phone. Over the cell phone, Sergeant Carney alerted Deputy Ryan that a Mr. Nottoli had been investigated for his involvement in drugs sales some years back.

The deputy returned to Reid, who said his birthday was on December 5. The deputy asked Reid to step out of the vehicle. At this point it was approximately 2:20 a.m. on December 6, 2009.

Deputy Ryan conducted a pupil check of Reid's eyes with a penlight and determined, using a pupillometer, that his pupils were constricted and fixed at approximately four millimeters, which the deputy concluded was abnormal under the ambient outdoor lighting conditions. Deputy Ryan next conducted a Rhomberg test, which requires the subject to estimate 30 seconds with his eyes closed and head tilted back. He observed that Reid had rapid eye tremors indicative of controlled substance use. Reid's estimate of 30 seconds was actually 25 seconds, which Deputy Ryan regarded as faster than normal. He then tested for horizontal nystagmus and found nothing significant.

Next, Deputy Ryan took Reid's pulse, which was 160 beats per minute and outside the range of normal. The deputy had tested recent users of controlled substances, who had rates of 120 to 130 beats per minute. Deputy Ryan noted that Reid's muscle tone was "very tense, very rigid," which can be attributed to nervousness or controlled substance use. He observed white spittle forming at the corners of Reid's mouth, a symptom of dry mouth. The deputy also observed that Reid's breath was "very rapid" and "sharp."

At the end of the exam of Reid, Deputy Ryan concluded that Reid was under the influence of a stimulant based on his training and experience, the results of the exam, and Reid's excessive driving speed, which indicated to the deputy that Reid's judgment was impaired. Deputy Ryan arrested Reid for being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a), and driving on an expired license in violation of Vehicle Code section 12500, subdivision (a). He handcuffed Reid and put Reid in the back of his patrol vehicle.

Deputy Ryan could not allow the passenger to drive the vehicle, even though she was a licensed driver, because she was so intoxicated. Her emotional state had continued to deteriorate during the contact and the deputy arrested her for public intoxication.

With Reid under arrest and handcuffed in the patrol car, Deputy Ryan decided to have Reid's Acura towed. Reid had wanted Deputy Ryan to leave the Acura on the side of the road or to drive the vehicle to his house, which was a half mile up the road. Driving the vehicle to Reid's house was not an option because the deputy was on patrol and driving it would expose the Sheriff's Office to liability. Deputy Ryan's decision to take the vehicle into safekeeping was based on his concern that leaving the car on the side of the road would expose it to possible vehicular theft or burglary since it was nighttime, that stretch of road was sparsely populated and not frequently traveled, and the vehicle was a nicer, newer model car.

Deputy Ryan began completing a CHP-180 form, which documents the condition and contents of a vehicle to be towed. He was acting under the authority of Vehicle Code section 22651, subdivision (h).*fn5

At the hearing, Deputy Ryan acknowledged that the Santa Cruz County Sheriff's Office inventory protocol required DUI cases to be turned over to the CHP. He explained that Reid's driving was not sufficiently impaired to require the involvement of ...


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