(Super. Ct. No. 10F4986 10F4939)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In case No. 10F4986, after his motion to suppress was denied, defendant entered a plea of no contest to driving under the influence of alcohol (DUI), having previously been convicted three or more times of DUI within 10 years, and admitted violating probation in case No. 10F4939, in exchange for a stipulated state prison sentence of two years eight months and the dismissal of the remaining counts and allegations. The court sentenced defendant accordingly.
Defendant appeals, challenging the denial of his suppression motion. We will affirm.
At the suppression hearing, Deputy Sheriff Jim Moser testified that in the evening on November 6, 2010, while on patrol, he saw defendant driving an older-model white car at a four-way stop at the intersection of Tom Bell Road and Main Street in Murphys. The deputy began following defendant and attempted to close in to check the car's registration but was never able to do so. Defendant drove into a gas station and the deputy parked across the street and watched for 10 minutes while defendant and his passenger, later identified as his son, pumped some gas and went inside the store. Deputy Moser was unable to see who drove the white car away from the gas station.
Deputy Moser followed the white car. About an eighth of a mile later, the car turned down a street off of Highway 4 but the deputy did not follow because it was a short, dead-end street. Instead, the deputy proceeded on Highway 4 but turned around and as he drove past the dead-end street, the car was approaching the stop sign. The car turned onto Highway 4 but Deputy Moser was unable to turn around and follow because of traffic. Deputy Moser radioed Deputy Sheriff Chad Poortinga reporting that he believed the white car's driving pattern was suspicious and an attempt to avoid him. Deputy Moser had not made any attempt to stop the white car.
About 10:00 p.m., Deputy Poortinga saw a white car which matched Deputy Moser's description. By the time Deputy Poortinga turned around to follow the white car, it appeared to have "gained more distance" than he would have expected. Without signaling, the car turned into a closed business, the Sam Berri Tow yard. Deputy Poortinga said he was about one-quarter of a mile behind and the traffic was very light. The deputy pulled into the tow yard and saw the car parked in the parking lot with its lights off. The deputy had been on patrol in the area for two years and it was suspicious to see cars parked at the tow yard at that time of night. The deputy did not attempt a traffic stop - he never activated his red lights or siren.
Deputy Poortinga spotlighted the car and saw defendant and his son walking away from the car, towards a grass field. They were a few yards away from the car. The deputy thought it was unusual and suspicious that a car would quickly park and turn its lights out at a closed business, and the occupants walk away in a dark parking lot. Defendant turned around and walked back towards his car with his hands in his pockets. The deputy directed defendant to remove his hands from his pockets and to approach the patrol car. Defendant and his son complied. The deputy patsearched defendant "[t]o make sure he didn't have any weapons or anything dangerous on him." Defendant said that he and his son were hitchhiking to Sheep Ranch.
When Deputy Moser arrived shortly thereafter, defendant was acting agitated, irate, and upset. According to Deputy Poortinga, he and Deputy Moser determined that defendant had been drinking alcohol and contacted the California Highway Patrol (CHP). CHP Officer Rod McNally arrived within 30 minutes and arrested defendant for DUI.
In his written motion, defendant argued "Deputy Poortinga had no probable cause to stop or detain the occupants of the vehicle" and that defendant had done nothing to warrant his detention. Defendant claimed neither deputy "witnessed any criminal activity on the part of the defendant." He asserted that all evidence obtained as a result of his unlawful detention must be suppressed as "fruit of the poisonous tree." He also asserted that "all evidence seized ...