Sheler v. Com.

• Decision Date: 09 July 2002
• Docket Number: Record No. 2424-00-4.
• Citation: 566 S.E.2d 203,38 Va. App. 465
• Court: Virginia Court of Appeals
• Parties: Allen Derrick SHELER v. COMMONWEALTH of Virginia.

566 S.E.2d 203

38 Va. App. 465

Allen Derrick SHELER v. COMMONWEALTH of Virginia.

Record No. 2424-00-4.

Court of Appeals of Virginia, Alexandria.

July 9, 2002.

Joan C. Ruff, Herndon, (J. Amy Dillard, Deputy Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON, ANNUNZIATA, JJ., and COLEMAN, Senior Judge.

ANNUNZIATA, Judge.

Allen Derrick Sheler appeals his conviction by a jury for robbery, abduction with the intent to extort pecuniary benefit, and use of a firearm while committing robbery and abduction. Sheler contends that the trial court erroneously denied his motion to suppress evidence of glass fragments found on one of Sheler's shoes. For the reasons that follow, we reverse and remand.

I. BACKGROUND

Under accepted principles, we review the evidence in the light most favorable to the Commonwealth, the party prevailing below. Great Eastern Resort Corp. v. Gordon, 31 Va.App. 608, 610, 525 S.E.2d 55, 56 (2000). At about 8:00 a.m. on December 27, 1998, two men wearing masks and gloves robbed a Wendy's restaurant located on South Van Dorn Street in Alexandria, Virginia. The men gained entry by breaking the glass in two separate doors of the establishment. The restaurant was not yet open for business, and three employees were inside, Elsy Benitez, Sunvil Dwived, and Mohamed Yousef.

One of the intruders carried a handgun wrapped in cloth. The taller of the two men held the gun and used it in a threatening manner, demanding that Yousef open the safe. Once the safe was open, the shorter robber placed the money from the safe in a french fries box. The employees were ordered into a freezer, where they were instructed to remain while the robbers fled. When the employees came out of the freezer about ten to fifteen minutes later, Yousef called the police from a public telephone outside the building because the line in his office had been disconnected.

Joseph Fisher, a firefighter and former private investigator who was at a nearby ATM at the time of the incident, saw Sheler's vehicle at the Wendy's restaurant about the time of the robbery/abduction. He wrote down the vehicle's license plate number after observing suspicious conduct around the vehicle. The vehicle, a 1997 Plymouth Neon, was registered to Sheler. When the police traced the vehicle back to Sheler, they discovered that he had reported the vehicle stolen that day.

The morning of the robbery/abduction, Detective Durkin spoke with Sheler's parents and told them he was investigating a robbery and needed to speak with Sheler concerning the fact that his car may have been involved in the crime. Durkin asked Sheler's parents to telephone him if they learned his whereabouts.

The police were advised that Sheler was at the home of a friend in Prince Georges County, Maryland. About five hours after the crimes had been committed, Durkin, accompanied by two other officers, went to the residence. Two officers in uniform from Prince Georges County, Maryland were already at the residence, at Durkin's request, for jurisdictional purposes. The Maryland officers did not draw their guns.

Officer Durkin knocked on the door. The Maryland officers waited outside the residence. The Alexandria officers entered the home and found Sheler sitting in the living room wearing blue jeans and dark colored sneakers. Sheler's general appearance was consistent with that of one of the robbers. Durkin identified himself, displayed his badge, and told Sheler that they wanted to ask some questions about his car. He said he "would like [Sheler] to come back to Virginia where [they] could take a statement" from him. Neither Officer Durkin nor the other Alexandria officers drew their weapons or mentioned the robbery. Sheler said, "okay," and accompanied the officers to the Alexandria police station. The officers did not touch Sheler or use a harsh tone or profanity.

The officers neither told him he did not have to come nor that he had to accompany them. On the way to the station, Sheler sat in the back seat of the police car along with one of the three Alexandria officers. He was not handcuffed.

During the interview at the station, Durkin asked to see Sheler's shoes because he believed that the robbers had likely walked through broken glass from the glass doors broken at the crime scene and that they had picked up glass fragments on the soles of their shoes. Sheler testified that Detective Durkin told him that he had glass on the bottom of his shoes and then told him to take off his shoes. Durkin testified that he did not see the glass fragments until Sheler took off his shoes. Specifically, Durkin "asked [Sheler] if [Durkin] could look at [Sheler's] shoes." In response, Sheler "kicked them off his feet and [Durkin] picked them up and looked at them." Durkin saw that there were glass fragments on the sole of one of Sheler's shoes and therefore seized them. He then seized Sheler's blue jeans so that they too could be inspected for glass fragments. The police took Sheler home after the interview.

The police later obtained a search warrant and searched Sheler's car. They found and seized additional glass samples and a paper bag from Wendy's containing a corner of a $20 bill, a CD, and a variety of latent prints, one of which was that of Sheler.

The glass particles acquired as a result of the seizure of Sheler's shoes and pants were admitted into evidence over his objection. A forensic science supervisor with the Division of Forensic Science Crime Laboratory compared the optical and physical properties of the glass found on Sheler's shoes and pants with the glass recovered from the doors of the Wendy's restaurant. He testified that three particles of glass recovered from Sheler's shoes and two particles of glass from Sheler's pants were consistent with the properties of glass found in the door of the restaurant.

The trial court held that no illegal search or seizure occurred and, therefore, denied Sheler's motion to suppress the evidence of the glass fragments. It is from this ruling that Sheler now appeals.

II. ANALYSIS

On appeal, Sheler contends the trial court erred in denying his motion to suppress the glass fragments because: 1) the fragments found on the sole of Sheler's shoe and his clothes were the fruit of an unlawful seizure of his person; and 2) the fragments were the fruit of an unlawful search and seizure of Sheler's shoes. Although we find that the seizure of Sheler's person was lawful, we reverse on the ground that the police unlawfully searched Sheler's shoes.

In reviewing the trial court's denial of a motion to suppress on appeal, we will review the evidence and all reasonable inferences arising from it in the light most favorable to the Commonwealth, the party prevailing below. Dickerson v. Commonwealth, 35 Va.App. 172, 543 S.E.2d 623 (2001). The burden to show that the denial of the motion to suppress constituted reversible error rests with the defendant. Motley v. Commonwealth, 17 Va.App. 439, 440-41, 437 S.E.2d 232, 233 (1993).

A. Legality of the Seizure

The trial court found that Sheler had voluntarily accompanied the police to the station and, thus, no unlawful arrest or seizure had occurred. We agree.

A person is seized within the meaning of the Fourth Amendment whenever there is a show of official authority such that a reasonable person would have believed that he was not free to terminate the encounter. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)); Moss v. Commonwealth, 7 Va.App. 305, 307, 373 S.E.2d 170, 171-72 (1988). An objective test determines whether a reasonable person would have believed himself or herself free to terminate the encounter "in view of all of the circumstances surrounding the incident." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; see also McGee v. Commonwealth, 25 Va.App. 193, 199-200, 487 S.E.2d 259, 262 (1997) (en banc).

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.

Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; see Weathers v. Commonwealth, 32 Va.App. 652, 659, 529 S.E.2d 847, 850-51 (2000).

Sheler, relying on our decision in McGee, argues that the officers'"actions and words" conveyed the message that Sheler might be or might become a suspect and, therefore, constituted a show of official authority such that he did not feel free to leave. In McGee, we held that, "[w]hen the police expressly inform an individual that they have received information that the individual is engaging in criminal activity, the police `convey a message that compliance with their requests is required.'" 25 Va.App. at 200, 487 S.E.2d at 262 (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)); see also Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (finding a seizure where officers identified themselves as narcotics agents, told defendant that he was suspected of transporting narcotics, and asked him to accompany them to the police room while retaining his plane ticket and driver's license).

Sheler's reliance on McGee is misplaced. In McGee, the defendant was told that the officers had "received a call that [he] was on this corner selling drugs and [that he] matched the description." 25 Va.App. at 196,487 S.E.2d at 260. We found that this statement conveyed an unmistakable message to McGee that the officers suspected he was selling drugs and that they were detaining him to investigate his activity. Id. In this case, the officer did not...