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The People v. Roy Ludwig Prather

May 11, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROY LUDWIG PRATHER, DEFENDANT AND APPELLANT.



(Super. Ct. No. NCR79236)

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

P. v. Prather

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following his plea of guilty to possession of concentrated cannabis and maintaining a place to sell a controlled substance, defendant Roy Ludwig Prather appeals the denial of his motion to suppress.

RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND*fn1

Defendant was charged with cultivation of marijuana and possession of marijuana for sale. He filed a motion to suppress contending he did not voluntarily consent to the search of his home and a suppression hearing was held.

Sergeant Dave Kain and two deputies were dispatched to a home on Dale Road to investigate a possible commercial marijuana operation. They knocked at what appeared to be the main door of the residence and defendant answered. Kain advised defendant they had received information about marijuana growing in the home and they were trying to determine if it was a Proposition 215 operation or an illegal commercial grow. Defendant appeared to understand and informed Kain it was a Proposition 215 growing operation. Defendant also reported he had medical recommendations for the marijuana. Kain asked defendant if he could come inside and inspect the operation to ensure it met county guidelines. Defendant answered "Sure" or "Okay," opened the door for the officers, and escorted them to the growing room.

Kain immediately noticed the room was very smoky and there was a large amount of marijuana being trimmed from the plant by four people. Kain also noticed scales and packaging materials. Kain told defendant he was concerned about whether the medical marijuana laws were being complied with, whether defendant was paying the workers in the room, and if so, whether defendant was paying them "under the table." Kain explained he wanted to further inspect the operation. Defendant was fully cooperative and allowed Kain to look further in the room.

Kain found two safes in the house and asked defendant to open them. Initially, defendant refused. Kain advised defendant that based on what he saw in the room, Kain would apply for a warrant to search the safes. He also advised defendant that if the warrant issued later, they would have to take the safes out of the home. At that point, defendant consented to opening the tall safe, but refused to open the smaller safe. As to the smaller safe, defendant insisted Kain would have to get a search warrant. There was a substantial amount of processed, individually packaged marijuana in the tall safe. Although defendant refused to open the smaller safe, he did not revoke his consent for the officers to search the property.

Kain contacted Lieutenant David Greer and asked him for assistance transporting evidence to the sheriff's office and writing a search warrant for the smaller safe. Greer sought and obtained a warrant to open the smaller safe.

When Greer arrived at the scene, Kain asked defendant for consent to search the entire property. Defendant consented to a search of "the entire property for anything that would be consistent with the growing operation," including the house and other outbuildings on the property. Defendant assured Kain he had been cooperative throughout the investigation and would continue to be. Defendant told Kain the officers could search anything they wanted to search and offered to walk the officers out to the shed and show it to them.

At no time during the search was defendant handcuffed or prevented from leaving the home. Defendant was not told he could not leave. None of the officers drew their weapons. No one else in the home was arrested or handcuffed. Kain did tell defendant that he had too much marijuana and he might be ...


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