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The People v. Mark Anthony Livingston

October 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK ANTHONY LIVINGSTON, DEFENDANT AND APPELLANT.



(Super. Ct. No. SM266352A)

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

P. v. Livingston 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mark Anthony Livingston appeals the denial of his motion to suppress evidence which the police found in a search of a vehicle he was driving. On appeal, defendant contends the vehicle search cannot be justified as a search incident to his arrest or under the automobile exception to the warrant requirement. We disagree and affirm.

BACKGROUND

I

Factual Background

On September 23, 2008, at approximately 11:23 a.m., Officer Richert Kamaiopili and Officer Grubb, both of the Stockton Police Department, were on patrol in the area of River Brook Drive and March Lane in San Joaquin County.*fn1 After turning onto River Brook Drive, the officers spotted a four-door Toyota sedan approximately 200 feet in front of them stopped in the roadway next to a small, parked SUV. As the patrol car approached the Toyota, a person appeared from the right side of the parked SUV, walked around the back of it, and entered the passenger seat of the Toyota. The Toyota began to drive away.

Officer Kamaiopili ran a check on the Toyota's license plate number and learned it was registered to Jesse Booth. Officer Kamaiopili ran a records check on Booth, which revealed he had 11 prior arrests for burglaries. Officer Kamaiopili was aware there had been 77 reported auto burglaries in the Lakeview District between September 8, 2008, and September 21, 2008.

Officer Kamaiopili directed Officer Grubb, who was driving the patrol car, to make a traffic stop of the Toyota for having stopped in the roadway next to the parked SUV.*fn2 After the Toyota was stopped, Officer Kamaiopili walked up along its passenger side. The Toyota had two occupants, the driver and the front seat passenger.

Officer Kamaiopili asked the driver, defendant, for his driver's license and insurance documentation. Defendant presented his driver's license, which properly identified himself, while the front seat passenger looked for insurance and registration documentation in the glove compartment. The front seat passenger indicated he could not find the documentation, but said he owned the vehicle, verbally identified himself as Booth, and presented Officer Kamaiopili with a California identification card. While Booth was looking for the insurance and registration documentation in the glove compartment, Officer Kamaiopili noticed Booth's right hand was down at the side of his leg. Officer Kamaiopili asked Booth to elevate his hand.

After obtaining Booth's identification card, Officer Kamaiopili explained the basis for the traffic stop and asked defendant why he had stopped in the middle of the roadway. As defendant offered an explanation, Officer Kamaiopili noticed Booth again drop his hand to the side of his seat. Officer Kamaiopili stepped back and looked at the floorboard behind the passenger seat and observed what appeared to be a 15- to 18-inch stick among debris.

Officer Kamaiopili returned to the patrol car and ran a records check on defendant. The records check revealed an outstanding traffic bench warrant for defendant's arrest. Officer Kamaiopili called another Stockton Police Department unit to the scene for assistance, and Officer Park McAllister arrived shortly thereafter.

Officer Kamaiopili returned to the Toyota. He asked defendant to step out. Officer Kamaiopili noticed that the stick, which had been on the floorboard, was no longer there. Officer Kamaiopili cuffed defendant and placed him under arrest on the bench ...


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