Greene v. Com.

• Decision Date: 01 February 1994
• Docket Number: No. 0108-92-1,0108-92-1
• Citation: 17 Va.App. 606,440 S.E.2d 138
• Court: Virginia Court of Appeals
• Parties: John Curtis GREENE v. COMMONWEALTH of Virginia. Record

Page 138

440 S.E.2d 138

17 Va.App. 606

John Curtis GREENE v. COMMONWEALTH of Virginia.

Record No. 0108-92-1.

Court of Appeals of Virginia.

Feb. 1, 1994.

James O. Broccoletti, Norfolk (William M. McKee; Zoby & Broccoletti, P.C., on briefs), for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and BRAY, JJ.

BRAY, Judge.

John Curtis Greene (defendant) was convicted of possession of cocaine with intent to distribute. Defendant argues (1) that the trial court erred in refusing to suppress evidence discovered as a result of an unlawful seizure, and (2) that the evidence was insufficient to support the conviction. We disagree and affirm the judgment of the trial court.

In accordance with well established principles, we assess the sufficiency of the evidence to support a criminal conviction upon a review of the record "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va.App. 523, 528, 351 S.E.2d 598, 601 (1986).

Similarly, in considering a trial court's ruling on a suppression motion, we view the evidence in the "light most favorable to ... the prevailing party below," the Commonwealth in this instance, and the decision of the trial judge will be disturbed only if plainly wrong. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). Our review of the record includes evidence adduced at both the trial and the suppression hearing. DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). To prevail on appeal, the defendant must "show ... that the denial of [his] motion ... constitute[d] reversible error." Motley v. Commonwealth, --- Va.App. ----, ----, 437 S.E.2d 232, 233 (1993).

On September 28, 1990, Officer S. Mills, Special Agents Craig Wiesner and Wilbur Ladison, Investigator Earl Killmon and Trooper Powers were assigned to a "Drug Interdiction Team" at the Norfolk International Airport. All were dressed in "casual street clothes" and did not display their weapons. At approximately 10:15 a.m., Mills, Wiesner and Ladison observed passengers deplane a flight from New York, a city described by Mills as "one of the primary sources for narcotics." When defendant passed through the "jetway," Mills noticed an "unnatural bulge in the crotch area" of defendant's trousers, "maybe the size of a tennis ball."

Mills "motioned to the others ... as to what [he] had observed" and followed defendant into the restroom. Although defendant closed himself in a "stall," he did not use the "facilities" and exited shortly thereafter. After speaking with someone from a public phone, defendant took a seat at "one of the gates" and appeared to "nap." While Agent Ladison and Investigator Killmon waited at a nearby gate, Mills and Wiesner approached defendant. With Mills "directly to [defendant's] side" and Agent Wiesner standing "five or six feet" to Mills' right, Mills initiated contact with the defendant, saying, "Excuse me, sir, can I talk with you?"

After defendant agreed to speak with Mills, Mills inquired "if he just flew from La Guardia." When defendant answered "no," Mills displayed his "DEA credentials," and defendant "arose" to examine them. Mills then questioned defendant's identity and travel plans and requested that he produce his airline ticket. While complying, defendant remarked that he "felt [his] rights were being violated" and asked Mills, "What is the problem?" Mills explained that "[they] were narcotics officers ... attempting to stem the flow of narcotics into the area." When defendant again complained that "his rights were being violated," Mills reminded him that he had consented to speak with the officers but asked defendant no further questions. Mills testified that defendant was free to "walk away ... at that point in time."

Defendant then "requested" access to a nearby pay telephone, and Mills "moved away" to allow defendant unrestricted "passage." While defendant used the phone, Mills and Wiesner stood "[p]robably ten, fifteen feet" distant, and Ladison was "20 to 30 yards" away. During the telephone conversation, Killmon and Ladison joined Mills and advised him that defendant had flown from Atlanta to La Guardia the previous day, had "just" arrived from La Guardia and was ticketed for return to Atlanta. Killmon added that defendant "had some baggage claim stubs attached to his ticket."

As the officers discussed this information, Mills heard the "phone slam down," "looked" and saw "something," which "appeared to be white," in defendant's "crotch area where he was unzipping his pants." Defendant then ran toward the restroom, and Mills "gave chase." Weisner was also "right on [defendant's] heels" and pursued him into the first stall. There, defendant "dropped to his knees, ... pulled something from his crotch area ... and tried shoving it up the commode and flushing the commode with his other hand in the process." Weisner suspected that the material was cocaine, and a struggle ensued as the officers attempted to retrieve it and take defendant into custody. Investigator Killmon testified that during the tussle, defendant stated that "he ran ... because he wanted to get rid of the dope."

Once defendant was in custody, Killmon remained in the restroom until the toilet was removed "from the wall," and he recovered a plastic package containing a white powder, later determined to be cocaine, from "the trap." The package was "probably two to three inches thick, ... five inches long, [and] maybe three and-a-half to four inches wide."

Defendant first argues that he was "seized in his person" from the inception of the encounter by oppressive and coercive police conduct in violation of the fourth amendment. He asserts that "the facts reveal a sinister and manipulative psychological game," during which the officers "controlled" him "under circumstances such that he reasonably thought he was not free to leave." Because this unlawful seizure preceded defendant's flight and subsequent discovery of the cocaine, he urges that the evidence "be suppressed as ... the product of illegal police conduct."

The constitutional guarantee which defendant invokes secures citizens in their persons and property against unreasonable seizures. Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992). However,

[t]he 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." As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (citation omitted). Thus, a consensual encounter between police and an individual has no fourth amendment implications unless accompanied by such "coercion or show of force or authority by the officer ... that would cause a person ... reasonably to have believed that he or she was required to comply" and "not free to leave." Commonwealth v. Satchell, 15 Va.App. 127, 131, 422 S.E.2d 412, 414 (1992); Motley, --- Va.App. at ----, 437 S.E.2d at 234. Acquiescence in "a police request, which most citizens will do, does not negate 'the consensual nature of the response.' " Grinton v. Commonwealth, 14 Va.App. 846, 849, 419 S.E.2d 860, 862 (1992) (quoting I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984)); see Baldwin, 243 Va. at 197, 413 S.E.2d at 648.

Contrary to defendant's contention, a seizure does not occur whenever an individual senses that police activity has restrained his liberty but occurs "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." ¹ Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (emphasis added); Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). This objective standard "look[s] to the reasonable man's interpretation of the conduct in question," thus "ensur[ing] that the scope of the Fourth Amendment protection does not vary with the state of mind of the particular individual being approached." Chesternut, 486 U.S. at 574, 108 S.Ct. at 1980.

We have acknowledged that the "Mendenhall test 'is necessarily imprecise' and 'flexible' " in order to accommodate " 'consistent application from one police encounter to the next,' " irrespective of individualized reactions. Sa...