Filed 7/24/15 P. v. McKnight CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROMAN DONNELL MCKNIGHT, JR.,

Defendant and Appellant.

 H041349

 (Santa Clara County

 Super. Ct. No. C1369248)

Defendant Roman Donnell McKnight, Jr., appeals from a judgment of conviction 

entered after he pleaded no contest to possession of methamphetamine (Health & Saf. 

Code, § 11377, subd. (a)) and admitted that he had a prior strike conviction (Pen. Code, 

§§ 667, subds. (b)-(i), 1170.12). Defendant contends that the trial court erred when it 

denied his motion to suppress evidence. We find no error and affirm.

I. Statement of the Case

In November 2013, the Santa Clara District Attorney charged defendant with 

possession of methamphetamine with a prior strike conviction. Defendant pleaded not 

guilty and denied the strike conviction. 

At defendant’s preliminary hearing on April 18, 2014, the magistrate heard 

defendant’s suppression motion. The motion was denied. A few days later, the 
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prosecutor filed an information which charged the same offense and allegation. 

Defendant again pleaded not guilty. 

In May 2014, defendant brought a motion to dismiss pursuant to Penal Code 

section 995 on the ground that the motion to suppress was improperly denied. The 

prosecutor filed opposition. Following a hearing, the motion was denied. 

In June 2014, defendant pleaded no contest to the methamphetamine charge and 

admitted the prior strike conviction. At his sentencing hearing in August 2014, the trial 

court granted defendant’s Romero1 motion and placed defendant on probation for five 

years on condition, among other things, that he enter a substance abuse treatment 

program. 

Defendant filed a timely appeal. 

II. Statement of Facts

At approximately 10:50 p.m. on November 6, 2013, San Mateo County Sheriff’s 

Deputies Alexander Gross and Ryan Hensel were on routine patrol. They were walking 

towards the light rail stop at the San Jose Diridon Station when they saw a group of four 

people, who were standing within a few feet of each other, on the platform. One of these 

individuals, Ricky Martinez, made eye contact with Deputy Gross, quickly turned 

around, ducked behind a kiosk, and quickly came back into sight. Deputy Gross thought 

that this behavior was suspicious and decided to contact Martinez. While Deputy Gross 

spoke with Martinez he overheard parts of Deputy Hensel’s “casual and calm” 

conversation with the other three individuals: defendant, Jacklyn Vitola, and a woman 

named Joubert. 

As Deputy Gross spoke with Martinez, he observed symptoms which led him to 

believe Martinez was under the influence of a controlled substance. He decided to pat 

 

1

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 
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search Martinez and told him to turn around. When Deputy Gross tried to interlock 

Martinez’s fingers, Martinez tried to pull away from his grip. Deputy Gross loudly told 

him to relax. At this point, Deputy Gross heard Deputy Hensel ask defendant, “[C]an 

you have a seat for a minute for me, man.” Defendant was 10 to 15 feet away from 

Martinez. Deputy Gross took Martinez’s wallet and handed it to Deputy Hensel. The 

officers then learned that Martinez and Vitola had outstanding warrants. 

After Martinez and Vitola were arrested and placed in handcuffs, Deputy Gross 

walked in a “casual” manner toward defendant. The officers had been on the scene for 

five minutes at this point. Defendant was sitting on or against a kiosk. Deputy Gross did 

not obstruct defendant’s movement, physically restrain him, or issue any commands. 

According to Deputy Gross, “I just wanted to talk to him and find out who he was since I 

wasn’t sure if he was associated with the two people . . . I had just arrested.” “[I]t was a 

very common conversational tone that my partner and I had with [defendant] and when I 

came over I thanked him for his time . . . it was pretty low key.” 

As Deputy Gross approached defendant, he noticed that defendant displayed signs 

of being under the influence of methamphetamine. Defendant was sweating and hyperstimulated, and his muscles were spasming. Deputy Gross asked defendant for some 

identification, and defendant stated that his name was Joseph Mitchell and gave his birth 

date. The officer conducted a records check and found no match for this information. 

When Deputy Gross told defendant that there was no match, defendant put his head down 

and did not say anything. 

Deputy Gross then asked defendant to stand up so that he could pat search him. 

According to Deputy Gross, individuals under the influence of a controlled substance can 

act irrationally and violent at times. He also wanted to determine if defendant had a 

wallet inside his pocket to assist him in identifying him. Defendant was wearing a large 

overcoat and baggie jeans, which Deputy Gross believed could have easily concealed a 

weapon. 
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After defendant stood up, Deputy Gross interlocked defendant’s fingers behind his 

back and felt the outside of his clothing. He noticed a package of blunt wraps in the front 

pocket of defendant’s jacket. The primary use of a blunt wrap is to roll marijuana inside 

of it for a marijuana cigar. When Deputy Gross asked defendant if he had any marijuana, 

he replied that it was in his pocket. After Deputy Gross asked if he had a medical 

marijuana card, defendant “mumbled something, incoherently.” The officer searched 

defendant’s pockets, but did not find any marijuana. When Deputy Gross put his finger 

in the front right coin pocket of defendant’s jeans, defendant tried to break away from 

him. Defendant ran several feet, but was stopped. Deputy Gross arrested him for 

resisting and delaying his investigation. The officer also seized a clear plastic baggie 

containing a usable amount of suspected methamphetamine from defendant’s coin 

pocket. 

III. Discussion

Defendant contends that the magistrate erred in denying his motion to suppress 

evidence. He contends that he was unlawfully detained, and that, even if he was lawfully

detained, the pat search violated his Fourth Amendment rights.

“Where, as here, a motion to suppress is submitted to the superior court on the 

preliminary hearing transcript, ‘the appellate court disregards the findings of the superior 

court and reviews the determination of the magistrate who ruled on the motion to 

suppress, drawing all presumptions in favor of the factual determinations of the 

magistrate, upholding the magistrate’s express or implied findings if they are supported 

by substantial evidence, and measuring the facts as found by the trier against the 

constitutional standard of reasonableness.’ [Citation.] ‘We exercise our independent 

judgment in determining whether, on the facts presented, the search or seizure was 

reasonable under the Fourth Amendment. [Citation.]’ [Citation.]” (People v. Hua

(2008) 158 Cal.App.4th 1027, 1033.)
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The Fourth Amendment, made applicable to the states through the due process 

clause of the Fourteenth Amendment, protects the individual against unreasonable 

searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 655-660.) When a police 

officer engages in conduct that violates the Fourth Amendment, the evidence obtained 

through such conduct is subject to the exclusionary rule. (People v. Mayfield (1997) 14 

Cal.4th 668, 760, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 

391.)

“For purposes of Fourth Amendment analysis, there are basically three different 

categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from 

the least to the most intrusive. First, there are . . . ‘consensual encounters’ [citation], 

which are those police-individual interactions which result in no restraint of an 

individual’s liberty whatsoever—i.e., no ‘seizure,’ however minimal—and which may 

properly be initiated by police officers even if they lack any ‘objective justification.’ 

[Citation.] Second, there are . . . ‘detentions,’ seizures of an individual which are strictly 

limited in duration, scope and purpose, and which may be undertaken by the police ‘if 

there is an articulable suspicion that a person has committed or is about to commit a 

crime.’ [Citation.] Third, and finally, there are those seizures of an individual which 

exceed the permissible limits of a detention, seizures which include formal arrests and 

restraints on an individual’s liberty which are comparable to an arrest, and which are 

constitutionally permissible only if the police have probable cause to arrest the individual 

for a crime.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)

In determining whether an encounter between a police officer and an individual 

constitutes a detention, we note that a “seizure does not occur simply because a police 

officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991) 

501 U.S. 429, 434 (Bostick).) For Fourth Amendment purposes, “a person is ‘seized’ 

only when, by means of physical force or a show of authority, his freedom of movement 

is restrained.” (United States v. Mendenhall (1980) 446 U.S. 544, 553.) “[T]o determine 
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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.” (Bostick, at p. 439.) “[E]ven 

when officers have no basis for suspecting a particular individual, they may generally ask 

questions of that individual [citations]; ask to examine the individual’s identification 

[citations]; and request to search his or her luggage [citation]—as long as the police do 

not convey a message that compliance with their requests is required.” (Bostick, at 

pp. 434–435.) “Circumstances establishing a seizure might include any of the following: 

the presence of several officers, an officer’s display of a weapon, some physical touching 

of the person, or the use of language or of a tone of voice indicating that compliance with 

the officer’s request might be compelled.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) 

“The officer’s uncommunicated state of mind and the individual citizen’s subjective 

belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny 

has occurred.” (Ibid.)

Defendant contends that he “was ‘seized’ within the meaning of the Fourth 

Amendment when Deputy Hensel directed him to sit down, and two members of his 

group were handcuffed in his close vicinity.” We disagree.

Here, two officers approached a group of four people. Neither officer displayed a 

weapon, physically touched anyone, or issued commands. While Deputy Gross spoke to 

Martinez, Deputy Hensel spoke to the others in a casual and calm manner. Deputy 

Hensel asked defendant, “[C]an you have a seat for a minute for me, man.” Contrary to 

defendant’s argument, Deputy Gross’s seizure of Martinez, who was 10 to 15 feet away 

from defendant, by attempting to pat search Martinez did not result in a seizure of 

defendant. Deputy Hensel’s conduct toward defendant did not indicate that compliance 

was required. Moreover, the subsequent arrests of Martinez and Vitola for outstanding 

arrests warrants also did not involve defendant. In considering the totality of the 
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circumstances, there was nothing in the officers’ conduct which “would have 

communicated to a reasonable person that the person was not free to decline the officers’ 

requests or otherwise terminate the encounter.” (Bostick, supra, 501 U.S. at p. 439.) 

Defendant’s reliance on In re J.G. (2014) 228 Cal.App.4th 402 (J.G.) is 

misplaced. In that case, Officer Woelkers approached a juvenile and his brother and 

asked if he could speak to them. (Id. at p. 405.) The juvenile answered, “‘[Y]eah.’ ” 

(Ibid.) Less than a minute later, another officer arrived. (Ibid.) Officer Woelkers asked 

the brothers for identification, ran a records check, and conducted consensual pat 

searches while physically restraining them. (Id. at pp. 405-406.) Meanwhile, two more 

officers arrived, and one of the officers handed a rifle to one of the others. (Id. at p. 406.) 

At this point, Officers Woelkers asked the brothers to sit on the curb, which they did. 

(Ibid.) As they were sitting on the curb, Officer Woelkers obtained the juvenile’s consent 

to search the juvenile’s backpack and found a firearm. (Ibid.) About 10 or 15 minutes 

passed between the officer’s first contact with the brothers and the juvenile’s arrest. 

(Ibid.) The Court of Appeal held that the officer’s interaction with the juvenile began as 

a consensual encounter, but “turned into a detention as Officer Woelkers’s suspicions 

persisted without apparent reason, as the encounter became increasingly intrusive, as the 

minutes passed, and as the police presence and show of force grew. We conclude that by 

the time Officer Woelkers asked [the juvenile] to sit on the curb, a reasonable person in 

[his] circumstances would not have felt free to end the encounter.” (Id. at p. 411.) J.G. is 

distinguishable from the present case. Here, when defendant was asked to sit down, he 

had not been asked increasingly intrusive questions, had not had a records check 

conducted, and had not been subjected to a strong police presence, including an officer 

holding a rifle. 

Defendant next contends that the pat search violated his Fourth Amendment rights. 

A police officer may conduct a pat down search during an investigation “where 

[the officer] has reason to believe that he is dealing with an armed and dangerous 
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individual . . . . [T]he issue is whether a reasonably prudent man in the circumstances 

would be warranted in the belief that his safety or that of others was in danger.” (Terry v. 

Ohio (1968) 392 U.S. 1, 27 (Terry).) A Terry frisk, a limited exception to the probable 

cause requirement (Ybarra v. Illinois (1979) 444 U.S. 85, 93-94), “is a serious intrusion 

upon the sanctity of the person, which may inflict great indignity and arouse strong 

resentment, and it is not to be undertaken lightly.” (Terry, at p. 17.) “[I]n determining 

whether the officer acted reasonably in such circumstances, due weight must be given, 

not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific 

reasonable inferences which he is entitled to draw from the facts in light of his 

experience.” (Terry, at p. 27.)

Though the wearing of baggy clothing, standing alone, does not justify a pat down 

search (People v. Collier (2008) 166 Cal.App.4th 1374, 1377, fn. 1), here, there were 

additional factors establishing that the officer acted reasonably. It was late at night and 

defendant exhibited symptoms of being under the influence of methamphetamine. He 

was sweating and hyper-stimulated, and his muscles were spasming. The officer’s 

training and experience gave him reason to be concerned about potential violence from 

someone under the influence of methamphetamine. He also had reason to believe that 

defendant had just falsely identified himself. Under these circumstances, Officer Gross 

acted reasonably.

The cases upon which defendant relies do not persuade us otherwise. In State v. 

Setterstrom (2008) 163 Wash.2d 621, the police received an anonymous call that an 

individual who appeared to be under the influence of drugs was in the lobby of the 

welfare department. (Id. at p. 623.) When the police arrived, they found the defendant,

who was nervous and fidgeting. (Id. at p. 624.) In response to questioning, he lied about 

his name. (Ibid.) The Washington Supreme Court held that the officer was not justified 

in pat searching the defendant. (Id. at pp. 627-628.) In contrast to Setterstrom, here, 

there were two additional factors: defendant was wearing baggy clothing, and the 
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encounter occurred late at night. In Sibron v. New York (1968) 392 U.S. 40, the United 

Supreme Court held that the defendant’s act of talking with narcotic addicts did not 

justify a pat search for weapons. (Id. at p. 64.) However, as previously stated, additional 

factors provided a reasonable belief that the individual was armed and dangerous. 

IV. Disposition

The judgment is affirmed.
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_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P. J. 

______________________________

Márquez, J.