Branham v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: January 13, 2012
• Docket: 110263
• Status: Published

Opinion

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette and Mims, JJ., and Russell and Lacy, S.JJ.

CURTIS WAYNE BRANHAM OPINION BY v. Record No. 110263 SENIOR JUSTICE CHARLES S. RUSSELL January 13, 2012 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal presents questions involving the Fourth

Amendment's protections against unreasonable searches and

seizures. It also presents a question of the sufficiency of

chain of custody evidence.

Facts and Proceedings

The first two assignments of error question the circuit

court's denial of a motion to suppress the Commonwealth's

evidence on Fourth Amendment grounds. The material facts

presented on that motion, heard in advance of trial, are

undisputed but the parties disagree as to their legal

consequences.

Shortly after midnight on July 13, 2009, Deputy J. E.

Begley, Investigator Mac Bridgewater and Sheriff L. J. Ayers,

all of the Sheriff's Department of Amherst County, were driving

to the residence of Jesse Ford, located in a rural area of the county, 1 to serve felony warrants on Ford for offenses involving

cocaine. Access to the Ford residence was by a driveway that

also served a second residence. The Ford residence lay about a

quarter of a mile up the driveway from the public road. The

officers were in two marked police cars. Begley drove the

leading car and the other two officers were in the second car,

following Begley.

Turning into the driveway that leads to the Ford residence,

the officers found the driveway blocked by a green Nissan parked

in the driveway about 15 feet from the public road. Seated in

the Nissan, alone, was Curtis Wayne Branham. Begley turned his

spotlight on the Nissan but neither he nor the officers in the

car behind him activated any emergency equipment. Begley walked

to the Nissan and asked Branham for his driver's license.

Branham handed the license to Begley who noted that Branham's

hands were shaking and that he seemed unusually nervous. Begley

entered Branham's driver's license information into the

electronic record system and, while waiting for results from the

license check, spoke to Branham again, asking him "what was

going on." Begley had noted from the driver's license that

1 A witness testified that Ford's nearest neighbor lived about a quarter of a mile away. 2 Branham's address was "about five [or] six miles" away from the

place where he was parked.

Begley asked Branham if he had "anything illegal in the

vehicle, such as weapons." Branham said "No." Still waiting

for a response to the license check, Begley asked Branham "if he

would mind stepping out of the vehicle so I could pat him down

for weapons." Branham stepped out of car. Begley then asked

Branham if he could search him rather than pat him down, and

Branham consented to the search. At some point during this

procedure, the other two officers appeared at the scene. None

of the officers drew their weapons. Begley asked Branham why he

was at this particular location and Branham responded that he

had been "out looking for somebody up there [but] couldn't find

the residence." He did not give the name or address of the

person for whom he was looking.

Begley testified that during these events Branham was

cooperative and never indicated any hesitation or reluctance to

comply with Begley's several requests. Begley testified that

these requests were made in a conversational, not a demanding or

threatening, tone and that the officers' cars were parked behind

the Nissan but in such a way as not to obstruct its departure if

Branham had desired to leave. Begley could not recall when,

during these events, he received the results of the license

check but confirmed that he still had Branham's license in his

3 possession when asking permission to search him. There is no

evidence that Branham ever asked for the return of his license.

While Begley and Branham were talking, a car came down the

driveway and stopped ahead of the Nissan. The sole occupant was

Jesse Ford, the subject of the arrest warrants the officers were

there to serve. Investigator Bridgewater went to Ford's car

while Begley searched Branham.

In searching Branham's person, Begley reached into his

right front jeans pocket and removed a plastic baggie containing

an off-white powder that appeared to Begley to be cocaine. At

that point, Begley handcuffed Branham and gave him Miranda

warnings. He then asked Branham if there was anything in the

car. Branham said "No" and told Begley he could search the car

if he wanted to. A search of the Nissan revealed two sets of

digital scales in the center console. Both showed a residue of

white powder that Begley, based on his experience, thought to be

cocaine. The contents of the baggie taken from Branham's pocket

proved, on later examination, to be cocaine.

Indicted in the Circuit Court of Amherst County for

possession of cocaine with intent to distribute in violation of

Code § 18.2-248, Branham moved the court to suppress the

evidence on the ground that it represented the fruits of his

illegal seizure in violation of his Fourth Amendment rights.

The court denied the motion and, at a bench trial, found Branham

4 guilty. His appeal to the Court of Appeals was denied by a per

curiam order and then reviewed by a three-judge panel which

again denied it by an order entered on December 27, 2010. We

awarded Branham an appeal.

Analysis

A. Search and Seizure

Branham contends that he was seized, within the meaning of

the Fourth Amendment, as soon as Deputy Begley took his driver's

license to make a record check, that Begley had no basis for a

reasonable, articulable suspicion that crime was then afoot,

much less probable cause to justify a warrantless arrest, and

that the results of the search were therefore the fruits of an

unlawful seizure. The Commonwealth concedes that Branham was

seized when cocaine was discovered on his person, but contends

that all the events leading up to the discovery of the cocaine

were incidents of a purely consensual encounter. In any event,

the Commonwealth argues, Begley had a reasonable and articulable

suspicion that criminal activity was afoot based upon the time,

the place, the surrounding circumstances, Branham's demeanor and

his evasive answers to questions.

When reviewing a denial of a motion to suppress evidence,

an appellate court considers the evidence in the light most

favorable to the Commonwealth and will accord the Commonwealth

the benefit of all reasonable inferences fairly deducible from

5 that evidence. Sidney v. Commonwealth, 280 Va. 517, 520, 702

S.E.2d 124, 126 (2010). The defendant has the burden of showing

that even when the evidence is reviewed in that light, denying

the motion to suppress was reversible error. Id. at 522, 702

S.E.2d at 127. We review de novo the trial court's application

of the law to the particular facts of the case. Glenn v.

Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913, (2008).

A succinct summary by the United States Court of Appeals

for the Fourth Circuit is helpful:

The Supreme Court has recognized three distinct types of police-citizen interactions: (1) arrest, which must be supported by probable cause, see Brown v. Illinois, 422 U.S. 590 (1975); (2) brief investigatory stops, which must be supported by reasonable articulable suspicion, see [Terry v. Ohio, 392 U.S. 1 (1968)]; and (3) brief encounters between police and citizens, which require no objective justification, see Florida v. Bostick, 501 U.S. 429 (1991).

United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002).

The Fourth Amendment does not require any level of

suspicion to justify non-coercive questioning by officers,

including a request for identification. United States v.

Drayton, 536 U.S. 194, 200-01 (2002); Montague v. Commonwealth,

278 Va. 532, 538, 684 S.E.2d 583, 587 (2009).

"A police officer may constitutionally conduct a brief,

investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot." Bass v.

6 Commonwealth, 259 Va. 470, 474-75, 525 S.E.2d 921, 923 (2000)

(quoting Terry, 392 U.S. at 30). An officer may briefly detain

a person in those circumstances while the officer questions him,

tries to identify him and attempts to gather additional

information to either dispel or confirm his suspicions. Hayes

v. Florida, 470 U.S. 811, 816 (1985).

A "reasonable suspicion" requires only "some minimal level

of objective justification" for making such a stop. I.N.S. v.

Delgado, 466 U.S. 210, 217 (1984). Whether an officer has a

reasonable suspicion to justify such a detention is "based on an

assessment of the totality of the circumstances." Harris v.

Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008).

That assessment "allows officers to draw on their own experience

and specialized training to make inferences from and deductions

about the cumulative information available to them that 'might

well elude an untrained person.' " United States v. Arvizu, 534

U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S.

411, 418 (1981)).

Applying those principles to the present case, we hold that

the initial encounter between Deputy Begley and Branham was

entirely consensual. Branham was not required by law to

surrender his driver's license for a record check because Code

§ 46.2-104, requiring the owner or operator of a motor vehicle

to exhibit his driver's license to an officer for

7 identification, applies only when such a driver has received a

signal to stop from a law-enforcement officer. Thus, Begley's

request to see his driver's license was no more than a request,

and Branham's compliance was voluntary and not coerced. The

other officers did not say anything to Branham until after the

cocaine was discovered, there was no display of weapons or

emergency lights, Branham's car was not blocked and no

threatening or coercive tone of voice was used.

Further, as the chain of events unfolded, Begley developed

a reasonable, articulable suspicion that criminal activity was

afoot. When he examined Branham's driver's license, he could

infer that Branham was probably familiar with the sparsely

populated rural area because he lived only five or six miles

away. Branham was notably nervous and his hands were shaking. 2

He obviously did not live where he was found and his explanation

of his presence there was most unlikely. He claimed to be lost

and unable to find the residence he was looking for but did not

provide the name of the person he was seeking or give the

address he was trying to locate. The driveway in which he was

parked led to the residence of Jesse Ford, whom the officers

were seeking in order to serve felony warrants involving

2 "Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Whitfield v. Commonwealth, 265 Va. 358, 362, 576 S.E.2d 463, 465 (2003). 8 cocaine. From these circumstances, Begley could reasonably

suspect that Branham had not parked in Ford's driveway at nearly

one o'clock in the morning because he was lost.

We hold that Deputy Begley had a reasonable articulable

basis for a suspicion sufficient to justify detaining Branham

while he attempted to gather information to either dispel or

confirm his suspicions. His search of Branham's person and

vehicle and the results of those searches were not, therefore,

the fruits of an unlawful seizure in violation of the Fourth

Amendment. We agree with the Court of Appeals' holding that the

circuit court correctly denied Branham's motion to suppress.

B. Chain of Custody

Branham also assigns error to the circuit court's ruling

admitting in evidence a certificate of analysis of the cocaine

pursuant to Code § 19.2-187.1. He contends that he was denied

his right of confrontation because the Commonwealth did not call

as witnesses all persons who were involved in the chain of

custody of the cocaine samples from the time they left the hands

of Deputy Begley until they were received by the laboratory

technician who analyzed them.

We review the decision of a circuit court with regard to

the admission of evidence according to an abuse of discretion

standard. Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d

618, 620 (2010).

9 Prior to trial, Branham filed a notice pursuant to Code

§ 19.2-187.1 asserting his right, if the Commonwealth intended

to introduce a certificate of analysis at trial, to confront as

a witness "any person performing such analysis or examination or

involved in the chain of custody."

Three witnesses testified at trial to the chain of custody.

Deputy Begley testified that he retained the items to be

analyzed in his possession from the time he seized them until he

deposited them in the evidence locker in the Sheriff's

Department. Belinda Gaines, an evidence technician in the

Sheriff's Department, testified that on July 16, 2009, she

opened the locker, removed the items, logged them into the

sheriff's computer system, packaged them and sent them by

certified mail to the Virginia Department of Forensic Science

regional laboratory in Roanoke. She recorded the certified mail

certificate number. She testified that the only other person

who possessed a key to the evidence locker was her supervisor,

Captain Doss, but said that he only opened the locker when she

was not working. Steven E. Hopridge, Jr., a chemical analyst

with the regional laboratory in Roanoke, testified that he had

received the package containing the items by certified mail at

his Roanoke laboratory, that the package was intact, that the

seal was unbroken, that he opened the package, analyzed the

10 contents, found them to contain cocaine, and signed the

certificate of analysis offered in evidence.

Branham argues that, in addition to those witnesses, he had

a right to cross-examine Captain Doss, and any postal workers

who might have handled the certified mail package, to ascertain

whether the contents had been subject to tampering, alteration

or substitution while in transit, as well as any unknown

employees of the laboratory who took the package from the mail

and brought it to Hopridge for analysis.

Branham's contentions have no merit. The Commonwealth was

required to "show with reasonable certainty that there has been

no alteration or substitution of the item[s]," Herndon, 280 Va.

at 143, 694 S.E.2d at 620, but it was "not required to exclude

every conceivable possibility of substitution, alteration, or

tampering." Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d

352, 357 (1987). The Commonwealth must establish only the vital

links in the chain of custody. Other gaps in the chain go to

the weight of the evidence rather than its admissibility.

Aguilar v. Commonwealth, 280 Va. 322, 332-33, 699 S.E.2d 215,

220 (2010), cert. denied ___ U.S. ___, 131 S.Ct. 3089 (2011).

Neither Captain Doss nor the postal workers were "vital links"

in the chain of custody. See Herndon, 280 Va. at 143, 694

S.E.2d at 620. No contention was made at trial that Captain

Doss ever had any contact with the evidence and he was not shown

11 to be a link in the chain. In the absence of clear evidence to

the contrary, postal workers are entitled to a presumption of

regularity in the performance of their duties. United States v.

Cook, 580 F. Supp. 948, 955 (N.D. W.Va. 1983), aff'd, 782 F.2d

1037 (4th Cir. 1986). We extend the same presumption to any

unidentified employee at the laboratory in Roanoke who retrieved

the package from the mail and delivered it in an intact

condition to Hopridge for examination. See O'Bannon v.

Saunders, 65 Va. (24 Gratt.) 138, 142 (1873) (until the contrary

is shown, there is a presumption that everyone performs his

official duties) accord United States v. Chemical Found., Inc.,

272 U.S. 1, 14-15 (1926).

Conclusion

We find no error in the circuit court's ruling denying

Branham's motion to suppress and we find no abuse of that

court's discretion in admitting the certificate of analysis in

evidence. Accordingly, for the reasons stated, we will affirm

the judgment of the Court of Appeals.

Affirmed.