Filed 7/24/15 P. v. McKnight CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041349
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1369248)

         v.

ROMAN DONNELL MCKNIGHT, JR.,

         Defendant and Appellant.



         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
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 hyper-
stimulated, 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.




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