COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder Argued at Salem, Virginia
ROBERT LAYTON STOCKDALE MEMORANDUM OPINION * BY v. Record No. 1732-95-3 JUDGE SAM W. COLEMAN III OCTOBER 15, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge Vanessa E. Hicks, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Robert Layton Stockdale was convicted in a bench trial for
possession of cocaine in violation of Code § 18.2-50. Stockdale
contends that the trial court erred by denying his motion to
suppress statements he made to the police on the ground that he
was subjected to a custodial interrogation without being advised
of his Miranda rights and by finding that the evidence was sufficient to prove that he constructively possessed cocaine. We
find no error and affirm the defendant's conviction.
I. CUSTODIAL INTERROGATION
The police cannot lawfully conduct a custodial interrogation
until they advise a suspect of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Cherry v. Commonwealth, 14 Va. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. App. 135, 140, 415 S.E.2d 242, 244 (1992). In Miranda, "[t]he
[Supreme] Court defined 'custodial interrogation' as 'questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action
in any significant way.'" Stroud v. Commonwealth, 6 Va. App.
633, 637, 370 S.E.2d 721, 723 (1988) (quoting Miranda, 384 U.S.
at 444). [A] suspect is "in custody" when the objective circumstances would lead a reasonable person to believe he was under arrest, thereby subjecting him or her to pressure impairing the free exercise of the privilege against self-incrimination. The circumstances may include factors such as the familiarity or neutrality of the surroundings, the number of officers present, the degree of physical restraint, the duration and character of the interrogation, the presence of probable cause to arrest, and whether the suspect has become the focus of the investigation.
Cherry, 14 Va. App. at 140, 415 S.E.2d at 245. The usual traffic
stop or a brief Terry-type investigative detention does not
involve the degree of restraint that raises concern about
intimidation or abuse which Miranda was designed to protect. Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984).
Here, Officers M. S. Murphy and J. L. Hise were on patrol at
approximately 1:20 a.m. when they observed a truck parked in an
area known as a "high drug, high crime, open-air drug market."
The officers decided to investigate and to inquire about the
identity and activity of the truck's occupants. The officers
pulled their patrol car behind the truck, but did not activate
- 2 - the patrol car's lights or siren.
After talking with the defendant, who was sitting in the
passenger's seat, and determining that he owned the truck,
Officer Murphy requested the defendant's consent to search the
truck for illegal drugs and firearms. According to Officer
Murphy, he advised the defendant that he was free to leave.
Nevertheless, the defendant consented to the search and exited
the vehicle. Officer Murphy conducted a pat-down search of the
defendant and asked the defendant to stand at the rear of the
truck. The defendant was not handcuffed or restrained in any
manner. Officer Hise searched the truck and found a "homemade
smoking device made from a Rexal Ibuprofen bottle" in a pouch
located on the part of the driver's seat below the driver's legs.
Officer Murphy showed the pipe to the defendant and asked him
"whose pipe it was." According to Murphy, the defendant replied
that he "and his wife had had problems some months back with
crack." The defendant further stated that "the pipe belonged to
him, but . . . it had been months since it had been used."
Officer Murphy observed what appeared to be "burnt residue"
inside the pipe, but he had no means available to field test the
residue. The officer seized the pipe based upon his belief that
it contained cocaine residue but he did not arrest the defendant.
When the lab analysis proved positive for cocaine, the defendant
was arrested and charged.
- 3 - The defendant contends that he was subjected to a custodial
interrogation when the officers found the pipe in the truck and
Officer Murphy asked him who owned the pipe. Thus, he asserts
that his inculpatory response should have been suppressed because
he was not given the Miranda warnings. We disagree. If an officer has a reasonable, articulable basis to suspect that an individual has committed or is about to commit a crime, the officer is justified in briefly detaining the suspect and asking him a limited number of questions without giving Miranda warnings in order to quell or confirm the officer's suspicion of criminal activity.
Cherry, 14 Va. App. at 140, 415 S.E.2d at 244. Here, the
officers were justified in briefly detaining and questioning the
defendant after conducting a consensual search of the truck and
finding a "homemade smoking device which [they] believed was used
to ingest some type of illegal drug." Although other officers
were at the scene, Officers Murphy and Hise were the only ones
who approached the truck. Neither officer drew his weapon or
attempted to physically restrain the defendant in any manner. Cf. Wass v. Commonwealth, 5 Va. App. 27, 34, 359 S.E.2d 836, 840
(1987) (noting that twelve armed police officers arrived in
trucks and a helicopter to execute a search warrant, surrounded
Wass's house, and threatened to kill one of Wass's dogs if he did
not control it). Furthermore, Murphy merely asked the defendant
who owned the pipe. Murphy did not arrest or intend to arrest
the defendant before the pipe could be analyzed, even though
Murphy suspected that the pipe contained drug residue.
- 4 - A seizure does not occur and the Fourth Amendment is not
implicated when the police merely approach a vehicle that is
parked in a public area and ask the occupants for identification
information. Carson v. Commonwealth, 12 Va. App. 497, 500, 404
S.E.2d 919, 920, aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412
(1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992). If no
"seizure" occurred in such situation that would implicate the
Fourth Amendment privacy protections, then certainly such a
suspect would not have been restrained to the degree that he
would have been "in custody" requiring Miranda warnings. Berkemer, 468 U.S. at 439-40. Where, as part of an investigatory
detention or consensual search, an officer merely asks about the
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder Argued at Salem, Virginia
ROBERT LAYTON STOCKDALE MEMORANDUM OPINION * BY v. Record No. 1732-95-3 JUDGE SAM W. COLEMAN III OCTOBER 15, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge Vanessa E. Hicks, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Robert Layton Stockdale was convicted in a bench trial for
possession of cocaine in violation of Code § 18.2-50. Stockdale
contends that the trial court erred by denying his motion to
suppress statements he made to the police on the ground that he
was subjected to a custodial interrogation without being advised
of his Miranda rights and by finding that the evidence was sufficient to prove that he constructively possessed cocaine. We
find no error and affirm the defendant's conviction.
I. CUSTODIAL INTERROGATION
The police cannot lawfully conduct a custodial interrogation
until they advise a suspect of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Cherry v. Commonwealth, 14 Va. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. App. 135, 140, 415 S.E.2d 242, 244 (1992). In Miranda, "[t]he
[Supreme] Court defined 'custodial interrogation' as 'questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action
in any significant way.'" Stroud v. Commonwealth, 6 Va. App.
633, 637, 370 S.E.2d 721, 723 (1988) (quoting Miranda, 384 U.S.
at 444). [A] suspect is "in custody" when the objective circumstances would lead a reasonable person to believe he was under arrest, thereby subjecting him or her to pressure impairing the free exercise of the privilege against self-incrimination. The circumstances may include factors such as the familiarity or neutrality of the surroundings, the number of officers present, the degree of physical restraint, the duration and character of the interrogation, the presence of probable cause to arrest, and whether the suspect has become the focus of the investigation.
Cherry, 14 Va. App. at 140, 415 S.E.2d at 245. The usual traffic
stop or a brief Terry-type investigative detention does not
involve the degree of restraint that raises concern about
intimidation or abuse which Miranda was designed to protect. Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984).
Here, Officers M. S. Murphy and J. L. Hise were on patrol at
approximately 1:20 a.m. when they observed a truck parked in an
area known as a "high drug, high crime, open-air drug market."
The officers decided to investigate and to inquire about the
identity and activity of the truck's occupants. The officers
pulled their patrol car behind the truck, but did not activate
- 2 - the patrol car's lights or siren.
After talking with the defendant, who was sitting in the
passenger's seat, and determining that he owned the truck,
Officer Murphy requested the defendant's consent to search the
truck for illegal drugs and firearms. According to Officer
Murphy, he advised the defendant that he was free to leave.
Nevertheless, the defendant consented to the search and exited
the vehicle. Officer Murphy conducted a pat-down search of the
defendant and asked the defendant to stand at the rear of the
truck. The defendant was not handcuffed or restrained in any
manner. Officer Hise searched the truck and found a "homemade
smoking device made from a Rexal Ibuprofen bottle" in a pouch
located on the part of the driver's seat below the driver's legs.
Officer Murphy showed the pipe to the defendant and asked him
"whose pipe it was." According to Murphy, the defendant replied
that he "and his wife had had problems some months back with
crack." The defendant further stated that "the pipe belonged to
him, but . . . it had been months since it had been used."
Officer Murphy observed what appeared to be "burnt residue"
inside the pipe, but he had no means available to field test the
residue. The officer seized the pipe based upon his belief that
it contained cocaine residue but he did not arrest the defendant.
When the lab analysis proved positive for cocaine, the defendant
was arrested and charged.
- 3 - The defendant contends that he was subjected to a custodial
interrogation when the officers found the pipe in the truck and
Officer Murphy asked him who owned the pipe. Thus, he asserts
that his inculpatory response should have been suppressed because
he was not given the Miranda warnings. We disagree. If an officer has a reasonable, articulable basis to suspect that an individual has committed or is about to commit a crime, the officer is justified in briefly detaining the suspect and asking him a limited number of questions without giving Miranda warnings in order to quell or confirm the officer's suspicion of criminal activity.
Cherry, 14 Va. App. at 140, 415 S.E.2d at 244. Here, the
officers were justified in briefly detaining and questioning the
defendant after conducting a consensual search of the truck and
finding a "homemade smoking device which [they] believed was used
to ingest some type of illegal drug." Although other officers
were at the scene, Officers Murphy and Hise were the only ones
who approached the truck. Neither officer drew his weapon or
attempted to physically restrain the defendant in any manner. Cf. Wass v. Commonwealth, 5 Va. App. 27, 34, 359 S.E.2d 836, 840
(1987) (noting that twelve armed police officers arrived in
trucks and a helicopter to execute a search warrant, surrounded
Wass's house, and threatened to kill one of Wass's dogs if he did
not control it). Furthermore, Murphy merely asked the defendant
who owned the pipe. Murphy did not arrest or intend to arrest
the defendant before the pipe could be analyzed, even though
Murphy suspected that the pipe contained drug residue.
- 4 - A seizure does not occur and the Fourth Amendment is not
implicated when the police merely approach a vehicle that is
parked in a public area and ask the occupants for identification
information. Carson v. Commonwealth, 12 Va. App. 497, 500, 404
S.E.2d 919, 920, aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412
(1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992). If no
"seizure" occurred in such situation that would implicate the
Fourth Amendment privacy protections, then certainly such a
suspect would not have been restrained to the degree that he
would have been "in custody" requiring Miranda warnings. Berkemer, 468 U.S. at 439-40. Where, as part of an investigatory
detention or consensual search, an officer merely asks about the
ownership of a device that is not itself illegal, the detention
does not become tantamount to arrest. Under these circumstances,
a reasonable person would not have concluded that he was in
custody or being arrested because a pipe that might be used to
smoke drugs was found during a consensual search. Thus, the
trial court did not err by overruling the defendant's motion to
suppress the statements he made to Officer Murphy.
II. SUFFICIENCY OF THE EVIDENCE
"To sustain a conviction for possession of a controlled
substance in violation of Code § 18.2-250, the evidence must
prove beyond a reasonable doubt that the accused was aware of the
presence and character of the controlled substance." Jones v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 (1994).
- 5 - Although proximity to a controlled substance is not sufficient,
standing alone, to prove that an accused is aware of the presence
and character of drugs, it is one factor for the fact finder to
consider. Id.
Here, the defendant, who was in close proximity to the
cocaine, was also the registered owner of the truck in which the
cocaine was found. See Glenn v. Commonwealth, 10 Va. App. 150,
154, 390 S.E.2d 505, 507 (1990). Furthermore, the pipe was in
the seat cover pouch under the driver's seat in which the
defendant/owner was one of the only two occupants. But, most
importantly, the defendant admitted to Officer Murphy that he
owned the pipe and that he had used crack cocaine in the past. See May v. Commonwealth, 3 Va. App. 348, 356, 349 S.E.2d 428, 432
(1986); see also Glenn, 10 Va. App. at 154, 390 S.E.2d at 507.
The trial court could reasonably infer from these declarations
"that [the defendant] knew of the existence of [the cocaine
residue] at the place where [it] was found," and was consciously
exercising dominion and control of it. Jones, 17 Va. App. at
574, 439 S.E.2d at 864 (quoting Hairston v. Commonwealth, 5 Va.
App. 183, 186, 360 S.E.2d 893, 895 (1987) (quoting People v.
Pigrenet, 26 Ill.2d 224, 227, 186 N.E.2d 306, 308 (1962))).
Although the drug residue in the pipe may not have been a usable
amount of cocaine, knowing possession of only a modicum of an
illegal substance is sufficient for a conviction. Robbs v. Commonwealth, 211 Va. 153, 154-55, 176 S.E.2d 429, 430 (1970).
- 6 - The evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to prove beyond a reasonable doubt
that the defendant constructively possessed the cocaine found in
the truck.
For the foregoing reasons, we affirm the defendant's
conviction.
Affirmed.
- 7 -