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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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                                     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

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employees at the facility regularly smelled marijuana. The employee took the detective
to a location at the facility where the smell was the strongest. That location was directly
behind the residence at 524 Sixth Street. The employee said other employees told her
they climbed up on the roof of the facility and observed marijuana growing in the
backyard of the residence.
       Four to six undercover officers, including Detective Palmore, began watching the
residence in four to six vehicles. The residence had two paved driveways to the left of
the residence, a barn offset behind the residence, a garage with two roll-up doors to the
left of the barn, a fence between the garage and the barn and a wrought iron gate between
the residence and the barn.
       Defendant drove a black Expedition sport utility vehicle (SUV) into the second
driveway and parked it next to the garage in the back area of the property. Detective
Palmore believed that the SUV parked in a location in the back where a resident, rather
than a visitor, would park. As defendant got out of the SUV, Detective Palmore parked
his unmarked vehicle in a location blocking defendant’s SUV so that defendant could not
leave. Officer Kanada pulled in next to the detective’s car. Detective Palmore had
hidden lights and a siren on his vehicle but he did not activate the lights.
       Detective Palmore approached the SUV. The detective wore a police tactical vest
with a badge on it and “Police” written on the back, a gun on his hip, and a badge on his
belt. He introduced himself and asked if there was a marijuana grow in the back of the
house. During the contact, Detective Palmore observed that defendant had small fixed
pupils, shifty eyes, involuntary finger twitching, jerky body movements, rapid speech,
constant lip licking, and a visible neck pulse. Detective Palmore asked defendant if he
was a long-term methamphetamine user. Defendant denied being a long-term user but
ultimately admitted he had used methamphetamine the previous week. Detective
Palmore arrested defendant for being under the influence of a stimulant.



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       When the detective asked whether there was anything illegal in the SUV,
defendant told the detective that he could not search it. When the detective said he would
search it anyway, defendant said the detective would find methamphetamine in the SUV.
Detective Palmore searched the SUV and found a backpack, a digital scale with a vial of
gold and methamphetamine residue, a cell phone with a text message asking defendant if
he had “a little something,” an eighth of an ounce of methamphetamine, and a sketch on a
card showing a bunch of circles in an L-shape. Detective Palmore suspected the sketch
depicted a marijuana garden. In the backyard of the residence, he found a marijuana
grow with 11 small and 11 large marijuana plants, as described in the sketch.
       Detective Palmore also spoke with Paula Johnston and Ronald Scott. Johnston
said she and defendant shared a room in the residence owned by Scott and that defendant
spent his time tending to the marijuana grow. Scott knew about the marijuana plants and
said the plants belonged to him and defendant. The detective opined that Scott, who the
detective found credible, did not know how the marijuana was grown. Scott claimed he
was a “ ‘hands-off guy.’ ” Scott stated that defendant grew and cultivated the marijuana
and was allowed to stay in the residence for free. Scott claimed that he and defendant
sold the surplus marijuana with defendant doing the weighing and selling, noting that the
previous year’s profit was not much but the current year’s would be better. According to
the detective, defendant confirmed the profit was not much the previous year but did not
speak further about his part. Scott had a medical marijuana recommendation but
defendant and Johnston did not. Scott explained that he believed it was legal to sell it.
Detective Palmore opined that the marijuana was possessed for sale based on the
statements of defendant and Scott and the amount found.
       Detective Palmore admitted on cross-examination that he wrote in his report,
“ ‘We detained the driver to find out his involvement with the marijuana smell.’ ” When
asked if he knew or believed prior to contacting defendant that defendant lived at the
residence, the detective said he did not know who was driving the SUV when it pulled

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into the residence. Detective Palmore did not have a warrant to search the residence and
premises for a marijuana grow and never claimed exigent circumstances.
       Officer David Buelow interviewed Johnston and Scott. Johnston claimed that
Scott was not involved in the grow, only defendant. Scott claimed that the marijuana
grow belonged to him and presented a medical marijuana card but then claimed he did
not actually use marijuana due to work-related reasons. Officer Buelow opined that Scott
did not know a lot about marijuana.
       The search of the residence revealed methamphetamine pipes in the closet of the
bedroom shared by defendant and Johnston. Evidence of defendant’s, but not Scott’s, use
of marijuana was also found in the residence.
       Defendant testified that when he pulled into the driveway at the residence,
Detective Palmore parked his vehicle five or six feet directly behind defendant’s SUV,
two unmarked vehicles parked behind Detective Palmore’s vehicle, and a marked patrol
vehicle parked in a separate driveway. Defendant said he never got out of the SUV
before the police contacted him. When defendant opened the driver’s door, Detective
Palmore was so close to defendant that he could not get out if he wanted to do so.
Defendant did not feel free to leave. Defendant believed Detective Palmore had activated
his red lights on the light bar on his dashboard when he pulled in and parked behind
defendant. Defendant saw four or five officers with guns drawn in addition to Detective
Palmore. Defendant had planned to get out and go into the house.
       Defendant sought to suppress any and all observations by law enforcement, any
and all evidence, all of defendant’s statements, and all other things to have directly
resulted from his unlawful detention, search, and seizure.
       In ruling on defendant’s suppression motion at the preliminary hearing, the
magistrate determined that the encounter with the police was not a consensual encounter
but instead a detention. Nevertheless, the magistrate found defendant’s detention was
justified. The magistrate said the strong odor of marijuana indicated criminal activity on

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the property, and defendant’s parking spot in the back of the property indicated that he
was a resident rather than a visitor. The magistrate found that after the initial detention,
the continued detention was justified by the officer’s observation that defendant was
under the influence.
        In denying defendant’s renewed motion to suppress, the trial court determined that
defendant was detained by officers when the police vehicle blocked defendant’s SUV.
But based on the strong odor of growing marijuana at the residence, the information that
employees of an adjacent business said they had seen marijuana growing in the backyard
of the residence, and the defendant’s parking spot, the trial court ruled that the temporary
detention of defendant was justified by the officer’s reasonable suspicion that defendant
was involved in the illegal cultivation of marijuana at the residence.
        A jury convicted defendant Ray Joseph Andrade of cultivation of marijuana
(Health & Saf. Code, § 11358 -- count one)1 and transportation of methamphetamine
(§ 11379, subd. (a) -- count four). The jury acquitted defendant of maintaining a place
for selling or using a controlled substance (count three) and possession of
methamphetamine for sale (count five). The jury deadlocked on count two (possession of
marijuana for sale) and the court declared a mistrial on that count. Count two was later
dismissed. Defendant admitted two prior drug-related convictions. (§ 11370.2,
subd. (c).)
        The trial court sentenced defendant to the upper term of three years on count one
and ordered defendant to serve the time in county jail. The court dismissed count four
based on a change in the law (“transports” now means “transports for sale”) and it
dismissed the allegations of the two prior drug-related convictions as no longer
applicable.




1   Undesignated statutory references are to the Health and Safety Code.

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                                        DISCUSSION
       Defendant contends the trial court erred in denying his motion to suppress
evidence. He argues he was unlawfully detained because there were no facts adduced at
the preliminary hearing connecting him to the marijuana grow, and thus his statements
concerning the grow and the sketch found in his SUV were “fruit of the poisonous tree.”
       We review the magistrate’s express and implied factual determinations in the light
most favorable to the magistrate’s ruling, deferring to the magistrate’s findings if they are
supported by substantial evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301;
People v. Nonnette (1990) 221 Cal.App.3d 659, 664; People v. Trujillo (1990)
217 Cal.App.3d 1219, 1223-1224.) “In determining whether, on the facts so found, the
search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
       “A detention occurs ‘[o]nly when [an] officer, by means of physical force or show
of authority, has in some way restrained the liberty of a citizen . . . .’ ” (In re Randy G.
(2001) 26 Cal.4th 556, 562.) “A detention is a seizure of the person which is subject to
Fourth Amendment protection.” (People v. Viers (1991) 1 Cal.App.4th 990, 993-994.)
       We agree with the magistrate’s conclusion that defendant was detained. Detective
Palmore positioned his car in a way that blocked defendant’s exit from a private
residence and, at least one other officer, Officer Kanada, drove in alongside Detective
Palmore. This was not a consensual encounter. Defendant was not at liberty to simply
ignore the officers’ presence and drive away. (People v. Wilkins (1986) 186 Cal.App.3d
804, 807, 809.)
       “A detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)



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       Here, the detention was reasonable. Detective Palmore smelled a strong odor of
marijuana coming from the subject property. He testified as an expert in the use and
possession for sale of marijuana, he had worked on numerous drug cases, including
marijuana cases, he had trained others in marijuana investigations and conducted research
about marijuana, and he had previously testified as an expert on marijuana use and sales.
Even without the comments by the employee at the storage facility, which only added to
his suspicion, the detective had reason to believe there was criminal activity on the
premises.
       Defendant drove his SUV down the driveway and parked in the back area of the
property. His parking spot on the property suggested that defendant was a resident rather
than a visitor. Thus, Detective Palmore pointed to specific articulable facts that,
considered in the light of the totality of the circumstances, provided some objective
manifestation that defendant may have been involved in criminal activity.
       Because the initial detention was justified, and the continued detention was also
justified based on the detective’s observations that defendant was under the influence, we
conclude the trial court did not err in denying the motion to suppress evidence.
                                      DISPOSITION
       The judgment is affirmed.


                                                       /S/
                                                  Mauro, J.

We concur:


     /S/
Nicholson, Acting P. J.


     /S/
Hoch, J.


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