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Name: People v. Nice
Case #: H041847
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/26/2016

Officer’s visual estimate that car was traveling 10 to 15 m.p.h. over the speed limit was enough to give him a reasonable suspicion to conduct a traffic stop. Officer Beretta stopped a white Chevy for speeding. He visually estimated that the car was traveling 35-40 m.p.h. in a 25 m.p.h. zone. After stopping the car, he arrested the occupants who appeared to be high on methamphetamine. A search of the car revealed drugs and firearms. Before their trial for drug and firearms offenses, the defendants moved to suppress the evidence found in the car on the basis that Beretta’s visual speed estimate was insufficient to give him a reasonable suspicion to stop their car. The trial court denied the motion. The defendants pleaded no contest and appealed. Held: Affirmed. There are no California decisions that specifically address whether an officer’s visual speed estimate, standing alone, can justify a traffic stop. However, a federal case pronounced a framework to address this issue, which the court found persuasive: “[T]he reasonableness of an officer’s visual speed estimate depends, in the first instance, on whether a vehicle’s speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer’s visual estimate.” (United States v. Sowards (4th Cir. 2012) 690 F.3d 583.) In Sowards, the court found an officer’s visual estimation that a car was traveling 75 m.p.h. in a 70 m.p.h. zone to be a “slight excess” requiring additional indicia of reliability. The present case is distinguishable as the officer visually estimated that the vehicle’s speed was 10 to 15 m.p.h. over the posted speed limit of 25 m.p.h.. The Court of Appeal reasoned that this was closer to the “significant excess” end of the spectrum and Beretta’s visual observation did not need corroboration based on his extensive training and experience. The trial court did not err by denying the motion to suppress.

Probation condition prohibiting defendant from possessing or using illegal drugs is not impermissibly vague despite fact it does not contain an express scienter element. The Court of Appeal disagreed with Nice’s argument that a probation condition prohibiting him from possessing or using illegal drugs was impermissibly vague because it did not contain an express knowledge requirement. In People v. Rodriguez (2013) 222 Cal.App.4th 578, this Court of Appeal rejected a similar argument, concluding that an express knowledge requirement was not required for prohibitions related to illegal drugs and controlled substances. Following Rodriguez, the court concluded no modification was necessary. [Editor’s Note: The California Supreme Court has granted review in People v. Hall (2015) 236 Cal.App.4th 1124, review granted 9/9/2015 (S227193/A141278), which presents a similar issue: (1) Are probation conditions prohibiting defendant from: (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague? (2) Is an explicit knowledge requirement constitutionally mandated?]

Probation condition prohibiting defendant’s presence anywhere he knows “illegal drugs are not prescribed or controlled substances are being used or sold” is vague and hard to understand. The Court of Appeal agreed that such a probation condition was vague and “taken literally . . . could prohibit [Nice from] going anywhere.” The condition also required modification to give him fair warning of where he can go. The condition was modified to read: “You shall not possess or use any illegal drugs or illegal controlled substances or visit or remain in any specific location where you know illegal drugs or non-prescribed controlled substances are used or sold.”

The full opinion is available on the court’s website here: