Roberts v. Com., Record No. 2486-08-1.

• Docket Nº: Record No. 2486-08-1.
• Citation: 55 Va. App. 146, 684 S.E.2d 824
• Case Date: November 10, 2009
• Court: Court of Appeals of Virginia

684 S.E.2d 824 55 Va. App. 146 Kevin Nathaniel ROBERTS
v.
COMMONWEALTH of Virginia. Record No. 2486-08-1. Court of Appeals of Virginia, Chesapeake. November 10, 2009.

[684 S.E.2d 825]

Richard J. Davis, III (Kozak & Hamlet, P.C., on brief), for appellant.

[684 S.E.2d 826]

Joshua M. Didlake, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and FRANK and POWELL, JJ.

FELTON, Chief Judge.

55 Va. App. 149

Following the trial court's denial of his motion to suppress evidence seized from him, Kevin Nathaniel Roberts ("appellant") was convicted, consistent with his conditional guilty plea, of possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, he contends the trial court erred in denying his motion to suppress evidence of a plastic bag containing five individually packaged rocks of cocaine seized from his hand. For the following reasons, we reverse the judgment of the trial court.

55 Va. App. 150

BACKGROUND

In our review of a trial court's denial of a motion to suppress, we determine whether the accused has met his burden to show that the trial court's ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them. ..." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). "However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment." Hughes v. Commonwealth, 31 Va.App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing McGee, 25 Va.App. at 198, 487 S.E.2d at 261).

In the late afternoon of March 14, 2008, Officers Blystone and Riddle were driving through "a high crime, high drug area" of Portsmouth, an area in which Blystone had made several prior drug arrests. Riddle had information that controlled substances were being sold out of several houses in the area, and directed Blystone's attention to a particular house.¹ Appellant and another individual were sitting on the concrete steps leading to the porch of that house, and appellant's aunt and uncle were sitting on the porch.

Both officers, wearing clothing identifying them as police officers, approached the individuals on the porch. Appellant, whose hand was balled in a fist, became upset. He raised his voice, repeatedly asking, "Why are you in my yard? Why are you here? Why are you harassing me[?]" Blystone informed appellant that he had information that drug transactions had occurred on the street and that he needed to confirm that

55 Va. App. 151

appellant lived at that address. When he asked appellant for his identification, appellant verbally provided it. Blystone could not recall whether appellant told him that he lived at that address or that his aunt, who was also on the front porch, lived there.

When appellant moved onto the porch toward the front door of the house, away from the officers, Blystone asked appellant if he could search him.² When appellant refused, Blystone immediately commanded appellant to "get into the officer safety position," to spread his feet and place his hands on top of his head, telling appellant he was going to pat him down for weapons. Prior to commanding appellant to assume "the officer safety position," Blystone never asked appellant what was in his clenched fist or to open his hand. Blystone proceeded to where appellant was standing on the porch and moved behind him to conduct the pat-down search. After appellant refused to comply with Blystone's repeated instructions to interlace his fingers on top of his head, Blystone grabbed appellant's fisted hand on the top of his head.

684 S.E.2d 827

When he did so, he felt a baggie filled with what he suspected to be crack cocaine rocks.

After recovering the baggie from appellant, Blystone placed him under arrest and searched him. During that search, he recovered $676 in cash from appellant.

At the suppression hearing, Blystone testified that prior to approaching the porch, he observed "several ... plastic baggies where the corners had been ripped out" in the front yard and the bushes. He also testified that he considered appellant's behavior, i.e., his balled up fist, raised voice, looking around, and moving onto the porch, to be "pre-assault indicators," and grew concerned for his safety. When asked on direct examination on what he based his determination that appellant's actions were "pre-assault indicators," Blystone testified,

55 Va. App. 152

"I recently after this have gone through defensive tactic instructor school; also my five years previous training here in this area and two years in Ohio as a law enforcement officer." (Emphasis added).

Following the trial court's denial of his motion to suppress the evidence seized from him, appellant entered a conditional guilty plea to possession of cocaine with intent to distribute and was convicted on that plea.

ANALYSIS

Appellant contends the trial court erred in denying his motion to suppress the evidence seized from his hand after he refused to consent to the officer's request to search him. He argues that the officer lacked reasonable, articulable suspicion to believe appellant was armed and dangerous to justify his seizure to conduct a pat-down frisk. We agree.

"The Fourth Amendment prohibits only unreasonable searches and seizures." Thompson v. Commonwealth, 54 Va.App. 1, 7, 675 S.E.2d 832, 834 (2009). "`Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.'" Roulhac v. Commonwealth, 50 Va.App. 8, 14, 646 S.E.2d 4, 7 (2007) (quoting United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002)). An encounter between a law enforcement officer and an individual does not lose its consensual nature when the officer merely identifies himself, states that he is conducting an investigation, and asks the individual to identify himself. Id. at 14-15, 646 S.E.2d at 7. "An officer questioning a citizen exceeds the scope of his authority and effects a seizure only when, `in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Barkley v. Commonwealth, 39 Va.App. 682, 692, 576 S.E.2d 234, 239 (2003) (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547,

55 Va. App. 153

1551, 113 L.Ed.2d 690 (1991)) (officers knocking on front door of residence and asking questions not seizure).

Here, the encounter lost its...