Filed 1/7/14 P. v. Walker CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E058384

v.                                                                       (Super.Ct.No. INF1200658)

ERWIN MAURICE WALKER,                                                    OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Charles Everett Stafford,

Jr., Judge. Reversed.

         Paul E. Zellerbach, District Attorney, and Ivy B. Fitzpatrick, Deputy District

Attorney, for Plaintiff and Appellant.

         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and

Respondent.

         In October 2012, plaintiff and appellant the People charged defendant and

respondent Erwin Maurice Walker by first amended information with burglary (count 1 –



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Pen. Code, § 459),1 receipt of stolen property (count 2 – § 496, subd. (a)), possession of

burglary tools (count 3 – § 466), unlawful taking of a vehicle (count 4 – Veh. Code

§ 10851, subd. (a)), and receipt of a stolen vehicle (count 5 – § 496d, subd. (a)). The

People additionally alleged defendant had suffered three prior strike convictions (§§ 667,

subds. (c) & (e)(1) & 1170.12, subd. (c)(1)) and one prior prison term (§ 667.5,

subd. (b)).

       Defendant filed a motion to suppress evidence seized pertinent to counts 1 through

3, which the court granted. The People found they were unable to proceed and the court

dismissed counts 1 through 3 on defendant’s motion.2 The People appeal contending the

court erroneously suppressed the relevant evidence pertaining to counts 1 through 3. We

reverse.

                         FACTS AND PROCEDURAL HISTORY

       At the hearing on defendant’s motion to suppress the evidence, Palm Springs

police officer Michael Casavan testified that on January 28, 2012, around 7:30 p.m., he

was patrolling the parking lot adjacent to a number of businesses, including a Home

Depot, Marshalls, and a number of restaurants. There had been a history of vehicle

burglaries and thefts in the area. Casavan witnessed defendant riding a bicycle toward



       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2  The People also indicated they were unable to proceed as to counts 4 and 5 due
to the victim’s refusal to cooperate. Defendant moved for dismissal of counts 4 and 5,
which the court also granted. Counts 4 and 5 are not the subject of the instant appeal.


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him. Casavan parked his patrol vehicle, exited it, and approached defendant. Casavan

said to defendant, “[h]ey, man.” Defendant rode over to Casavan and stopped.

       Casavan asked defendant what he was doing. Defendant said he was going to get

fast food. Casavan asked if he could search the backpack defendant was carrying.

Defendant said “‘[y]es.’” Casavan looked into defendant’s backpack where he found two

pairs of new shoes, at least one pair with an attached Marshalls’ tag. Defendant had no

bag or receipt for the shoes.

       Casavan asked if he could search defendant’s pockets. Defendant said “‘[y]es.’”

Inside defendant’s pockets Casavan found a wire cutter and a pair of pliers. Casavan

detained defendant on suspicion of shoplifting and placed defendant in his vehicle.

Casavan went to Marshalls where he spoke to the manager who confirmed the shoes were

items sold in the store. In the trash can in the shoe department, Casavan found two

discarded security sensors.

       The court observed, “[w]e are not in a police state. The police don’t have carte

blanche to contact anybody and to cause a search to occur unless there is something that

is somewhat out of the ordinary.” The court further noted that “police officers can make

a consensual contact, but it has to be within the confines of the performance of their

duties as a police officer. And there has to be some circumstance that would give rise to

the belief that criminal activity occurred.” The court granted defendant’s motion to

suppress reasoning there was no justification for Casavan’s request to search defendant’s




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backpack: “The officer had nothing whatsoever to give him any cause to believe at all

that [] [defendant] may have been involved in criminal activity.”

                                       DISCUSSION

       The People contend the court erred in granting defendant’s motion to suppress

because no particularized suspicion is necessary to warrant a consensual encounter and

search of an individual. We agree.

       “‘Our review of issues related to the suppression of evidence seized by the police

is governed by federal constitutional standards.’ [Citations.] ‘In reviewing a trial court’s

ruling on a motion to suppress evidence, we defer to that court’s factual findings, express

or implied, if they are supported by substantial evidence. [Citation.] We exercise our

independent judgment in determining whether, on the facts presented, the search or

seizure was reasonable under the Fourth Amendment.’ [Citation.]” (Robey v. Superior

Court (2013) 56 Cal.4th 1218, 1223.) “[W]here the validity of a search rests on consent,

the State has the burden of proving that the necessary consent was obtained and that it

was freely and voluntarily given, a burden that is not satisfied by showing a mere

submission to a claim of lawful authority. [Citations.]” (Florida v. Royer (1983)

460 U.S. 491, 497.)

       “Law enforcement officers do not violate the Fourth Amendment’s prohibition

of unreasonable seizures merely by approaching individuals on the street or in other

public places and putting questions to them if they are willing to listen. [Citations.]

Even when law enforcement officers have no basis for suspecting a particular



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individual, they may pose questions, ask for identification, and request consent to search

luggage – – provided they do not induce cooperation by coercive means. [Citation.] If a

reasonable person would feel free to terminate the encounter, then he or she has not been

seized.” (United States v. Drayton (2002) 536 U.S. 194, 200-201 (Drayton).)

       Here, there was no coercion in Casavan’s interaction with defendant. Casavan

greeted defendant to which defendant responded by riding voluntarily over to Casavan.

Casavan testified he did not order or even ask defendant to stop. He never activated the

lights or sirens on his patrol vehicle. Casavan did not request or order defendant to stay

in any particular location. Indeed, Casavan testified he did not initially detain defendant

and defendant was free to leave at any time.

       Casavan testified he asked defendant if he could search defendant’s backpack to

which defendant assented. After finding the shoes, Casavan asked if he could search

defendant’s pockets to which defendant also agreed. Casavan’s encounter with

defendant, including his search of defendant’s backpack and pockets, was entirely

consensual and, therefore, not violative of the Fourth Amendment via the Fourteenth

Amendment.

       Contrary to the court’s repeated assertions, no particularized suspicion is required

in order for an officer to engage in a consensual search: “The Fourth Amendment

permits police officers to approach [] [individuals] at random to ask questions and to

request their consent to searches, provided a reasonable person would understand that he

or she is free to refuse. [Citation.]” (Drayton, supra, 536 U.S. 194 at p. 197 [Bus



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passengers’ acquiescence to police officer’s request to check their bags while they were

on bus during refueling with no particularized suspicion and no declaration that passenger

need not comply did not violate Fourth Amendment prohibition against unreasonable

searches.].)

       Indeed, in Drayton the defendants were arguably under at least somewhat more

pressure to comply with the officer’s requests as the defendants were approached while

already in an enclosed area, a bus, which would have required that they pass closely by

several officers if they wished to leave. (Drayton, supra., 536 U.S. 194 at pp. 197-199.)

Here, defendant was in an open parking lot on a bike and could have simply ridden away

when greeted by the lone officer. Indeed, as noted in Drayton, “[i]t is beyond question

that had this encounter occurred on the street, it would be constitutional.” (Id. at p. 204.)

       Likewise, the court’s reasoning that the encounter was not consensual because

“the majority of people are going to let them see because it’s a police officer asking them.

It’s somebody that is wearing a uniform, a badge, and a gun” does not withstand scrutiny.

Although Casavan testified he was wearing a uniform and exited a marked police car,

presumably also wearing a gun, “[t]here was no application of force, no intimidating

movement, no overwhelming show of force, no brandishing of weapons, no blocking of

exits, no threat, [and] no command . . . .” (Drayton, supra, 536 U.S. 194 at p. 204.)

       “Officers are often required to wear uniforms and in many circumstances this is

cause for assurance, not discomfort. Much the same can be said for wearing sidearms.

That most law enforcement officers are armed is a fact well known to the public. The



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presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the

encounter absent active brandishing of the weapon.” (Drayton, supra, 536 U.S. 194 at

pp. 204-205.) “‘While most citizens will respond to a police request, the fact that people

do so, and do so without being told they are free not to respond, hardly eliminates the

consensual nature of the response.’ [Citation.]” (Id. at p. 205) Thus, the fact that an

armed, uniformed police officer requests permission to speak with and search an

individual does not transform a consensual encounter into one violative of the Fourth

Amendment. Therefore, the court erred in granting defendant’s motion to suppress.

                                      DISPOSITION

       The judgment is reversed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                          P. J.
We concur:



HOLLENHORST
                          J.



CODRINGTON
                          J.




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