California Court of Appeals, First District, First Division
Court of the County of Contra Costa No. 5-151786-1, Diana
Becton, Trial Judge
Counsel for Defendant and Appellant: Jeffrey A. Glick, Curtis
Marquis Turner, First District Appellate Project
Counsel for Plaintiff and Respondent: Xavier Becerra,
Attorney General Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Lawrence, Senior Assistant Attorney
General Leif M. Dautch, Deputy Attorney General Jalem Z.
Peguero, Deputy Attorney General
defendant Curtis Turner refused to leave a restaurant, he was
arrested for interfering with a business establishment under
Penal Code section 602.1, subdivision (a), and a revolver,
ammunition, and methamphetamine were found in his duffel bag.
A jury convicted him of various crimes based on his
possession of these items, and the trial court placed him on
probation for three years.
appeal, Turner contends that the trial court erred by (1)
denying his motion to suppress the contraband and (2)
admitting evidence of a previous arrest during which he was
found in possession of the identical type of ammunition. We
hold that the court properly denied the motion to suppress
because the contraband was discovered in an inventory search
after an arrest supported by probable cause. We also hold
that the court properly admitted evidence of Turner's
prior possession of the same type of ammunition because it
impeached his specific testimony suggesting that the police
planted the contraband in this case. Therefore, we affirm.
Factual and Procedural Background
The Preliminary Hearing and the Motion to Suppress.
following facts are drawn from the preliminary hearing and
formed the basis for Turner's motion to suppress.
early morning of September 15, 2015, San Pablo Police Officer
Greg Niemi responded to a Nation's restaurant after
receiving a report that a man was “refusing to
leave.” When Officer Niemi arrived, the restaurant
manager pointed to a booth where the officer saw a man
“slouched over” who “appeared to be
sleeping, leaning on a duffel bag, with a jacket pulled over
Niemi approached the booth and “called out to [the man]
several times, ” but the man did not respond. Officer
Niemi then touched the man's shoulder and continued
speaking to him, and the man eventually told him to go away.
Officer Niemi lifted the man's jacket off his head and
recognized the man as Turner, whom the officer had frequently
seen “near or in front of Nation's
restaurant” after “being dispatched there for the
pulling the jacket off Turner's head, Officer Niemi told
Turner that he needed to leave. Turner did not respond.
Officer Niemi then noticed a cell phone charger plugged into
an outlet behind Turner's booth, unplugged the charger,
and put it on top of Turner's jacket while again
informing Turner that he needed to leave.
eventually began searching for his cell phone, first around
his booth and then in nearby garbage cans and unoccupied
booths. After Turner was unable to find it, Officer Niemi
told him he could file a lost property report, but Turner
responded that he did not want to do so. Then, in
“[s]omewhat of an agitated tone, not overly loud,
” Turner accused the officer of stealing the phone.
Officer Niemi told Turner yet again that he needed to leave
the restaurant, and the officer then picked up Turner's
duffel bag and carried it outside. On the way, Turner asked
the restaurant manager to call his cell phone, which she did.
Turner then followed Officer Niemi outside.
outside, Officer Niemi put Turner's duffel bag next to a
planter box outside the front door. Officer Niemi again told
Turner that he needed to leave, but Turner instead began
looking into the restaurant's windows and checking the
planter boxes. As Turner continued to do this for three or
four minutes, Officer Niemi advised him that he needed to
leave or he would be arrested. Some customers began to walk
into the restaurant, and Turner asked them “to keep an
eye out for his cell phone[, ] and he asked another customer
to try to call his cell phone.” After the customers had
gone inside, Turner opened the door and again asked one of
the customers to try to find his cell phone.
Niemi went back inside and asked the restaurant manager
“if she wanted [Turner] removed from the property,
” and she said “she wanted him arrested for
trespassing.” She then signed a form for a
citizen's arrest and request for prosecution. She told
Officer Niemi that Turner had been in the restaurant, which
is open 24 hours a day, for about eight hours and had been
asked to leave approximately four times.
Niemi returned outside, where Turner was standing in front of
the restaurant's windows and now holding the duffel bag.
The officer took the bag and placed Turner in handcuffs.
Officer Almir Dugonjic arrived and transported Turner and his
bag to the police station, where Turner was booked.
Niemi testified that the San Pablo Police Department has a
standard policy when arresting someone of “conduct[ing]
an inventory search on any property logged in for
safekeeping... to create a list of any valuable items that
might possibly be in the property, as well as anything that
might potentially be dangerous.” Due to a
“miscommunication” between him and Officer
Dugonjic, Officer Niemi did not conduct an inventory search
of Turner's duffel bag until about 18 hours after the
arrest. Officer Niemi had asked Officer Dugonjic to conduct
an inventory search before putting the bag in an evidence
locker, but Officer Dugonjic did not do so. When Officer
Niemi searched Turner's duffel bag, he found a fully
loaded.38 caliber six-shot revolver that appeared to be
functioning, a 50-round box containing 44 rounds of.38
caliber ammunition, which matched the ammunition in the
revolver, and a niacin pill bottle with a white crystalline
substance inside that was later determined to be slightly
over three grams of methamphetamine.
filed a motion to suppress that the magistrate heard at the
preliminary hearing. After considering the parties'
argument on whether there was probable cause to arrest Turner
for various forms of trespass, the magistrate denied the
motion without giving its reasons for doing so. The People
then filed an information charging Turner with a felony count
of possession of a firearm by a felon, a felony count of
possession of ammunition by a felon, and a misdemeanor count
of possession of methamphetamine.
trial, Turner filed a renewed motion to suppress and a motion
to dismiss the information under Penal Code section 995, both
of which contended that the magistrate erred in denying the
original motion to suppress because Officer Niemi lacked
probable cause for the arrest. Turner relied on the
transcript of the preliminary hearing and did not present any
new evidence. The trial court denied the motions, ruling that
there was probable cause to arrest Turner for a violation of
Penal Code section 602.1, subdivision (a) ...