Dickerson v. Com.

• Citation: 35 Va. App. 172,543 S.E.2d 623
• Decision Date: 27 March 2001
• Docket Number: Record No. 1120-00-3.
• Parties: Vincent DICKERSON v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

543 S.E.2d 623

35 Va. App. 172

Vincent DICKERSON v. COMMONWEALTH of Virginia.

Record No. 1120-00-3.

Court of Appeals of Virginia, Salem.

March 27, 2001.

Philip G. Gardner (Gardner, Gardner, Barrow & Sharpe, on brief), Martinsville, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Present: ANNUNZIATA, BUMGARDNER and FRANK, JJ.

ANNUNZIATA, Judge.

Appellant, Vincent Dickerson, appeals his conviction for possession of cocaine with the intent to distribute. He contends the trial court erroneously denied his motion to suppress evidence that was obtained in violation of his Fourth Amendment rights. For the following reasons, we affirm.

BACKGROUND

On August 20, 1999, a Danville Life Saving Crew truck was headed west on Highway 58 between Danville and Martinsville when it encountered a person in a black Ford Escort who would not yield the right-of-way to the ambulance. Deputy Parker, a law enforcement official with the Pittsylvania Sheriffs Department, was on routine uniformed patrol when he received information from his dispatcher reporting the incident. Deputy Parker also received a description of the offending vehicle and its license plate number. When Parker saw the ambulance coming in his direction, he pulled his police car onto the highway from a turnaround where he was positioned. He passed the ambulance and got behind the vehicle that matched the description given to him by the dispatcher. The vehicle was in the left lane traveling at a high rate of speed in front of the ambulance. By using his speedometer, Parker determined the vehicle was traveling at about sixty-five miles per hour in a posted fifty-five mile-per-hour zone.

Parker activated his emergency lights and siren to signal the driver to stop. When the driver complied, Parker approached the car and found Dickerson in the driver's seat. No other occupants were in the car. Parker detected the odor of alcohol on Dickerson's person and asked him if he had been drinking. Dickerson responded that he had consumed one beer. He admitted to Parker that he was "going sixty-five miles an hour."

Dickerson exited the vehicle at Parker's request and agreed to perform field sobriety tests, all of which he satisfactorily completed. As a result, Parker decided not to arrest Dickerson for driving under the influence of alcohol and informed Dickerson of that decision. He added, however, that Dickerson might get a summons from the ambulance driver for failing to yield to an emergency vehicle. Parker then told Dickerson he was "free to go."

As Dickerson was getting back into his vehicle, Parker asked him if the car contained anything that Parker "should know about," such as "dope, marijuana, roaches in the ashtray, something, anything like that." When Dickerson responded in the negative, Parker asked him if he smoked marijuana. Dickerson admitted he did, qualifying his answer by stating, "not while he was driving." Dickerson then added that "there [were] some roaches in the ashtray."

After Dickerson's admission, Parker asked if he could look inside Dickerson's car. Although Dickerson said, "no," to the request, Dickerson reached into the vehicle, pulled out the ashtray, and handed it to the deputy. Parker saw "numerous hand rolled cigarette roaches" in the ashtray, and Dickerson admitted they were marijuana cigarettes.

Parker again asked Dickerson for permission to look inside the vehicle and Dickerson again responded, "no." However, Parker began to search the vehicle and found inside the passenger compartment three plastic bags of an "off-white rock substance" and one plastic box containing a scale. Parker asked another deputy, Deputy Morrison, who had earlier arrived on the scene as back-up, to unlock the truck and search it. Morrison found in the trunk seven small plastic bags of an off-white rock-like substance, one plastic bag containing a white powder substance, and another set of scales. Parker placed Dickerson under arrest.

Dickerson filed a motion to suppress the evidence, which the trial court denied. He subsequently pled guilty to the offense, reserving the right to appeal the trial court's ruling on the suppression motion.

ANALYSIS

Dickerson contends the encounter with the officer following the traffic stop was not consensual and that because the seizure was not based on a reasonable, articulable suspicion of criminal activity on his part, he was seized in violation of his Fourth Amendment rights. The Commonwealth contends the encounter was consensual and that during this consensual encounter, the officer developed probable cause to arrest Dickerson and probable cause to search his vehicle. We agree with the Commonwealth and affirm the trial court's ruling on the suppression motion.

When reviewing on appeal a trial court's ruling denying a motion to suppress evidence, we consider the evidence and all reasonable inferences which may be drawn from the evidence in the light most favorable to the Commonwealth. Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139 (1994). The burden on appeal to show "that the denial of [the] motion to suppress constitute[d] reversible error" rests with the defendant. Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993).

We review determinations of reasonable suspicion and probable cause de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997). "Similarly, the question whether a person has been seized in violation of the Fourth Amendment is reviewed de novo on appeal." Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000). Although we apply de novo our own legal analysis of whether a seizure occurred, we are "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." McGee, 25 Va.App. at 198, 487 S.E.2d at 261.

The record shows that Deputy Parker lawfully stopped Dickerson for a traffic violation. Dickerson concedes the initial stop was lawful. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772-73, 135 L.Ed.2d 89 (1996) (police may stop a vehicle where they have probable cause to believe a traffic violation has occurred). However, when an officer makes a lawful traffic stop, the scope of the temporary detention may not exceed the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion) ("The scope of the detention must be carefully tailored to its underlying justification."). Therefore, absent reasonable, articulable suspicion, Deputy Parker could not lawfully extend the initial stop and continue to detain Dickerson in order to ask him questions concerning his possession and use of drugs. The Commonwealth does not contend that Deputy Parker had reasonable suspicion to detain Dickerson when he began to question him concerning his use and possession of drugs; rather, it contends Deputy Parker and Dickerson were engaged in a consensual encounter at the time the questioning occurred.

Dickerson argues that once the traffic stop was completed, Parker's questions regarding the presence of drugs in the car constituted an illegal seizure. We disagree and find that the encounter was consensual at the time of the questioning and that probable cause to arrest Dickerson and search his vehicle developed as a result of the consensual encounter that followed the initial traffic stop.

A voluntary police-citizen encounter becomes a seizure for Fourth Amendment purposes "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). "So long as a reasonable person would feel free `to disregard the police and go about his business,' the encounter is consensual, and no reasonable suspicion is required." Id. (citation omitted). "[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual ... and request consent to search... as long as the police do not convey a message that compliance with their requests is required." Id. at 434-35, 437, 111 S.Ct. at 2386, 2387-88. In determining whether the encounter was consensual, we must "consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Id at 439, 111 S.Ct. at 2389.

In determining whether a reasonable person would feel he or she was not free to terminate an encounter with the police, several jurisdictions, including Virginia, have utilized a set of factors first articulated by Justice Stewart in his opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). See United States v. Galvan-Muro, 141 F.3d 904, 906 (8th Cir.1998)

; United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991); Parker v. Commonwealth, 255 Va. 96, 101-02, 496 S.E.2d 47, 50 (1998); Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648 (1992). Those factors include: "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554,

100 S.Ct. at 1877 (opinion of Stewart, J.).

The record shows that after the lawful traffic stop was completed, Dickerson was told he was free to leave before any of the challenged questioning ensued. Mere...