People v. Russ CA1/5

Filed 5/7/14 P. v. Russ CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A139590 v. TERRENCE JAMES RUSS, (Napa County Super. Ct. No. CR165765) Defendant and Appellant.

Appellant Terrence James Russ contends the trial court erred in denying his motion to suppress evidence discovered during a pat search of his person. We affirm. PROCEDURAL BACKGROUND In May 2013, the Napa County District Attorney filed an information charging appellant with felony possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2); and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364; count 3). The information also alleged appellant had a prior conviction for a serious or violent felony (Pen. Code, § 667) and served two prior separate prison terms for felonies (Pen. Code, § 667.5). In June 2013, pursuant to Penal Code section 1538.5, appellant filed a motion to suppress evidence, which the trial court denied. Appellant pled no contest to count 1 and admitted the strike and one of the prison priors. The trial court dismissed the

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misdemeanor counts and the other prison prior, and subsequently struck the prior strike. The court placed appellant on probation for three years, with a jail condition and mental health referral. This appeal followed. FACTUAL BACKGROUND1 On April 24, 2013, Sergeant Oscar Ortiz of the Napa County Sheriff’s Office was on patrol in a Wal-Mart parking lot in American Canyon. At around 11:30 p.m., Sergeant Ortiz observed appellant removing sacks of clothes and other items from a car and dumping them on the ground. Appellant was behaving “odd” and moving “frantically.” Sergeant Ortiz approached in his patrol car and asked if appellant was “okay.” Appellant explained he was looking for a tracking device because he was being followed by people in a white van. He also believed his phone was tapped. The officer told appellant not to leave garbage behind and continued patrolling. As Sergeant Ortiz drove around the parking lot, he noticed appellant was drawing the attention of other customers. The officer returned to the area where appellant was and got out of his patrol car. Sergeant Ortiz asked if appellant was okay and “about drug use.” Appellant admitted he was a drug user. Sergeant Ortiz testified he began working at the Napa County Sheriff’s Office in 1996 and had extensive training and experience recognizing the signs that a person is under the influence of a controlled substance. Appellant’s “fidgety behavior,” paranoia, and fast speech led the officer to believe appellant might be under the influence of a stimulant. During his interaction with appellant, Sergeant Ortiz had remained about three to five feet away for safety reasons. He explained drug users, and especially users of