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The People v. Jacob A. Moore

September 21, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JACOB A. MOORE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F8137)

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

P. v. Moore

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an unsuccessful Penal Code section 1538.5 motion to suppress evidence essential to his conviction, defendant Jacob A. Moore pled guilty to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)*fn1 On appeal, he claims error only in the denial of his motion to suppress. Under the totality of the circumstances in this case, we conclude the pat down search was justified by the officers' reasonable suspicion that defendant was armed and dangerous. We affirm the judgment.

BACKGROUND

Because the sole issue on appeal is the denial of the motion to suppress, we summarize the facts as adduced at that hearing.

Shortly after midnight on October 24, 2010, Officer Renault pulled Valorie Tedder over for speeding and erratic driving. As Renault approached the car, Tedder rolled down the window of the car and Renault could smell marijuana. In the car with Tedder were two passengers, Mark Ahern and defendant. Ahern informed Renault he was on active searchable parole. Renault asked for, and received, Tedder's consent to search the car. Officers Hollemon and Denham arrived at the scene as back-up, and to help conduct the search of the car.

When Hollemon arrived at the scene, Ahern was sitting at the side of Renault's patrol vehicle and defendant remained in the back seat of Tedder's car. Prior to his contact with defendant, Renault had informed Hollemon that the car smelled of marijuana and that he had received Tedder's consent to search the car. Hollemon asked defendant to step out of the car and whether he had any weapons or contraband on him. Defendant stated he did not. There was nothing specific about defendant that led Hollemon to believe he possessed any weapons. However, Hollemon's training and experience informed him it is "not uncommon, where drugs are present in the field, for there to be weapons present as well." Based on this experience, and the fact it was midnight, one of the two passengers in the car was on parole, and the car smelled of marijuana, Hollemon was concerned about officer safety and told defendant he would be conducting a pat down search for weapons.

Before the search, Hollemon asked if defendant had anything that would "poke me, stick me, or hurt me." Defendant answered he had a folding pocket knife in the pocket of his jeans. Hollemon saw the top of the knife protruding from defendant's pocket and, for his safety, he removed the knife. Defendant's previous dishonesty about having weapons heightened Hollemon's safety concerns. He began the pat down search and felt a hard rectangular object in defendant's left rear pocket that defendant identified as his cell phone. Hollemon asked permission to remove the object to confirm it was a cell phone, and defendant said he "did not have a problem" with Hollemon doing so. The item was a digital scale. Hollemon felt another hard rectangular box-shaped item in defendant's left front pocket. Hollemon again asked if he could retrieve the object to "see what it was." Defendant answered yes. That item was a pack of cigarettes. In removing the cigarettes from defendant's pocket, Holleman also removed a baggie that was "in between one side of the pack of cigarettes and [Hollemon's] thumb." That baggie contained a white crystalline substance. Hollemon's training and experience led him to suspect the substance was crystal methamphetamine. Defendant was handcuffed and detained.

Defendant was charged with sale or transportation of methamphetamine (§ 11379, subd. (a)) and possession of methamphetamine (§ 11377, subd. (a)). He filed a motion to suppress and argued there was not specific and articulable suspicion that he was armed and dangerous so as to justify the pat down search.

The trial court denied the motion to suppress. The trial court found that the stop occurred after midnight, there was suspicious activity leading up to the stop, the officers believed there were drugs in the car, and there was an active parolee in the car. Relying on People v. Collier (2008) 166 Cal.App.4th 1374 (Collier) and United States v. Sakyi (4th Cir. 1998) 160 F.3d 164, the trial court found there were sufficiently specific and articulated facts to justify a pat down search of the passengers in the car. As for going into defendant's pockets, the court found defendant consented to the removal of the knife and the cigarettes. The trial court specifically found Hollemon inadvertently removed the baggie from defendant's pocket, along with the pack of cigarettes. Accordingly, the court denied the motion to suppress.

Defendant then pled guilty to possession of methamphetamine. Imposition of sentence was suspended and defendant was placed ...


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