People v. Velazquez CA3

Filed 9/30/22 P. v. Vela zquez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C095079

Plaintiff and Respondent, (Super. Ct. No. LODCRFE20210009130) v.

JOSE MANUEL GOMEZ VELAZQUEZ,

Defendant and Appellant.

At defendant Jose Manuel Gomez-Velasquez’s preliminary examination, the magistrate denied his motion to suppress drugs and drug paraphernalia found on his person by a police officer. On appeal, defendant contends that the police officer violated the Fourth Amendment by detaining defendant without any basis for suspecting that defendant may have been involved in criminal activity. Because the police officer admittedly lacked any basis for detaining defendant, we conclude the magistrate should have granted defendant’s motion to suppress the evidence. Accordingly, we will reverse defendant’s conviction.

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I. BACKGROUND Michael Cascio, a police officer for the City of Lodi, responded in his patrol car to a report of a man sitting in a gold Chevrolet sedan watching people at a park. When Officer Cascio arrived at the park, he saw defendant driving a gold Chevrolet Malibu. Officer Cascio was driving the opposite direction, so he made a U-turn at an intersection to follow defendant. Defendant then pulled over to the curb, and Officer Cascio pulled over behind defendant, got out of his patrol car, and walked up to stand next to defendant’s driver-side window. From there, Officer Cascio could see a machete, blade pointing down, leaning against the passenger seat. Officer Cascio asked defendant to get out of the car. When defendant complied, Officer Cascio escorted defendant to the back of the car to conduct a pat-down search. At that point, Officer Cascio had not seen defendant commit any violation of the law; he acknowledged he “would not have had legal grounds to stop [defendant]” had defendant tried to leave. After escorting defendant to the back of the car, Officer Cascio asked defendant if he could pat him down. Defendant said, “yeah,” and held his arms away from his torso. Officer Cascio felt an object in the pocket of defendant’s shorts and asked defendant to remove the object. Defendant did, revealing a glass pipe, which Officer Cascio believed was used to smoke methamphetamine. Officer Cascio then arrested defendant, continued searching him, and found a bag of methamphetamine in defendant’s sleeve. The prosecution charged defendant with possession of a controlled substance for sale (Health & Saf. Code, §§ 11378, 11055, subd. (d)(2)). Defendant moved at his preliminary examination, pursuant to Penal Code section 1538.5, subdivision (f)(1), to suppress the evidence discovered during, or as a result of, Officer Cascio’s detention and