People v. Rodriguez CA2/6

FACTS AND PROCEDURAL BACKGROUND

Sergeant Warren Holtke and his partner went to Ortega Park in Santa Barbara after a narcotics detective reported seeing a “male” whom he “believed” was making a “quick hand-to-hand” narcotics transaction. Ortega Park has a high level of crime. Holtke saw Rodriguez sitting at a picnic table holding an open can of beer.2 When Rodriguez saw Holtke approaching he set the beer on the ground in an effort to hide it. He was unsuccessful; Holtke picked up the beer. Rodriguez admitted that it was his in response to Holtke’s question after first denying it. Holtke asked “if he had any

not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence’ or when ‘the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition’”].) They have consistently characterized his consent as “limited” to the retrieval of the beer. 2 (See Santa Barbara Mun. Code, § 9.05.010 [prohibiting in general “possession [of] any bottle, can or other receptacle containing any alcoholic beverage which has been opened . . . upon any public . . . park”]; Bus. & Prof. Code, § 25620, subd. (a)…