McLellan v. Com.

• Citation: 554 S.E.2d 699,37 Va. App. 144
• Decision Date: 20 November 2001
• Docket Number: Record No. 2735-00-1.
• Parties: Robert L. McLELLAN v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

554 S.E.2d 699

37 Va. App. 144

Robert L. McLELLAN v. COMMONWEALTH of Virginia.

Record No. 2735-00-1.

Court of Appeals of Virginia, Chesapeake.

November 20, 2001.

John H. Underwood, III, Public Defender (Brenda C. Spry, Deputy Public Defender, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.

Present: BRAY, FRANK and CLEMENTS, JJ.

FRANK, Judge.

Robert L. McLellan (appellant) was convicted in a bench trial of possession of heroin with the intent to distribute, in violation of Code § 18.2-248. On appeal, he claims the trial court erred in denying his motion to suppress because the police did not have reasonable suspicion to detain him. For the reasons set forth, we affirm appellant's conviction.

BACKGROUND

On February 29, 2000, Detective McAndrew and Officer Defrietas of the Portsmouth Police Department were patrolling a housing development of the Portsmouth Redevelopment and Housing Authority (PRHA). As they pulled into the complex, McAndrew testified he observed several people "standing in the court area." As the officers exited their unmarked police vehicle, the people disbursed.

Appellant, who had been part of the group, walked over to a Grand Am and sat in the driver's seat. McAndrew approached the vehicle and asked to "see [appellant's] ID to determine if he lived on the property."

Appellant gave McAndrew his identification. The detective then ran a "standard PRHA check" to determine if appellant had been "warned" against trespassing and if any outstanding warrants existed for his arrest. As he was running the checks, McAndrew observed appellant move his right hand toward the center console of the car.

McAndrew asked appellant to place his hands on the steering wheel. Appellant initially complied but then moved his hand again toward the center console. Although the detective again told appellant to place his hands on the steering wheel, this time appellant did not comply. McAndrew, for his safety, then ordered appellant out of the car. Appellant complied. The detective then "checked the center console" and found a loaded .38 revolver.

McAndrew admitted at trial he had no arrest warrant for appellant when he approached the vehicle and that he had determined appellant was not free to leave during the trespassing investigation. However, McAndrew said he did not recall anyone telling appellant that he was being investigated for trespassing. McAndrew did indicate "there was reason to believe that [appellant] possibly was trespassing."

Officer Defrietas testified he first saw appellant after he was seated in the car. According to the officer, as they approached appellant's vehicle, Defrietas told McAndrew that appellant was trespassing. He recognized appellant "from previous dealings and knew him to be trespassing."

During their interactions, Defrietas also saw appellant putting his hand toward the center console. According to Defrietas, appellant continued to reach for the console despite McAndrew's orders to keep his hands still. At that point, McAndrew pulled appellant out of the vehicle and discovered the gun. Appellant was arrested for possessing a concealed weapon.

Appellant was transported to the police station where he was shackled to an "o-ring" on the wall. Officer Luck saw appellant move his hands away from his body "and drop a plastic bag containing several ... capsules containing a white substance." This substance was heroin. Appellant was arrested for possession with the intent to distribute a controlled substance. Appellant told Defrietas they had no reason to arrest him because the drugs were not his.

Appellant moved to suppress the gun and the heroin, claiming they were recovered after he was illegally seized. Appellant maintained McAndrew did not have reasonable suspicion to suspect he was trespassing and, therefore, he was seized illegally when Detective McAndrew asked for his identification. The Commonwealth's attorney argued no seizure occurred, contending the interaction was a consensual encounter. The trial court ruled that the police had reasonable suspicion to detain appellant.

ANALYSIS

At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving that a warrantless search or seizure did not violate the defendant's Fourth Amendment rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989)

(citations omitted). On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (citation omitted). "[W]e 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." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). However, we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case. See Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996) (citation omitted). "[O]n appeal, appellant carries the burden to show ... that the denial of a motion to suppress constitute[d] reversible error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993).

Lowe v. Commonwealth, 33 Va.App. 656, 660, 536 S.E.2d 454, 456 (2000).

Appellant contends that he was detained because the detective demanded an ID and because the detective subjectively determined that appellant was not free to leave.

The general legal principles applied in this situation are well recognized. Interactions between the police and citizens fall into one of three categories: (1) consensual encounters, (2) investigatory, or Terry, stops requiring reasonable suspicion, and (3) full arrests requiring probable cause. Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995).

A consensual encounter occurs when police officers approach persons in public places "to ask them questions," provided "a reasonable person would understand that he or she could refuse to cooperate." United States v. Wilson, 953 F.2d 116, 121 (4th Cir.1991) (quoting Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)); see also Richards v. Commonwealth, 8 Va.App. 612, 615, 383 S.E.2d 268, 270 (1989)

. Such encounters "need not be predicated on any suspicion of the person's involvement in wrongdoing," and remain consensual "as long as the citizen voluntarily cooperates with the police." Wilson, 953 F.2d at 121.

Payne v. Commonwealth, 14 Va.App. 86, 88, 414 S.E.2d 869, 870 (1992). An encounter is not consensual "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). "`Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.' [Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).] Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure." Bostick, 501 U.S. at 434,111 S.Ct. at 2386.

As the Supreme Court said in McCain v. Commonwealth:

A person is "seized" within the meaning of the Fourth Amendment if, under the circumstances presented, a reasonable person would believe that he was not free to leave the scene of an encounter with the police. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Cochran v. Commonwealth, 258 Va. 604, 608, 521 S.E.2d 287, 289 (1999), cert. denied, 529 U.S. 1075, 120 S.Ct. 1692, 146 L.Ed.2d 498 (2000); Parker v. Commonwealth, 255 Va. 96, 101, 496 S.E.2d 47, 50 (1998). Thus, a seizure occurs when a law enforcement officer, by physical force or some display of authority, restrains in some manner a citizen's freedom of movement. Only when such restraint is imposed is there a basis for invoking Fourth Amendment safeguards. Mendenhall, 446 U.S. at 553, 100 S.Ct. at 1876-77; Parker, 255 Va. at 101, 496 S.E.2d at 50; Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647 (1992).

The Supreme Court has detailed examples of circumstances that may indicate that a seizure has occurred. Such examples include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; Parker, 255 Va. at 101, 496 S.E.2d at 50; Baldwin, 243 Va. at 196, 413 S.E.2d at 648. In contrast, a police request made in a public place for a person to produce some identification, by itself, generally does not constitute a Fourth Amendment seizure. Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); Baldwin, 243 Va. at 196-97, 413 S.E.2d at 648.

261 Va. 483, 490-91, 545 S.E.2d 541, 545-46 (2001).

In McCain, an officer approached a stationary vehicle and asked McCain for identification. 261 Va. at 486-87, 545 S.E.2d at 543. McCain then gave the officer a valid driver's license. Id. at 487, 545 S.E.2d at 543. The officer ran the license for outstanding warrants and found nothing. Id. After returning his license, the officer asked for and received from McCain permission to search the vehicle. Id.

At trial, McCain argued he was detained when he complied with the officer's demand to produce identification....