Baldwin v. Com., 910512

Decision Date10 January 1992
Docket NumberNo. 910512,910512
PartiesMichael T. BALDWIN v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Ned M. Mikula (Rudy, Evans & Mikula, on brief), for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY, and HASSELL, JJ., and POFF, Senior Justice.

POFF, Senior Justice.

We granted this appeal to consider whether an encounter between a policeman and the appellant, a pedestrian, was a seizure within the scope of the Fourth Amendment of the Constitution of the United States, and if so, whether the policeman had reasonable, articulable cause to suspect the appellant of criminal conduct.

Michael Theodore Baldwin was charged with three offenses, viz., drunk in public, possession of marijuana, and possession of psilocin (hallucinogenic mushrooms). The defendant filed a pre-trial motion to suppress all of the Commonwealth's evidence on the ground that its discovery and seizure were tainted by an unconstitutional stop and search of his person. At a hearing conducted on that motion, the judge of the Circuit Court of Hanover County, sitting without a jury, heard testimony introduced by the defendant. The Commonwealth offered no evidence.

The trial court denied the motion to suppress. Finding that the arresting officer had failed to conduct a field sobriety test on the defendant, the court sustained his plea of not guilty to the charge of drunk in public.

Later, at a bench trial conducted on the drug charges, the Commonwealth's Attorney advised the court that "the defendant is ready to enter a conditional guilty plea today to allow him to appeal the suppression hearing motion to the Court of Appeals" and that "[t]here is also an agreement between the Commonwealth and the defendant as to punishment." The defendant entered the guilty pleas and, upon consideration of the evidence, the trial court convicted the defendant of the two possession offenses as charged in the warrant and in the indictment. Accepting the terms of the plea bargain, the court sentenced the defendant to 10 days in jail on the marijuana conviction, all suspended, and on the psilocin conviction, to 10 years in the penitentiary, all but 60 days suspended conditioned upon supervised probation. The Court of Appeals of Virginia denied the defendant's petition for appeal of the trial court's ruling on the motion to suppress, and we awarded the defendant this appeal.

We will review the facts disclosed by witnesses called by the defendant at the suppression hearing and, under familiar principles, we will consider their testimony in the light most favorable to the Commonwealth. Officer Roger Gilbert testified that another officer "on foot patrol" at Drummer Court had called him to report the possibility of "drunks in public in the parking lot and in the yard." As he drove into the parking lot about 11:30 that night, Gilbert saw a man, later identified as Baldwin, and a woman companion "at the end of the parking lot standing beside a dumpster". Stopping his car "[f]ifteen feet" from the couple, Gilbert "got out of [the] car and went to them." He acknowledged that "maybe [he] did call towards--call for them" as they were "walking back towards apartments". As they were returning "back through to the dumpster area", Gilbert said, he "could notice that Mr. Baldwin was having trouble with his balance and ... could smell the odor of alcoholic beverage about his person". Asked "had he been drinking", Baldwin "stated that he'd had ten beers which is too much." Gilbert added that Baldwin was "staggering", that "[h]is face was flushed", and that he placed him under arrest for being drunk in public. Gilbert discovered and seized the contraband in a search of Baldwin's person incident to that arrest.

Julie Sweetman testified that she and Baldwin had left a party in progress at the apartments "to get some fresh air." As they were "walking back towards the house ... [they] heard a noise. [They] turned around and it was the police car and the officer came out and asked [them] to come towards ... him and he asked [them] some questions and he asked [them] if [they] had any ID." Sweetman said that Baldwin had drunk only "[t]wo beers" at the party and that his words were not "slurred" and he "didn't stumble or anything."

Testifying in his own defense, Baldwin said that he and Sweetman had been standing together at a point near a trash dumpster located at the curb of the parking lot in front of the apartments. He explained that they had "proceeded to go back in the house" and had reached a point "on the sidewalk right near her front door" when they heard the police car enter the parking lot. The officer "put a big floodlight on [them] ... and told [them] to come here, said you two, come over here." Baldwin said that Gilbert then asked him for identification and whether he had been drinking. Baldwin testified that he had consumed only "three or four beers" that night and denied that he had told Gilbert that he had drunk too much.

On appeal, Baldwin argues, first, that the police officer had no objective reason to suspect him of criminal activity when he stopped him as he was walking towards the apartment and, in essence, that this stop constituted a seizure and a violation of his Fourth Amendment rights. Second, the defendant argues that, because the only evidence of drug offenses considered by the trial court was incompetent as fruit of an unlawful seizure, we must reverse his convictions of those offenses and dismiss the warrant and the indictment. Because we hold that the initial encounter did not amount to a seizure within the meaning of the Fourth Amendment, we need not reach the second argument.

The constitutional guarantee Baldwin invokes provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated...." That guarantee applies as well to seizures of the person of an individual as to seizures of the houses, papers, and effects of an individual. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) ("[T]he Fourth Amendment protects people, not places").

The Supreme Court of the United States has identified two types of seizures of the person protected by the Fourth Amendment--arrest and investigatory stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see Zimmerman v. Commonwealth, 234 Va. 609, 611-12, 363 S.E.2d 708, 709 (1988); Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982). An officer may effect a seizure by arrest only when he has probable cause to believe that the person seized has committed or is committing a criminal offense. Dunaway v. New York, 442 U.S. 200, 207-209, 99 S.Ct. 2248, 2253-55, 60 L.Ed.2d 824 (1979). As Terry teaches, however, in the interest of "effective crime prevention and detection ... a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 22, 88 S.Ct. at 1880. In order to justify such a seizure, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. 392 U.S. at 21, 88 S.Ct. at 1880.

Having thus defined the two types of seizures of the person contemplated by the Fourth Amendment, the Terry Court noted:

Obviously, not 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.

Id. at 19 n. 16, 88 S.Ct. at 1879 n. 16.

The principles announced in Terry have been repeatedly reviewed, explicated, and reaffirmed:

We adhere to the view that a person is "seized" only when, by means of physical force or show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. 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." 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.

. . . . .

We conclude that a person has been "seized" within the meaning of the Fourth Amendment 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. 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. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (emphasis added) (footnote and citations omitted).

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him...

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