Filed 5/15/14 P. v. Roberts CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. GARY WAYNE ROBERTS, Defendant and Appellant. D064542

(Super. Ct. No. SCE323459)

APPEAL from a judgment of the Superi or Court of San Diego County, John M. Thompson and Patricia K. Cookson, Judges. Affirmed and remanded. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Robi n Urbanski and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent. Following the denial of his motion to su ppress evidence under Penal Code section 1538.5, Gary Wayne Roberts entered a guilty plea to one count of possession of a2 controlled substance for sale (Health & Saf. Code, § 11378). The court sentenced Roberts to a determinate term of 16 months in prison. The court stayed the execution of the sentence pending appeal. Roberts filed a timely notice of appeal. STATEMENT OF FACTS Since this appeal challenge s only the denial of the motion to suppress evidence, we will summarize the facts from the transc ript of the hearing on that motion. At approximately 10:19 p.m. on August 24, 2012, an El Cajon police officer observed Roberts walking eastbound on Main Street in the City of El Cajon. The officer, who was in uniform and driving a marked patr ol car, made a u-turn so that he could contact Roberts. The officer parked his car about 30 to 50 feet from Roberts, who continued to walk toward th e officer. The officer did not use the car's spotlight or emergency lights. As Roberts walked toward the officer's position, the officer got out of his car. When Roberts was about 5 to 10 feet from the officer, the officer said, "What is up man?" and "Do you mind talking to me ." Roberts responded, "S ure what is going on." The officer responded, "Nothing much, just doing my job out here. Just talking to people." He then asked Roberts, "Do you mind if I ch eck your identification out?" Roberts said, "Sure" and handed his driver's license to th e officer. The officer testified that this conversation was calm, and that he did not make any commands or block or restrain Roberts in any fashion.3 The officer wanted to condu ct a record check on Robert s and asked Roberts if he "wouldn't mind having a seat on the curb" while he conducted the record check. Roberts sat on the curb while the re cord check was conducted. The record check re vealed that Roberts was on prob ation and subject to a Fourth Amendment waiver. When Roberts was informed of the results of the record check he became nervous and angry and de nied he was the subject of a "Fourth waiver." Police reconfirmed the waiver informat ion with the dispatch er three or four times. Thereafter Roberts was searched and a quantity of drugs and counterfeit bills were found on his
person. Roberts testified at the suppression hearing. He said the offi cer rushed up to him and in a stern voice asked to speak to him an d asked for his identification. Roberts said the officer shined the patrol car spotlight on him as he a pproached and that the officer used a flashlight during the encounter. At the close of the hearing the court determined the officer's testimony was truthful, that the encounter was consensual and that although the officer did use his flashlight during the encounter, Roberts was not detained until after the police learned of his Fourth waiver. DISCUSSION A. Standard of Review When we review a trial court's decisi on on a motion to suppress evidence we follow an established two-step pr ocess. First we review the historical facts found by the trial court under the substantial evidence standa rd of review. Once we have determined4 the trial court's factual findings are supporte d in the record, we in dependently determine if, in light of those facts, the trial court properly applied the law to the facts. ( People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Leyba (1981) 29 Cal.3d 591, 596-597.) B. Analysis The question presented in this case is when was Roberts seized by police. If he was seized upon the officer's initial encounter then arguably the later discovery of his "Fourth waiver" would be the product of an unl awful detention. Thus we must determine the point at which Robe rts was first seized. A seizure within the meaning of the Fourth Amendment occurs when a law enforcement officer restrains a person's liberty by means of p hysical force or a show of authority. ( People v. Zamudio (2008) 43 Cal.4th 327, 341.) We examine the officer's action under an objective standard to determ ine whether a reasonable person, under the circumstances, would feel free to leave or to discontinue the contact with police. ( Ibid. ) Not all encounters with police amount to seizures, some may be described as consensual, that is, the person contacted has not yet been restrained in his or her liberty. In People v. Bouser (1994) 26 Cal.App.4th 1280, 1282, police encountered the defendant. Much like this case, the officer s said, "Hey, how are you doing? You mind if we talk?" The defendant stopped and talked with po lice for several minutes. Police asked for identification and did a record check which, in turn, reve aled an outstanding arrest warrant. The court affirmed the trial cour t's decision denying a motion to suppress, finding the encounter was consensual up to the point that police discovered the outstanding warrant. ( Id. at pp. 1287-1288.)5 In Florida v. Bostick (1991) 501 U.S. 429, 439, the court said, "[I]n order to determine whether a particular encounter cons titutes a seizure, a cour t must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the pe rson was not free to decline the officers' requests or otherwise terminate the encounter." ( California v. Hodari D

. (1991) 499 U.S. 621, 628; U.S. v. Mendenhall (1980) 446 U. S. 544, 554.) The undisputed evidence at the suppressi on hearing was that the officer did not block Roberts's movements, make any commands or in any way physically restrain him. The trial court credited the officer's testim ony about the calm, low key nature of the encounter and the fact that Roberts agreed to cooperate with the officer, including sitting down while the officer did a r ecord check. Given Roberts's reaction to the finding of the probation condition, it would appear Roberts thought he was not on probation, had no concerns about a record ch eck, and was willing to par ticipate in the process. It is clear from this record that th e trial court properly found the encounter between Roberts and the officer was consensu al and that Roberts was not seized until after police learned about the waiver of F ourth Amendment rights. Roberts does not challenge the validity of that probation condi tion. Thus, the search that followed the discovery of the condition was valid and no t the product of an unlawful seizure. Given our conclusion that the police conduct in this case was objectively reasonable, we decline to consider the Peop le's contention that the exclusionary rule should not be applicab le to this case even if police erred in the initial contact with Roberts.6 DISPOSITION The judgment is affirmed. The case is remanded to the trial court to execute the sentence which was stay ed pending appeal.

HUFFMAN, Acting P. J. WE CONCUR:

NARES, J.

HALLER, J.