Opinion
A150781
01-03-2018
THE PEOPLE, Plaintiff and Respondent, v. MARLIN TANNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-161369-4)
Appellant Marlin Tanner appeals from an order denying his motion to suppress evidence. (Pen. Code, § 1538.5.) Following entry of that order, appellant pled guilty to felony possession of a controlled substance and to felony transportation of a controlled substance. (Health & Saf. Code, §§ 11351, 11352, subd. (a).) Appellant admitted several prior conviction allegations (Health & Saf. Code, §11370.2; Pen. Code, § §§ 667, subds. (d) & (e), 667.5, subd. (b)) and was sentenced to three years in state prison. Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2016, an indictment was filed charging appellant with two felonies: possession of a controlled substance [heroin] (Health & Saf. Code, § 11351-(Count 1)) and unlawful transportation of a controlled substance [heroin] (Health & Saf. Code, § 11352, subd. (a)-(Count 2)). The indictment further alleged that appellant had suffered a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a); three prior convictions within the meaning of Penal Code sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c); and seven prior convictions within the meaning of Penal Code section 667.5, subdivision (b).)
Appellant was charged jointly with codefendant Gregory Mayo.
On October 24, 2016, appellant filed a motion pursuant to Penal Code Section 1538.5 to suppress evidence seized from his person and vehicle. Appellant argued that, at the time of his arrest on June 23, 2015, he was detained without reasonable suspicion and the evidence from the search of his person and vehicle should be suppressed as fruit of the poisonous tree.
At a subsequent hearing on the suppression motion, Pittsburg Police Department Sergeant Charles Blazer testified that, in June 2015, he had been on loan to the Federal Bureau of Investigation task force on gangs, drug, and prostitution. At 10:00 a.m., on June, 23, 2015, Sergeant Blazer was in an unmarked vehicle when he received a call from another agent about a suspected drug sale. Blazer moved his location so that he could observe the suspects involved.
Upon arriving at his new location, Sergeant Blazer used binoculars to observe a parked, green Mercedes. Blazer observed a subject approach the driver's side of the Mercedes, bend down into the window for a very short period of time, and then walk away with something clutched in his right hand, which he placed in his pocket.
Almost immediately thereafter, a silver car approached and parked next to the Mercedes. A subject exited the silver car, approached the passenger's side window of the Mercedes, was there for a short time before returning to the silver car, and then drove away.
A third subject approached the Mercedes, got into the passenger's seat, and closed the door. The driver got out of the car, walked to the trunk of the car, opened the trunk door, reached in and removed something, closed the trunk, and returned to the driver's seat. The passenger then got out of the car and walked away.
After believing he had observed drug transactions, Sergeant Blazer contacted Pittsburg Police Department Officer Jason Waite and requested a vehicle stop of the Mercedes and an arrest for "loitering in a primary." Sergeant Blazer followed the Mercedes and observed as Officer Waite effectuated the vehicle stop.
Officer Waite made the stop on the basis of the Mercedes lacking license plates, which is a Vehicle Code violation (see Veh. Code, § 5200), as well as what Sergeant Blazer reported regarding suspected drug transactions (that appellant and a confederate were engaged in narcotics transactions with customers at the vehicle). A records check revealed that appellant was on post release community supervision (PRCS), meaning he was subject to a search.
A person on PRCS is subject to mandatory conditions, including a search condition. As relevant here, the condition allows a peace officer to search the person of a supervisee and his or her residence and possessions at any time of the day or night, with or without a warrant. (People v. Jones (2014) 231 Cal.App.4th 1257, 1266; Pen. Code, § 3453.)
Sergeant Blazer ordered appellant out of the car, while Officer Waite removed codefendant Mayo from the backseat; Officer Waite observed Mayo shuffling around like he was attempting to discard something. A search of Mayo's person revealed two pieces of suspected heroin.
Sergeant Blazer observed a pill bottle on the floorboard with a white powdery substance, which is commonly used as a "cutting" substance for heroin. He also observed a piece of what appeared to be heroin on the rear seat and one on the floorboard just below the rear seat on the driver's side.
After these observations, the trunk of the car was searched. Located there was a glass jar containing what appeared to be heroin in the pocket of a black coat. A cell phone and $1,700 in currency was found in the car. An additional piece of suspected heroin was located on the top of the seat where Mayo had been seated.
Officer Waite testified he searched appellant's person on the basis of the purported drug transactions reported by Sergeant Blazer, as well as information that he received from a records check, namely, that appellant was on PRCS for narcotics sales, and, on that basis, was searchable. The search of appellant occurred after suspected heroin was found on Mayo's person and in the back of the vehicle. Nothing was seized from the search of appellant's person.
The trial court suspended appellant's cross-examination, and denied the motion to suppress, ruling: "[W]e've covered all the issues in this case. The car stop is based on Vehicle Code violations. The defendant's on PCRS [sic] with search clauses . . . .[¶] Contraband is found on the passenger, for which the defendant can be then searched, as well as the car. There's more ways to justify the search in this case than perhaps just about any case I've ever seen. [¶] There are no issues here. There aren't [ ] even possible issues here."
II. DISCUSSION
Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Appellant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and appellant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Consequently, we affirm the judgment. (Id. at p. 443.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.