Commonwealth v. Crooks
| Decision Date | 15 November 2012 |
| Docket Number | Record No. 1113-12-2 |
| Parties | COMMONWEALTH OF VIRGINIA v. DENISE STACY-ANN CROOKS |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Elder, Frank and Huff
Argued by teleconference
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Steven A. Witmer, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellant.
John H. Click, Jr. (Benjamin R. Rand; Blackburn, Conte, Schilling & Click, P.C., on brief), for appellee.
Pursuant to Code § 19.2-398(A)(2), the Commonwealth appeals the Circuit Court of Brunswick County's ("trial court") pretrial order granting Denise Stacy-Ann Crooks's ("appellee") motion to suppress the evidence seized from her vehicle. On appeal, the Commonwealth argues that the trial court erred 1) in finding that appellee was "seized" when questioned by Sergeant Cedric Macklin ("Macklin"), with the Brunswick County Sheriff's Department, and that a reasonable person would not have felt free to leave or to disregard Macklin's questions, and 2) in finding that appellee's consent to search was illegally obtained and not voluntary.1 For the following reasons, this Court affirms the trial court's determination.
"Upon appeal from a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the prevailing party, in this instance appellee, granting to [her] all reasonable inferences fairly deducible from the evidence." Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901 (1995) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)). "On appeal, we consider the entire record in determining whether the trial court properly [ruled on] [appellee]'s motion to suppress." Patterson v. Commonwealth, 17 Va. App. 644, 648, 440 S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 543 (1987)). So viewed, the evidence is as follows.
Around 1:00 a.m. on September 3, 2011, Macklin stopped appellee, who was driving northbound on Interstate 85, for speeding 83 miles per hour in a posted 70 miles-per-hour zone. Macklin was driving a police vehicle and was wearing a uniform, displaying his badge of authority, and carrying his service weapon in a holster at his side. Another uniformed, off-duty deputy was riding along with Macklin and stood behind the passenger side of appellee's car during the traffic stop. The emergency equipment on the police vehicle was activated during Macklin's exchange with appellee, and traffic was light at that time of the morning.
When Macklin initially activated his emergency lights, appellee pulled over to the side of the road and stopped her car while keeping the motor running. Macklin approached appellee's window and noticed three children in the back seat, one of whom was improperly restrained, and three cellular telephones in the console next to the driver's seat. Macklin explained to appellee that he had pulled her over for speeding and asked appellee for her driver's license andregistration. Appellee gave Macklin her Georgia driver's license and a rental agreement since she had rented the vehicle. Macklin then asked her where she was going. Appellee initially responded that she was traveling to Chesterfield where she lived, but later admitted that she actually lived in Georgia.
Macklin then went back to his vehicle to check the validity of appellee's driver's license, leaving appellee in her vehicle with it still running. Macklin returned to appellee's vehicle after finding that appellee's driver's license was valid, handed appellee her driver's license and rental agreement, and explained that he was only going to give her a warning while advising her to slow down. After appellee agreed to drive slower, Macklin thanked her.
While still standing at appellee's driver side window, Macklin asked appellee, "[o]h, by the way, do you mind if I ask you a question?"2 Appellee replied that he could. Macklin then proceeded to explain that there was a problem on Interstate 85 with drug trafficking and weapons and asked appellee if she had anything illegal in her vehicle. Appellee answered that she did not. Macklin then asked appellee if he could search her vehicle, to which appellee responded, "Yes, sure you can." Macklin subsequently searched the vehicle and found two large brown boxes in the trunk, each containing a large quantity of marijuana. During the exchange between Macklinand appellee regarding drugs and the subsequent search, the other off-duty officer had returned to the police vehicle and did not participate in the search.
On October 27, 2011, appellee filed a motion to suppress any and all evidence seized as a result of the stop, seizure, search, or interrogation of appellee on September 3, 2011. Appellee filed a brief in support of her motion to suppress on March 8, 2012, and the Commonwealth filed a response on or about March 15, 2012. The trial court then held a hearing on appellee's motion to suppress on May 4, 2012, and indicated at the conclusion of the hearing that it would issue its ruling before August 2012.
On June 6, 2012, the trial court issued its ruling by memorandum, and found that appellee was seized when Macklin began questioning her while standing "immediately adjacent" to the front driver's side window. The trial court further found that "[a] reasonable person in [appellee's] position would not have felt free to leave or disregard the [d]eputy's questions under such circumstances." Specifically, the trial court found "it difficult to conclude that the average citizen, after being first told 'thank you' only to be immediately questioned about contraband, followed by a request to search the citizen's car, would feel free to refuse the request or to leave the scene." Based on its finding that appellee's consent for Macklin to search the vehicle was the product of an illegal seizure, the trial court found that the consent was invalid and suppressed the evidence of marijuana as the fruit of an illegal seizure.
On June 15, 2012, the trial court entered the order granting appellee's motion to suppress the evidence pursuant to the June 6, 2012 memorandum. The Commonwealth subsequently filed a motion to reconsider on June 20, 2012 on the basis that the trial court erred in applying the fruit of the poisonous tree doctrine and excluding the evidence seized. The Commonwealth also filed its notice of appeal on June 20, 2012. The trial court, however, never ruled on the motion to reconsider. This appeal followed.
A question of whether "'evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal.'" Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466 (2011) (quoting Jones v. Commonwealth, 277 Va. 171, 177, 670 S.E.2d 727, 731 (2009)). "'In making such a determination, we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment.'" Id. (quoting Jones, 277 Va. at 177, 670 S.E.2d at 731).
On appeal, the Commonwealth argues that the trial court erred 1) in finding that appellee was "seized" when questioned by Macklin and that a reasonable person would not have felt free to leave or to disregard Macklin's questions, and 2) in finding that appellee's consent to search was illegally obtained and not voluntary.
On appeal, the Commonwealth does not contend that Macklin had probable cause or even reasonable, articulable suspicion to search the vehicle, and the legality of the initial traffic stop is not at issue. Therefore, the focus in this appeal is on whether appellee was illegally seized, as the trial court held and appellee asserts, when Macklin continued to question appellee after he returned her documentation and when she gave consent to search the vehicle, or whether it was a voluntary encounter as the Commonwealth argues.
"The Fourth Amendment . . . protects '[the] right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" Johnson v. Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143, 147 (1998) () (quoting U.S. Const. amend IV). McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (en banc) (internal citations omitted) (citing Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 869-70 (1992); Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988)). "Next, there are brief investigatory stops, commonly referred to as 'Terry' stops, which must be based upon reasonable, articulable suspicion that criminal activity is or may be afoot." Id. (citing United States v. Sokolow, 490 U.S. 1, 7 (1939)). "Finally, there are 'highly intrusive, full-scale arrests' or searches which must be based upon probable cause to believe that a crime has been committed by the suspect." Id. (citing Sokolow, 490 U.S. at 7).
Bandy v. Commonwealth, 52 Va. App. 510, 516, 664 S.E.2d 519, 522 (2008) (quoting Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003)).
The Commonwealth first argues that the trial court erred in finding that appellee was "seized" when questioned by Macklin and that a reasonable person would not have felt free to leave or to disregard Macklin's questions. Specifically,...
To continue reading
Request your trial