People v. Burt CA1/4

Filed 8/31/15 P. v. Burt CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A141818 v. RAYMOND D. BURT, (Sonoma County Super. Ct. No. SCR639559) Defendant and Appellant.

Defendant Raymond Burt appeals the denial of a suppression motion (Pen. Code, § 1538.5) filed prior to his plea of no contest, conviction and sentence.1 Burt’s appointed counsel has submitted a letter conceding Burt’s failure to preserve the issue he wishes to appeal, but asking nonetheless that the court exercise its discretion to reach the merits under People v. Williams (1998) 17 Cal.4th 148, and In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.). Having considered Burt’s request, we decline his invitation to decide the appeal on the merits. We therefore affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Around 6:00 p.m. on September 4, 2013, Raymond Burt and his co-defendant, both African American males, sat in Burt’s pearl white BMW, within 1,000 feet of an elementary school, as Sonoma County Sheriff Deputies Bottomley and Engram passed by in their patrol car on the driver’s side and peered into the car. As the officers passed, a third African American male on a bike leaned into the window of the passenger side of

1 Statutory references are to the Penal Code unless otherwise specified.

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the car. Bottomley believed he had just witnessed a hand-to-hand drug transaction. At that moment, the hand-to-hand transaction suspected by Bottomley was the only basis for a detention. As Bottomley turned his patrol car around and began to pull up behind Burt’s parked car, the man on the bike rode off. Bottomley did not see anything change hands and could not say if the man on the bike was a buyer or a seller, and the officers made no attempt to stop him. Approaching the car, however, Bottomley smelled a strong scent of marijuana. He believed that, with this added information, he had probable cause to search the car. Prior to searching the car, however, Bottomley asked Burt’s permission, which Burt declined. Bottomley and Engram ordered both men out of the car and told them to sit on the curb as Bottomley’s partner tried to get a positive identification on the co-defendant. Santa Rosa Police Officer Collins arrived and told the deputies there had been a report that “two black males in a pearl white BMW” had been seen nearby brandishing a firearm. (§ 417.) Bottomley shined his light into the car, and pointed at the center console which was locked. When he asked Burt for the key to open it, Burt replied he did not have the key and that he had only owned the vehicle for a month and a half, and during that time he never possessed a key to the center console. Bottomley decided to search Burt’s car and was able to access the center console by prying it open. He discovered two loaded firearms inside, one of which had been reported stolen in 2011. Bottomley also found a small amount of marijuana (“about the size of . . . a large marble”) in a pill bottle on the console, but found no indicia of drug sales. Burt was arrested and booked into custody. On September 26, 2013, Burt filed a motion to suppress evidence pursuant to section 1538.5. The evidence to be suppressed consisted of “all tangible and intangible evidence, to include the officers’ observations, obtained as the result of the illegal detention of Mr. Burt’s person due to a warrantless and illegal search and seizure of his person and automobile.” Burt argued the detention was illegal because Bottomley did not