People v. Saldana CA3

Filed 1/8/15 P. v. Saldana CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C074302

Plaintiff and Respondent, (Super. Ct. No. CRF111630)

v.

SILVERIO SALDANA,

Defendant and Appellant.

A felony complaint was brought against defendant Silverio Saldana charging him with possession of methamphetamine for sale. At the preliminary examination, the magistrate denied defendant’s motion to suppress. The Yolo County District Attorney then filed an information on this charge, and defendant moved unsuccessfully to set aside the information. On appeal, defendant challenges the denial of the motion to suppress, arguing that methamphetamine seized from his pocket was obtained as a result of a search in violation of the Fourth Amendment. We affirm.

1

BACKGROUND A Motion To Suppress And Preliminary Examination Defendant filed a motion to suppress evidence pursuant to Penal Code1 section 1538.5. The motion was heard before a magistrate in conjunction with the preliminary examination. The prosecution presented the following evidence. Around 10:00 p.m. on April 2, 2011, West Sacramento Police Officer Matthew Boudinot was on patrol on West Capitol Avenue. He saw defendant standing alone in front of a motel. As far as Officer Boudinot could tell, defendant was “basically lingering, loitering in the area.” Officer Boudinot parked his patrol car on West Capitol Avenue, approximately 40 to 50 feet from defendant. He did not activate his emergency lights or shine a spotlight on defendant. Officer Boudinot walked toward defendant. When Officer Boudinot was approximately 20 feet away, defendant looked in his direction, turned, and began walking in the opposite direction. At the hearing on the motion to suppress, Officer Boudinot testified that he could not recall exactly what he said to defendant, but believed he asked, “Can I talk to you?” Officer Boudinot acknowledged that he “projected [his] voice” in order to be heard. Defendant stopped and turned to face Officer Boudinot. Officer Boudinot and defendant then engaged in a “basic conversation” during which Officer Boudinot asked defendant questions along the lines of “What’s going on?” and “What are you doing tonight?” Officer Boudinot did not get in defendant’s way or touch him. He did not draw his service weapon.