Stith v. Commonwealth of Virginia, Record No. 2394-03-2 (VA 1/11/2005)
| Decision Date | 11 January 2005 |
| Docket Number | Record No. 2394-03-2. |
| Parties | TIMOTHY OBERRY STITH v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of the City of Petersburg, James F. D'Alton, Jr., Judge.
Daniel W. Hall, Senior Assistant Public Defender, for appellant.
Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Kelsey and McClanahan.
Convicted of possession of cocaine with intent to distribute, Timothy Oberry Stith asserts on appeal that the trial court erred by not suppressing evidence recovered from him during a search incident to his arrest and statements he made both before and after his arrest. We affirm, finding no constitutional violations by the arresting officers and thus no reason to suppress evidence under the exclusionary rule.
On appeal from a denial of a suppression motion, we examine the evidence in the light most favorable to the Commonwealth, giving it the benefit of all reasonable inferences. Medley v. Commonwealth, 44 Va. App. 19, 24, 602 S.E.2d 411, 413 (2004) (en banc); Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).
During the early morning hours of March 8, 2003, several officers of the Petersburg Police Department, including Officer Lawrence Wiencek, were on street patrol. The uniformed officers saw Stith and another individual standing outside a Food Mart. As the officers approached the two men, one officer recognized Stith and called him out by name. "How you doing, Mr. Stith?" Stith responded, "Okay." Officer Wiencek then asked Stith, "Can I talk to you?" Stith said yes.
Several officers stood in front of Stith and his companion, "close enough to speak" to them.1 Officer Wiencek asked Stith for his name. Stith replied, "Timothy Stith." Wiencek then asked Stith if he had any outstanding warrants on file, to which Stith responded, "I don't know." Using his handheld radio, Officer Wiencek called police headquarters "to see if he had a warrant." At this point, Officer Wiencek testified, Stith "was free to leave . . . he wasn't under any detention." Nothing was said to suggest he could not simply walk away. Given Stith's agreement to talk with him, however, Officer Wiencek assumed Stith "was going to wait" during the warrant inquiry. Stith did wait.
The dispatcher advised Wiencek that an outstanding warrant for Stith's arrest was on file. The officer then advised Stith that there was "an outstanding warrant for his arrest and that he was under arrest." Officer Wiencek verified Stith's date of birth to ensure it matched the information on the warrant. Officer Wiencek then searched Stith and found 58 baggies of crack cocaine.
During the conversation preceding Stith's arrest, the officers stood in a semicircle facing Stith and his companion. "The two other officers that were there," Officer Wiencek recalled, "talked to the other guy" accompanying Stith. They also spoke to Stith as well. Had Stith chosen to discontinue the dialogue, Officer Wiencek testified, he could have "walked around" the officers. No evidence suggested Stith's only path of departure (or, for that matter, even his natural path of departure) was somehow blocked by the officers. Nor did any facts imply that the officers backed Stith up against a wall or into a corner. At no point prior to Stith's arrest did any officer unholster a firearm, give any commands, make any threats, or physically touch Stith.
At trial, Stith moved to suppress all statements made by him and evidence found on him. The ostensible conversation, Stith argued, was not a conversation at all. It was a custodial interrogation pursuant to an illegal de facto arrest. The trial court denied the suppression motion, heard the evidence, and found Stith guilty of possession of cocaine with intent to distribute in violation of Code § 18.2-248. Stith appeals the denial of his suppression motion, which, if successful, would eliminate any evidentiary basis for his conviction.
Though the ultimate question whether the officers violated the Fourth or Fifth Amendments triggers de novo scrutiny, "we defer to the trial court's findings of `historical fact' and give `due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Slayton, 41 Va. App. at 105, 582 S.E.2d at 449-50 (citations omitted). To prevail on appeal, "the defendant must show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error." Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)); see also Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003).
Stith first argues that the officers violated the Fourth Amendment by seizing him without an individualized suspicion of criminality, either in the form of probable cause justifying a custodial arrest, Maryland v. Pringle, 540 U.S. 366 (2003), or, short of that, a reasonable, articulable suspicion that criminal activity "may be afoot" justifying an investigatory detention, United States v. Arvizu, 534 U.S. 266, 273 (2002). We agree with Stith that neither predicate for a seizure has been shown, but disagree with him that either had to be.
A consensual encounter "does not require any justification and may be terminated at will by the individual." White v. Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 666 (2004). Thus, officers need not have any particularized suspicion to approach "individuals on the street or in other public places" and then put "questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200 (2002); see also Barkley, 39 Va. App. at 691-93, 576 S.E.2d at 238-39. So long as officers refrain from inducing "cooperation by coercive means," they need no suspicion of criminality to "pose questions, ask for identification, and request consent to search luggage." Drayton, 536 U.S. at 201 (citing Florida v. Bostick, 501 U.S. 429, 434-35 (1991)).2
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." California v. Hodari D., 499 U.S. 621, 628 (1991) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). This reasonable-person test "presupposes an innocent person." Bostick, 501 U.S. at 438 (emphasis in original). Framed this way, the test guarantees that Fourth Amendment protections do not "vary with the state of mind of the particular individual being approached." Wechsler v. Commonwealth, 20 Va. App. 162, 170, 455 S.E.2d 744, 747 (1995) (citations omitted).
Several factors determine whether an officer "by means of physical force or show of authority" would cause a reasonable person to feel seized. Mendenhall, 446 U.S. at 554-55; see also Sykes v. Commonwealth, 37 Va. App. 262, 268, 556 S.E.2d 794, 797 (2001). "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," Londono v. Commonwealth, 40 Va. App. 377, 398-99, 579 S.E.2d 641, 651 (2003) (citation omitted), all shed light on whether a seizure has occurred. See also Barkley, 39 Va. App. at 692, 576 S.E.2d at 239.
No one circumstance, however, should be considered apart from the larger context. Thus, an encounter — otherwise consensual — does not become a seizure merely because of the presence of several armed officers, Drayton, 536 U.S. at 204-05, or the failure of the officers to inform the person that he is free to ignore further questioning, I.N.S. v. Delgado, 466 U.S. 210, 216 (1984), or their failure to tell the individual he is free to leave, Ohio v. Robinette, 519 U.S. 33, 39-40 (1996). "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." Delgado, 466 U.S. at 216.
In this case, the trial court found the conversation consensual up until the moment of Stith's arrest on the outstanding warrant. The evidence supports that decision. Officer Wiencek began the conversation with an express request for permission to speak with Stith. He agreed. This initial exchange expressly established the conversation as consensual. See Lawrence v. Commonwealth, 17 Va. App. 140, 144, 435 S.E.2d 591, 593 (1993) (), aff'd per curiam, 247 Va. 339, 443 S.E.2d 160 (1994). At no point from the beginning of the encounter to its end did Officer Wiencek make any threats, raise his voice, or issue any commands to Stith. Nor did any of the officers draw their weapons3 or physically touch Stith. What was said in Drayton can be said here as well: Drayton, 536 U.S. at 204 ().
Stith's primary complaint focuses on the fact that the officers stood near him in a semicircle. To leave their presence, Stith points out, he would have had to "walk around" them. Like the trial court, we find this circumstance insufficient to carry the weight of Stith's argument. Blocking one's only path of escape, making a doorway impassable, backing one into a corner, completely encircling a suspect — arguably all involve...
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