People v. Nonnette

• Decision Date: 31 May 1990
• Docket Number: No. C005677,C005677
• Citation: 271 Cal.Rptr. 329,221 Cal.App.3d 659
• Parties: The PEOPLE, Plaintiff and Respondent, v. William J. NONNETTE and George Nonnette, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 329

271 Cal.Rptr. 329

221 Cal.App.3d 659

The PEOPLE, Plaintiff and Respondent, v. William J. NONNETTE and George Nonnette, Defendants and Appellants.

No. C005677.

Court of Appeal, Third District, California.

May 31, 1990.

Certified for Partial Publication ^*.

Review Denied Aug. 15, 1990.

Cynthia A. Thomas, Richard Phillips, Sacramento, under appointment by the Court of Appeal, for defendant and appellant William J. Nonnette.

Don L. Stockett, Sacramento, for defendant and appellant George Nonnette.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Jane N. Kirkland, Janet Neeley Kvarme, Deputy Attys. Gen., for plaintiff and respondent.

MARLER, Associate Justice.

.......... ^**

FACTUAL AND PROCEDURAL BACKGROUND

William and George Nonnette and two juveniles were arrested in Sacramento after a police officer found rock cocaine in a clutch purse in their car.

At the preliminary hearing George made a motion pursuant to Penal Code section 1538.5 to suppress evidence found during a warrantless search of the car on the basis the officer lacked probable cause to seize and search the clutch purse which contained rock cocaine.

Two officers testified at the preliminary hearing. The arresting officer was Luis Flores, a 10-year veteran with the police department. He testified as to the events leading to the arrests on February 18, 1988. While on patrol he received a call from dispatch at about 1:30 in the afternoon that an unidentified citizen had reported a suspicious car parked on Caselli Circle containing four males who were ducking up and down. On his way to investigate Officer Flores learned the car was registered to a George Nonnette in Los Angeles.

When he arrived at Caselli Circle Officer Flores saw the car, but no one in it. He was then approached by a citizen who spoke to him for five to ten minutes about drug problems in the area of 7490 Franklin Boulevard. Officer Flores then saw George in the car. George was in the back seat on the passenger side; a juvenile was next to him. William was in the driver's seat and another juvenile was next to him. Officer Flores approached the car with his hand on his gun. He was suspicious because the car was from Los Angeles and he knew drugs came from there, and the car was parked in a high drug area. He testified he was always concerned with his personal safety, but the people in the car made no furtive gestures and did nothing to frighten him.

He approached the car and asked for identification. Only George, who said he owned the car, had identification. All four people in the car gave the officer their correct names.

George explained that he was in town to visit a friend. When asked, he showed the officer his friend's address; it was in North Highlands, a 30-minute drive away.

Officer Flores saw a man's black clutch purse in the map pocket behind the front passenger seat. The clutch purse was open and inside he saw a bundle of tiny baggies; they were empty. He could also see a white prescription bottle in the purse. The officer suspected drugs because he knew the baggies were the type used for drugs. He testified that seeing the baggies meant someone was selling something: "That's the normal thing in that area there. A lot of sales of drugs and the baggies He ordered the four males out of the car and had them lie on the grass until his cover arrived.

                alone means that somebody is selling something."   He decided he should search the purse for two reasons.  First, because it might contain drugs, and second, because he believed William was lying about having no identification and there might be some in the purse
                

He then searched the black bag. Inside he found 50 one-inch baggies and a prescription bottle with a name on it differing from any of the car's occupants. He opened the bottle and found 10 baggies containing rock cocaine and 16 pills known as cross-tops, as well as many pieces of pills. It was stipulated the bottle contained 4.19 grams of cocaine base. Officer Flores asked the men if they had any money. William had $77 and George had $1229. On the floor of the car the officer also found a jacket with a bag containing 9.4 grams of rock cocaine in it and a pager. After finding the cocaine in the purse, Officer Flores also searched the trunk of the car. ¹

The second officer testifying at the preliminary hearing was not present at the arrest. He testified that based on his training and experience with narcotic arrests, he believed the drugs were possessed for sale.

After receiving briefing on the suppression motion, the magistrate denied the motion. Both George and William then moved to dismiss the charges; these motions were also denied.

In the trial court George moved to set aside the information under Penal Code section 995 and William moved to suppress evidence under Penal Code section 1538.5. Both motions were denied.

The case then went to trial. After three and a half days of testimony, the jury deliberated an hour and ten minutes before returning guilty verdicts as to both William and George.

A bifurcated trial was held on the issue of William's prior conviction; the court found that William had been convicted of a felony within the past five years. George was sentenced to the upper term of five years in prison and William to six years.

Both defendants have appealed.

DISCUSSION

I-III ^***

IV

Defendants contend both the magistrate and the trial court erred in finding Officer Flores had probable cause to search the car and thus denying their motions to suppress the evidence found as a result of the search or to dismiss the charges. The motions before the trial court were submitted on the record of the preliminary hearing pursuant to Penal Code section 1538.5, subdivision (i). In these situations we disregard the findings of the trial court and review the determination of the magistrate. We review the evidence in the light most favorable to the magistrate's ruling and will uphold the magistrate's express or implied findings if supported by substantial evidence. (People v. Ramsey (1988) 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309.) We then independently review whether these findings support the legal conclusion of probable cause. (People v. Leyba (1981) 29 Cal.3d 591, 598, 174 Cal.Rptr. 867, 629 P.2d 961.)

The issue presented is whether the sight of a prescription bottle and a bundle of small, empty baggies in a car registered in Los Angeles and parked for some time in a high drug area of Sacramento, in which there were four males observed ducking up and down, only one of whom had identification, and who professed to be in town to visit a friend who lived 30 minutes away, gave the officer In response to defendants' contention that Officer Flores lacked probable cause to seize the purse, the Attorney General contends the seizure was justified under the plain view doctrine: the presence of the baggies in plain view combined with other suspicious circumstances gave the officer probable cause to believe the purse contained contraband and thus justified the seizure under Texas v. Brown (1983) 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502. The magistrate relied on the plain view doctrine in making his ruling. He denied the motion to suppress on the grounds the officer "had the right to be where he was and he observed what appeared to him to be contraband in plain view, and there were suspicious circumstances, ..."

                probable cause to believe the car or a container in it held contraband. 2  We find that these circumstances are sufficient to support the magistrate's finding of probable cause to justify the seizure of the purse and the search of the purse or the car
                

In Texas v. Brown, supra, the Supreme Court held an officer may, without a warrant, seize a container in plain view where the officer has probable cause to believe the container holds an illegal substance. (460 U.S. at p. 742, 103 S.Ct. at p. 1543, 75 L.Ed.2d at pp. 513-514.) In Brown, after stopping a driver at a routine driver's license checkpoint, the officer saw the man drop a knotted green balloon. The officer also saw plastic vials, white powder and a package of balloons in the car's glove compartment. The officer knew, due to his experience with drug arrests, that drugs were often carried in knotted balloons. (Id. at p. 733, 103 S.Ct. at p. 1538, 75 L.Ed.2d at p. 508.) The high court found that the officer's knowledge of the distinctive manner of carrying drugs and the further suggestion of illicit activity apparent in the glove compartment gave him probable cause to believe the balloon contained drugs; its seizure was therefore valid under the plain view doctrine without a warrant. (Id. at p. 743, 103 S.Ct. at p. 1543, 75 L.Ed.2d at p. 514.)

In concluding that the officer had probable cause, the high court commented on the standard of probable cause: "As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer 'would warrant a man of reasonable caution in the belief,' [citation], that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A 'practical, nontechnical' probability is all that is required. [Citation.]" (Texas v. Brown, supra, 460 U.S. at p. 742, 103 S.Ct. at p. 1543, 75 L.Ed.2d at p. 514.) We turn now to a determination of whether the facts known to Officer Flores "would warrant a man of reasonable caution in the belief" the car contained drugs.

Of the several suspicious circumstances contributing to Officer Flores' decision to search the clutch bag, the main factor, in the eyes of both the officer and the magistrate, was the officer's sighting of a bundle of small, plastic baggies. Defendants contend the magistrate could not rely on this fact in finding probable cause because...