Royal v. Com.
| Decision Date | 29 January 2002 |
| Docket Number | Record No. 0062-01-1. |
| Citation | 558 S.E.2d 549,37 Va. App. 360 |
| Parties | James Russell ROYAL v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Richard C. Kerns, Newport News, for appellant.
Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Present: BRAY, FRANK and AGEE, JJ.
James Russell Royal (appellant) was convicted in a bench trial of possession of cocaine, in violation of Code § 18.2-250. On appeal, he contends the trial court erred in denying his motion to suppress, claiming the police had neither consent nor probable cause to search him. For the reasons stated, we reverse the conviction.
In the early morning of July 20, 1999, Newport News Police Officer R.O. Davis and his partner responded to a call about a "suspicious vehicle" parked at an open gas station. The record does not contain any information about why the vehicle was considered "suspicious," whether the station was located in an area with a high crime rate, or if drug sales frequently occurred there. When the officers arrived, they observed three men in a car, parked beside the gas pumps. Appellant was in the front passenger seat.
While the driver gave the officers a name that at some point proved false, the information that appellant provided was correct. When Davis asked appellant to step out of the car, "he agreed to do so." Appellant also consented to a search of his person. Davis patted him down for weapons or contraband and found nothing. Appellant then agreed to sit in the police vehicle while Davis returned to the car by the gas pump. Appellant was not handcuffed. Davis acknowledged he saw no suspicious activity at that time.
Davis later noticed that appellant, still seated alone in the police car, was chewing something. Appellant was gasping, and "it wasn't just normal chewing like he was chewing gum, but looked like he tried to swallow something." Davis became concerned be cause his "experience with people that [he] arrest[s] with drugs is they attempt to swallow crack cocaine or marijuana."
Davis asked appellant if he was eating cocaine. Appellant denied he was eating any drugs and stated "he had a dollar bill in his mouth which he was eating." Appellant refused to spit out the bill. Davis testified he did not attempt to open appellant's mouth, but he did call for medical assistance. At this point, appellant was not under arrest.
In Davis's experience, dollar bills are Davis decided "to check him again, just in case he did have something and he tried to eat that."
Without requesting or receiving any additional consent, Davis searched appellant and found some cocaine and marijuana when he reached into appellant's pants pocket. He never searched appellant's mouth nor did he recover anything from his mouth. After Davis recovered the drugs from the pocket, he placed appellant in handcuffs and advised him of his Miranda rights.
Medical assistance arrived and transported appellant to a hospital. While at the hospital, appellant told Davis that he was selling cocaine to make money for his girlfriend. At trial, appellant denied making any inculpatory statements and claimed Davis planted the drugs on him. He further denied consenting to the initial search and denied consenting to sit in the police vehicle. Appellant testified he was chewing "tobacco gum."
Appellant moved to suppress the cocaine, contending that the act of chewing and "apparent swallowing of [sic] something did not constitute probable cause to search appellant.1 He also argued the initial consent to search did not extend to the second search of his pocket. The trial court denied the motion with no explanation.
Appellant argues the trial court erred in denying his motion to suppress. He contends his Fourth Amendment rights were violated when Davis conducted a second search, reaching into his pocket and finding a rock of crack cocaine. He does not argue the first pat-down search was unconstitutional. The Commonwealth argues appellant consented to the second search and, alternatively, the officer had probable cause to search appellant's pockets for drugs.2
Where, as here, officers did not obtain a search warrant before reaching into appellant's pocket, the Commonwealth must prove during the motion to suppress that (1) exigent circumstances3 and probable cause existed or (2) the suspect gave his consent, before the trial court can deny the motion to suppress. Jefferson v. Commonwealth, 27 Va.App. 1, 16, 497 S.E.2d 474, 481 (1998). The standard for reviewing such cases is clear:
On appeal of a motion to suppress, the defendant has the burden of proving that a warrantless search violates his Fourth Amendment rights. See Fore v. Commonwealth 220 Va. 1007, 1010, 265 S.E.2d 729, 731,
cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). We view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible from the evidence. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review de novo the application of defined legal standards to the particular facts of a case. See id.
Taylor v. Commonwealth, 28 Va.App. 638, 641-42, 507 S.E.2d 661, 663 (1998).
The question of whether a defendant gave an officer consent to search "is a factual question to be determined by the trier of fact," receiving great deference from this Court. Jean-Laurent v. Commonwealth, 34 Va.App. 74, 79, 538 S.E.2d 316, 318 (2000). Here, however, the trial court made no factual finding regarding appellant's consent to the search, and we cannot infer a finding based on this record.4 Therefore, while we do examine the evidence in the light most favorable to the Commonwealth, the party prevailing below, see Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991),
we cannot defer to the factual findings of the trial court.
247 Va. 339, 443 S.E.2d 160 (1994).
Appellant consented to the initial search, which was concluded before appellant took a seat in the officer's vehicle. The Commonwealth argues this consent, given for the first search, extended to the second search, which occurred after the officer left appellant alone in the police car. However, Davis did not testify that his initial search was incomplete or that the second search was in some way a continuation of the first. It clearly was not. The officer had concluded his initial pat-down search of appellant and returned to the "suspicious" vehicle, leaving appellant alone in the police car.
435 S.E.2d at 594-95 (); State v. Koucoules, 343 A.2d 860, 871-72 (Me.1974) (). As an Illinois appellate court explained, "[I]t is only reasonable to presume that [an appellant] then believed [after the first search] that the purpose of the consent had been fulfilled and that no reason then existed to register a formal revocation." People v. Shelton, 110 Ill.App.3d 625, 66 Ill.Dec. 367, 442 N.E.2d 928, 932 (1982).
Officer Davis neither requested nor was given permission to search appellant's pockets after completion of the first pat-down. Therefore, we hold the officer did not have appellant's consent to conduct the second search.
Although the police did not have consent, the trial court's denial of the motion to suppress would not be erroneous if the second search was based on probable cause to believe appellant was engaged in or concealing evidence of a crime. The ultimate question of whether the officer had probable cause to reach into appellant's pocket involves issues of both law and fact and is reviewed de novo. See Jones v. Commonwealth, 32 Va.App. 30, 38, 526 S.E.2d 281, 285 (2000)
.
"[P]robable cause is a flexible, common-sense standard [which] merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief' that certain items may be... useful as evidence of a crime.'" Camden v. Commonwealth, 17 Va.App. 725, 728, 441 S.E.2d 38, 40 (1994) (quoting Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). However, probable cause "must be based on more than speculation, suspicion, or surmise that a crime might be in progress." Alexander v. Commonwealth, 19 Va.App. 671, 674, 454 S.E.2d 39, 41 (1995). See also Grimstead, 12 Va.App. at 1069,
Even viewing the evidence in the light most favorable to the Commonwealth, the facts supporting a...
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