Davis v. Com., No. 0020-01-1.

Docket NºNo. 0020-01-1.
Citation559 S.E.2d 374, 37 Va. App. 421
Case DateFebruary 05, 2002
CourtCourt of Appeals of Virginia

559 S.E.2d 374
37 Va.
App. 421

Lolita Renee DAVIS
v.
COMMONWEALTH of Virginia

No. 0020-01-1.

Court of Appeals of Virginia, Chesapeake.

February 5, 2002.


559 S.E.2d 376
William P. Robinson, Jr. (Robinson, Neeley & Anderson, on brief), Norfolk, for appellant

Marla Graff Decker, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: BRAY, FRANK and AGEE, JJ.

AGEE, Judge.

Lolita Renee Davis (Davis) entered a conditional plea of guilty in the Circuit Court of Norfolk to possession of heroin with intent to distribute, in violation of Code § 18.2-248, reserving the right to appeal the trial judge's denial of her motion to suppress under Code § 19.2-254. On appeal, she contends (1) the search was the result of an unlawful detention and (2) the arresting officers lacked jurisdiction to seize her and perform the search. She avers any evidence gathered in the illegal search must be suppressed, as well as her ensuing confession. For the reasons that follow, we reverse the trial court's denial of the motion to suppress.

I. BACKGROUND

On November 19, 1997, Detective Chappell of the City of Portsmouth Police Department received information from an informant that "a black female would be arriving in the parking lot of the Wendy's [in the 400 block of North Military Highway in the City of Norfolk] at 8:00 p.m." to make a "drop off of heroin." According to the informant, the woman, with a light brown complexion and braids, would be driving a four-door red and gray vehicle, with the license plates containing "1134." Detective Chappell and Portsmouth Detective Grover went to the location and at approximately 8:10 p.m., Davis, who matched the given description of the suspect, drove a red and gray, four-door vehicle into the Wendy's parking lot. The last four numbers of the vehicle's license plate were 1134.

When Davis parked her car, the detectives pulled their unmarked police car behind the vehicle, parked and approached the vehicle, but did not activate the police car's emergency lights. They wore plain clothes with their badges shown. Each officer's weapon was visible in a holster but was not drawn,

Detective Grover approached the driver's side of Davis' vehicle, and Detective Chappell approached the passenger side. Detective Grover knocked on Davis' window, and Davis either rolled the window down or opened the car door to reply. Detective Grover explained to Davis that the officers had received "information that she was transporting narcotics in the vehicle." The detective testified that he asked, in a conversational tone, if he could search Davis and her vehicle but did not inform her that she could refuse the request. Both officers testified Davis consented and stepped out of her vehicle.1 According to Detective Chappell, Davis was

559 S.E.2d 377
"completely cooperative" and gave him permission to search her pocketbook

Once Davis vacated the vehicle and the detectives began a cursory search of it, Davis was handcuffed until a female officer was able to perform a protective pat-down. Detective Chappell read Davis "her rights" even though he did not consider her in custody, because he believed they would find drugs in her vehicle. Davis said that she understood her rights. The detectives also asked Davis if it would be all right to move her vehicle to a nearby location, approximately 100 yards away. Davis consented to this request. The detectives took control of and moved the vehicle.

Once the vehicle was moved, and before a thorough search was performed, Detective Chappell removed the handcuffs from Davis. She waited in a nearby police vehicle while the detectives completed their search, which led to the discovery of heroin. The detectives then placed Davis under arrest and transported her to the City of Norfolk Police Department.

At the police station, Davis was presented with a consent form advising her of her right to remain silent. Davis reviewed and signed the form. She then waived her right to remain silent and gave a written statement that she was to deliver drugs to an unknown subject. For her service in that regard, she was to be paid $200.

II. THE DETENTION

Davis first argues that she was detained by the police officers in violation of the Fourth Amendment and, therefore, the trial court erred in finding that her encounter with the officers was consensual2 and that any consent to the search was voluntarily given.

A. STANDARD OF REVIEW

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. This protection does not prohibit encounters between the police and citizens, but prescribes limitations on those encounters. Police officers are free to approach individuals and ask questions. "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.'" United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

"A consensual encounter occurs when police officers approach persons in public places `to ask them questions,' provided `a reasonable person would understand that he or she could refuse to cooperate.'" Payne v. Commonwealth, 14 Va.App. 86, 88, 414 S.E.2d 869, 870 (1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Department. Cir.1991)). "Such encounters `need not be predicated on any suspicion of the person's involvement in wrongdoing,' and remain consensual 'as long as the citizen voluntarily cooperates with the police.'" Id. (citations omitted). "Law enforcement officers do not violate the Fourth Amendment merely by approaching an individual on the street, identifying themselves and asking the individual questions." Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535-36 (1995).

"A person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The determination of seizure is objective and is judged by whether a reasonable person would have felt restrained.

559 S.E.2d 378
"At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving that a warrantless search or seizure did not violate the defendant's Fourth Amendment rights." Reel v. Commonwealth, 31 Va.App. 262, 265, 522 S.E.2d 881, 882 (2000). "It[, however,] is well established that, on appeal, appellant carries the burden to show, considering the evidence in the light most favorable to the Commonwealth, that the denial of a motion to suppress constitutes reversible error." Motley v. Commonwealth, 17 Va.App. 439, 440-41, 437 S.E.2d 232, 233 (1993)

"This Court is `bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Neal v. Commonwealth, 27 Va.App. 233, 237, 498 S.E.2d 422, 424 (1998) (citation omitted). However, whether a defendant is seized in violation of the Fourth Amendment is a question that is reviewed de novo on appeal. See Mendenhall, 446 U.S. at 551 n. 5, 100 S.Ct. 1870.

B. ANALYSIS

The trial court determined that a reasonable person in Davis' situation would have felt free to refuse to cooperate and leave. Yet, the evidence, viewed in the light most favorable to the Commonwealth, reveals the police officers, who stood at both front doors of the vehicle at night, directly and specifically informed Davis they believed she was there to deliver heroin. The police officers, whose badges and guns were clearly visible, at no time informed Davis that she could leave or that she could refuse to cooperate. The record reflects that Davis would have been unable to restart her car and back out of the parking space because the police officers were parked behind her.3

The Commonwealth cites McCain v. Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001), and Garrison v. Commonwealth, 36 Va.App. 298, 549 S.E.2d 634...

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40 practice notes
  • Jackson v. Com., Record No. 3238-01-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 29, 2003
    ...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)). Viewing the case through t......
  • Jackson v. Com., Record No. 3238-01-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 4, 2003
    ...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)). Viewing the case through t......
  • State v. Davis, No. S–1–SC–34548.
    • United States
    • New Mexico Supreme Court of New Mexico
    • October 19, 2015
    ...of illegal taint where the police misconduct was "directly related to the ensuing event of ... giving consent." Davis v. Commonwealth, 37 Va.App. 421, 559 S.E.2d 374, 380 (2002). Because Defendant took reasonable steps to protect his privacy that exhibited a reasonable expectation of privac......
  • Kyer v. Com., Record No. 2200-03-2.
    • United States
    • Virginia Supreme Court of Virginia
    • May 3, 2005
    ...681, 689-90 (1991). It may be equally insufficient if given after the consenter has been illegally detained, Davis v. Commonwealth, 37 Va.App. 421, 433-35, 559 S.E.2d 374, 379-80 (2002), or after the police make an illegal entry for the "very purpose" of obtaining consent, Walls v. Commonwe......
  • Request a trial to view additional results
40 cases
  • Jackson v. Com., Record No. 3238-01-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 29, 2003
    ...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)). Viewing the case through t......
  • Jackson v. Com., Record No. 3238-01-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 4, 2003
    ...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)). Viewing the case through t......
  • State v. Davis, No. S–1–SC–34548.
    • United States
    • New Mexico Supreme Court of New Mexico
    • October 19, 2015
    ...of illegal taint where the police misconduct was "directly related to the ensuing event of ... giving consent." Davis v. Commonwealth, 37 Va.App. 421, 559 S.E.2d 374, 380 (2002). Because Defendant took reasonable steps to protect his privacy that exhibited a reasonable expectation of privac......
  • Kyer v. Com., Record No. 2200-03-2.
    • United States
    • Virginia Supreme Court of Virginia
    • May 3, 2005
    ...681, 689-90 (1991). It may be equally insufficient if given after the consenter has been illegally detained, Davis v. Commonwealth, 37 Va.App. 421, 433-35, 559 S.E.2d 374, 379-80 (2002), or after the police make an illegal entry for the "very purpose" of obtaining consent, Walls v. Commonwe......
  • Request a trial to view additional results

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