People v. Simi
| Decision Date | 24 August 2011 |
| Docket Number | H035783 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JEFFERY ROBERT SIMI, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC964085)
After his suppression motion was denied, defendant Jeffery Robert Simi agreed to plead no contest to a charge of possessing marijuana for sale. (Health & Saf. Code, § 11359.)1 Pursuant to the negotiated disposition, imposition of sentence was suspended and defendant was placed on probation for three years with a variety of conditions, including spending 313 days in jail, the amount of time he had already spent with credit for time served.
On appeal defendant seeks further review of his suppression motion (Pen. Code, § 1538.5, subd. (m)), arguing: the arresting officer lacked the training to identifysymptoms of drug use; his observations did not establish probable cause to arrest for being under the influence of a controlled substance; due to the lack of probable cause, the officer was not justified in searching the vehicle incident to defendant's arrest; and the search was an improper impound search. We will affirm the judgment for the reasons stated below.
At a suppression hearing the trial court's role is to find the facts by assessing credibility, resolving factual conflicts, and drawing reasonable inferences. In reviewing a suppression ruling on appeal, we defer to all factual findings, both express and implied by the ruling, that are supported by substantial evidence. (Cf. In re Arturo D. (2002) 27 Cal.4th 60, 77; People v. Redd (2010) 48 Cal.4th 691, 721; People v. Troyer (2011) 51 Cal.4th 599, 613; People v. Long (1987) 189 Cal.App.3d 77, 82.)
Adam Stockelend began his police training in 2000 at a police academy for the United States Army. At that academy, he had about 40 hours of training in the detection and investigation of persons under the influence of narcotics. About eight hours was dedicated to the use of methamphetamine. He could not describe the course work exactly. In five years as a military police officer, he was involved in over 20 investigations into whether someone was under the influence of a controlled substance.
Stockelend received more instruction in early 2007 at another police academy when he became a San Jose police officer. He received another 40 hours of training in identifying persons under the influence of controlled substances. About eight hours of that class work was also devoted to the use of methamphetamine. He could not specifically describe the course work.
After the academy, he had four months of field training. During the field training there was almost a daily investigation into whether a person was under the influence of a controlled substance. After that, Stockelend had served on patrol for about three years working three or four days a week. He continued to have almost daily investigations intowhether individuals were under the influence of controlled substances. He was involved as the arresting officer over 100 times and without a training officer over 50 times.
Over the course of this training and experience, Officer Stockelend has learned that symptoms of methamphetamine use include red and watery eyes, normal to slow reaction of the eye's pupils to light, fluttering of closed eyes, confusion or disorientation, a high pulse rate, and a pasty white tongue. While methamphetamine is a stimulant, a user will be lethargic and relaxed after coming down from a high. Methamphetamine users often carry the drug concealed on their persons and in their vehicles.
On December 11, 2009, in response to a report, Officer Stockeland drove to a residential street in San Jose around 10:46 p.m. and observed a silver SUV parked in front of a driveway with its lights on and engine running. It was parked so as to impede street traffic. He put the floodlight of his patrol car on the vehicle. When he walked up to it, he saw defendant apparently sleeping in a reclined position in the driver's seat. Stockelend succeeded in his third attempt to rouse defendant by rapping on the window.
Defendant got out of the vehicle at the officer's request and walked to its rear. Stockelend did not recall anything unusual about defendant's gait. Defendant seemed to understand his questions, and replied that he did not know where he was, but he had been heading south on the 101 freeway, which the officer knew to be five to 10 miles away. The officer conducted a pat-search after defendant consented and found nothing in defendant's clothes. Defendant declined the officer's request to do a quick check of the vehicle.
As the officer spoke with defendant, he observed that defendant "had just woken up, so he was a little out of it." His eyes were red and watery. His tongue was white and pasty. The officer began to suspect that defendant was under the influence of methamphetamine.
Defendant agreed to participate in some field sobriety tests. Stockelend noticed that defendant's eyes fluttered when his eyelids were closed. His pulse rate of 120 beats per minute was higher than the average of 60 to 100. In response to a flashlight beam,defendant's pupils constricted slowly. Defendant acknowledged that he had used methamphetamine three days earlier.
Although Stockelend recognized that red and watery eyes might result from sleeping and that a police officer's presence could elevate another person's pulse, the combination of the symptoms, defendant's admission, and where the SUV was parked all led the officer to arrest defendant for being under the influence of a stimulant.2
After arresting defendant, the officer determined that he was not the registered owner of the SUV. The owner lived in "Orange Grove," California, and defendant lived in Santa Rosa.3 The officer decided to impound the vehicle after noting that the registered owner was not in town, that leaving it where it was parked would block both a driveway and street traffic, and that there was no more parking available on the full residential street that night.
The policy of the San Jose Police Department calls for impounding a vehicle that is believed to be the instrument of a crime. The policy is also to bring in a vehicle if the owner cannot be located and the vehicle cannot be safely parked. The policy also allows the officer to ask the driver to have someone pick up the vehicle.
Officer Stockelund admitted that he did not ask defendant to identify someone to retrieve the vehicle, nor did he attempt to contact the registered owner. He wanted toimpound the vehicle to search it for narcotics. He also was searching for methamphetamine incident to defendant's arrest.
In the rear of the vehicle behind the passenger compartment the officer found a locked black box. He removed the box from the vehicle and, without unlocking it, was able to illuminate the contents with his flashlight. Underneath a cloth-like material that he peeled away, he saw the tops of 12 airtight baggies containing 12 pounds of marijuana. In the officer's experience, this quantity as it was packaged was being transported for sale. It was a much greater quantity than carried for personal use.
The trial court ruled that the officer's observations of the symptoms of methamphetamine use provided probable cause to arrest defendant. The detention was not prolonged. "Once the officer had the probable cause for the arrest and does make the arrest, the officer can do his search pursuant to the inventory search or he can do a search of the vehicle incident to [an] arrest for a stimulant, and if the arrest is for alcohol or a stimulant, the officer can search any part of the vehicle and any areas that may contain evidence of that contraband." There was no violation of the impound policy because there was a lack of street parking and the registered owner was out of town.
On appeal, defendant renews his contention that Officer Stockelend arrested him without having probable cause to believe he was under the influence of a controlled substance. He argues that, just like People v. Dunkel (1977) 71 Cal.App.3d 928 (Dunkel), "we have neither sufficient manifestations of drug use nor an experienced officer capable of recognizing the manifestations." (Id. at p. 932.)
It is unlawful to "use, or be under the influence of, any controlled substance" listed in other statutes. (Health & Saf. Code, § 11550, subd. (a).) "One may be guilty of being under the influence of drugs in violation of Health and Safety Code section 11550 by being in that state in any detectable manner: ' "The symptoms of being under the influence within the meaning of that statute are not confined to those commensurate withmisbehavior, nor to those which demonstrate impairment of physical or mental ability." ' " (People v. Canty (2004) 32 Cal.4th 1266, 1278.)4
People v. Thompson (2006) 38 Cal.4th 811 stated at page 818. " ...
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