Filed 2/22/13 P. v. Bell CA1/1 Received for posting 2/28/13 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, A134249 Plaintiff and Respondent, (Contra Costa County v. Super. Ct. No. 05-111297-8) WALTER BELL, ORDER MODIFYING OPINION Defendant and Appellant. AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

BY THE COURT: It is ordered that the nonpublished opinion filed herein on February 8, 2013, be modified as follows: Replace the first sentence of the first paragraph of page 9 with the following: Although Officer Scott may well have subjectively intended initially only to issue a citation, that fact does not render the patsearch illegal. The United States Supreme Court has long held the officer’s subjective intent is not controlling if the action he takes is otherwise objectively reasonable. (Whren v. United States (1996) 517 U.S. 806, 813; Scott v. United States (1978) 436 U.S. 128, 138.) The officers here had probable cause to believe defendant had been drinking an alcoholic beverage from an open container in public in violation of the Pittsburg Municipal Code. In light of all of the circumstances, they did not violate the Fourth Amendment by taking defendant into custody for that offense, even if only temporarily, for the purpose of frisking him to ensure he did not have any concealed weapons on his person which he could use against them while they completed their investigation and eventually issued a citation.

This modification does not change the judgment.

The petition for rehearing is denied.

___________________________ Marchiano, P.J.