(Super. Ct. No. 11SCR07210)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After an evidentiary hearing, the magistrate granted defendant Richard Barnes's motion to suppress evidence obtained during a traffic stop and ensuing search of his person. After denying the People's motion for reconsideration, the magistrate ordered the matter dismissed. The People appeal.
The People contend, and defendant concedes, the order dismissing the matter must be reversed. We remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Orland City Police Officer Grant Carmon testified at the suppression hearing. He said on July 15, 2011, he saw defendant talking on a cellular telephone while driving a car. Carmon knew defendant and was aware he had a drug problem.
Officer Carmon said he conducted a traffic stop based on the cell phone violation. He contacted defendant and advised him of the reason for the traffic stop. Defendant apologized for talking on the phone. He explained his mother was in the hospital and he thought the call was about his mother. Rather than issue a traffic citation, Carmon gave defendant an oral warning for the cell phone violation. Carmon returned to defendant the materials defendant had provided him.
While defendant was standing outside his car, Officer Carmon asked him "if he had anything illegal inside the vehicle or on his person." Defendant said, "no." Carmon then asked, "Do you mind if I check?" and defendant said, "Go ahead." Defendant put his hands out to the side, and Carmon started searching defendant's pockets. In the front right coin pocket, Carmon found a "small round little canister" that contained "a crystalline substance consistent with methamphetamine." No contraband was found in defendant's car.
After Officer Carmon testified , defense counsel sought to have defendant testify. The magistrate stated: "This is a [Penal Code section] 1538.5 motion. I don't need to hear from the defendant. There have been absolutely no specific and articulable facts giving rise to this officer asking for permission to search his car. The motion is granted. All of the evidence is suppressed. That's the order."
When the prosecutor indicated he did not "follow" the magistrate's reasoning, the magistrate responded, "There's absolutely no basis in fact for this officer to ask permission to search. He has to have specific and articulable facts on that occasion to ask permission to do anything. And he does have -- nothing has been said here. He has some history in the past. That does not qualify him on this particular occasion that is -- it's without reasonable suspicious cause whatsoever to ask permission to search. The search was illegal, and the motion is granted."
The prosecutor asked for a trial date because he believed the trial "court's simply wrong on the legal issue here." The prosecutor attempted to explain his position, but the magistrate ...