Latroy Lee Saunders v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 16, 2000
• Docket: 0523992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Senior Judge Overton Argued at Richmond, Virginia

LATROY LEE SAUNDERS MEMORANDUM OPINION * BY v. Record No. 0523-99-2 JUDGE RUDOLPH BUMGARDNER, III MAY 16, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY William L. Wellons, Judge

Buddy A. Ward, Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

After a bench trial, the trial court convicted Latroy Lee

Saunders of possession of cocaine with intent to distribute, in

violation of § 18.2-248. He contends the trial court erred in

denying his motion to suppress evidence seized before his arrest

and statements made after it. He argues the officer lacked

articulable suspicion that he was engaged in criminal activity.

Finding no error, we affirm.

Officer David Frazier drove to a high-crime, high-drug

trafficking trailer park to execute an arrest warrant. Officer

Frazier drove the last of four police vehicles, and as he

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. entered the trailer park, he saw the defendant walking towards

him from the opposite direction. The other three police

vehicles had already passed the defendant. Officer Frazier

observed that the defendant had his "right hand clenched in a

fist" and "tucked against his side." While the defendant was

walking normally, he was not swinging his right arm. Officer

Frazier believed the defendant had something in his hand and

suspected it might be drugs. Upon observing that suspicious

behavior, the officer stopped his car and approached the

defendant. The other vehicles stopped 20-30 yards away to wait

for Officer Frazier. The officers were behind the defendant and

did not exit their vehicles.

As Officer Frazier approached the defendant, he twice

asked, "what do you have in your hand?" The defendant did not

respond either time. When the officer repeated the question a

third time, the defendant extended his hand towards the officer

and opened it. The defendant held a small corner of a brown

paper bag, which was approximately two inches long and a quarter

inch in diameter with the top twisted. The officer took the

bag, opened it, and discovered six rocks of crack cocaine

inside. He arrested the defendant, who then volunteered that he

was selling the crack for $20 a rock because he had not been

able to find a job.

A seizure occurs where a reasonable person would have

believed he was not free to go. See United States v.

- 2 - Mendenhall, 446 U.S. 544, 554 (1980). A defendant is seized

when the officers restrain his freedom of movement by physical

force or show of authority. See California v. Hodari D., 499

U.S. 621, 625 (1991); Mendenhall, 446 U.S. at 554. Questioning

alone does not amount to a seizure. See Reittinger v.

Commonwealth, 29 Va. App. 724, 730, 514 S.E.2d 775, 778 (1999)

(en banc).

While Officer Frazier was in full uniform, we find no show

of authority from which a reasonable person would have believed

he was not free to go. The officer was entitled to approach the

defendant and to ask him a question. He did not command the

defendant to open his hand. He never touched the defendant.

The defendant voluntarily opened his hand to the officer upon

the officer's third request to see what it contained. That was

a voluntary response to the questions and constituted voluntary

consent for the officer's seeing what he had in his hand. The

officer did not conduct a warrantless search, and the defendant

never limited the scope of his consent by objecting to the

officer's opening the bag. The trial court found that this was

a consensual encounter which did not implicate the Fourth

Amendment, and the record supports that factual finding.

The defendant relies on McGee v. Commonwealth, 25 Va. App.

193, 487 S.E.2d 259 (1997) (en banc), and Payne v. Commonwealth,

14 Va. App. 86, 414 S.E.2d 869 (1992). However, essential facts

in each of those cases distinguish them from the case before us.

- 3 - In McGee, the encounter was not consensual because a reasonable

person would not have believed he was free to go. In Payne, the

officer grabbed the defendant's arm and opened his hand when the

defendant twice failed to respond to requests that he open his

hand. While that encounter began as a consensual one, it ceased

being consensual when the officer grabbed the defendant's arm.

In the present case, the encounter began as a consensual

one, and it continued as such when the defendant voluntarily

consented to the officer's request that he open his hand. After

the arrest, the defendant volunteered the incriminating

statement. We conclude that the trial court did not err when it

denied the motion to suppress. Accordingly, we affirm the

conviction.

Affirmed.

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