McGee v. Com.

• Decision Date: 08 July 1997
• Docket Number: No. 0104-95-2,0104-95-2
• Citation: 487 S.E.2d 259,25 Va.App. 193
• Court: Virginia Court of Appeals
• Parties: Douglas McGEE, Jr. v. COMMONWEALTH of Virginia. Record

Page 259

487 S.E.2d 259

25 Va.App. 193

Douglas McGEE, Jr. v. COMMONWEALTH of Virginia.

Record No. 0104-95-2.

Court of Appeals of Virginia Richmond.

July 8, 1997.

Cullen D. Seltzer, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN, WILLIS, ELDER, BRAY, FITZPATRICK, ANNUNZIATA and OVERTON, JJ.

UPON REHEARING EN BANC

COLEMAN, Judge.

The defendant, Douglas McGee, Jr., was convicted in a bench trial of one count of possession of cocaine with intent to distribute in violation of Code § 18.2-248. A panel of this Court affirmed the conviction, holding that the defendant was not seized for Fourth Amendment purposes before he voluntarily consented to the search which resulted in the recovery of cocaine. See McGee v. Commonwealth, 23 Va.App. 334, 477 S.E.2d 14 (1996). Upon rehearing en banc, we hold that the trial court erred in denying the defendant's motion to suppress the cocaine because it was seized as the result of an illegal search of the defendant.

BACKGROUND

When viewed in the light most favorable to the Commonwealth as the prevailing party, the evidence proved that Officer Norris I. Loperl of the Richmond Police Department received a radio dispatch that a black male wearing a white t-shirt, black shorts, and white tennis shoes was selling drugs on a corner near 5001 Government Road in Richmond. The dispatch was based on a tip from an anonymous informant, who did not relate the circumstances under which the drugs were being sold, the identity of the seller, the nature of drugs being sold, or where the drugs were located.

Approximately two minutes after receiving the dispatch, Loperl and two other officers, all of whom were in uniform and armed, arrived at 5001 Government Road in two marked police cruisers. Immediately after parking the police cruisers, the three officers approached the defendant, who was sitting on a porch in front of a store. The defendant and a female companion were the only persons that the officers observed in the vicinity. The officers did not observe the defendant's activity prior to approaching him. At trial, Officer Loperl testified that he did not know whether the defendant was wearing a white t-shirt, black shorts, and tennis shoes as reported in the anonymous tip.

After exiting his vehicle, Officer Loperl approached the defendant and "stated to him that I had received a call that [he] was on this corner selling drugs and [that he] matched the description" of the individual who had been reported as selling drugs. According to Loperl, the defendant was free to leave, although the officers did not expressly so inform the defendant. Loperl testified that the officers did not block the defendant's path in any direction or draw their weapons.

Loperl then "asked [the defendant] could I pat him down to make sure he didn't have any weapons on him." Loperl testified that he asked the question in the same tone of voice he was using in court. The defendant responded by standing up and extending his arms in front of him with both fists clenched. Loperl patted the defendant down and found no weapons. Since Officer Loperl believed the defendant could have been holding a "small pocket knife" or "a razor" in his closed fists, Loperl asked the defendant to open his hands. Although Loperl could not remember the exact words used, he testified that, "I know I asked him. I know I didn't tell him. I asked him." The defendant opened his hands, which contained money, a torn ziplock bag, and "a little piece of white substance." Loperl then placed the defendant under arrest and, in a search of the defendant incident to that arrest, Loperl found twenty-five bags containing crack cocaine in the defendant's trousers.

In a written opinion, the trial judge held that the police officers' encounter with the defendant constituted an investigatory stop but that Officer Loperl had a reasonable, articulable suspicion that the defendant was involved in criminal activity. Thus, the trial judge ruled that, because the police did not restrict the defendant's movement or engage in coercive conduct, the brief detention was reasonable and defendant's consent to Loperl's request to open his hands was voluntary and, therefore, the fruits of the search were admissible.

ANALYSIS

In reviewing a trial court's denial of a motion to suppress, "[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). "Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996). In performing such analysis, we are bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers. Id. at ----, 116 S.Ct. at 1663. ¹ We analyze a trial judge's determination whether the Fourth Amendment was implicated by applying de novo our own legal analysis of whether based on those facts a seizure occurred. See Satchell v. Commonwealth, 20 Va.App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc ); see also Watson v. Commonwealth, 19 Va.App. 659, 663, 454 S.E.2d 358, 361 (1995).

Police-citizen confrontations generally fall into one of three categories. Payne v. Commonwealth, 14 Va.App. 86, 88, 414 S.E.2d 869, 869-70 (1992); Iglesias v. Commonwealth, 7 Va.App. 93, 99, 372 S.E.2d 170, 173 (1988). First, there are consensual encounters which do not implicate the Fourth Amendment. Iglesias, 7 Va.App. at 99, 372 S.E.2d at 173. Next, there are brief investigatory stops, commonly referred to as "Terry " stops, which must be based upon reasonable, articulable suspicion that criminal activity is or may be afoot. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1939). Finally, there are "highly intrusive, full-scale arrests" or searches which must be based upon probable cause to believe that a crime has been committed by the suspect. Id.; see also Wechsler v. Commonwealth, 20 Va.App. 162, 169, 455 S.E.2d 744, 746-47 (1995).

We find, as did the trial court, that the defendant's encounter with the police was not consensual. Therefore, as the trial court held, the defendant was seized when the three officers approached him on the porch and told him that they had a report that he "was on the corner selling drugs and [that he] matched the description." However, we disagree with the trial court's ruling that the police had reasonable, articulable suspicion to detain the defendant. Therefore, because the request to frisk the defendant and his "consent" to be searched were the result of an illegal detention, the cocaine seized from him should have been suppressed.

An encounter between a law enforcement officer and a citizen in which the officer merely identifies himself and states that he is conducting a narcotics investigation, without more, is not a seizure within the meaning of the Fourth Amendment but is, instead, a consensual encounter. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983); Williams v. Commonwealth, 21 Va.App. 263, 266, 463 S.E.2d 679, 681 (1995). A seizure occurs when an individual is either physically restrained or has submitted to a show of authority. California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991); Ford v. City of Newport News, 23 Va.App. 137, 142, 474 S.E.2d 848, 850 (1996).

The 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 question 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); see Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647 (1992). Whether a seizure has occurred for Fourth Amendment purposes depends upon whether, under the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877.

When the police expressly inform an individual that they have received information that the individual is engaging in criminal activity, the police "convey a message that compliance with their requests is required," Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), and "that failure to cooperate would lead only to formal detention." United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982). See also Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (holding that the accused was seized "when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room") (emphasis added); United States v. Glass, 741 F.2d 83, 85 (5th Cir.1984) (holding that the accused was seized when "the officers informed [him] that [he] was suspected of illegal activity"); United States v. Manchester, 711 F.2d 458, 460 (1st Cir.1983) (finding a seizure where the agents confronted the accused with their suspicions that he was involved in drug trafficking); State v. Ossey, 446 So.2d 280, 285 (La.) (holdi...