Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Sacrite

California Court of Appeals, Sixth District

May 31, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
IRVIN SACRITE, Defendant and Appellant.

          Santa Clara County Superior Court No.: C1484687. Hon. Ron M. Del Pozzo Trial Judge.

          Attorney for Appellant: Irvin Sacrite Laurel Simmons, under appointment by the Court of Appeal

          Attorneys for Respondent: The People Xavier Becerra, Attorney General Gerald A. Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Senior Assistant Attorney General Catherine A. Rivlin, Supervising Deputy Attorney General Allan Yannow, Deputy Attorney General

          BAMATTRE-MANOUKIAN, ACTING P.J.

         I. Introduction

         After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), defendant Irvin Sacrite pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2), both misdemeanors.[1] The trial court placed defendant on probation for two years.

         On appeal, defendant contends the trial court erred by denying his motion to suppress evidence, claiming the officer was not justified in conducting a pat search. Defendant further contends the officer had no grounds for removing anything from defendant's pocket after the pat search and prior to his arrest.

         Our careful review of the record shows that prior to conducting the pat search, the officer observed “bulges” in defendant's pocket that included “something solid, ” suggesting that defendant was armed. The officer conducted a pat search because he suspected that the bulge might be a weapon and he would not be able to see defendant's hands while investigating whether defendant was under the influence of a controlled substance. (See Pennsylvania v. Mimms (1977) 434 U.S. 106, 107 (Mimms) [pat search justified where officer “[f]ear[ed] that the bulge might be a weapon”].) On this record, we conclude that there were “specific and articulable facts” that would have led a reasonable officer “reasonably to conclude in light of his [or her] experience” that defendant “may be armed and presently dangerous.” (Terry v. Ohio (1968) 392 U.S. 1, 21, 30 (Terry).) We also find that the record does not support defendant's claim that the officer removed items from defendant's pocket prior to his arrest. Therefore, we will affirm the order of probation.

         II. Background

         A. Evidence at the Motion to Suppress

         At about 4:00 p.m. on April 16, 2014, San Jose Police Officer John Prim was on duty, in an unmarked police car, with his partner. They were working in an area in which they had conducted prior “clandestine operations” and had made prior arrests.

         Officer Prim noticed defendant riding a bike “the wrong way into traffic, ” in violation of Vehicle Code section 21650.1. Defendant was also carrying and drinking from an open red Budweiser beer can, in violation of San Jose Municipal Code section 10.12.010.

         Officer Prim followed defendant and detained him on North Second Street. He began talking to defendant “regarding the aluminum can, ” and he took the can from defendant, smelled it, and looked inside. He determined that the can contained beer.

         During the detention, Officer Prim noticed signs suggesting that defendant was under the influence of a controlled substance: he was sweating heavily; he had dried, chapped lips; and he had “fluttering eyelids.” Officer Prim intended to cite defendant for the Vehicle Code violation as well as the Municipal Code violation, and he wanted to stand closer to defendant to continue investigating whether defendant was under the influence of a stimulant. However, Officer Prim felt he could not “safely do that” if defendant had “any weapons in his immediate area of his hands.” Defendant was taller and weighed more than the two officers: defendant was about six feet, three inches tall and weighed about 210 pounds; Officer Prim was five feet, ten inches tall and weighed about 190 pounds; and Officer Prim's partner was five feet, six inches tall and weighed about 160 pounds.

         Defendant was wearing a t-shirt, which “extended beyond his waistband area, ” so Officer Prim could not see defendant's waistband area. The t-shirt also partially covered the pockets of defendant's shorts. Officer Prim could see “bulges” inside defendant's shorts pockets. He could tell there was “something solid” with round edges, “similar [to the] shape of a cellular phone.” Officer Prim “couldn't quite determine” what the object actually was. Based on his “training and experience” as well as his personal safety, he “wanted to conduct a quick pat search to advise if it was a weapon or a potential weapon.” From what he had observed, Officer Prim could not “exclude the possibility that what defendant had in his pockets were concealed weapons.” Officer Prim would not be able to observe defendant's hands during some of the tests he planned to administer to determine whether defendant was under the influence of a stimulant.

         Officer Prim conducted a pat search, which gave him “a better idea” of what defendant had in his pockets: he detected that the bulges were “a possible cell phone and a possible lighter.” He did not remove anything from defendant's pockets at that time. He next conducted a Romberg test, [2] observed further indications that defendant was under the influence, and arrested defendant. Officer Prim then reached into defendant's right front pocket-where he had observed the bulges-and removed a cell phone, lighter, and plastic baggie containing methamphetamine. Officer Prim also removed a wallet from defendant's back pocket.

         On cross-examination, Officer Prim acknowledged that at the preliminary hearing, he had testified to the following order of events: detention, pat search, observation of symptoms of stimulant use, arrest, and search incident to arrest. However, during the hearing on the motion to suppress, Officer Prim clarified that it was during the detention that he had first observed signs suggesting that defendant was under the influence of a stimulant.

         B. Charges and Motion to Suppress

         Following a preliminary hearing, defendant was charged with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and misdemeanor using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2).

         Defendant moved to suppress evidence pursuant to Penal Code section 1538.5. He asserted that the prosecution had the burden to justify the detention. (See People v. Williams (1999) 20 Cal.4th 119, 130.)

         The People opposed the motion to suppress, arguing that the detention was supported by reasonable suspicion, that it was not unduly prolonged, that the pat search was justified, that there was probable cause to arrest defendant, and that the methamphetamine was removed from defendant's pocket during a lawful search incident to arrest. With respect to the pat search, the People argued that Officer Prim reasonably suspected that defendant had a weapon in his pocket.

         Defendant subsequently filed a “supplemental” motion to suppress. Defendant focused solely on the pat search, arguing that there were no “specific and articulable facts to support a suspicion that [he] was armed and presently dangerous.”

         After a hearing at which Officer Prim testified, defendant argued that the initial pat search was not justified by a reasonable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.