People v. Campbell CA3

Filed 5/7/14 P. v. Campbell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C073601
Plaintiff and Respondent, (Super. Ct. No. 62097495)
v.
KIRK EDWARD CAMPBELL,
Defendant and Appellant.
After the magistrate (Judge Curry) denied the suppression motion of defendant
Kirk Edward Campbell, a jury found him guilty of being a felon in possession of a
firearm, possessing a controlled substance with a firearm, and eight other drug-related
felony offenses.
Defendant appeals from the resulting judgment (Judge Wachob), contending the
magistrate erred in denying his motion to suppress the evidence. We disagree.
Defendant was speeding, so a deputy sheriff lawfully stopped him. The subsequent two
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searches of his car were also lawful because defendant was on searchable probation and
also gave the deputy consent to search.
FACTUAL AND PROCEDURAL BACKGROUND
Placer County Deputy Sheriff Eric Bakulich was patrolling Douglas Boulevard in
Roseville at 1:00 a.m. in March 2010, when he saw a man driving a Ford Escort “slightly
over the speed limit.” The deputy estimated that the Escort was going 50 miles per hour
in a 45 mile-per-hour zone by driving behind the Escort and looking at his patrol car’s
calibrated speedometer. The deputy ran a “DMV check” of the Escort’s license plate and
found out the name of the registered owner of the Escort, who was male. The deputy
then ran a records check of the registered owner and saw that his driver’s license had
expired. The deputy stopped the Escort based on his assessment that the driver was
speeding and driving on an expired license.1
Defendant was the driver. Deputy Bakulich ran a records check on defendant and
learned he was “on searchable probation out of Sacramento County” and that defendant
was the son of the registered owner of the Escort. He then asked defendant if there was
anything illegal in the car, and defendant said there was not. The deputy “asked if he had
any problems with us looking through the vehicle.”2 Defendant “told [the deputy] no.”
The resulting search uncovered a loaded firearm in a backpack in the trunk. Defendant
was arrested for being a felon in possession of a firearm.
The Escort was towed and impounded. Citrus Heights Police Officer Daniel
Buckenmeyer went to the tow yard to further search the Escort. Before searching the
1 In his police report, Deputy Bakulich wrote that defendant had violated Vehicle
Code section 22350, which prohibits a person from “driv[ing] a vehicle upon a highway
at a speed greater than is reasonable or prudent having due regard for weather, visibility,
the traffic on, and the surface and width of, the highway, and in no event at a speed which
endangers the safety of persons or property.”
2 Two other deputies came to the scene within five minutes of the initial traffic stop.
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Escort, the officer learned that defendant was on probation from Sacramento County until
2014 and he was “subject to search and seizure” as a term of probation. During the
search, the officer found “contraband.”
DISCUSSION
Defendant contends that both searches of his car were unlawful because the traffic
stop was “unreasonable, unsupported by substantial evidence, and Bakulich’s testimony
was inherently improbable and physically impossible.” Not so.
An officer can legally stop a motorist “if the facts and circumstances known to the
officer support at least a reasonable suspicion that the driver has violated the Vehicle
Code . . . .” (People v. Miranda (1993) 17 Cal. App. 4th 917, 926.) Violations of the
Vehicle Code are evaluated under an objective standard. (In re Justin K. (2002) 98
Cal. App. 4th 695, 699.)
Here, relying on his calibrated speedometer, Deputy Bakulich estimated that
defendant was driving five miles over the speed limit, which was a violation of the
Vehicle Code. (See Veh. Code, § 22348 [“a person shall not drive a vehicle upon a
highway with a speed limit . . . at a speed greater than that speed limit”]; Veh. Code,
§ 360 [“ ‘Highway’ is a way or place of whatever nature, publicly maintained and open to
the use of the public for purposes of vehicular travel. Highway includes street”].) The
court specifically found this part of the deputy’s testimony credible.
Furthermore, it was irrelevant that Deputy Bakulich noted in his report that
defendant had violated Vehicle Code section 22350, which prohibits a person from
“driv[ing] a vehicle upon a highway at a speed greater than is reasonable or prudent
having due regard for weather, visibility, the traffic on, and the surface and width of, the
highway, and in no event at a speed which endangers the safety of persons or property.”
“[A]n officer’s reliance on the wrong statute does not render his actions unlawful if there
is a right statute that applies to the defendant’s conduct.” (In re Justin K., supra, 98
Cal.App.4th at p. 700.)
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Therefore, because of defendant’s Vehicle Code violation, Deputy Bakulich acted
lawfully in initiating the traffic stop.3 It was during this lawful traffic stop that the
deputy learned through a records check that defendant was on searchable probation and
that the deputy asked for and received defendant’s consent to search the car. Thus, both
the probation search condition and defendant’s consent allowed for the initial search the
car. (People v. Bravo (1987) 43 Cal. 3d 600, 605, 611 [A search conducted pursuant to a
valid consent does not violate the Fourth Amendment unless the search exceeds the scope
of the consent; a probation search condition permits a search without “ ‘reasonable
cause’ ”].)
Finally, the probation search condition also authorized the later search of the car at
the tow yard. Before conducting that search, Officer Buckenmeyer verified that
defendant was on probation from Sacramento County until 2014 and he was “subject to
search and seizure” as a term of probation. Thus, the officer could legally conduct a
probation search up until the time that probation was formally revoked, regardless of the
probationer’s custodial status. (People v. Hunter (2006) 140 Cal. App. 4th 1147, 1154.)
DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
HOCH , J.
3 Further, defendant was male and driving a car that was registered to a male with
an expired driver’s license.
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