Filed 5/15/14 P. v. Roberts CA4/1 

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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 Superior 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, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Alastair J. 

Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent. 

 Following the denial of his motion to suppress evidence under Penal Code section 

1538.5, Gary Wayne Roberts entered a guilty plea to one count of possession of a 
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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 challenges only the denial of the motion to suppress evidence, 

we will summarize the facts from the transcript 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 patrol 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 the 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, "Sure 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 check your identification out?" Roberts said, 

"Sure" and handed his driver's license to the 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. 
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 The officer wanted to conduct a record check on Roberts 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 record check was conducted. 

 The record check revealed that Roberts was on probation and subject to a Fourth 

Amendment waiver. When Roberts was informed of the results of the record check he 

became nervous and angry and denied he was the subject of a "Fourth waiver." Police 

reconfirmed the waiver information with the dispatcher 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 officer rushed up to him 

and in a stern voice asked to speak to him and asked for his identification. Roberts said 

the officer shined the patrol car spotlight on him as he approached 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 decision on a motion to suppress evidence we 

follow an established two-step process. First we review the historical facts found by the 

trial court under the substantial evidence standard of review. Once we have determined 
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the trial court's factual findings are supported in the record, we independently 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 unlawful detention. Thus we must determine 

the point at which Roberts 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 physical 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 determine 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 officers said, "Hey, how are you doing? You mind if we talk?" 

The defendant stopped and talked with police for several minutes. Police asked for 

identification and did a record check which, in turn, revealed an outstanding arrest 

warrant. The court affirmed the trial court'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.) 
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 In Florida v. Bostick (1991) 501 U.S. 429, 439, the court said, "[I]n order to 

determine whether a particular encounter constitutes a seizure, a court must consider all 

the circumstances surrounding the encounter to determine whether the police conduct 

would have communicated to a reasonable person that the person 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 suppression 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 testimony 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 record 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 check, and was willing to participate in the process. 

 It is clear from this record that the trial court properly found the encounter 

between Roberts and the officer was consensual and that Roberts was not seized until 

after police learned about the waiver of Fourth Amendment rights. Roberts does not 

challenge the validity of that probation condition. Thus, the search that followed the 

discovery of the condition was valid and not the product of an unlawful seizure. 

 Given our conclusion that the police conduct in this case was objectively 

reasonable, we decline to consider the People's contention that the exclusionary rule 

should not be applicable to this case even if police erred in the initial contact with 

Roberts. 
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DISPOSITION 

 The judgment is affirmed. The case is remanded to the trial court to execute the 

sentence which was stayed pending appeal. 

 

HUFFMAN, Acting P. J. 

WE CONCUR: 

 

 NARES, J. 

 

 HALLER, J.