Commonwealth v. Spencer

• Decision Date: 01 May 2018
• Docket Number: Record No. 1821-17-2
• Court: Virginia Court of Appeals
• Parties: COMMONWEALTH OF VIRGINIA v. ANTONIO JERMAINE SPENCER

COMMONWEALTH OF VIRGINIA v. ANTONIO JERMAINE SPENCER

Record No. 1821-17-2

COURT OF APPEALS OF VIRGINIA

MAY 1, 2018

UNPUBLISHED

Present: Judges Russell, AtLee and Malveaux

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Joi Jeter Taylor, Judge

John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Kelsey M. Bulger, Assistant Public Defender, for appellee.

Pursuant to Code § 19.2-398(A)(2), the Commonwealth of Virginia appeals the circuit court's pretrial order granting Antonio Jermaine Spencer's motion to suppress evidence seized by police prior to his arrest on October 16, 2017. On appeal, the Commonwealth contends that the encounter between Spencer and the police that led to the discovery of first marijuana and subsequently a firearm was consensual, and thus, the circuit court erred in granting the motion to suppress. For the reasons that follow, we reverse the judgment of the trial court.

BACKGROUND

In general, because the circuit court granted Spencer's motion to suppress, we view the evidence in the light most favorable to Spencer, granting him the reasonable inferences that flow from the evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). However, in reaching its decision, the circuit court made certain express factual findingsunfavorable to Spencer and rejected his testimony regarding certain issues. Such express "findings of fact . . . are presumed to be correct," and we are bound by them unless such a "finding is plainly wrong or is without credible evidence to support it." Floyd S. Pike Elec. Contractor, Inc. v. Commissioner, Dep't of Labor & Industry, 222 Va. 317, 322, 281 S.E.2d 804, 807 (1981).

So viewed, the evidence establishes that around 10:30 p.m. on April 20, 2017, Officers Herbert Baer and Cole Kelly of the Richmond Police Department were in uniform and on foot patrol in the Mosby Court area talking to people regarding a double homicide that recently had taken place. They encountered Spencer and another individual walking on the sidewalk. The officers did not draw their weapons, but were carrying flashlights, which they used to illuminate Spencer, his companion, and the area around them.

As the men approached the officers, Baer asked them if they lived on the property. The men said they did not, and Spencer stated that they were walking back to their car to leave the area. Baer asked the men for their identification, and Spencer handed Baer a Virginia identification card, which Baer gave to Kelly. While Kelly was recording appellee's identifying information, Baer continued to talk to Spencer. The tone of the conversation was casual.

During the conversation, Baer saw the white top of a prescription pill bottle in a "side cargo pocket" of Spencer's pants. Baer asked Spencer if he had a prescription for the pill bottle. Spencer replied that he did not.¹

Baer asked Spencer if he could see the pill bottle, and Spencer handed the pill bottle to Baer in response.² The bottle itself, which was blue, did not have a label.³ In handing over the bottle, Spencer did not make any statement as to whether or not Baer could open the bottle. The circuit court found that upon receiving the bottle, Baer "immediately removed the cap and found a green leafy substance inside the bottle." The substance appeared to be marijuana. Baer then patted down Spencer and found a firearm in his pants.

Spencer moved to suppress the evidence that was "seized as a result of the warrantless seizure and search of [Spencer]," arguing that he was seized in violation of the Fourth Amendment and that the subsequent search of the pill bottle and his person also violated the Fourth Amendment. The Commonwealth argued in response that Spencer's encounter with the officers was consensual up to and including Baer's discovery of the marijuana in the pill bottle, and thus, Spencer was neither unlawfully seized nor unlawfully searched.

The circuit court granted the motion to suppress, concluding that, although it began as a consensual encounter, the nature of the officer's interaction with Spencer changed when they requested his identification and he complied. Specifically, the circuit court found "that theencounter was consensual until [Spencer] complied with Officer Baer's request for identification. At that point, [Spencer] was seized as he had submitted to a show of police authority and reasonably believed he was not free to leave while Officer Kelly checked his identification card."

From this conclusion, the circuit court found that Baer's search of the bottle was unlawful because the purportedly impermissible seizure rendered any compliance with Baer's request to see the bottle involuntary.⁴ Alternatively, the court held that, assuming Spencer "voluntarily gave the bottle to the officer, the evidence does not support the Commonwealth's argument that inherent consent to remove the cap existed."

The Commonwealth appeals to this Court, stating as its sole assignment of error that

[t]he trial court erred in suppressing the evidence, namely the firearm recovered during the search incident to arrest, based on its finding that the police officer illegally detained the defendant, illegally possessed and illegally searched the pill bottle containing marijuana, and ultimately unlawfully conducted a search incident to arrest resulting in the firearm's recovery.

ANALYSIS

I. Spencer was not seized for Fourth Amendment purposes until after the discovery of the

marijuana.

In evaluating a claim that a person was seized by police in violation of the Fourth Amendment, a court must first determine the nature of the police-citizen encounter. For the purpose of Fourth Amendment analysis, such encounters have been divided

into three categories. First, there are communications between police officers and citizens that are consensual and, therefore, do not implicate the [F]ourth [A]mendment. Second, there are brief investigatory stops which must be based on specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant a limited intrusion. Third, there arehighly intrusive, full-scale arrests, which must be based on probable cause.

Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988). Here, the Commonwealth does not argue that the officers had either probable cause or reasonable articulable suspicion to justify a detention of Spencer prior to finding the marijuana in the pill bottle; rather, the Commonwealth argues that, until the marijuana was discovered, the encounter was a consensual one that did "not implicate the [F]ourth [A]mendment." Id.

"[W]hether a person has been seized in violation of the Fourth Amendment . . ." or is engaged in a consensual encounter with police is a question that we review de novo. Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). In conducting our review, we defer to the circuit court's finding of historical fact. Id. Thus, circuit courts make final factual determinations regarding what happened, and appellate courts ultimately are responsible for determining the Fourth Amendment significance of those factual determinations.

"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). Ultimately, an encounter is consensual unless "a reasonable person would not feel free to decline an officer's requests or would not feel free to leave . . . ." Bandy v. Commonwealth, 52 Va. App. 510, 516, 664 S.E.2d 519, 522 (2008) (internal quotation marks and citation omitted).⁵

In making this determination, we consider the totality of the circumstances. Harris, 266 Va. at 32, 581 S.E.2d at 209. The Supreme Court has recognized

[v]arious factors . . . as relevant in determining whether a seizure has occurred, including the threatening presence of a number ofpolice officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave.

Id.

Here, the evidence establishes that two citizens were faced with only two officers. No weapons were drawn by the officers, and, by all accounts, the tone of the conversation between Baer and Spencer was collegial. Prior to the discovery of the marijuana, no physical restraint was used, and Baer did not issue commands to Spencer, but rather, only made requests. Although the officers illuminated Spencer, his companion, and the area with flashlights, given the time of night and description of the lighting, the action was reasonable and did not connote a threat or show of force.⁶

Spencer contends (and the trial court found) that the encounter became a seizure once he provided his Virginia identification card to Baer. The trial court found that once this occurred, Spencer "had submitted to a show of police authority and reasonably believed he was not free to leave" so long as the police possessed his identification card.

Absent some other coercive factor not present here, reaching this conclusion is foreclosed by the Virginia Supreme Court's decision in Branham v. Commonwealth, 283 Va. 273, 720 S.E.2d 74 (2012). In Branham, shortly after midnight, three law enforcement officers in two marked police cars encountered Branham while he was parked on a private driveway. Id. at 276-77, 720 S.E.2d at 76. One of the officers "turned his spotlight on" Branham's car, approached the car, and "asked Branham for his driver's license." Id. at 277, 720 S.E.2d at 76.Branham complied with the request, and, while a license check was underway, one of the officers had a conversation with Branham and requested Branham's permission to search...