People v. Andrade CA3

Filed 3/7/16 P. v. Andrade CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C075273

v. (Super. Ct. No. 62116876A)

RAY JOSEPH ANDRADE,

Defendant and Appellant.

After the denial of his motion to suppress evidence, a jury convicted defendant Ray Joseph Andrade on one count of cultivation of marijuana. The trial court sentenced him to three years in county jail. Defendant now contends the trial court erred in denying his motion to suppress evidence. He argues he was unlawfully detained and his statements and the diagram found in his vehicle were fruit of the poisonous tree. We conclude defendant was lawfully detained and the trial court did not err in denying his motion to suppress evidence. We will affirm the judgment.

1

BACKGROUND Defendant’s motion to suppress evidence was heard concurrently with the preliminary hearing. The magistrate denied the motion and held defendant to answer. Defendant renewed his suppression motion in the trial court and no additional evidence was presented. The trial court denied defendant’s renewed suppression motion. The facts are taken from the preliminary hearing transcript. Roseville Police Narcotics Detective Andrew Palmore testified as an expert in the use and possession for sale of marijuana and methamphetamine. He had worked on numerous drug cases, including marijuana cases, had trained others in marijuana investigations, conducted research about marijuana, and had previously testified as an expert on marijuana use and sales. In September 2012, Detective Palmore, acting undercover, smelled a strong odor of unburned marijuana. He was standing in front of 524 Sixth Street and he believed the smell was coming from the backyard of the residence. The detective explained: “So [the smell] was strongest just standing in front of 524 6th Street. So what I did was walked about a house or two to the -- to the west of 524 6th Street. The wind that day was blowing in a south direction. So from the -- this house is on the north side of the street. The house -- the wind was blowing basically past the house to my location. [¶] So I walked up the street maybe a house or two down, and I didn’t really smell anything. As I walked east towards 524 6th Street, the smell got stronger and stronger. And as I stood in front of 524 6th Street, it was the strongest. And the wind wasn’t constant, so I took -- stopped and waited for the wind, and in front of 524 6th Street, it was the strongest. As I passed 524 6th, it got weaker.” He admitted that he could not tell the difference between the smell of growing marijuana and a bag of marijuana but the smell was “overwhelming,” leading the detective to believe “it was probably a grow.” A storage facility was located behind the residence. Detective Palmore went to the storage facility, spoke with an employee at the front counter, and learned that other