COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1364-98-3 JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 24, 1998 DOUGLAS JEROME SMITH
FROM THE CIRCUIT COURT OF ROANOKE COUNTY Roy B. Willett, Judge Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.
Robert C. Hagan, Jr., for appellee.
The Commonwealth appeals the suppression of drugs seized
after a search of the defendant. It argues that the defendant
consented to the search, but we conclude that the police
illegally seized the defendant before he consented. After that
seizure, the Commonwealth could prove neither that the evidence
was unconnected to the seizure nor that the defendant freely and
voluntarily consented to the search. Accordingly, we affirm the
trial court's decision to suppress the evidence.
"In an appeal by the Commonwealth of an order of the trial
court suppressing evidence, the evidence must be viewed in the
light most favorable to the defendant . . . ." Commonwealth v.
Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)
(citations omitted). While we are bound to review de novo the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. ultimate questions of reasonable suspicion and probable cause, we
"review findings of historical fact only for clear error,
and . . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas v.
United States, 517 U.S. 690, 699 (1996). Questions of fact are
binding on appeal unless plainly wrong. See McGee v.
Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1
(1997) (en banc). Officer Terwilliger was on routine patrol when he saw the
defendant standing behind a Food Lion store near a no trespassing
sign. He turned his car around and parked about thirty feet from
the defendant to see if he was all right and what he was doing
there. Terwilliger did not suspect the defendant of criminal
behavior, nor did he call for any assistance.
As Officer Terwilliger got out of his car, the defendant
walked toward him carrying a large nylon bag. Terwilliger asked
the defendant what he was doing, and the defendant replied that
he had fought with his girlfriend. The defendant added that he
had left her apartment, although he could not give her address,
was waiting for a ride, and that she was probably at a nearby pay
phone. Terwilliger continued talking with the defendant because
he was suspicious of what he perceived as conflicting stories
regarding the girlfriend. Eventually, he asked the defendant if
he could look in his bag. The defendant set it down on the
ground, lifted his hands, and said, "go ahead." Terwilliger took
the bag to his vehicle to use the headlights and began looking in - 2 - it.
While Terwilliger was inspecting the bag, Officer Hoover
arrived. He heard the radio message that Terwilliger was marking
off to check a suspicious person. Without asking whether
Terwilliger needed assistance or being asked to assist, Hoover
patted down the defendant and asked him if he had any weapons.
The defendant replied that he had none and added that he had
never been in any trouble. The defendant put his hands in his pockets, and Hoover told
him to keep his hands out of his pockets. When the defendant
continued to put his hands in his pockets because it was cold,
Hoover said he wanted to know what the defendant had in his
pockets. After repeated requests, the defendant emptied his
pockets onto the hood of the police car, but he kept a change
purse in his hand. Hoover asked to see the purse, and the
defendant handed it to him. When asked what it contained, the
defendant replied it held only money. Hoover asked if he could
look inside, and the defendant responded, "do you have to look in
it?" Hoover replied that he just wanted to see what was in it.
The defendant replied "go ahead." Hoover first found a small
baggy corner with residue and then found two more baggies in a
side compartment that contained a white powdery substance. The
officers formally arrested and placed the defendant in custody
because of the items found in the change purse. Those are the
items that the defendant sought to suppress.
Not every police-citizen encounter implicates the Fourth
- 3 - Amendment. See McGee, 25 Va. App. at 198, 487 S.E.2d at 261;
Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173
(1988) (en banc). A consensual encounter occurs where a
defendant voluntarily responds to an officer's request. See
McGee, 25 Va. App. at 198, 487 S.E.2d at 261. Such an encounter
becomes a seizure "[o]nly when the officer, by means of physical
force or show of authority, has restrained the liberty of a
citizen. . . ." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A
person is seized if in view of all the circumstances, a
reasonable person would believe he is not free to leave. See
Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d
848, 850 (1996) (citation omitted). Factors to consider when
determining whether a seizure occurred are "the threatening
presence of several officers, . . . , some physical touching of
the [suspect], or the use of language or tone of voice indicating
that compliance with the officer's request might be compelled."
United States v. Mendenhall, 446 U.S. 544, 554 (1980). See Thomas v. Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137
(1997) (en banc) (a seizure requires some physical restraint or
submission to an officer's authority).
We conclude that the encounter between Officer Terwilliger
and the defendant was consensual. As Terwilliger exited his
vehicle, the defendant approached him. The initial encounter was
entirely consensual. Neither the initial encounter nor the
search of the large nylon bag implicated the Fourth Amendment.
The defendant consented freely and voluntarily to both actions,
- 4 - and the circumstances were not coercive.
The second officer arrived and immediately frisked the
defendant. He had no basis to conduct a Terry frisk because he
had no knowledge about the situation he was approaching. He had
no facts that would articulate a reasonable suspicion that the
defendant was engaged in criminal activity because even the
officer who knew the facts did not suspect the defendant was so
engaged. Hoover had no facts that would articulate a reasonable
suspicion that the defendant was armed and dangerous because
Officer Terwilliger did not suspect the defendant posed a threat.
Officer Terwilliger's actions imply that he did not feel he
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1364-98-3 JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 24, 1998 DOUGLAS JEROME SMITH
FROM THE CIRCUIT COURT OF ROANOKE COUNTY Roy B. Willett, Judge Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.
Robert C. Hagan, Jr., for appellee.
The Commonwealth appeals the suppression of drugs seized
after a search of the defendant. It argues that the defendant
consented to the search, but we conclude that the police
illegally seized the defendant before he consented. After that
seizure, the Commonwealth could prove neither that the evidence
was unconnected to the seizure nor that the defendant freely and
voluntarily consented to the search. Accordingly, we affirm the
trial court's decision to suppress the evidence.
"In an appeal by the Commonwealth of an order of the trial
court suppressing evidence, the evidence must be viewed in the
light most favorable to the defendant . . . ." Commonwealth v.
Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)
(citations omitted). While we are bound to review de novo the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. ultimate questions of reasonable suspicion and probable cause, we
"review findings of historical fact only for clear error,
and . . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas v.
United States, 517 U.S. 690, 699 (1996). Questions of fact are
binding on appeal unless plainly wrong. See McGee v.
Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1
(1997) (en banc). Officer Terwilliger was on routine patrol when he saw the
defendant standing behind a Food Lion store near a no trespassing
sign. He turned his car around and parked about thirty feet from
the defendant to see if he was all right and what he was doing
there. Terwilliger did not suspect the defendant of criminal
behavior, nor did he call for any assistance.
As Officer Terwilliger got out of his car, the defendant
walked toward him carrying a large nylon bag. Terwilliger asked
the defendant what he was doing, and the defendant replied that
he had fought with his girlfriend. The defendant added that he
had left her apartment, although he could not give her address,
was waiting for a ride, and that she was probably at a nearby pay
phone. Terwilliger continued talking with the defendant because
he was suspicious of what he perceived as conflicting stories
regarding the girlfriend. Eventually, he asked the defendant if
he could look in his bag. The defendant set it down on the
ground, lifted his hands, and said, "go ahead." Terwilliger took
the bag to his vehicle to use the headlights and began looking in - 2 - it.
While Terwilliger was inspecting the bag, Officer Hoover
arrived. He heard the radio message that Terwilliger was marking
off to check a suspicious person. Without asking whether
Terwilliger needed assistance or being asked to assist, Hoover
patted down the defendant and asked him if he had any weapons.
The defendant replied that he had none and added that he had
never been in any trouble. The defendant put his hands in his pockets, and Hoover told
him to keep his hands out of his pockets. When the defendant
continued to put his hands in his pockets because it was cold,
Hoover said he wanted to know what the defendant had in his
pockets. After repeated requests, the defendant emptied his
pockets onto the hood of the police car, but he kept a change
purse in his hand. Hoover asked to see the purse, and the
defendant handed it to him. When asked what it contained, the
defendant replied it held only money. Hoover asked if he could
look inside, and the defendant responded, "do you have to look in
it?" Hoover replied that he just wanted to see what was in it.
The defendant replied "go ahead." Hoover first found a small
baggy corner with residue and then found two more baggies in a
side compartment that contained a white powdery substance. The
officers formally arrested and placed the defendant in custody
because of the items found in the change purse. Those are the
items that the defendant sought to suppress.
Not every police-citizen encounter implicates the Fourth
- 3 - Amendment. See McGee, 25 Va. App. at 198, 487 S.E.2d at 261;
Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173
(1988) (en banc). A consensual encounter occurs where a
defendant voluntarily responds to an officer's request. See
McGee, 25 Va. App. at 198, 487 S.E.2d at 261. Such an encounter
becomes a seizure "[o]nly when the officer, by means of physical
force or show of authority, has restrained the liberty of a
citizen. . . ." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A
person is seized if in view of all the circumstances, a
reasonable person would believe he is not free to leave. See
Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d
848, 850 (1996) (citation omitted). Factors to consider when
determining whether a seizure occurred are "the threatening
presence of several officers, . . . , some physical touching of
the [suspect], or the use of language or tone of voice indicating
that compliance with the officer's request might be compelled."
United States v. Mendenhall, 446 U.S. 544, 554 (1980). See Thomas v. Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137
(1997) (en banc) (a seizure requires some physical restraint or
submission to an officer's authority).
We conclude that the encounter between Officer Terwilliger
and the defendant was consensual. As Terwilliger exited his
vehicle, the defendant approached him. The initial encounter was
entirely consensual. Neither the initial encounter nor the
search of the large nylon bag implicated the Fourth Amendment.
The defendant consented freely and voluntarily to both actions,
- 4 - and the circumstances were not coercive.
The second officer arrived and immediately frisked the
defendant. He had no basis to conduct a Terry frisk because he
had no knowledge about the situation he was approaching. He had
no facts that would articulate a reasonable suspicion that the
defendant was engaged in criminal activity because even the
officer who knew the facts did not suspect the defendant was so
engaged. Hoover had no facts that would articulate a reasonable
suspicion that the defendant was armed and dangerous because
Officer Terwilliger did not suspect the defendant posed a threat.
Officer Terwilliger's actions imply that he did not feel he
had reasonable grounds to suspect the defendant. Although
Terwilliger stopped to investigate because the defendant was in a
suspicious location under suspicious circumstances, he was not
worried about the defendant being a threat, and he did not
suspect criminal activity. The defendant was within a few feet
of him. Terwilliger was talking with the defendant, but his
attention was focused on his search of the defendant's bag.
Terwilliger never felt the need to frisk the defendant before
returning to the cruiser to search the bag. Cf. Pennsylvania v.
Mimms, 434 U.S. 106, 112 (1977) ("any man of 'reasonable caution'
would likely have conducted the 'pat down'" (citation omitted)).
Officer Hoover lacked reasonable suspicion to conduct a Terry
search, and when he did, he seized the defendant and implicated
the Fourth Amendment. A person is seized by a laying on of hands
or an application of physical force to restrain movement. See
- 5 - California v. Hordari D., 499 U.S. 621, 626 (1991).
The Commonwealth argues that the defendant consented to
Officer Hoover searching in the change purse. In reply to
Hoover's initial request to look inside the purse, the defendant
asked, "do you have to?" but finally said "go ahead." "'Consent
to a search . . . must be unequivocal, specific and intelligently
given . . . and it is not lightly to be inferred.'" Elliotte v.
Commonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988)
(quoting Via v. Peyton, 284 F. Supp. 961, 967 (W.D. Va. 1968)). The burden is on the Commonwealth to prove the voluntariness of
the consent and a lack of duress. See Bumper v. North Carolina,
319 U.S. 543, 548 (1968); Schneckloth v. Bustamonte, 412 U.S.
218, 248-49 (1973); Lowe v. Commonwealth, 218 Va. 670, 678, 239
S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978). This
burden "cannot be discharged by showing no more than acquiescence
to a claim of lawful authority." See Bumper, 319 U.S. at 548-49.
Whether a consent to search is voluntary is a question of fact. See Gray v. Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164,
cert. denied, 484 U.S. 873 (1987).
The defendant gave consent under circumstances similar to
those in Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d
253 (1995) (en banc). An officer who suspected that Satchell was
selling drugs followed the defendant up the steps of a house.
When Satchell could not get inside because the door was locked,
the officer asked, "What's in your hand pal?" Satchell opened
his hand in response to the question and revealed illegal drugs.
- 6 - Satchell held that the police officer illegally seized the
defendant and discovered the drugs only upon that unlawful
seizure. See id. at 650, 460 S.E.2d at 257. In this case, the
officer illegally seized the defendant and discovered the drugs
in the coin purse only when the defendant responded to the
officer's request upon this unlawful seizure. As in Satchell,
the evidence must be suppressed.
We find no evidence that the defendant's consent was
voluntary and unconnected to the seizure. After seizing the
defendant, Officer Hoover asked about weapons, got the defendant
to empty his pockets, and then persisted in searching the coin
purse. Hoover was not authorized to do that even if he
reasonably suspected that the defendant had a weapon because the
change purse could not conceal one. When the defendant complied
with Hoover's entreaties, he was responding to pressure created
by the seizure. He did not voluntarily consent to the search of
his coin purse, and the evidence found in it is not admissible. We affirm the suppression of the evidence. Affirmed.
- 7 -