Stacie Lynn Reid v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 13, 2001
• Docket: 0557002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Coleman ∗ Argued at Richmond, Virginia

STACIE LYNN REID MEMORANDUM OPINION ∗∗ BY v. Record No. 0557-00-2 JUDGE SAM W. COLEMAN III MARCH 13, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY David F. Berry, Judge Designate

Anthony Paone, II (Law Offices of Darvin E. Satterwhite, on brief), for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Stacie Lynn Reid was convicted in a bench trial of

possession of cocaine. On appeal, Reid argues that the trial

court erred by denying her motion to suppress because the

cocaine was seized as the result of an unlawful search of her

purse. She further contends that the evidence was inadmissible

because the officers unlawfully detained her and the driver of

the vehicle in which she was riding by failing to release the ∗ Judge Coleman participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2000 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401. ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. driver "forthwith" as required by Code § 19.2-74. We disagree

and affirm the judgment of the trial court.

BACKGROUND

Shortly after 9:00 p.m. on May 22, 1998, Goochland County

Deputy Sheriff James Mann, while on routine patrol, drove

through a convenience store parking lot and observed Kevin

Michie standing beside a gas pump. Mann knew Michie to be a

person who had previously been convicted of weapons, drug, and

assault offenses. Mann waited in his vehicle until Michie got

into his pickup truck and drove away, and then, Mann followed

Michie. Thinking that Michie "might" possess drugs, Mann

followed him, hoping to "find probable cause on which to stop

him." Mann testified that he paced Michie's vehicle for several

miles and observed Michie exceeding the 65 m.p.h. speed limit on

Interstate 64.

Mann stopped the vehicle and informed Michie that he had

exceeded the speed limit. At that point, Chief Deputy Don

Bewkes, who heard on his police radio that Mann had stopped

Michie, arrived at the scene. Bewkes approached the

passenger-side door of Michie's pickup truck where the

defendant, Stacie Reid, was sitting. Bewkes noticed that the

pickup truck displayed a rejection sticker rather than a valid

inspection sticker. Mann informed Michie that he would issue a

- 2 - warning for his exceeding the speed limit and a summons for the

rejection sticker.

Michie signed the summons, and Mann returned Michie's

driving permit and registration card. Mann then asked Michie if

he had any firearms, drugs, or contraband in his truck. Michie

responded that he did not. Mann asked Michie for permission to

search the truck, and Michie refused. Chief Deputy Bewkes then

told Mann that because the vehicle did not have a proper

inspection sticker, the vehicle could be towed. Michie

responded that, if they were going to tow the vehicle, the

deputies could search it. At that point Michie and Reid exited

the vehicle and the deputies "patted [them] down" for "officer

safety."

Mann then requested permission from Reid to search her

purse for weapons. Reid consented to the search. Inside the

purse, Mann found a small zippered pouch which he described as

large enough to hold a penknife. Mann manipulated the pouch

from the outside and felt a hard, metallic object. Mann

testified that, based on his training and experience in

investigating drug cases, the object felt like a device used for

smoking drugs. Mann opened the pouch and found a brass pipe.

Reid admitted that the pipe was hers and that it was used to

smoke marijuana. Mann also found a partially burned marijuana

cigarette in Reid's purse. The smoking pipe was seized and

- 3 - analyzed for drugs; it was found to contain cocaine residue.

Reid was charged with possession of marijuana 1 and possession of

cocaine.

Michie testified that he observed Deputy Mann following him

before being stopped and that he was not speeding. Michie

stated that Mann did request to search the truck and he refused

to give permission. Michie testified that he later gave Mann

permission to search the truck, but only after Mann and Bewkes

discussed having the vehicle towed if Michie withheld

permission. Michie testified that Mann never patted him down.

Michie stated that after Mann searched the truck, Mann

approached Reid, removed her purse from her shoulder, and told

her that he needed to search the purse. Michie testified that

Mann never asked Reid for permission to search her purse.

Michie acknowledged that Mann told Reid that he had found the

pipe.

Reid filed a motion to suppress the evidence consisting of

the pipe and cocaine residue on the ground that it was illegally

seized in violation of the Fourth Amendment, and she further

objected to the admissibility of the evidence based on its being

seized after the officers violated Michie's rights in violation

of Code § 19.2-74. Code § 19.2-74 provides that whenever any

1 The misdemeanor possession of marijuana charge was dismissed.

- 4 - person is detained for a misdemeanor or an offense for which no

jail sentence could be imposed, the officer shall issue a

summons and upon the person's written promise to appear, the

officer "shall forthwith release him from custody." Reid argues

that Mann's failure to forthwith release Michie from custody

resulted in her being illegally detained and the pipe and drug

residue being illegally seized. The trial court denied the

motion to suppress and overruled Reid's objection to the

admissibility of the evidence, finding that she voluntarily

consented to the search of her purse.

ANALYSIS

When we review a trial court's denial of a motion to

suppress, "[w]e view 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).

"[W]e are bound by the trial court's findings of historical fact

unless 'plainly wrong' or without evidence to support them."

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690,

699 (1996)). "However, we consider de novo whether those facts

implicate the Fourth Amendment and, if so, whether the officers

unlawfully infringed upon an area protected by the Fourth

Amendment." Hughes v. Commonwealth, 31 Va. App. 447, 454, 524

- 5 - S.E.2d 155, 159 (2000) (en banc) (citing McGee, 25 Va. App. at

198, 487 S.E.2d at 261). The trial judge expressly ruled that

he found "no reason to doubt the credibility of the officers in

this case." Thus, we resolve any conflict in the evidence in

favor of the Commonwealth.

"A warrantless search is per se unreasonable and violative of the Fourth Amendment of the United States Constitution, subject to certain exceptions." Tipton v. Commonwealth, 18 Va. App. 370, 373, 444 S.E.2d 1, 3 (1994) (citation omitted). However, searches made by law enforcement officers pursuant to a valid consent to search do not implicate the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854 (1973); Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en banc). When relying upon consent as the justification for a search, the Commonwealth must prove, based upon the totality of the circumstances, that the consent was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968); Hairston v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d 668, 669 (1975); Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998).

Hughes, 31 Va. App. at 454, 524 S.E.2d at 159. "[W]hether a

consent to a search was in fact 'voluntary' or was the product

of duress or coercion, express or implied, is a question of fact

to be determined from the totality of all the circumstances."

Schneckloth, 412 U.S. at 227.

- 6 - Although Deputy Mann acknowledged that he began following

Michie in hopes of "find[ing] probable cause on which to stop

him" because he "believed" that Michie "might" possess drugs,

Mann's subjective intent is of no consequence if, in fact, the

deputy observes conduct that constitutes probable cause to

believe that a crime or traffic offense has been committed.

Here, the trial judge accepted as fact Deputy Mann's testimony

that he observed Michie's truck speeding. Thus, Mann lawfully

stopped Michie's vehicle after having determined that Michie was

exceeding the speed limit. See Whren v. United States, 517 U.S.

806, 813 (1996) (finding that "[s]ubjective intentions play no

role in ordinary, probable-cause Fourth Amendment analysis").

While investigating the speeding violation, Mann was alerted to

the fact that the vehicle displayed a rejection sticker.

Mann decided to give Michie a warning for the speeding

violation and to issue him a summons for driving the truck with

a rejection sticker. After Mann returned Michie's driver's

license and registration card, he asked Michie if he had any

contraband, drugs, or firearms in the vehicle. See Ohio v.

Robinette, 519 U.S. 33, 39-40 (1996) (holding that consensual

encounter may begin after legitimate detention has ended even if

detainee is not told he is "free to go"). Mann requested

permission from Michie to search the truck, which Michie

initially denied. Only after Deputies Mann and Bewkes discussed

- 7 - having the truck towed did Michie grant Mann permission to

search the truck. Cf. Reittinger v. Commonwealth, 260 Va. 232,

236-37, 532 S.E.2d 25, 27-28 (2000) (holding that defendant was

unlawfully seized where, after officer completed lawful traffic

stop and informed defendant he was free to go, officer requested

permission three times to search defendant's vehicle). 2

After Michie consented to a search of his truck, Mann asked

Michie and Reid to get out of the vehicle. Mann requested and

received permission from Michie and Reid to conduct a pat-down

search for weapons of each of them. Noticing that Reid had

removed her purse from the vehicle, Mann requested permission to

search it for weapons and Reid consented to the search. Upon

searching Reid's purse, Mann found a small zippered pouch large

enough to hold a penknife. Upon feeling the pouch, Mann felt an

object that he readily identified as a device suitable for

smoking drugs. Believing that the object was contraband, Deputy

Mann lawfully removed the item from the pouch. See Minnesota v.

Dickerson, 508 U.S. 366, 375-76 (1993) (finding that the same

practical considerations justifying a warrantless seizure under

the "plain view" doctrine apply to a warrantless seizure under

the "plain feel" doctrine); see also Pierson v. Commonwealth,

2 Whether Michie voluntarily consented to a search of his truck is not dispositive or germane to the issues before us in Reid's appeal.

- 8 - 16 Va. App. 202, 205, 428 S.E.2d 758, 760 (1993) (upholding

search for weapons of small velvet pouch, "just large enough to

hold an ordinary teabag," as reasonable where officer observed

suspicious and furtive conduct by passenger in trying to secrete

the pouch).

Here, the evidence supports the trial judge's finding that

Reid voluntarily consented to the search of her purse. When Mann

requested permission to search her purse, there was no show of

force or claim of legal right or authority to search the purse

absent consent; Mann did not threaten Reid, and the record does

not show that Reid was deceived as to the deputy's purpose. See

generally Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d

476, 480-81 (1989) (en banc) (stating that police need not warn

the suspect that he has a right to refuse the search, but the

suspect's knowledge of his right to refuse is a factor in

considering the totality of the circumstances). The fact that

Reid's consent to search the purse may have been influenced by

her belief that if she withheld consent the deputies would tow

Michie's truck and leave her stranded on Interstate 64 does not

render her consent legally involuntary.

Regardless of whether the officers had authority to tow and

impound Michie's truck or otherwise prevent him from driving the

vehicle because the vehicle displayed a rejection sticker, Reid

remained free to leave the area and, thus, she was not

- 9 - unlawfully seized. A person is "seized" under the Fourth

Amendment "only if, in view of all of the circumstances

surrounding an incident, a reasonable person would have believed

that [she] was not free to leave." Mendenhall v. United States,

446 U.S. 544, 554 (1980) (plurality opinion). "In order for a

seizure to occur, an individual must be under some physical

restraint by an officer or have submitted to the show of police

authority." Thomas v. Commonwealth, 24 Va. App. 49, 54, 480

S.E.2d 135, 137 (1997) (en banc) (citing California v.

Hodari D., 499 U.S. 621, 626 (1991)). See also Rettinger, 260

Va. at 236, 532 S.E.2d at 27 (stating that whether a person is

seized in violation of the Fourth Amendment is reviewed de novo

on appeal). "'[T]he test for existence of a "show of authority"

is an objective one: not whether the citizen perceived that

[she] was being ordered to restrict [her] movement, but whether

the officer's words and actions would have conveyed that to a

reasonable person.'" Wallace v. Commonwealth, 32 Va. App. 497,

503, 528 S.E.2d 739, 741 (2000) (quoting Hodari D., 499 U.S. at

628).

Among the factors to be considered in determining whether a reasonable person under the circumstances would have believed he or she was not free to ignore the request of the officer are: "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

- 10 - indicating that compliance with the officer's request might be compelled."

Weathers v. Commonwealth, 32 Va. App. 652, 659-60, 529 S.E.2d

847, 850-51 (2000) (emphasis added) (quoting Mendenhall, 446

U.S. at 554).

Here, the officers did not, by their words or actions,

convey a message that Reid was not free to leave by asking her

to exit the vehicle in order to facilitate a search of the

truck. They in no way indicated to Reid that if the vehicle was

towed that she would be detained or would not be free to go.

Irrespective of their authority to detain Michie, in the absence

of his willingness to remain, regardless of the situation as it

pertained to Michie, the officers did not prevent Reid from

leaving and they exercised no legal restraint of her that was

not consensual. Although Reid may have been confronted with

undesirable or inconvenient options if she chose to leave the

scene when the officers searched Michie's truck, or if the

officers had towed the truck or otherwise prevented Michie from

driving away, Reid was under no legal restraint or compulsion to

remain at the scene. Under these circumstances, a reasonable

person would have believed the officers had no legal right to

detain her and that she was free to terminate the encounter,

even though as a practical matter she might not wish to pursue

that course. Accordingly, the trial court did not err by finding

- 11 - that Reid voluntarily consented to the search of her purse and in

denying Reid's motion to suppress.

Reid's contention that the evidence was inadmissible because

the officer did not release Michie "forthwith" as required by Code

§ 19.2-74 after issuing the summons is without merit. We have

stated that "'[h]istorically, searches or seizures made contrary

to provisions contained in Virginia statutes provide no right of

suppression unless the statute supplies that right.'" Troncoso v.

Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991)

(citations omitted); see also Taylor v. Commonwealth, 28 Va. App.

638, 641, 507 S.E.2d 661, 663 (1998) (stating that alleged

violation of Code § 19.2-59.1 does not provide basis for

suppression of illegally obtained evidence); Webber v.

Commonwealth, 26 Va. App. 549, 560-61, 496 S.E.2d 83, 88 (1998)

(applying same principle to alleged violation of Code § 19.2-80);

Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649,

651-52 (applying same principle to alleged violation of Code

§ 19.2-54), aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d

534 (1996). Therefore, assuming that Deputy Mann violated Code

§ 19.2-74 by requesting permission to search the truck and by

failing to release Michie "forthwith" after issuing the summons,

and, assuming further that Reid could properly challenge such a

violation, the statutory violation would not provide a basis for

which to exclude the evidence.

- 12 - Accordingly, we affirm the trial court's denial of Reid's

motion to suppress and her challenge to the admissibility of the

evidence based on a violation of Code § 19.2-74. We, therefore,

affirm.

Affirmed.

- 13 -