People v. Smith CA2/8

Filed 1/30/14 P. v. Smith CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B251266

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA411801) v.

ISAM SMITH,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Affirmed.

Richard Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, and Jessica Owen, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Isam Smith challenges the trial court’s denial of his motion to suppress made pursuant to Penal Code section 1538.5. Defendant pled no contest to a charge of possession for sale of cocaine base following the denial of his motion, and argues on appeal that the trial court erred in failing to suppress the recovery of the cocaine because it was obtained as a result of an unconstitutional search. We conclude the trial court did not err in denying defendant’s motion and therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND We summarize the material facts germane to our discussion from the testimony received at the preliminary hearing. In the early evening of May 24, 2013, Los Angeles Police Department officer Robert Olmos was on patrol, in an unmarked patrol car, with his partner. Officer Olmos saw defendant commit two violations of the Vehicle Code while riding a bicycle: crossing an intersection against a flashing no-walk signal and riding on the wrong side of the street. Officer Olmos and his partner detained defendant in a parking lot. Upon first contact with defendant, Officer Olmos immediately noticed defendant appeared agitated, his legs were shaking, he was slurring his words, he was sweating and he constantly checked over his shoulder, looking back and forth between where Officer Olmos was standing and where his partner was standing. Defendant also urinated on himself. Defendant’s demeanor raised “red flags” for Officer Olmos as it was not normal behavior. He believed defendant acted like he had a guilty conscience and may have had something concealed “on his person” so he asked if he did. Defendant did not respond. Officer Olmos then conducted a patdown search of defendant’s outer clothing. In defendant’s right front pocket, Officer Olmos felt a bulge. He squeezed it once. The object was hard and felt cylindrical. It did not feel like money and he was unsure of what it was. Officer Olmos asked defendant what he had in his pocket. Defendant said, “it was for personal use. ‘Go ahead and get it, you’re going to find it anyways.’ ” Officer Olmos recovered a knotted piece of cellophane which contained what was later confirmed to be 19 individually wrapped pieces of cocaine base or “rock cocaine.”