Barkley v. Com.

• Decision Date: 11 February 2003
• Docket Number: Record No. 2885-01-2.
• Citation: 39 Va. App. 682,576 S.E.2d 234
• Court: Virginia Court of Appeals
• Parties: Bobby Ray BARKLEY v. COMMONWEALTH of Virginia.

576 S.E.2d 234

39 Va. App. 682

Bobby Ray BARKLEY v. COMMONWEALTH of Virginia.

Record No. 2885-01-2.

Court of Appeals of Virginia, Richmond.

February 11, 2003.

Matthew T. Paulk, Richmond, (Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FRANK, FELTON and KELSEY, JJ.

D. ARTHUR KELSEY, Judge.

The trial court convicted the appellant, Bobby Ray Barkley, of possession of marijuana with intent to distribute and of maintaining a common nuisance. On appeal, Barkley claims that the trial court erred by not suppressing evidence found during a search of his premises. The search, Barkley argues, followed an unlawful seizure of him by the police. In particular, Barkley contends that the officers performed a coercive investigatory stop at his premises without first obtaining a reasonable, articulable suspicion that he may be engaged in criminal activity. Finding no merit in either argument, we affirm the trial court's denial of the suppression motion.

I.

On appeal from a denial of a suppression motion, we examine the evidence in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002).

On March 9, 2001, Officers Wendell Miracle and Steve Drew of the Richmond Police Department visited 3214 West Franklin Street, Apartment B, to investigate a Crime Stoppers' tip. The tip alleged that male and female juveniles at that location were using and selling marijuana and cocaine. Sergeant Drew, dressed in plain clothes and wearing a chain displaying his badge, and Sergeant Miracle, wearing his police uniform, parked in front of Apartment B in their marked police car. The officers then approached the front door of the apartment and knocked.

Bobby Ray Barkley answered the door, came out to the front porch with the officers, and asked the officers how he could help them. Sergeant Drew informed Barkley that they were there to "investigate a complaint on the residence . . . the building itself or the home itself." After informing Barkley that he was not under arrest, Drew explained that the police had received a tip that "possible illegal activity was going on there at the residence," particularly the sale and use of illegal drugs. To put Barkley "at ease" and to ensure that he was aware of his rights, Drew then informed him of his Miranda rights. Barkley, in response, acknowledged that he understood his rights. He then admitted to the officers that he occasionally smoked marijuana, but claimed that no one sold drugs from the apartment.

While the three men talked on Barkley's front porch, several people walked back and forth in front of the apartment, glancing at the officers and Barkley as they did so. Barkley commented that his neighbors were "nosey," so Drew asked if the conversation could continue inside the apartment. Without hesitation, Barkley allowed the officers in the apartment.

Once inside, Barkley led the officers directly to his bedroom, which also served as a den. Drew continued to explain the purpose of their visit and again asked Barkley whether he was aware of any illegal activity at the residence. During this discussion, both officers noticed a marijuana "stem" plainly appearing in an ashtray. The officers brought the stem to Barkley's attention and again informed him of his Miranda rights. Barkley reiterated that he occasionally used marijuana. He then removed a bag containing marijuana from his dresser.

Drew, believing that additional contraband was located within the apartment, asked Barkley if he could search the rest of the residence. Barkley asked the officers if he had to allow the search. Drew acknowledged that Barkley did not have to, but stated that the officers' observations gave them probable cause to obtain a search warrant for the premises. Barkley gave permission, claiming that the officers would probably "go ahead and search" regardless of his answer. Sensing that Barkley was apprehensive, Drew explained that a search would not occur without his consent or a warrant. Further, Drew told Barkley that he remained free to withhold his consent. Barkley then told the officers to "go ahead and search." The officers asked Barkley "a couple more times" whether he consented. After determining that Barkley's consent was voluntary, the officers performed the search and recovered a total of one and one-half pounds of marijuana.

Before trial, Barkley filed a motion to suppress the evidence gathered during the search of his apartment. The officers' initial encounter at Barkley's apartment was a Terry stop, Barkley argued, and the officers' absence of a reasonable suspicion invalidated the subsequent search. Barkley specifically claimed that the officers' conduct amounted to a show of force, which would have led any reasonable person in his position to believe that he was being detained. Finding the officers' conduct reasonable, the trial court disagreed and denied the motion to suppress.

The trial court convicted Barkley of possession of marijuana with the intent to distribute in violation of Code § 18.2-248.1 and of maintaining a common nuisance in violation of Code § 18.2-258. Barkley was sentenced to ten years for the marijuana charge and twelve months for the nuisance charge. The trial court suspended six years of the possession charge and six months of the nuisance charge. Barkley now appeals, claiming that the trial court erred by denying his motion to suppress.

II.

Though the ultimate question whether the officers' conduct violated the Fourth Amendment triggers de novo scrutiny on appeal, we defer to the trial court's findings of "historical fact" and give "due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Davis v. Commonwealth, 37 Va.App. 421, 429, 559 S.E.2d 374, 378 (2002) (citing Neal v. Commonwealth, 27 Va.App. 233, 237, 498 S.E.2d 422, 424 (1998)). We examine the trial court's factual findings only to determine if they are plainly wrong or devoid of supporting evidence. See Mier v. Commonwealth, 12 Va.App. 827, 828, 407 S.E.2d 342, 343 (1991).

In addition, the appellant must show that the trial court's decision "constituted reversible error." McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citations omitted); see also Davis, 37 Va.App. at 429-30, 559 S.E.2d at 378. "Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied to the facts." Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); Oliver v. Commonwealth, 35 Va.App. 286, 297, 544 S.E.2d 870, 875 (2001) ("The trial court's judgment is presumed to be correct."); Dunn v. Commonwealth, 20 Va.App. 217, 219, 456 S.E.2d 135, 136 (1995).

III.

A.

Barkley admits that the police officers had the right to visit his property, but he contends that three separate aspects of the visit transformed the encounter into an unconstitutional seizure. First, Barkley claims that the officers seized him by implying that he was participating in drug activity. This veiled accusation, Barkley argues, would compel any reasonable person to submit to the officers' questioning. Second, Barkley argues that the officers' appearance and conduct amounted to a show of force that negated his ability to walk away. Finally, Barkley contends that the officer's reading of his Miranda rights indicates that he had been seized. This stop was unlawful, Barkley then concludes, because the officers did not reasonably suspect his involvement in criminal activity. Finding that the officers' conduct did not convert the consensual encounter into a seizure, we disagree.

The Fourth Amendment "does not proscribe all seizures, only those that are `unreasonable.'" Hodnett v. Commonwealth, 32 Va.App. 684, 690, 530 S.E.2d 433, 436 (2000) (quoting Welshman v. Commonwealth, 28 Va.App. 20, 30, 502 S.E.2d 122, 126-27 (1998) (en banc)); see also Hamlin v. Commonwealth, 33 Va.App. 494, 499, 534 S.E.2d 363, 365 (2000). The Constitution simply "does not proscribe reasonable searches and seizures." Murphy v. Commonwealth, 37 Va.App. 556, 564, 559 S.E.2d 890, 893 (2002).

With regard to seizures, reasonableness depends largely on the extent of the individual's loss of freedom compared to the officer's level of suspicion of criminality against the individual. Officers performing a full custodial arrest, for instance, must have probable cause. See Ross v. Commonwealth, 35 Va.App. 103, 105, 542 S.E.2d 819, 820 (2001). For an investigatory stop, officers need only articulate a reasonable suspicion that criminal activity "may be afoot." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). These requirements ensure that an individual's liberty is compromised only for a legitimate reason. Id.; Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Not all interactions between law enforcement and citizens require the police to suspect the individual's participation in a criminal activity. Officers need not have any particularized suspicion, for example, to approach "individuals on the street or in other public places" and then put "questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 2110, 153 L.Ed.2d 242 (2002). Provided the officer refrains from inducing "cooperation by coercive means," he needs no suspicion of criminality to "pose questions, ask for identification, and request consent to search luggage." Id. (citing Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)) (citations omitted); see also McLellan v. Commonwealth, 37 Va.App 144, 151, 554...