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The People v. Donald Robert Posada

October 17, 2011


(Super. Ct. No. 62-081814A)

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

P. v. Posada CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The defendant Donald Robert Posada appeals the trial court's denial of his motion to suppress evidence which includes contraband the police found in a search of a convertible Mustang the defendant was driving. The defendant also appeals the trial court's ruling on his Pitchess motion.*fn1

We affirm.


I Factual Background*fn2

At approximately 9:00 a.m. on July 8, 2008, Deputy Sheriff Gregg Hopping was on patrol in the northwest portion of Placer County. While parked in a lot at the Thunder Valley Casino, Deputy Hopping observed a gray Ford Mustang convertible with its top down driving toward him without a front license plate. As the Mustang passed, Deputy Hopping observed that it also lacked a rear license plate. Deputy Hopping then pulled behind the Mustang and paced it traveling 60 to 65 miles per hour in a 55-miles-per-hour zone. Consequently, Deputy Hopping activated his overhead lights and initiated a traffic stop. The Mustang's driver (the defendant) initially pulled over to the shoulder but then pointed as if he desired to go further and pulled back onto the roadway. Deputy Hopping activated his siren and motioned for the vehicle to pull over. The defendant returned the Mustang to the shoulder and stopped. The Mustang had one other occupant, Fred Barreno, who was sitting in the front passenger seat.

As Deputy Hopping approached the Mustang, he noticed Barreno leaning forward and possibly moving or manipulating something on the passenger seat floor area. Deputy Hopping informed the defendant of his speed and license plate violations and requested his driver's license, which the defendant provided. While they were conversing, Deputy Hopping detected a strong odor of alcohol and observed empty beer bottles in a Pacifico beer box or case in the back seat. He was concerned that the defendant may have consumed alcohol and believed that there might be further alcohol in the vehicle. Deputy Hopping asked the defendant to step out of the Mustang and the defendant complied. With the defendant's consent, Deputy Hopping pat searched the defendant and found nothing. Deputy Hopping then went around to the passenger side of the Mustang and indicated to Barreno that he intended to look for the source of the alcohol odor. Deputy Hopping asked Barreno to exit the vehicle and he complied. With Barreno's consent, Deputy Hopping pat searched Barreno and found a glass methamphetamine pipe that contained burnt residue. Deputy Hopping handcuffed and arrested Barreno and placed him in the back of his patrol car. Deputy Hopping then called for a backup unit while the defendant stood in front of the patrol car.

When the backup, Deputy Schafer, arrived, Deputy Hopping began to search the Mustang's passenger compartment incident to Barreno's arrest. Due to Barreno's previously observed furtive movement in the front passenger seat, Deputy Hopping searched that area and noticed that the carpet on the floorboard near the center console was loose. Under the carpeting in that area, Deputy Hopping found a broken glass methamphetamine pipe. Upon making this discovery, Deputy Hopping arrested the defendant for possession of the methamphetamine pipe and the defendant was placed in Deputy Schafer's patrol car. According to Deputy Hopping, the area near the center console in which he found the methamphetamine pipe was within the defendant's reach and accessible to him.

After arresting the defendant, the Mustang's driver, Deputy Hopping decided to have the vehicle towed. Deputy Hopping explained he was "not going to leave [the convertible Mustang] there in an area that has [a] high crime rate, especially for burglaries." Deputy Hopping conducted an inventory search to note any particular damage to the car and to document noteworthy or valuable items. Deputy Hopping testified his inventory search was consistent with departmental policy and anything "noteworthy of value" had to be logged. During the inventory search of the trunk, Deputy Hopping found a black cosmetic bag that contained a glass methamphetamine pipe, five white tablets, and two blue tablets. He suspected the white tablets were vicodin but was uncertain as to the blue tablets. Subsequently, Deputy Hopping took the defendant to jail and during booking, the defendant was instructed to take off his shoes and socks. As the defendant removed his right sock, a baggie fell out containing what Deputy Hopping believed to be methamphetamine.

II Procedural Background

On August 29, 2008, the district attorney filed an amended complaint in the Placer County Superior Court charging the defendant with: (1) possession of hydrocodone (count one); (2) transportation of hydrocodone (count two); (3) transportation of methamphetamine and alprazolam (count three); (4) possession of methamphetamine and alprazolam (count four); (5) possession of drug paraphernalia (count five); (6) speeding (count six); and (7) failing to display a license plate (count seven). As enhancements, with respect to counts one through five, it was alleged that the defendant had prior serious or violent felony convictions and had served prior prison terms.

On March 19, 2009, the defendant filed a Pitchess motion. The motion sought discovery of police records concerning prior alleged incidents of "falsifying information, illegal search or seizure, harassment, and racial or ethnic bias" by Deputy Hopping. On April 22, 2009, the trial court heard the Pitchess motion and concluded that the defendant made a sufficient showing to warrant an in-chambers review of Deputy Hopping's personnel records for incidents pertaining to the "issue of truthfulness, falsification of evidence."*fn3 Later that day, the court held an in-chambers proceeding with the custodian of records during which the trial court reviewed ...

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