COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0661-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK AUGUST 19, 1999 ANTHONY LAP BROWN
FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.
Deborah Wagner (David Holland's Law Group, L.L.C., on brief), for appellee.
Anthony Lap Brown (Brown) was indicted for possession of
cocaine, in violation of Code § 18.2-250. Brown filed a
pretrial motion to suppress evidence of a crack-cocaine pipe
found in his pocket, contending that it was discovered as a
result of an unlawful search of his person. The trial court
granted the motion, and the Commonwealth appealed pursuant to
Code § 19.2-398(2). For the following reasons, we reverse the
trial court's decision and remand for further proceedings.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
On an appeal from a trial court's ruling on a suppression
motion, we view the evidence in the light most favorable to the
party prevailing below, in this case the defendant. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). However, "'[u]ltimate questions of reasonable
suspicion and probable cause . . . are reviewed de novo on
appeal.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United
States, 517 U.S. 690, 691, 116 S. Ct. 1657, 1659, 134 L.Ed.2d
911 (1996)). Similarly, whether a seizure occurred at all is a
question for this Court to review de novo. See id. at 198, 487
S.E.2d at 261.
The evidence established that on October 2, 1998, at
approximately 10:15 p.m., Brown was walking through the
Yorkshire Townhouse complex in York County, Virginia. Deputy
Sheriff Mattis (Mattis) approached Brown and asked him where he
was going. Brown stated that he was walking home. The deputy
knew from prior experience that Brown was not walking in the
direction of his house and that he also did not live in the
Yorkshire Townhouse complex.
Mattis asked Brown "if he had any drugs, weapons, or
illegal contraband" on his person. The defendant told Mattis
that he had a knife in his back pants pocket. Mattis asked the
defendant if he "could search him," and the defendant said
- 2 - "yes." During the search, Mattis found a pocketknife inside
Brown's back pocket. He also found a cigarette box inside the
left front pocket. Inside the cigarette box, Mattis found a
"three-inch crack pipe." During the encounter, the deputy used
a flashlight to "illuminate" Brown. Mattis did not draw his
weapon nor did he tell the defendant to remain where he was.
The trial court found that there was no evidence of
criminal activity and, therefore, the deputy did not have a
reasonable articulable suspicion to stop the defendant.
Although the trial court recognized that "this Court's been
reversed on this issue before on an appeal by the Commonwealth,"
the court suppressed the evidence because it concluded the
search constituted an unreasonable seizure. Pursuant to Code
§ 19.2-398(2), the Commonwealth appealed the trial court's
ruling.
II.
The Commonwealth argues that the trial court erroneously
focused on whether there was a reasonable suspicion of criminal
activity when the officer approached the defendant. The
Commonwealth contends that the evidence established a consensual
encounter between Deputy Mattis and the defendant, "followed by
defendant's knowing and voluntary consent to a search of his
person." Because the search was consensual, the Commonwealth
concludes there was no Fourth Amendment violation. We agree.
- 3 - Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations, including the following: "(1)
consensual encounters, (2) brief, minimally intrusive
investigatory detentions, based upon specific, articulable
facts, commonly referred to as Terry stops, and (3) highly
intrusive arrests and searches founded on probable cause."
Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,
747 (1995). As the United States Supreme Court noted in Terry,
[o]bviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.
Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16,
20 L.Ed.2d 889 (1968).
A Terry stop occurs "only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." United
States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870,
1876-77, 64 L.Ed.2d 497 (1980). Examples of circumstances that
might indicate a Fourth Amendment "seizure" include the
following:
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
- 4 - Id. at 553-54, 100 S. Ct. at 1876-77. Accordingly, "[a]s long
as the person to whom questions are put remains free to
disregard the questions and walk away, there has been no
intrusion upon that person's liberty or privacy as would under
the Constitution require some particularized and objective
justification." Id.
In the instant case, the trial court ruled that when Deputy
Mattis approached Brown and asked him questions, he was seized
within the meaning of the Fourth Amendment. However, Mattis's
actions did not create a seizure. It is well settled that "law
enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another
public place, by asking him if he is willing to answer some
questions, [or] by putting questions to him if the person is
willing to listen . . . ." Florida v. Royer, 460 U.S. 491, 497,
103 S. Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality
opinion); see also Williams v. Commonwealth, 21 Va. App. 263,
266, 463 S.E.2d 679, 680 (1995); Buck v. Commonwealth, 20 Va.
App. 298, 301-02, 456 S.E.2d 534, 535 (1995).
Moreover, "a consensual encounter occurs when police
officers approach persons in public places to ask them
questions, provided a reasonable person would understand that he
or she could refuse to cooperate." Payne v. Commonwealth, 14
Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0661-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK AUGUST 19, 1999 ANTHONY LAP BROWN
FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.
Deborah Wagner (David Holland's Law Group, L.L.C., on brief), for appellee.
Anthony Lap Brown (Brown) was indicted for possession of
cocaine, in violation of Code § 18.2-250. Brown filed a
pretrial motion to suppress evidence of a crack-cocaine pipe
found in his pocket, contending that it was discovered as a
result of an unlawful search of his person. The trial court
granted the motion, and the Commonwealth appealed pursuant to
Code § 19.2-398(2). For the following reasons, we reverse the
trial court's decision and remand for further proceedings.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
On an appeal from a trial court's ruling on a suppression
motion, we view the evidence in the light most favorable to the
party prevailing below, in this case the defendant. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). However, "'[u]ltimate questions of reasonable
suspicion and probable cause . . . are reviewed de novo on
appeal.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United
States, 517 U.S. 690, 691, 116 S. Ct. 1657, 1659, 134 L.Ed.2d
911 (1996)). Similarly, whether a seizure occurred at all is a
question for this Court to review de novo. See id. at 198, 487
S.E.2d at 261.
The evidence established that on October 2, 1998, at
approximately 10:15 p.m., Brown was walking through the
Yorkshire Townhouse complex in York County, Virginia. Deputy
Sheriff Mattis (Mattis) approached Brown and asked him where he
was going. Brown stated that he was walking home. The deputy
knew from prior experience that Brown was not walking in the
direction of his house and that he also did not live in the
Yorkshire Townhouse complex.
Mattis asked Brown "if he had any drugs, weapons, or
illegal contraband" on his person. The defendant told Mattis
that he had a knife in his back pants pocket. Mattis asked the
defendant if he "could search him," and the defendant said
- 2 - "yes." During the search, Mattis found a pocketknife inside
Brown's back pocket. He also found a cigarette box inside the
left front pocket. Inside the cigarette box, Mattis found a
"three-inch crack pipe." During the encounter, the deputy used
a flashlight to "illuminate" Brown. Mattis did not draw his
weapon nor did he tell the defendant to remain where he was.
The trial court found that there was no evidence of
criminal activity and, therefore, the deputy did not have a
reasonable articulable suspicion to stop the defendant.
Although the trial court recognized that "this Court's been
reversed on this issue before on an appeal by the Commonwealth,"
the court suppressed the evidence because it concluded the
search constituted an unreasonable seizure. Pursuant to Code
§ 19.2-398(2), the Commonwealth appealed the trial court's
ruling.
II.
The Commonwealth argues that the trial court erroneously
focused on whether there was a reasonable suspicion of criminal
activity when the officer approached the defendant. The
Commonwealth contends that the evidence established a consensual
encounter between Deputy Mattis and the defendant, "followed by
defendant's knowing and voluntary consent to a search of his
person." Because the search was consensual, the Commonwealth
concludes there was no Fourth Amendment violation. We agree.
- 3 - Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations, including the following: "(1)
consensual encounters, (2) brief, minimally intrusive
investigatory detentions, based upon specific, articulable
facts, commonly referred to as Terry stops, and (3) highly
intrusive arrests and searches founded on probable cause."
Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,
747 (1995). As the United States Supreme Court noted in Terry,
[o]bviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.
Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16,
20 L.Ed.2d 889 (1968).
A Terry stop occurs "only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." United
States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870,
1876-77, 64 L.Ed.2d 497 (1980). Examples of circumstances that
might indicate a Fourth Amendment "seizure" include the
following:
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
- 4 - Id. at 553-54, 100 S. Ct. at 1876-77. Accordingly, "[a]s long
as the person to whom questions are put remains free to
disregard the questions and walk away, there has been no
intrusion upon that person's liberty or privacy as would under
the Constitution require some particularized and objective
justification." Id.
In the instant case, the trial court ruled that when Deputy
Mattis approached Brown and asked him questions, he was seized
within the meaning of the Fourth Amendment. However, Mattis's
actions did not create a seizure. It is well settled that "law
enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another
public place, by asking him if he is willing to answer some
questions, [or] by putting questions to him if the person is
willing to listen . . . ." Florida v. Royer, 460 U.S. 491, 497,
103 S. Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality
opinion); see also Williams v. Commonwealth, 21 Va. App. 263,
266, 463 S.E.2d 679, 680 (1995); Buck v. Commonwealth, 20 Va.
App. 298, 301-02, 456 S.E.2d 534, 535 (1995).
Moreover, "a consensual encounter occurs when police
officers approach persons in public places to ask them
questions, provided a reasonable person would understand that he
or she could refuse to cooperate." Payne v. Commonwealth, 14
Va. App. 86, 88, 414 S.E.2d 869, 870 (1992) (internal quotations
- 5 - and citations omitted). Consensual encounters "need not be
predicated on any suspicion of the person's involvement in
wrongdoing, and remain consensual as long as the citizen
voluntarily cooperates with the police." Id. (internal
quotations and citations omitted).
Here, Deputy Mattis asked Brown whether he had drugs,
weapons or illegal contraband. Mattis did not touch Brown or
draw his weapon. Mattis did not tell Brown to remain where he
was. Defendant can point to no act which, either implicitly or
expressly, restrained his liberty. See Mendenhall, 446 U.S. at
554, 100 S. Ct. at 1877. 1 Brown gave his consent to the search,
which was not limited in scope, and he did not revoke that
consent. In these circumstances, Brown was not seized for
purposes of the Fourth Amendment. 2
Because the defendant was not seized, and the defendant
consented to the subsequent search of his person, the
1 Mattis's use of a flashlight does not affect the consensual nature of his encounter with Brown. Contrary to the trial court's ruling, the evidence established that Deputy Mattis used the flashlight to "illuminate" the defendant because it was dark. Even assuming that the deputy shone his flashlight in Brown's face, this act does not compel a finding that a Fourth Amendment seizure occurred. See Baldwin v. Commonwealth, 243 Va. 191, 199, 413 S.E.2d 645, 649-50 (1992) (holding that the use of a floodlight "was no more an 'intimidating' show of authority than the 'presence of a police officer driving parallel to a running pedestrian'"). 2 The same conclusion was reached by a panel of this Court in Commonwealth v. Taylor, No. 1298-98-1 (October 6, 1998), a case involving substantially similar facts.
- 6 - defendant's crack pipe should not have been excluded. The trial
court's ruling on the motion to suppress is reversed.
Reversed.
- 7 -