COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements Argued at Alexandria, Virginia
MICHAEL JEROME BOLDEN MEMORANDUM OPINION * BY v. Record No. 1951-00-4 JUDGE RUDOLPH BUMGARDNER, III MAY 22, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Paul F. Sheridan, Judge
Marvin D. Miller (Law Offices of Marvin D. Miller, on briefs), for appellant.
Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial court convicted Michael Jerome Bolden of
transporting marijuana into the Commonwealth with intent to
distribute, Code § 18.2-248.01, 1 and possession of marijuana with
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 [Code] § 18.2-248.01. Transporting controlled substances into the Commonwealth; penalty. -- Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.) it is unlawful for any person to transport into the Commonwealth by any means with intent to sell or distribute . . . five or more pounds of marijuana. A violation of this section shall constitute a separate and distinct felony. Upon conviction, the person shall be sentenced to not less than five years nor more than forty years imprisonment, three years of which shall be a minimum, mandatory intent to distribute, Code § 18.2-248. 2 He contends the trial
court erred (1) in ruling the possession of marijuana was not a
lesser-included offense of transporting marijuana and (2) in
denying his motion to suppress the evidence. Because the
defendant pled guilty to transporting marijuana into the
Commonwealth, we only address these arguments as they apply to
the conviction for possession of marijuana. Finding the trial
court did not err, we affirm.
The Commonwealth obtained separate indictments for
transporting marijuana into the Commonwealth and possession of
marijuana. The trial court denied the defendant's motion to
suppress and convicted him of transporting marijuana on his
guilty plea to that charge. The trial court continued the
possession charge to a later date for trial on a plea of not
guilty. The defendant subsequently moved to dismiss arguing the
possession charge was a lesser-included offense of the
transportation charge on which he had been convicted. The trial
court denied the motion and convicted the defendant on the
second charge.
term of imprisonment, and a fine not to exceed $1,000,000. 2 Code § 18.2-248(A) provides that "it shall be unlawful for any person to . . . possess with intent to manufacture, sell, give or distribute a controlled substance . . . ." Where the quantity of marijuana, is "[m]ore than five pounds . . . [the defendant] is guilty of a felony punishable by imprisonment of not less than five nor more than thirty years." Code § 18.2-248.1.
- 2 - First, we consider whether possessing with intent to
distribute is a lesser-included offense of transporting into the
Commonwealth. The doctrine of double jeopardy protects against
(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after a
conviction, and (3) multiple punishments in a single trial for
the same offense. North Carolina v. Pearce, 395 U.S. 711, 717
(1969). However, "we have found it unnecessary to apply
Blockburger [v. United States, 284 U.S. 299, 304 (1932)], where
the General Assembly has 'clearly indicated its intent to impose
multiple punishments.'" Fitzgerald v. Commonwealth, 223 Va.
615, 635, 292 S.E.2d 798, 810 (1982), cert. denied, 459 U.S.
1228 (1983) (citation omitted).
Code § 18.2-248.01, transporting drugs into the
Commonwealth, declares: "A violation of this section shall
constitute a separate and distinct felony." The defendant
contends that language does not reflect an intent by the General
Assembly to impose a separate punishment. However, the language
is clear and unambiguous, and adopting the defendant's
interpretation renders it meaningless. See Sims Wholesale Co.,
Inc. v. Brown-Forman Corp., 251 Va. 398, 405, 468 S.E.2d 905,
909 (1996) ("Every part of a statute is presumed to have some
effect and no part will be treated as meaningless unless
absolutely necessary.").
- 3 - Code § 18.2-248 links the verb "possess" with the related
verbs "manufacture, sell, give, distribute" in a list of
proscribed acts. When proscribing the act of "transporting,"
the General Assembly delineated a separate offense and
designated it with a unique code number, Code § 18.2-248.01. By
so doing, "transporting" was not listed with the series of verbs
in Code § 18.2-248, "manufacture, sell, give, distribute,
possess," that would have limited and defined it under standard
concepts of construction such as ejusdem generis.
In common usage, transporting is not synonymous with
possessing. Transporting does not necessarily require
possessing. The legislature ascribed "transporting" its
broadest meaning by employing the phrase "by any means" to
modify the term. That phrase appears commonly throughout the
Code of Virginia when the General Assembly defines an action to
encompass any device or stratagem by which the human mind could
conceive to accomplish it. Transporting by any means would
encompass something more than simple possession, or simply
personally moving the drug from point to point.
We also note two final differences between the two code
sections. The statutes require different amounts of marijuana
for conviction and carry different penalties. The General
Assembly clearly indicated it intended to impose multiple
punishments for possession of marijuana and transporting it into
the Commonwealth.
- 4 - Next, we consider whether the trial court erred in denying
the defendant's motion to suppress. The trial court determined
that the defendant's initial encounter with the police was
consensual, that he was not detained, and that his consent to
search was voluntary. At trial the defendant contended that
under the totality of the circumstances the encounter was not a
consensual encounter but a seizure. He also contended his
consent to search was involuntary and his will was overborne.
"A person has been 'seized' within the meaning of the
Fourth Amendment only if, in view of all 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). The determination of
seizure is objective, whether a reasonable person would have
felt restrained.
Consent to a search must be freely and voluntarily given.
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). "[T]he
determination of consent to search is subjective." United
States v. Wilson, 895 F.2d 168, 171 (4th Cir. 1990). The
determination of voluntariness of consent is subjective, whether
this defendant gave his consent freely and voluntarily.
Both decisions are reviewed de novo on appeal, but
historical facts are entitled to special consideration. Whether
a defendant is seized in violation of the Fourth Amendment is a
question that is reviewed de novo on appeal. Mendenhall, 446
- 5 - U.S. at 551 n.5. We "should take care both to review findings
of historical fact only for clear error and to 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). Voluntariness is ultimately a legal
rather than a factual question. Miller v. Fenton, 474 U.S. 104,
110 (1985). Subsidiary factual findings, however, are entitled
to a presumption of correctness. Id. at 112. Both issues are
determined under the totality of the circumstances.
Viewing the evidence in the light most favorable to the
Commonwealth, Officer Garrett Daniel Polowy began observing and
tracking a gold SUV at a stoplight at approximately 1:15 p.m. on
December 29, 1999. When it parked, he pulled in front of the
entrance to an Econo Lodge and continued observing through
shrubbery that separated him from the SUV. When the defendant
came through the shrubbery and emerged next to the police
cruiser, Polowy exited the car and approached. He asked in a
normal, friendly tone if the defendant noticed the gold car or
if he knew who was in it. The defendant denied knowledge of the
gold car. The defendant indicated he was investigating a store
on the other side of the shrubs and stated he was a guest at the
hotel. They walked toward the hotel.
Within ten seconds of entering the small lobby, the
defendant received a telephone call. He talked for no more than
twenty seconds, then sat in the only chair. Polowy confirmed
- 6 - with the desk clerk that the defendant had been a guest in room
313 but had checked out. Polowy radioed Corporal Dean Edward
Matthews to come to the hotel. Matthews arrived within two
minutes.
After Polowy explained the situation, Matthews spoke with
the clerk who advised him that the defendant had checked out at
5:00 a.m. Matthews then approached the defendant, still seated,
and started talking with him. The defendant explained that he
had gotten lost the previous night, spent the night in the
motel, and was waiting for his cousin to come get him. While
Matthews talked to the defendant, a third officer arrived, and
the clerk received a second phone call for the defendant.
Polowy walked over, took the phone, and asked whom the caller
wanted. The caller asked for Brown in room 313 and hung up when
Polowy asked who was calling.
Matthews asked the defendant for identification, and he
voluntarily provided it. Matthews took several minutes to
determine it "checked out with everything" and then returned the
identification. Matthews then asked for consent to search the
defendant in the lobby. The defendant consented. Polowy
searched him and found nothing illegal.
The hotel manager suggested the officers move to her office
away from the lobby. Instead of going to the office, which
Matthews knew was in the basement, he suggested, "How about if
we just step out into the parking lot?" Matthews turned and
- 7 - walked out, and the defendant "came with us." The conversation
resumed outside.
The defendant said he was from New Mexico and repeated his
explanation that he had gotten lost and was now waiting for his
cousin. Matthews asked if the defendant had any luggage, and
the defendant, mentioning a car for the first time, said it was
in his car. The defendant pointed to a car, and they walked to
it.
Matthews saw a green bag on the rear seat. The defendant
admitted it was his but denied it contained drugs or weapons.
When Matthews asked if he could search the green bag, the
defendant said nothing, but "took a deep breath and put his head
straight down to the ground." Matthews did not open the door or
search the bag. He asked if there was anything else in the car,
and the defendant told him he had a suitcase in the trunk. He
denied it contained drugs or weapons.
Matthews asked if they could open the trunk. The defendant
took out his keys and leaned awkwardly behind the car to open it
because the trunk extended over a three-to-four foot drop. When
the defendant opened the trunk, Matthews saw only a suitcase.
He asked the defendant if he could take it out and search it.
The defendant replied "that he would rather it stay in the
trunk."
The defendant volunteered to move the car because they were
unable to search the suitcase while the trunk protruded over the
- 8 - ledge. The defendant walked to the driver's door, opened it,
slid in, started the engine, and "pulled [the car] up a little
bit." The trunk was then flush with the drop-off. Matthews
asked if the defendant would pull up a bit more, and he did.
Matthews walked past the defendant toward the suitcase and
asked if he could search it. The defendant "just took a deep
breath, and he put his head down." Matthews testified, "because
of his behavior, his nervousness, . . . , I felt like there was
probably something illegal in the car." Matthews then advised
the defendant that "if he had anything, I would prefer him just
to give it to me than for me to have to search." The defendant,
who already had his head down, pointed his head towards the
suitcase and said, "you can look."
Matthews again advised the defendant he'd rather the
defendant give him whatever he had than to search for it. The
defendant just "nodded at the suitcase again with his head and
said, Go ahead and look, man." Upon opening the suitcase,
Matthews observed some layers of fabric softener on top of some
clothes. Underneath the clothes, he "could see a taped-up
bundle, brick." It contained fifty pounds of marijuana worth
about $45,000.
The defendant testified that Polowy "directed" him to have
a seat in the lobby and went to the front desk when they entered
the hotel. He did not believe he was free to go. He testified
they "directed me to go outside," and "directed me to my car."
- 9 - The defendant said he was probably going to leave if the officer
had not directed him to stay. The trial court rejected this
version specifically.
Police officers are free to approach individuals and ask
questions. "The purpose of the Fourth Amendment is not to
eliminate all contact between the police and the citizenry, but
'to prevent arbitrary and oppressive interference by enforcement
officials with the privacy and personal security of
individuals.'" United States v. Martinez-Fuerte, 428 U.S. 543,
554 (1976). To characterize all such encounters as seizures,
"'would impose wholly unrealistic restrictions upon a wide
variety of legitimate law enforcement practices.'" Parker v.
Commonwealth, 255 Va. 96, 101, 496 S.E.2d 47, 50 (1998) (asking
questions is an effective law enforcement tool) (quoting
Mendenhall, 446 U.S. at 554).
The defendant was headed to the lobby because he was
waiting for a phone call. Officer Polowy approached him and
started asking questions. A citizen's "voluntarily responding
to a police request, . . . , does not negate 'the consensual
nature of the response.'" Grinton v. Commonwealth, 14 Va. App.
846, 849, 419 S.E.2d 860, 862 (1992) (citation omitted). They
continued into the lobby. As long as the citizen's
participation is voluntary, the encounter remains consensual.
See Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d
268, 270 (1989) (no Fourth Amendment violation when police
- 10 - officers approached defendant standing outside an airport
terminal and asked to see his airline ticket and
identification). The defendant was where he wanted to be,
waiting to meet his cousin.
Three uniformed officers eventually arrived at the hotel.
They talked in conversational tones, never surrounded or touched
the defendant, and never pulled their guns. They did not direct
him to do anything, did not request that he stay, or restrain
his movement in any way. "Examples of circumstances that might
indicate a seizure, even where the person did not attempt to
leave, would be 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." Mendenhall, 446 U.S. at 553-54.
Corporal Matthews asked if the defendant had identification
and returned it after checking it. "[A] police request made in
a public place for a person to produce some identification, by
itself, generally does not constitute a Fourth Amendment
seizure." McCain v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d
___, ___ (Record No. 001989, April 20, 2001) (citations
omitted). Even retention of the license would only be one
factor to be considered in the totality of the circumstances.
Commonwealth v. Rice, 28 Va. App. 374, 381-82, 504 S.E.2d 877,
881 (1998).
- 11 - The total encounter took 25 to 30 minutes. The defendant
was a mature, knowledgeable person who exhibited a strong
presence and obvious intellect. He was free to go; he knew he
had a choice. "A seizure does not occur in the absence of
physical force used by a law enforcement officer or a
defendant's submission to an officer's assertion of authority."
McCain, ___ Va. at ___, ___ S.E.2d at ___ (citations omitted).
The police did not assert authority; the defendant did not
submit to it.
In determining if this defendant consented to the search
voluntarily, the trial court made specific observations about
the defendant's demeanor, character, and intellect exhibited at
trial and while testifying. Those traits illuminated the
crucial events surrounding the consent. The trial court
portrayed the "impression the defendant makes on me:"
He maintained a controlled demeanor . . . has a strong presence about him and obvious intelligence.
* * * * * * *
He pondered, reflected, thought about it, implying that he didn't have to let them do this, implying that he knew he had a choice.
The defendant's state of mind demeanor, all fit into reasonably evaluating what a person less mature, perhaps less aware of his rights would have done. . . .
- 12 - And very important is the fact that he elects to open the car. He elects to move it. He elects to facilitate access to the trunk. He is not coerced. He is not without a freedom of choice.
His actions speak along with his eventual consent to search that he knew what he was doing.
I find that he knew he didn't have to consent and . . . made an election to let them search.
He knew what he was doing.
The record supports those findings. The decision of the
trial judge will not be disturbed unless plainly wrong. Greene
v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139
(1994). The Commonwealth met its burden to prove that consent
was in fact freely and voluntarily given. Schneckloth, 412 U.S.
at 222, 248-49.
The appellate court is required to give deference to the
factual finding of the trial court but is to determine
independently whether the constitutional requirements are met.
McCain, ___ Va. at ___, ___ S.E.2d at ___. Under the totality
of the circumstances, a reasonable man would not have felt
restrained; there was no seizure. Under those circumstances,
this defendant gave consent freely and voluntarily; there was
consent to search. Accordingly, the defendant's conviction is
affirmed.
- 13 -