Grinton v. Com.
| Decision Date | 14 July 1992 |
| Docket Number | 1012-91-2,Nos. 1093-91-2,s. 1093-91-2 |
| Parties | Anthony William GRINTON v. COMMONWEALTH of Virginia. Arthur Bernard TREADWELL v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Thomas L. Gordon, Chesterfield (Gordon, Dodson & Gordon, on briefs), for appellant Arthur Bernard Treadwell.
H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BAKER, BARROW and ELDER, JJ.
This criminal appeal is by co-defendants who were convicted of possession of marijuana and possession of cocaine with intent to distribute. They contend that the marijuana and cocaine were illegally seized and should not have been admitted into evidence. We hold that the contraband was seized during a consensual search of an automobile, that the search did not exceed the scope of the consent and that the marijuana and cocaine were, therefore, legally seized and properly admitted into evidence.
The defendants were traveling south on Interstate 95 in a rented automobile. When they stopped to pay a toll, a police officer approached the car. As he approached, he saw a wire running from the center of the dash toward the roof, which he associated with a radar detector. He also observed that the automobile bore a North Carolina inspection decal. The officer identified himself and asked, "[D]o you mind if I ask you a couple questions." The defendant Treadwell, who was driving, agreed that he could.
The officer asked the defendants various questions, including where they were going, where they had been, how long they had been there, who owned the car, the relationship between the two defendants, and whether the automobile contained any contraband. The defendant Treadwell answered all of the questions, responding negatively to the last, while the defendant Grinton remained silent.
Finally, the officer asked if he could "look at the contents and containers" in the vehicle. Treadwell said that he could. The officer then said, "If you don't mind pulling over to the shoulder, I'll take a quick look and have you on your way in a couple of minutes." Treadwell agreed and drove the automobile to the shoulder of the highway.
At the officer's request, the defendants got out of the automobile and stood on the right side of the vehicle while the officer conducted the search. The officer asked Treadwell, as he got out of the automobile, if he would open the trunk. Treadwell, however, went to the side of the vehicle without opening the trunk. The officer went into the passenger side of the car and found the ignition key on the floorboard on the driver's side. He asked Treadwell for the trunk key, but Treadwell said that he had not been given a trunk key when he rented the car. In the passenger area of the car, the officer found only a bag on the back seat with air fresheners in it. The officer attempted to inquire about the contents of the trunk, and one of the defendants said that they had nothing in the trunk.
The police officer then retrieved tools from his patrol car and removed the back seat of the defendants' automobile so that he could get into the trunk. He saw that the trunk was packed with shopping bags filled with clothing and small pieces of luggage. When asked to whom the items belonged, the defendants replied that they did not know. The officer pulled everything out of the trunk and laid the bags on the ground. During the search of the car, neither of the defendants made any attempt to stop the search or to prevent the officer from looking into the trunk.
While opening a bag and discovering what appeared to be marijuana, the officer heard another officer shout. He turned and saw both defendants running away. After apprehending the defendants, the officer continued his search and discovered fourteen baggies containing crack cocaine.
In response to the defendants' motions to suppress the admission into evidence of the cocaine and marijuana found during the search, a suppression hearing was conducted and evidence was taken. The trial court
denied the motion to suppress, and at a later hearing, the defendants entered conditional pleas of guilty as permitted by Code § 19.2-254.
The defendants argue that they were illegally detained when the officer asked them to move to the shoulder of the road to permit him to examine the automobile.
A person is not seized until his freedom of movement is restrained by means of physical force or show of authority. Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647 (1992). As long as a person remains free to leave, no seizure has occurred. Baldwin, 243 Va. at 196, 413 S.E.2d at 647. Voluntarily responding to a police request, which most citizens will do, does not negate "the consensual nature of the response" even if one is not told that he or she is free not to respond. I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).
In this case, the defendants consented to remain stationary at the toll booth in order to answer the officer's questions and consented to moving their automobile to the shoulder of the road. Defendant Treadwell also agreed to the officer's request to look at the contents and containers in the automobile. No evidence in the record contradicts the consensual nature of the encounter.
The defendants argue that the officer "improperly and illegally used defendants' race as the sole criteria to engage them in conversation" and to begin an investigative stop, a contention not presented to the trial court. On appeal, a ruling of the trial court cannot be a basis for reversal unless an objection is stated "together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18; see also Campbell v. Commonwealth, 12 Va.App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc ). Therefore, because the issue was not presented to the trial court, we are unable to consider this contention on appeal.
While the defendants and the Commonwealth both assume that the trial court concluded that there was a seizure, we do not construe the trial court's language as necessarily supporting their assumptions. The trial court, in addressing counsel before final arguments on the issue, said:
[I]t seems that the issue...
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...principles, “[a] consensual search is reasonable if the search is within the scope of the consent given.” Grinton v. Commonwealth, 14 Va.App. 846, 850, 419 S.E.2d 860, 862 (1992). Once valid consent is received, law enforcement may search until the individual engages in an “unequivocal act ......
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