P. v. Salinas CA6

Filed 4/17/13 P. v. Salinas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038074 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1111922)

v.

MARK JAMES SALINAS,

Defendant and Appellant.

INTRODUCTION Defendant Mark James Salinas appeals from an order denying his motion under Penal Code section 1538.5, subdivision (m) to suppress controlled substances seized from his person during a detention for a possible bicycle light infraction. Defendant contends that his detention was unduly prolonged, resulting in an unreasonable seizure under the Fourth Amendment. We conclude that the detention was reasonable under the circumstances. Accordingly, we will affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND City of San Jose Police Officers Dan Stromska and Andre Ribeiro were on foot patrol in downtown San Jose on July 22, 2011. At approximately 9:39 p.m., they observed a group of five or six individuals gathered in a semi-circle in an alcove by the Meriwest Building on First Street near Santa Clara Street. As the officers approached the group, they observed defendant straddling a bicycle with no lights, and an open container

of alcohol right behind the group.1 Upon closer approach, Officer Stromska observed no lights on the bicycle or any type of device that could be used as a light for the bicycle. Officer Ribeiro observed the alcohol container to be within arm’s reach of three or four members of the group, who were seated on the ground. The men told the officers that they were just “hanging out.” After speaking with defendant for a couple of minutes, Officer Stromska asked him to dismount his bicycle and take a seat with the others in the group. Officer Stromska made this request because of the bicycle light and open container violations, because defendant was a flight risk on the bicycle, and because the two officers were outnumbered by the group. While the group remained seated, the officers questioned each person separately. The officers asked each person for identification, and whether he was on probation or parole defendant refused Officer Ribeiro's request to search his backpack. The officers asked each person whether he was carrying anything illegal, including weapons or anything that would stick or poke them. The officers ran all members of the group through dispatch to determine probation and parole status, and to check for active warrants. Because of heavy radio traffic that night, the officers used either the main channel or the back-up channel. The officers released most of the men after being informed by dispatch that they were not on probation or parole. At some point, everyone was allowed to leave except defendant and one other individual. The officers waited for dispatch to inform them regarding defendant’s status before searching him or releasing him. Officer Ribeiro was about to conduct a pat down search of defendant’s outer