Harold Kenneth Dickerson, III v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 13, 2000
• Docket: 1332991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Humphreys, Senior Judges Hodges and Overton Argued at Chesapeake, Virginia

HAROLD KENNETH DICKERSON, III MEMORANDUM OPINION * BY v. Record No. 1332-99-1 JUDGE ROBERT J. HUMPHREYS JUNE 13, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE S. Bernard Goodwyn, Judge

James B. Melton for appellant.

Amy L. Marshall, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Harold Kenneth Dickerson, III was convicted in a bench

trial of possession of cocaine and possession of marijuana. In

this appeal, we consider whether the trial court erred in

denying a motion to suppress evidence seized following an

investigatory detention and subsequent arrest of Dickerson.

Finding no error in the denial of the motion to suppress, we

affirm.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to the

disposition of the appeal.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. BACKGROUND

On August 14, 1998, Officers John Hildebrand and Michelle

Hunter of the Chesapeake Police Department were patrolling the

area of Maplewood Apartments. The officers observed Dickerson,

accompanied by a juvenile, walking on Maple Field Drive in the

apartment complex.

Maplewood Apartments, by letter, had granted to the

Chesapeake Police Department the authority to enter its property

to investigate criminal activity in the apartment complex,

specifically including drug activity and trespassing. The

apartment complex also posted "No Trespassing" signs throughout

the complex, including several on Maple Field Drive.

Both officers testified that they were community police

officers assigned to the area of Maplewood Apartments and were

familiar with the residents. They knew the juvenile was a

resident of a neighboring community, and they also knew that

Dickerson was not a resident of Maplewood Apartments because

they had previously given him a ride to his home in the City of

Portsmouth.

The officers approached Dickerson and his companion and

asked them if they were visiting anyone in the Maplewood

Apartments complex. Neither of them was able to provide the

officers with the name or address of a resident. Rather,

Dickerson responded by simply gesturing toward the rear of the

apartments, approximately one-eighth mile away.

- 2 - The officers then asked Dickerson and his juvenile

companion to get into their police car so that Dickerson and his

companion could direct the officers to the apartment they had

been visiting. The officers testified that they detained

Dickerson and his juvenile companion as trespassing suspects in

order to investigate further. The officers further testified

that if it turned out that Dickerson and his companion were able

to confirm that they had been visiting a resident, they would

have been free to go.

The officers never communicated their state of mind to

Dickerson or his companion as to their custody status.

Dickerson was not restrained or handcuffed. He testified that

he believed he was free to leave if he chose to do so.

Dickerson's juvenile companion entered the back seat of the

officers' police car. Dickerson then moved toward the car as if

he were going to enter it but then became "visibly shaken and

nervous" and waived his arms in the air and began to turn from

the car. Believing that Dickerson was about to run, Hunter

grabbed his arm and a violent struggle ensued. Dickerson was

eventually subdued by the officers and placed under arrest. In

a search of Dickerson incident to that arrest, the officers

recovered a plastic baggie containing marijuana and four plastic

baggies containing cocaine.

Dickerson testified that he told the officers that he was

visiting a friend named Jay and that while he did not give them

- 3 - a specific address, he told them how to find Jay's apartment.

Dickerson further testified that the officers asked him to

accompany them on foot to the apartment and as he and his

juvenile companion turned to walk towards the apartments, Hunter

grabbed him. Dickerson denied that he was trying to get away

and contended that he was just trying to get the officers off of

him.

II. ANALYSIS

When we review a trial court's denial of a suppression

motion, "[w]e review the evidence in a light most favorable to

. . . the prevailing party below, and we grant all reasonable

inferences fairly deducible from that evidence." Commonwealth

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

While we are bound to review de novo the ultimate questions of

reasonable suspicion and probable cause, we "review findings of

historical fact only for clear error 1 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) (footnote added).

"Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations: (1) consensual encounters,

(2) brief, minimally intrusive investigatory detentions, based

1 "In Virginia, questions of fact are binding on appeal unless 'plainly wrong.'" McGee v. Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc) (citations omitted).

- 4 - 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) (citation omitted).

"[N]ot 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

(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 (1980). "As 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.

We recognize that the trial court and the parties analyzed

the initial stop as a Terry stop. However, we find that the

officers' initial approach of and questions posed to Dickerson

and his companion regarding the identity of the resident that

Dickerson and his companion were visiting constituted a

consensual encounter that did not implicate the Fourth

Amendment. See Payne v. Commonwealth, 14 Va. App. 86, 88, 414

S.E.2d 869, 870 (1992) (questioning by police officers does not

- 5 - implicate Fourth Amendment as long as citizen voluntarily

cooperates). Only when the officers learned that Dickerson and

his companion could not specifically identify the resident they

were visiting, causing the officers to investigate further by

requesting that Dickerson and his companion enter the police

car, did the consensual encounter become an investigatory

detention which must have been supported by a reasonable

articulable suspicion of criminal activity.

"If a police officer has a reasonable, articulable

suspicion that a person is engaging in, or is about to engage

in, criminal activity, the officer may detain the suspect to

conduct a brief investigation without violating the person's

Fourth Amendment protection against unreasonable searches and

seizures." McGee v. Commonwealth, 25 Va. App. 193, 202, 487

S.E.2d 259, 263 (1997) (en banc). Reasonable suspicion is a

"'particularized and objective basis' for suspecting the person

stopped of criminal activity." Ornelas, 517 U.S. at 696

(citation omitted).

We find that the officers' knowledge that Dickerson and his

juvenile companion, whom they knew, did not live on the

property, coupled with the inability of Dickerson and his

companion to specifically identify the person they were

allegedly visiting, provided the officers with a reasonable

- 6 - articulable suspicion that Dickerson and his companion were

possible trespassers, thereby warranting further investigation. 2

Therefore, we conclude, as did the trial court, that the

initial stop and investigative detention were constitutionally

permissible. We now must turn our attention to the issue of

whether the officers' request for Dickerson to accompany them in

their police car was unreasonable and exceeded the bounds of a

permissible Terry stop and whether the officers were justified

in physically preventing Dickerson's departure from the scene,

and in subsequently arresting and searching him.

"When 'evaluating whether an investigative detention is

unreasonable, common sense and ordinary human experience must

govern over rigid criteria.' The test is whether the police

methods were calculated to confirm or dispel the suspicion

quickly and with minimal intrusion upon the person detained."

Washington v. Commonwealth, 29 Va. App. 5, 15, 509 S.E.2d 512,

517 (1999) (en banc) (citation omitted).

Here, the evidence, taken in the light most favorable to

the Commonwealth, established that the officers possessed

reasonable suspicion to detain Dickerson long enough to verify

his guest status in the apartment complex and to release him

2 Code § 18.2-119 provides in pertinent part that "[i]f any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so . . . [or] after having been forbidden to do so by a sign or signs posted . . . shall be guilty of a Class 1 misdemeanor." (Emphasis added.)

- 7 - once that had been done. When Dickerson was unable to identify

the name or address of the person he was allegedly visiting, the

method employed by the officers to locate that person was

calculated to confirm or dispel their suspicions quickly and

with minimal intrusion upon Dickerson. Thus, the request by the

officers for Dickerson to take them to the apartment less than

one-eighth of a mile away was "neither unreasonable nor

conducted under circumstances that constituted the functional

equivalent of an arrest." Thomas v. Commonwealth, 16 Va. App.

851, 858, 434 S.E.2d 319, 323 (1993), aff'd on reh'g en banc, 18

Va. App. 454, 444 S.E.2d 275 (1994).

Furthermore, Dickerson's conduct of becoming visibly

nervous as he was about to enter the police car, attempting to

run from the officers instead of entering the police car and

violently struggling with them, coupled with the fact that he

had already been unable to specifically identify the person he

was allegedly visiting, provided the officers with probable

cause to seize and arrest him for trespassing. See James v.

Commonwealth, 8 Va. App. 98, 101-02, 379 S.E.2d 378, 380 (1989)

(probable cause for arrest shown when apartment complex posted

with "No Trespassing" signs, defendant was acting in suspicious

manner, and when officer approached to inquire further, he

fled).

"An arresting officer may, without a warrant, search a

person validly arrested." Michigan v. DeFillippo, 443 U.S. 31,

- 8 - 35 (1979). The officers discovered the challenged evidence

during the search of appellant's person incident to arrest.

Therefore, we find that the search of appellant and the seizure

of appellant's contraband were reasonable under the meaning of

the Fourth Amendment. See Jordan v. Commonwealth, 207 Va. 591,

596-97, 151 S.E.2d 390, 394-95 (1966) (holding that a search

incident to an arrest for trespassing was constitutional).

Accordingly, we agree with the trial court that the

officers acted reasonably under the totality of the

circumstances, and we find no error in the denial of the motion

to suppress the evidence.

Affirmed.

- 9 -