Dorsey v. Commonwealth, Record No. 0309-06-2 (Va. App. 5/1/2007)
| Decision Date | 01 May 2007 |
| Docket Number | Record No. 0309-06-2. |
| Court | Virginia Court of Appeals |
| Parties | DIALLOBE BALAWA DORSEY v. COMMONWEALTH OF VIRGINIA |
Appeal from the Circuit Court of Hanover County John Richard Alderman, Judge.
C. David Whaley (Morchower, Luxton & Whaley, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General; Jonathan M. Larcomb, Assistant Attorney General, on brief), for appellee.
Present: Judges Humphreys, Beales and Senior Judge Coleman.
Diallobe Balawa Dorsey was convicted of possession of cocaine with intent to distribute as an accommodation and possession of marijuana. Dorsey argues that the trial court erred by denying his motion to suppress and concluding the evidence was sufficient to support the convictions. We agree that the search of Dorsey violated his Fourth Amendment rights and that the trial court's denial of his motion to suppress was error. Thus, we reverse appellant's convictions and remand to the trial court for further proceedings consistent with this opinion if the Commonwealth be so advised.
In challenging the denial of a motion to suppress, the burden is on the appellant to prove that, when the evidence is considered in the light most favorable to the Commonwealth, the motion to suppress should have been granted. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980); Logan v. Commonwealth, 29 Va. App. 353, 358-59, 512 S.E.2d 160, 162-63 (1999) (). The factual findings of the trial court are accepted unless plainly wrong or without supporting evidence. Ornelas v. United States, 517 U.S. 690, 699 (1996); see also Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
At 9:00 p.m. on January 14, 2005, Deputy Charles Gendrow initiated a traffic stop of Dorsey's car for failing to bring his vehicle to a complete stop before entering the highway. The incident occurred as Dorsey was driving onto a secondary road from a truck stop parking lot near Interstate 95. As requested, Dorsey produced for Gendrow his operator's license and car rental agreement. Gendrow walked to his patrol car to check the status of Dorsey's license and driving record. While checking, Gendrow decided he was going to search Dorsey, so he called for backup. Gendrow acknowledged he had no reason to search Dorsey or his car or to believe Dorsey possessed illegal drugs and that he did not suspect Dorsey was engaged in any other type of criminal activity. Within minutes after Gendrow called for backup, Deputy Parrish arrived and parked his car behind Gendrow's. Deputy Parrish stood behind Dorsey's car on the passenger side but did not interact with Dorsey and testified he "wasn't close enough to [Gendrow] where [he] was listening to his conversation."
Gendrow went to Dorsey's car and returned his license and car rental agreement. Gendrow gave Dorsey a warning about failing to come to a complete stop. Gendrow then turned and walked towards his patrol car, and Dorsey started his car's engine. Before Dorsey drove away, however, Gendrow returned to Dorsey's car and asked if he had any weapons or drugs in his car. Dorsey replied there were none. Gendrow then asked Dorsey for permission to search his car. Dorsey did not reply, but he turned off the engine and exited the car. Gendrow then asked Dorsey to walk to the rear of the car because he intended also to ask Dorsey for consent to search his person. Gendrow testified he "used his arm to direct Dorsey" to the area behind Dorsey's car and in front of Gendrow's patrol car. As Dorsey stood between his car, Gendrow's patrol car, and Gendrow and Parrish, Gendrow asked "if he could search Dorsey for weapons or drugs." Dorsey responded that he was late and needed to go to work. Gendrow told Dorsey it "would only take a minute" to search him and his car "and [he'd] have [Dorsey] out of there." Dorsey then "nodded his head up and down[,] . . . and he [] turned around and put his hands up." Gendrow testified Dorsey never verbally consented to the search of his car or his person.
Gendrow searched Dorsey and seized from his pants pocket 13.8 grams of marijuana. Gendrow arrested Dorsey. A further search disclosed that Dorsey had 7.86 grams of cocaine in a pocket and $4,191 wrapped in six separate bundles.
Dorsey argues Deputy Gendrow violated his Fourth Amendment rights by extending a lawful detention for a traffic infraction into an unlawful, non-consensual seizure and, thus, that Dorsey's consent to a search of his person was not voluntary. At the conclusion of the suppression hearing, the trial court found that Dorsey's testimony, which contradicted most of Gendrow's account surrounding the search, was not credible and that his testimony lacked corroboration. Reviewing only Gendrow's testimony, and taking into account the requisite standard of review, we hold the evidence fails to support a finding that Dorsey's consent to the search of his person was valid under the Fourth Amendment.
The Fourth Amendment to the United States Constitution provides, in pertinent part, that "[t]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend IV.
In considering a challenge under the Fourth Amendment, questions of reasonable suspicion and probable cause involve questions of both law and fact and are reviewed de novo on appeal. Similarly, the question whether a person has been seized in violation of the Fourth Amendment is reviewed de novo on appeal. An appellate court, however, "should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers."
Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ornelas, 517 U.S. at 699) (citations omitted).
Police officers do not violate the Fourth Amendment when they stop and question an individual if they have reasonable articulable suspicion that the person is engaged in criminal activity, or when the person's encounter with the police is consensual. There is no "litmus test" for determining whether an encounter is consensual or constitutes an illegal seizure. If, however, a reasonable person would not feel free to decline an officer's requests or would not feel free to leave, the encounter is not consensual and constitutes an illegal seizure under the Fourth Amendment.
Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003) (citations omitted).
Harris expressly contemplates that, even in the face of a request rather than a demand made by a police officer, a reasonable person may conclude he is not free to decline the request or leave the scene and, thus, that the encounter is a seizure. Id. Circumstances relevant to the determination of whether a person would feel free to decline a police officer's request or leave the scene of an encounter, as set out in United States v. Mendenhall, 446 U.S. 544, 554 (1980), include:
the threatening presence of a number of police 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. The decision whether the encounter was consensual must be made based on the totality of the circumstances.
Harris, 266 Va. at 32, 581 S.E.2d at 209 (citations omitted).
Pursuant to the holding in Dickerson v. Commonwealth, 266 Va. 14, 581 S.E.2d 195 (2003), aff'g, 35 Va. App. 172, 543 S.E.2d 623 (2001), we conclude that the traffic stop was a seizure but that the original seizure ended before Deputy Gendrow asked for consent to search Dorsey's car and person. In Dickerson, Deputy Parker stopped Dickerson for failing to yield the right-of-way to an ambulance. 266 Va. at 16, 581 S.E.2d at 196. Although Deputy Parker called for assistance and a backup officer was on the scene for the duration of the traffic stop, only Deputy Parker interacted with Dickerson. 35 Va. App. at 180, 543 S.E.2d at 627. Deputy Parker detected the odor of alcohol on Dickerson's breath, but Dickerson said he had consumed only one beer, and he completed a series of field sobriety tests to Deputy Parker's satisfaction. 266 Va. at 16, 581 S.E.2d at 196. Deputy Parker decided not to arrest Dickerson for any alcohol-related violations and told him "he was free to go but that he might be subpoenaed later for the failure-to-yield traffic infraction." Id. Dickerson then "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.'" Id. Dickerson said no, but when Deputy Parker inquired whether Dickerson smoked marijuana, Dickerson admitted that he did and that "there were `some roaches in the ashtray.'" Id.
Dickerson, like Dorsey, "argue[d] 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 detention and that the officer had revoked his consent for the driver to leave.'" Id. at 17-18, 581 S.E.2d at 197. The Virginia Supreme Court "disagree[d]," holding as follows:
The record in this case shows not only that a reasonable person would have felt free "to disregard the police and go about his business" but also that Dickerson believed that his detention had ended, that he could leave, and that he was no longer required to remain with the officers or answer their questions. When Deputy Parker told Dickerson that he was free to go,...
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