Middlebrooks v. Com.

• Decision Date: 05 August 2008
• Docket Number: Record No. 1484-07-1.
• Citation: 52 Va. App. 469,664 S.E.2d 499
• Parties: Justin Jesse MIDDLEBROOKS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

664 S.E.2d 499

52 Va. App. 469

Justin Jesse MIDDLEBROOKS v. COMMONWEALTH of Virginia.

Record No. 1484-07-1.

Court of Appeals of Virginia, Chesapeake.

August 5, 2008.

Steven C. Frucci (Christie, Kantor, Griffin & Smith, P.C., on brief), Virginia Beach, for appellant.

Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and MILLETTE, JJ.

LeROY F. MILLETTE, JR., Judge.

Justin Jesse Middlebrooks (Middlebrooks) was convicted, pursuant to a conditional guilty plea in accordance with Code § 19.2-254, of possession of marijuana with intent to distribute in violation of Code § 18.2-248.1 and urinating in public.¹ Middlebrooks appeals the trial court's denial of his pretrial motion to suppress marijuana found in his vehicle, arguing his Fourth Amendment right against unreasonable searches and seizures was violated. Middlebrooks claims his encounter with police was not consensual and the police had no reasonable, articulable suspicion to justify his seizure and subsequent search. For the following reasons, we reverse and remand Middlebrooks' conviction.

I. BACKGROUND

At approximately 1:10 a.m. on July 2, 2006, plain-clothed Virginia Beach police officers, from the Special Investigations Unit on vice and narcotics, were conducting a bike patrol of the oceanfront between 19th and 21st Streets. Police refer to this area as "a fishing hole for criminal behavior," where they make "a lot of arrests ... drug arrests, gun arrests...." Officers observed a man, later identified as Middlebrooks, in the McDonald's restaurant parking lot urinating next to a parked vehicle.

Officer D'Orio, from the Special Investigations Unit, approached Middlebrooks and identified himself as a police officer. Middlebrooks was cooperative and admitted his violation. Middlebrooks consented to a search of his person, and the search yielded nothing. Officer D'Orio asked Middlebrooks if the car he was standing next to was his. Middlebrooks responded, "It's my people's car." Officer D'Orio wrote Middlebrooks a citation for urinating in public and then left the McDonald's parking lot to continue his oceanfront patrol.

Officer D'Orio rejoined his fellow Special Investigations Unit officers in a parking lot close to McDonald's. From their new vantage point, the officers observed Middlebrooks in the McDonald's parking lot "milling around" his "people's car," and about five to ten minutes later, sitting in the driver's seat of the vehicle. Detective Brandt, another member of the Special Investigations Unit, called dispatch to find out who owned the vehicle that Middlebrooks was now sitting in. A search of the tag revealed the vehicle belonged to Middlebrooks.

Officer D'Orio testified that at this point, he suspected Middlebrooks was involved with illegal narcotics because he had lied about ownership of his vehicle, he was located in a high crime area, and the specific McDonald's parking lot where he was "milling around" had been the scene of prior drug-related arrests. While Middlebrooks was still seated in the vehicle, Officer D'Orio approached and asked Middlebrooks to exit the vehicle so they could speak. After Middlebrooks denied Officer D'Orio's request to search the vehicle, Sergeant Dimitry told Middlebrooks, "I just want to let you know I'm going to call the drug dog out. I'm going to have him run your car." Sergeant Dimitry then asked if there was any "weed" in the vehicle. Middlebrooks responded that there was "weed" in the center console of the vehicle. The officers' search of the vehicle uncovered approximately one ounce of marijuana and a digital scale. After conducting a search of Middlebrooks incident to arrest, officers found $453 in small bills in his pockets.

Middlebrooks made a pretrial motion to suppress his incriminating statements and the evidence recovered from the search of his person and his vehicle. Middlebrooks claimed the search and seizure were conducted in violation of the Fourth Amendment. Officer D'Orio and Sergeant Dimitry were the sole witnesses who testified at the pretrial hearing. The trial court denied Middlebrooks' motion to suppress,² finding:

The evidence shows, that [the officers] noticed the defendant acting in a strange fashion after the [first] encounter in that he had told them that [a] particular vehicle was not his car. It was his people's car; and then when they see him still in the parking lot, it raised their suspicion because ... [t]he drive-through was open, but the restaurant is closed, and he continues [to stay] in the parking lot. And so they run the license plate, and it turns out that the vehicle is registered to the defendant. ... [After Middlebrooks denies consent to search his car] [t]he court at this point finds that this is totally a consensual encounter because the conversation is taking place outside the vehicle in which the police have asked the defendant to step out ... they [then] had this discussion about the drug dog.... And they told him, well, basically, we're going to have a drug dog come ... and then the defendant doesn't give permission as such to search; but what he says is ... I've got weed in the car.... The court finds that the encounter to begin with was consensual and that the fact that the defendant told them that the drugs were in the vehicle ... was not based on coercion .... [T]he court finds that the totality of the evidence is that the Fourth Amendment was not violated.

[Defense Counsel] Are you finding that once the drug dog comment was made, it was no longer consensual or was it still consensual at that point?

[Court] It was still consensual.

(Emphasis added). This appeal followed.

II. ANALYSIS

On appeal, "[t]he defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of his suppression motion was reversible error." McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008) (citing Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001); Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). A claim under the Fourth Amendment "presents a mixed question of fact and law that an appellate court reviews de novo." Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (citing Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836 838 (2002)). However, "`[w]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them.'" Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)).

A. CONSENSUAL ENCOUNTER

Middlebrooks asserts on appeal that he was illegally seized either when Officer D'Orio asked him to step out of his vehicle or when Sergeant Dimitry told him that a drug dog was coming to run his vehicle because he did not feel free to leave and the officers lacked reasonable suspicion. The Commonwealth contends that the encounter was either consensual or supported by a reasonable and articulable suspicion. We agree with Middlebrooks that the encounter became non-consensual when Sergeant Dimitry told Middlebrooks that a drug dog was coming to run his vehicle.

"`Fourth Amendment jurisprudence recognizes three categories of police-citizen [contacts]: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly intrusive arrests and searches founded on probable cause.'" Blevins, 40 Va.App. at 420-21, 579 S.E.2d at 662 (quoting Wechsler v. Commonwealth, 20 Va.App. 162, 169, 455 S.E.2d 744, 747 (1995)).

The trial court found the entire interaction, even following Sergeant Dimitry's drug dog comment and Middlebrooks' incriminating statements, was consensual. A police officer may stop and question a person if the encounter is consensual. Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003) (citing Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983)). An encounter is consensual unless, "a reasonable person would not feel free to decline an officer's requests or would not feel free to leave...." Id. (citing United States v Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879-80, 64 L.Ed.2d 497 (1980)). There is no bright-line test to determine whether an encounter is consensual, rather a consensual encounter inquiry is based on the totality of the circumstances. Id.

Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave.

Id. (citing Ohio v. Robinette, 519 U.S. 33, 36, 117 S.Ct. 417, 419-20, 136 L.Ed.2d 347 (1996); Royer, 460 U.S. at 504, 103 S.Ct. at 1328; Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877).

We need not resolve whether Officer D'Orio seized Middlebrooks when he asked Middlebrooks to step out of his vehicle because no evidence was obtained from Middlebrooks at that time. However, it is clear that once Sergeant Dimitry told Middlebrooks, "I just want to let you know I'm going to call the drug dog out. I'm going to have him run your car," no reasonable person would have felt free to leave.

The facts of this case are similar to Deer v. Commonwealth, 17 Va.App. 730, 441 S.E.2d 33 (1994).³ In Deer, appellant was pulled over by a police officer and given a citation for speeding. Id. at...