Malbrough v. Com.

• Decision Date: 11 January 2008
• Docket Number: Record No. 062570.
• Citation: 655 S.E.2d 1,275 Va. 163
• Parties: Ronald Wayne MALBROUGH, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

655 S.E.2d 1

275 Va. 163

Ronald Wayne MALBROUGH, Jr. v. COMMONWEALTH of Virginia.

Record No. 062570.

Supreme Court of Virginia.

January 11, 2008.

D. Gregory Carr (Bowen, Champlin, Carr, Foreman & Rockecharlie, on brief), Richmond, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, S.J.

OPINION BY Senior Justice CHARLESS. RUSSELL.

In this appeal, we must determine whether, under the facts presented, a defendant's Fourth Amendment protections against unreasonable search and seizure were infringed by a consent search of his person, conducted by police at a roadside stop, after he had been told that he was free to leave.

Facts and Proceedings

The material facts are undisputed. In the early afternoon of February 25, 2004, Ronald Wayne Malbrough, Jr., was operating a light blue Cadillac in a residential area in Chesterfield County. He was stopped by Officer Stephen Fortier of the Chesterfield County Police Department because the Cadillac bore license plates registered to another vehicle and because a rejection sticker was displayed on its windshield. There were two passengers in the car with Malbrough, one in the front seat and one in the rear. Officer Fortier displayed his cruiser's flashing blue lights when making the stop and they continued to flash throughout his encounter with Malbrough. Fortier parked his cruiser on the side of the road behind the Cadillac at the entrance to a subdivision.

Officer Fortier saw a handgun lying in plain view on the center console of the Cadillac as he walked up to the driver's window and at the same time Malbrough told him that he had a handgun in the car. Officer Fortier told all the occupants of the car to keep their hands where he could see them and retrieved the handgun from Malbrough without incident. Fortier took the handgun back to his cruiser and announced on his police radio that he had recovered a weapon from the Cadillac. Two other police vehicles, driven by Officers Neal Flatt and Richard Holmes, respectively, arrived at the scene almost simultaneously. One parked on the side of the road behind Fortier's cruiser and the other parked on the side of the road ahead of the Cadillac but far enough ahead that "[t]here was plenty of room between the vehicles," such that Malbrough "would have been able to pull his vehicle out." The flashing blue lights of Officers Fortier's and Flatt's police vehicles continued to operate throughout the encounter but Holmes believed it likely that those on his vehicle did not.

Officer Fortier returned to the Cadillac and asked Malbrough for his driver's license and registration. Malbrough handed these to Fortier, who took them back to his cruiser to verify them.

While Fortier was thus engaged, Officer Holmes walked up to the Cadillac and spoke to Malbrough. At Holmes' request, Malbrough stepped out of the Cadillac. Holmes had responded to a complaint at an earlier date, reporting that shots had been fired at night, in another residential subdivision nearby, from a "Cadillac, a large, older model, which fit the description of the vehicle in question." Holmes told Malbrough about that incident, asked him if he knew anything about it, was satisfied with his answers, and concluded that he had no reason to detain him or question him further. This exchange lasted no more than three minutes.

While the foregoing conversation was going on, Officer Flatt, who was a firearms instructor, walked up to Officer Fortier's cruiser. Fortier handed Flatt the weapon Malbrough had handed him. Flatt "cleared" the weapon, a loaded .45 caliber semi-automatic pistol, and put it under his waistband in the small of his back. It remained there throughout the encounter and none of the participants made any further mention of it.

Meanwhile, Officer Fortier had determined that Malbrough's license and registration were "facially valid" and his computer check revealed no problems with them. He took the documents back to the Cadillac, and, because Malbrough was still talking to Officer Holmes at the front of the vehicle, placed the driver's license and registration on the Cadillac's front seat. Fortier asked both passengers to step out of the car and asked them to consent to a search. They agreed. He searched them and found no contraband. He checked their names on his computer and found that they were not "wanted." Fortier then "told Malbrough that his information was all on the driver's seat of his car and that he was free to leave."

After making that statement, Fortier asked Malbrough for permission to search the Cadillac. Malbrough agreed. Fortier's search revealed no weapons or drugs in the car, which was "fairly clean." Fortier asked Malbrough "if he had anything illegal on his person." Malbrough said no. Fortier asked Malbrough for permission to search his person. Malbrough "started pulling items from his pockets." Fortier told him "not to put his hands in his pockets ... I would do the checking." Malbrough "told [Fortier] it was all right," turned away from Fortier, and "raised [his] hands in the air." In Malbrough's right front trouser pocket, Fortier found plastic bags containing marijuana, "rock" cocaine, and powder cocaine. Fortier arrested Malbrough. The confrontation, from traffic stop to arrest, lasted about 13 minutes.

Malbrough was indicted by a grand jury for possession of cocaine with intent to distribute and for possession of a firearm while in possession of cocaine. He filed a motion to suppress the evidence obtained as a result of the search of his person, which the trial court denied. He subsequently entered conditional "Alford" pleas of guilty to the firearm charge and to the lesser charge of simple possession of cocaine, preserving his right to appeal the trial court's ruling denying his motion to suppress. The court imposed a sentence of three years confinement on the cocaine charge, all of which was suspended, and a sentence of two years confinement, to be served, on the firearm conviction.

Malbrough appealed his convictions to the Court of Appeals, which initially denied his appeal by a per curiam opinion. Malbrough requested review by a three-judge panel, which granted his petition, heard oral argument, and affirmed the convictions by a majority opinion, one judge dissenting. We awarded him an appeal.

Analysis

Malbrough concedes that Officer Fortier's traffic stop was lawful and does not challenge any of the activities of the police that took place prior to the time he was asked to consent to a search of his person. At that time, he contends, he was unlawfully seized in violation of his Fourth Amendment protections against unreasonable search and seizure, the warrantless search of his person was unlawful, and the results of the search, as the "fruit of the poisonous tree," should have been suppressed.

The applicable standard of review is well settled. The question whether the Fourth Amendment has been violated is always "a question of fact to be determined from all the circumstances." Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). In reviewing the denial of a motion to suppress evidence claiming a violation of a person's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial. The burden is on the defendant to show that the trial court committed reversible error. We are bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence. We will review the trial court's application of the law de novo. Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 272 (2007). Nevertheless, an appellate court "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 v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Police officers are free to engage in consensual encounters with citizens, indeed, it is difficult to envision their ability to carry out their duties if that were not the case. See Parker v. Commonwealth, 255 Va. 96, 101-02, 496 S.E.2d 47, 50 (1998). In a series of decisions, however, the Supreme Court has limited lawful "consensual encounters" to circumstances in which "a reasonable person would feel free `to disregard the police and go about his business.'" Reittinger, 260 Va. at 236, 532 S.E.2d at 27 (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). The "reasonable person" test is objective, and presumes an innocent person rather than one laboring under a consciousness of guilt. Bostick, 501 U.S. at 437-38, 111 S.Ct. 2382. The consensual encounter becomes a seizure "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Id. at 434, 111 S.Ct. 2382.

Accordingly, the issue of fact presented to the trial court by Malbrough's motion to suppress was whether, when Officer Fortier asked him for permission to search his person, a reasonable person, under all the surrounding circumstances, would have believed that he was not free to leave, or rather, felt free to disregard the request and "go about his business." Id., see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Malbrough argued before the trial court and on appeal that a reasonable person would not have felt free to leave the scene for a number of reasons. At the time he was asked to consent to the search of his person, Malbrough was "in the midst of three armed...