(Super. Ct. No. 11F00281)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A law enforcement agent reached into a small light-weight duffel bag belonging to defendant Marco Jerome Palmer, believing there was a weapon inside. Prior to reaching into the bag, the agent did not patdown the bag's exterior, and there was no testimony the bag was of a nature that a patdown of the bag's exterior would have been insufficient to confirm or dispel the agent's belief the bag contained a weapon. The bag turned out to have two weapons that defendant was not allowed to carry.
The judge, sitting as a magistrate, denied defendant's motion to suppress evidence of the guns and held defendant to answer. Thereafter, defendant pled no contest to six firearm-related charges. At the time defendant pled no contest, defense counsel and the magistrate stated their belief that defendant had preserved his right to challenge on appeal the ruling on the suppression motion. Their belief was wrong because defense counsel had to reraise the suppression motion after defendant was held to answer to preserve defendant's right to appeal the ruling on the suppression motion.
We hold defense counsel was ineffective for failing to reraise the suppression motion because the motion was meritorious and the evidence against defendant should have been suppressed. We therefore reverse the judgment against defendant. Based on our holding, we do not address defendant's remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
About 1:00 p.m. in January 2011, state and federal law enforcement officers working together boarded an Amtrak train in Roseville headed for Sacramento. They were engaging in "consensual encounters" with passengers to determine if any were carrying drugs or weapons. About five hours before boarding the train, one of the officers, United States Department of Justice Special Agent Jim Delaney had learned from a law enforcement detective in Reno that one passenger had "his legs draped over a bag in sort of a protective or suspicious manner." There was no information about any illegal activity. Defendant matched the description of that passenger. Agent Delaney also had learned of a "somewhat suspicious ticket purchase. It was a . . . third-party Visa purchase that someone had purchased for [defendant]" that "had been reserved within a day or two" for a ticket from Lincoln, Nebraska, to Sacramento.
California Department of Justice Special Agent James Meek approached defendant, who was sitting down at one of the last seats of the train's car. Defendant had a bag tucked under his foot. Agent Meek told defendant he was a police officer and asked to question him. Defendant became "agitated" but "somewhat calmed down" when Meek told him they had not singled him out and were talking to passengers on the train to ensure everybody's safety. Defendant said he had two bags -- the first was to the left of him and the second was at his feet on the floor -- both of which he had packed himself. He denied Agent Meek's request for consent to search the bags. Defendant, however, granted Meek's request to "visually inspect" the bags. Meek told defendant three times to keep his hands out of the bag so the agent could see them during the visual inspection. Defendant complied in a "[v]ery calm" manner and after moving some items around inside the first bag and opening it up so the agent could "look well inside of it," Meek felt "comfortable" the bag "most likely" did not contain any contraband.
While Meek was visually inspecting the first bag, he noticed defendant was pushing the second bag under his seat out of sight. While not afraid for his safety because defendant's "hands were out," Meek became concerned defendant was trying to hide something in that bag. Meek then asked for and received permission to patdown defendant's waist area. That search revealed no weapons.
Meek asked defendant to "retrieve the second bag, bring it up closer." Defendant put the second bag where the first had been, "which was next to him to his left." It was a "small gym bag" "light-weight" "[d]uffel bag" with a zipper on the top. When Meek asked to visually inspect the second bag, defendant became "immediately nervous" and "agitated." It was "clear and obvious" to Meek "this bag could pose a danger or threat or have contraband inside of it." About that time, Agent Delaney was passing by. Agent Meek asked Agent Delaney if he could stop and told Delaney he was concerned about the second bag.
After defendant pulled the bag up, he reached into the bag with both hands and said, "'Hey, there's nothing here.'" "[T]he way he reached in that bag, made [Agent Delaney's] hair stand up, what hair [he] ha[d] left." Defendant had reached in the bag with both hands in a manner hiding them from the agent's view. Agent Delaney asked defendant to take his hands out of the bag and not do that again. Defendant then covered up the bag with a jacket and moved them to his right. Agent Delaney told defendant, "'You are scaring me and I am really worried about what is in that bag.'" Defendant agreed to pull out one item of clothing at a time without his hands going into the bag. He moved the bag "back over to the aisle side where Agent Meek was" and removed one or two items of clothing. Defendant then put his hands back in the bag and started "moving the clothing from one side to the other." He was "moving a pair of underwear over an item and gripping it and holding it as he did it." Agent Delaney thought the item was "maybe three, four inches" and was a weapon, but he could not tell if the item was hard. He told defendant to take his hand out of the bag slowly. The agent then grabbed the bag and moved it to the other side of the aisle. Defendant stood up to see what Agent Delaney was doing, but did not make any threatening motions. Agent Meek could not see defendant's right hand, so Meek "placed [his] hand on ...