Bolden v. Com., Record No. 011407.
| Decision Date | 19 April 2002 |
| Docket Number | Record No. 011407. |
| Court | Virginia Supreme Court |
| Parties | Michael Jerome BOLDEN v. COMMONWEALTH of Virginia. |
Marvin D. Miller, Alexandria, for appellant.
Marla Graff Decker, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.
Present: All the Justices.
Opinion by Chief Justice CARRICO.
The question for decision in this drug case is whether the Court of Appeals erred in affirming the trial court's denial of a motion to suppress evidence obtained in the search of a suitcase located in the trunk of a motor vehicle. The question stems from a prosecution of Michael Jerome Bolden in the Circuit Court of Arlington County for the possession of more than five pounds of marijuana with the intent to distribute in violation of Code § 18.2-248.1.1
Following denial of the motion to suppress, the trial court, sitting without a jury, convicted Bolden of the possession charge and sentenced him to serve twelve years in the penitentiary, with nine years suspended. In an unpublished opinion, the Court of Appeals affirmed the conviction. We awarded Bolden this appeal.2
In his motion, Bolden sought to suppress "any and all evidence obtained directly or indirectly as the result of the illegal seizure of him and his effects on or about the 29th day of December 1999." In a pretrial hearing on the motion, the evidence showed that, on the date alleged, Officer Garrett Daniel Polowy of the Arlington County Police Department, while on routine patrol in a marked police cruiser, observed the driver of a gold-colored automobile acting suspiciously. He followed the car but lost sight of it briefly and then found it parked in front of an Oriental rug store located next door to an Econo Lodge hotel. Polowy pulled into the hotel parking lot to keep the gold car under surveillance.
While seated in his cruiser, Polowy observed a man, who turned out to be Bolden, walking toward the hotel from the vicinity of the gold car. Bolden seemed to be "caught... off guard" when he saw Polowy, who was in uniform; Bolden paused for a moment, and then walked toward the hotel entrance. Polowy left his cruiser, walked up to Bolden, and said, "Hi, how are you doing?" Bolden "kind of nodded his head in response." Polowy asked Bolden why he was in the area and if he had seen the gold car or knew who. had occupied it. Bolden said he had been a guest at the hotel, and he disclaimed any knowledge of the gold car. The two then walked into the hotel together.
Bolden took a seat in a chair directly in front of the doors of the small lobby. Polowy asked the clerk at the front desk whether Bolden was a guest at the hotel, and she stated Bolden had been a guest but "had just checked out." Polowy then radioed a fellow police officer, Corporal Dean Matthews, to come to the hotel. While awaiting Matthews' arrival, Polowy and Bolden engaged in "small talk" about the gold car. In the same period, a telephone call for Bolden came into the front desk. He left his seat, and the clerk handed him the cordless telephone. He engaged in a conversation for 20 to 30 seconds and returned to his chair.
Matthews arrived shortly, in uniform, and Polowy took him aside and briefed him on the situation. Matthews then walked up to Bolden, who was still sitting in the chair, and began talking to him. Bolden told Matthews he was "just ... waiting for a cousin ... to come and show him where to go because he was going to the cousin's house." Matthews ultimately asked to see Bolden's identification, and Bolden produced a New Mexico driver's license. When Bolden produced the license, he stood up and then took a step or two and leaned against a railing in the lobby while he and Matthews talked. After the license "checked out," Matthews returned it to Bolden.
In further questioning, Matthews asked Bolden about his relationship with the gold car, about when he got to the hotel, about where he was going, and about the cousin who was coming to pick him up. Matthews then asked Bolden whether he would consent to be searched there in the lobby, and Bolden replied affirmatively. Polowy searched Bolden, and "no contraband or anything illegal was found."
A minute or two after Matthews arrived at the hotel, another uniformed officer, Jason Bryk, appeared, and he joined Polowy and Matthews in the hotel lobby. All three officers were armed, but the weapons were never removed from their holsters during the encounter with Bolden.
During Matthews' questioning of Bolden, another telephone call came into the hotel for Bolden. Instead of handing the telephone to Bolden, the clerk handed it to Polowy, who said to the caller, The caller then hung up.
After the questioning of Bolden had continued for some 15 to 20 minutes, the hotel manager asked the officers to move out of the lobby, and Matthews asked Bolden to "step outside." The officers "turned and walked, and [Bolden] came with [them]." Standing "just outside the front doors," Matthews continued questioning Bolden.
Matthews asked Bolden where his luggage was, and Bolden said it was in his car, pointing to a vehicle located on the hotel parking lot. The officers ran a record check on the car but apparently found nothing incriminating.
Matthews looked inside the car, saw a green bag sitting on the rear seat, and asked Bolden if the bag was his. Bolden responded affirmatively, and when Matthews asked him if there were any guns or drugs in the bag, Bolden replied "no." Matthews then asked Bolden for permission to search the bag, and Bolden "just took a deep breath and put his head straight down to the ground, [and] said nothing."
Matthews next asked Bolden whether there was anything else in the car, and Bolden said there was a suitcase in the trunk. Matthews inquired whether there were "any guns, drugs, or anything like that in the suitcase," and Bolden said "no." Matthews then asked if he "could open the trunk." Bolden responded by "pulling the keys" out of his pocket and opening the trunk. When Matthews asked if he could take the suitcase out of the trunk and search it, Bolden stated "he would rather it stay in the trunk."
Because there was a "drop-off" behind the car where it was sitting at the end of the parking lot, it was difficult to reach inside the trunk, and Bolden "volunteered to move the car ahead so that [the officers] could search the suitcase." Bolden got in the car, started it with his key, and "pulled it up a little bit," but the move proved to be insufficient, and, at Matthews' request, Bolden "started the car back up [and] pulled it up a little bit further."
Bolden testified that when he moved his car, one of the officers, at Matthews' direction, positioned his cruiser in front of Bolden's vehicle. Bolden also testified that another officer had placed his cruiser at the exit to the parking lot.
After Bolden moved his car, Matthews asked Bolden for permission to search the suitcase, and Bolden "just took a deep breath, and ... put his head down." Matthews then said that if Bolden had any contraband, he, Matthews, would prefer that Bolden just give it up, rather than requiring Matthews to conduct a search. Again, Bolden "just put his head down," but finally told Matthews "[y]ou can look."
After a brief discourse by Matthews about the importance of honesty and his preference for Bolden to give him what was in the suitcase, Bolden said, "Go ahead and look, man." Matthews opened the suitcase and found a taped-up bundle of marijuana. The officers then arrested Bolden and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Bolden agreed to speak with Matthews and admitted the bundle contained fifty pounds of marijuana worth about $45,000. All in all, the officers' encounter with Bolden consumed approximately 30 minutes.
In denying Bolden's motion to suppress, the trial court found that Bolden was "a mature, knowledgeable person" who "maintained a controlled demeanor and in [the] courtroom ... showed that he has a strong presence about him and obvious intelligence." The court further found that Bolden "thought about" whether to give the police permission to search, "implying that he knew he had a choice"; the "concept that he was stopped from going about his business is rebutted by the fact that he was where he wanted to be"; "he wanted to be at the Econo Lodge waiting for [his cousin] to come to him"; "very important is the fact that he elects to open the car . . . elects to move it... elects to facilitate access to the trunk"; he "makes the subtle distinction between you can't look at the...
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