Parker v. Com., 971010

• Decision Date: 09 January 1998
• Docket Number: No. 971010,971010
• Citation: 255 Va. 96,496 S.E.2d 47
• Parties: Leon PARKER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 47

496 S.E.2d 47

255 Va. 96

Leon PARKER v. COMMONWEALTH of Virginia.

Record No. 971010.

Supreme Court of Virginia.

Jan. 9, 1998.

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

Robert H. Anderson, III, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: All the Justices.

HASSELL, Justice.

I.

The primary issues in this appeal are whether an encounter between a police officer and a pedestrian constituted a seizure within the meaning of the Fourth Amendment of the Constitution of the United States and, if so, whether the seizure was constitutionally permissible.

II.

Leon Darnell Parker was indicted in the Circuit Court of the City of Richmond for possession of cocaine with intent to distribute in violation of Code § 18.2-248. The defendant filed a pretrial motion to suppress evidence of crack cocaine that had been seized from his person on the basis that this evidence was obtained in violation of the Fourth Amendment. The trial court denied the motion and, at a bench trial, convicted the defendant of the charged offense. The Court of Appeals affirmed the judgment of the circuit court in an unpublished opinion, and we awarded the defendant an appeal.

We will summarize the facts adduced at the suppression hearing and, under familiar principles, we will consider the testimony in the light most favorable to the Commonwealth, the prevailing party below. On July 13, 1995, City of Richmond police officer Michael J. Kurisky, who was wearing a police uniform and displaying a badge of authority, drove a white police cruiser to a public housing development known as Creighton Court. Officers John O'Connor and Wes Moore were passengers in Officer Kurisky's police cruiser. The police officers were "checking various areas ... for drug activity."

As Officer Kurisky drove his police cruiser onto Creighton Road, a street in the housing development, the officers observed a group of men "standing around a white Cadillac which had its trunk open." Officer Kurisky had made numerous prior drug arrests in the area, and he had recovered drugs and weapons in the immediate area where the men were located. Officer Kurisky "personally consider[ed] that area to be an open-air drug market."

When Officer Kurisky drove his police cruiser near the Cadillac, the men looked toward him, immediately shut the car's trunk, and began to disperse. Officers O'Connor and Moore got out of the police cruiser, and Officer Kurisky remained in the vehicle.

As Officer Kurisky watched the men disperse, he saw the defendant "turn and place an item with his right hand in the waistband of his shorts." The defendant proceeded to walk on Creighton Road, away from the Cadillac. While the two other officers remained at the scene, Officer Kurisky "backed the police vehicle up" and drove down Creighton Road following the defendant. Officer Kurisky drove the police cruiser "parallel" to the defendant who was about 20 feet away from him. Officer Kurisky was looking at the defendant, who then "looked at the direction of the police vehicle, turned around and started walking back on the sidewalk the other way." Officer Kurisky, still in his police cruiser, continued to follow the defendant, who began to walk on "posted" property owned by the Richmond Redevelopment and Housing Authority. Officer Kurisky, continuing to follow the defendant, drove the police cruiser 40 feet off the street onto the Richmond Redevelopment and Housing Authority's property and stopped the car at the location where the defendant was standing.

Officer Kurisky, who possessed clearly visible weapons, approached the defendant and inquired whether he lived in the public housing development. In response to the officer's inquiry, the defendant stopped and responded that he did not live there. Officer Kurisky asked the defendant if he had any guns or drugs in his possession, and the defendant replied, "no." Officer Kurisky then asked the defendant if the officer could "pat him down," and the defendant put his hands up in the air. Officer Kurisky "went around behind [the defendant] and just patted him down for any weapons or drugs" and found none.

After Officer Kurisky conducted this search, another Richmond police officer, Mark Ambrozy, approached the defendant who was wearing a white basketball jersey, white "mesh" basketball shorts, and a pair of thin white or peach boxer underwear. Officer Ambrozy asked the defendant if he "had anything in his crotch." The defendant replied that he did not, and "he grabbed his basketball shorts and boxer shorts and started, in very exaggerated motions, pulling them to the side, up and down, shaking them in and out...."

As the defendant made these exaggerated motions, Officer Kurisky saw "a pink object through the boxer shorts material." Officer Kurisky placed his hand on the object and realized that the object was crack cocaine. When Officer Kurisky removed the item from the defendant's waistband, he found a sandwich bag containing 18 red ziploc baggies, and each baggie contained a substance later identified as crack cocaine. Officer Kurisky did not ask the defendant for permission to conduct this search.

III.

A.

The defendant argues that Officer Kurisky violated the defendant's Fourth Amendment rights because he was seized when the officer drove the police cruiser 40 feet away from the street onto a common area at the housing development in order to question the defendant. The Commonwealth responds that this encounter did not constitute a seizure within the meaning of the Fourth Amendment. We disagree with the Commonwealth.

The Fourth Amendment of the Constitution of the United States provides in part that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated...." This guarantee applies to seizures of the person as well as to seizures of the houses, papers, and effects of an individual. Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992). The United States Supreme Court stated the following test which we must apply when determining whether a person has been seized within the meaning of the Fourth Amendment:

"We adhere to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. 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.' United States v. Martinez-Fuerte, 428 U.S. 543, 554 [96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976) ]. As long as the person to whom questions are put remains free to disregard the questions 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.

Moreover, characterizing every street encounter between a citizen and the police as a 'seizure,' while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. 'Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515 [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963) ].' Schneckloth v. Bustamonte, 412 U.S. at 225 [93 S.Ct. at 2046-47 (1973) ].

We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 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." United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (footnote omitted).

The United States Supreme Court applied the Mendenhall test in Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988), and made the following observation which is equally pertinent here:

"The test provides that the police can be said to have seized an individual 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'

....

The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs."

Accord California v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547, 1551-52, 113 L.Ed.2d 690 (1991); INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).

Applying these principles, we hold that Officer Kurisky's encounter with the defendant constituted a seizure within the meaning of the Fourth Amendment. As we have already stated, Officer Kurisky was wearing a police uniform,...