Montague v. Com.

• Decision Date: 05 November 2009
• Docket Number: Record No. 090337.
• Citation: 684 S.E.2d 583,278 Va. 532
• Court: Virginia Supreme Court
• Parties: Chauncey Lamont MONTAGUE v. COMMONWEALTH of Virginia.

684 S.E.2d 583

278 Va. 532

Chauncey Lamont MONTAGUE v. COMMONWEALTH of Virginia.

Record No. 090337.

Supreme Court of Virginia.

November 5, 2009.

S. Jane Chittom, Appellate Defender, for appellant.

Gregory W. Franklin, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: KEENAN, KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.

OPINION BY Justice BARBARA MILANO KEENAN.

In this appeal, we consider whether the record supports a circuit court's denial of a defendant's motion to suppress evidence. The defendant contended that he was unlawfully seized when two police officers approached him requesting information regarding his identity, and used that information to determine whether there were outstanding warrants for his arrest and whether he was trespassing on private property. We also consider whether the evidence was sufficient to support the defendant's conviction for assault and battery of a law enforcement officer.

Chauncey Lamont Montague was convicted in a bench trial in the Circuit Court of the City of Danville for possession of cocaine, in violation of Code § 18.2-250; possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2; possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4; and assault and battery of a law enforcement officer, in violation of Code § 18.2-57(C). Before trial, Montague filed a motion to suppress the evidence, arguing that the cocaine and firearm were obtained as a result of an unlawful seizure of his person in violation of the Fourth Amendment. The circuit court denied Montague's motion. At the conclusion of the bench trial, the circuit court sentenced Montague to a total of fifteen years and six months' imprisonment, with ten years suspended.

The Court of Appeals affirmed Montague's convictions in an unpublished order. Montague v. Commonwealth, No. 1663-07-3, 2009 WL 111645 (January 20, 2009). The Court held that the circuit court did not err in denying Montague's motion to suppress the evidence, because the encounter between the police and Montague was consensual in nature. Id., slip op. at 5. The Court also held that the evidence was sufficient to support Montague's conviction for assault and battery of a law enforcement officer. Id., slip op. at 6.

The evidence at trial showed that in January 2007, Lieutenant Gary Wilson and Officer Larry D. Land were engaged in off-duty employment at a local apartment complex. The officers were patrolling the premises in an effort to prevent individuals who had been barred from the complex from trespassing. The officers, who were wearing their police uniforms, observed Montague and a female companion leave one of the apartment buildings and walk toward a nearby unoccupied vehicle that had its engine running.

When Officer Land asked Montague whether he lived at the apartment complex, Montague responded that he did not. Officer Land also asked Montague whether he owned the vehicle, and Montague replied that he did. Although Montague was unable to produce any documentation establishing his identity, he provided the officers with his name, social security number, and date of birth.

After receiving that information, Officer Land contacted a police "dispatcher" to determine whether there were any outstanding arrest warrants for Montague. Angela Davis, Montague's companion, heard Officer Land contacting the dispatcher. However, the record contains no evidence indicating whether Montague was aware that Officer Land was attempting to obtain this information.

During the two or three minutes that the officers waited for a response from the dispatcher, the officers engaged in general conversation with Montague and remained a distance of between four and five feet from him. Meanwhile, Davis walked about five feet away from the officers and sat on the steps of an apartment building.

During this time, Montague did not ask the officers whether he was free to leave, nor did he attempt to leave. Also, the officers did not discuss with Montague whether he was permitted to leave.

As the officers continued to wait for a response from the dispatcher, Officer Land reviewed the "ban list" of individuals who were barred by the owner of the property from entering the premises. Officer Land testified that he customarily reviewed this list while waiting for a response regarding outstanding warrants because this procedure "makes it a little bit quicker for" the person talking with the police. Montague's name did not appear on the "ban list."

When the dispatcher relayed to the officers that there were two outstanding warrants for Montague's arrest, the officers immediately informed Montague that he was under arrest. As the officers attempted to take Montague into custody, Montague began "struggling," "twisting," and "jerking," in an apparent attempt to resist the officers' joint efforts to place him in handcuffs.

During this struggle, Montague repeatedly tried to reach into one of his pants pockets. When Officer Land pulled Montague's hand out of that pocket, a handgun fell onto the ground. Officer Land also observed some "packets" fall from Montague's sweatshirt pocket.

As Montague continued to resist the officers' attempt to place handcuffs on him, Lieutenant Wilson saw Montague push Officer Land and strike him in the chest with an elbow. Ultimately, after a period of several minutes, the officers were able to subdue Montague. The officers then retrieved the firearm and the "packets" that later were determined to contain cocaine.

In his first argument on appeal, Montague contends that the Court of Appeals erroneously upheld the circuit court's denial of his motion to suppress the evidence. Montague asserts that his encounter with the police officers was not consensual, and that the officers lacked any reasonable suspicion to believe that he was engaged in criminal activity. According to Montague, the officers unlawfully seized him at the time that they asserted the authority to check for outstanding warrants and to ascertain whether he was trespassing at the apartment complex. Montague maintains that under these circumstances, a reasonable person would not have thought that he was free to leave the officers' presence. We disagree with Montague's arguments.

The determination whether a person has been seized within the meaning of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. Jones v. Commonwealth, 277 Va. 171, 177, 670 S.E.2d 727, 731 (2009); McCain v. Commonwealth, 275 Va. 546, 551-52, 659 S.E.2d 512, 515 (2008). Under the Fourth Amendment, any seizure of a person, no matter how brief, must have an objective justification related to law enforcement. United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); see Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992).

A person is seized for purposes of the Fourth Amendment when the police "by means of physical force or show of authority" restrain that person's freedom of movement. Mendenhall, 446 U.S. at 553-54, 100 S.Ct. 1870; see Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001); Baldwin, 243 Va. at 196, 413 S.E.2d at 647. Conversely, a voluntary encounter between the police and a citizen does not constitute a seizure prohibited by the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 4 (2008); Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). Thus, even when the police do not have a reasonable suspicion that an individual may be engaged in criminal activity, they may approach that person and request information regarding the person's identity without violating the Fourth Amendment. See Bostick, 501 U.S. at 435, 111 S.Ct. 2382; 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, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); McCain, 261 Va. at 491, 545 S.E.2d at 546.

The Fourth Amendment also is not implicated when a person voluntarily responds to a police request to produce identification, even if the person's response later is used against him in a criminal prosecution. See Bostick, 501 U.S. at 434, 111 S.Ct. 2382; Royer, 460 U.S. at 497-98, 103 S.Ct. 1319; Baldwin, 243 Va. at 196, 413 S.E.2d at 648. As long as the police do not convey, by word or deed, that compliance with their request is mandatory, there is no requirement that these encounters be based on an objective or particularized suspicion regarding the person approached. See Bostick, 501 U.S. at 434, 111 S.Ct. 2382; Mendenhall, 446 U.S. at 553-54, 100 S.Ct. 1870; Baldwin, 243 Va. at 196, 413 S.E.2d at 647-48.

The Supreme Court has acknowledged that most individuals will feel obligated to respond when asked questions by a police officer, but has held that this fact alone will not convert a consensual encounter into a seizure. Delgado, 466 U.S. at 216, 104 S.Ct. 1758; Baldwin, 243 Va. at 197, 413 S.E.2d at 648. The Court has explained that a contrary conclusion would create constitutional barriers to everyday encounters between the police and individual citizens, imposing unrealistic burdens on "a wide variety of legitimate law enforcement practices." Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Thus, the Supreme Court has concluded that an encounter between the police and a citizen does not constitute a seizure unless, taking into account all the circumstances of the encounter, "a reasonable person would ... believe[ ] that he was not free to leave." Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Harris, 266 Va. at 32, 581 S.E.2d at 209; Baldwin, 243 Va. at 196, 413 S.E.2d at 647-48; see Malbrough, 275...