Dickerson v. Com.

• Decision Date: 06 June 2003
• Docket Number: Record No. 021968.
• Citation: 266 Va. 14,581 S.E.2d 195
• Parties: Vincent DICKERSON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

581 S.E.2d 195

266 Va. 14

Vincent DICKERSON v. COMMONWEALTH of Virginia.

Record No. 021968.

Supreme Court of Virginia.

June 6, 2003.

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

Virginia B. Theisen, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: All the Justices.

OPINION BY Justice ELIZABETH B. LACY.

In this appeal we again consider whether, following the conclusion of a valid stop for a traffic violation, the continued encounter between a police officer and the driver of the vehicle was consensual or an illegal seizure in violation of the driver's Fourth Amendment rights.

On August 20, 1999, Pittsylvania Sheriff's Deputy B.K. Parker received a radio dispatch giving him the license plate number and description of a motor vehicle traveling westbound on Route 58. The vehicle, driven by Vincent Dickerson, had failed to yield the right of way to a Danville Life Saving Crew truck. Soon thereafter, Deputy Parker saw the vehicle traveling at a speed of 65 miles-per-hour in a 55 mile-per-hour zone. He activated his vehicle's emergency lights and siren and initiated a traffic stop. A second officer, Deputy Morrison, arrived on the scene and parked his patrol car behind Deputy Parker's vehicle.

As Deputy Parker approached Dickerson's vehicle, he noticed that Dickerson had "a slight odor of alcohol about his person." Deputy Parker asked Dickerson to get out of the car and perform some field sobriety tests. The tests were conducted at the rear of Dickerson's vehicle. After conducting these tests, Deputy Parker decided not to arrest Dickerson for any alcohol-related violations. He told Dickerson he was free to go but that he might be subpoenaed later for the failure-to-yield traffic infraction.

Dickerson returned to his car, opened the driver's side door, and started to get back into the vehicle when Deputy Parker asked Dickerson "if there was anything in the car [he] should know about, dope, marijuana, roaches in the ashtray, something, anything like that." Dickerson said "no." Deputy Parker then asked Dickerson whether he smoked marijuana. Dickerson replied that he did smoke marijuana but not while he was driving. Dickerson also volunteered that there were "some roaches in the ashtray."

Deputy Parker asked if he could look in the car. Dickerson said "no," but pulled out the ashtray from the vehicle's console and handed it to Deputy Parker. The ashtray contained "numerous hand-rolled cigarette roaches" which Dickerson said were the remains of marijuana cigarettes.

Deputy Parker again asked Dickerson for permission to search the vehicle. Although Dickerson again refused permission to search the vehicle, Deputy Parker told Dickerson to step away from the vehicle and began to search it. Deputy Parker found three plastic bags of cocaine and a plastic box containing scales under the driver's side floormat. At Deputy Parker's direction, Deputy Morrison retrieved the keys from the vehicle's ignition, opened the trunk, and found several additional plastic bags of cocaine and another set of scales. Deputy Parker placed Dickerson under arrest.

Dickerson was subsequently charged with violating Code § 18.2-248, possession of cocaine with intent to distribute. The Circuit Court of Pittsylvania County denied Dickerson's motion to suppress the evidence obtained in the search of his vehicle and convicted him of the crime charged. Dickerson was sentenced to six years' imprisonment, with three years suspended. The Court of Appeals affirmed Dickerson's conviction. See Dickerson v. Commonwealth, 35 Va.App. 172, 543 S.E.2d 623 (2001)

. This Court granted Dickerson's petition for appeal.¹

Dickerson claims that, like the encounter in Reittinger v. Commonwealth, 260 Va. 232, 532 S.E.2d 25 (2000), Deputy Parker's questions regarding criminal activity were unrelated to the traffic offense and constituted a seizure in violation of his Fourth Amendment rights. Continuing, Dickerson asserts that because the evidence taken from his vehicle was obtained through an illegal seizure, it should have been suppressed.

The Fourth Amendment protects persons against unreasonable searches and seizures by the police, but the protections afforded by this Amendment are not implicated simply because a police officer approaches an individual and asks a few questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 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 there is no violation of the Fourth Amendment. M (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).

Dickerson argues that Deputy Parker's persistent questioning regarding criminal activity, after telling Dickerson that he was free to go, would lead a reasonable person to believe that Deputy Parker "had decided to continue the...