Opinion
Record No. 2156-92-1
Decided: December 13, 1994
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, Johnny E. Morrison, Judge
Affirmed.
Dianne G. Ringer, Assistant Public Defender, for appellant.
Robert B. Beasley, Jr., Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Janet F. Rosser, Assistant Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Willie Beale, Jr. (defendant) was convicted in a bench trial for possession of cocaine. He complains on appeal that the trial court erroneously overruled his motion to suppress and admitted unconstitutionally obtained evidence. We disagree and affirm the conviction.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
In reviewing the ruling on defendant's suppression motion, the evidence must be considered in the "light most favorable to . . . the prevailing party below," the Commonwealth in this instance, Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991), and "all evidence of the accused that conflicts with that of the Commonwealth" must be discarded, Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). The record includes all evidence adduced during any suppression hearings and trial. DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488 U.S. 985 (1988). To prevail on appeal, the defendant "carries the burden to show . . . that the denial of [the] motion to suppress constitute[d] reversible error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993).
A "consensual encounter between police and an individual has no fourth amendment implications unless accompanied by such 'coercion or show of force or authority by the officer . . . that would cause a person . . . reasonably to have believed that he or she was required to comply' and 'not free to leave.' " Greene v. Commonwealth, ___ Va. App. ___ ___, 440 S.E.2d 138, 140 (1994) (quoting Commonwealth v. Satchell, 15 Va. App. 127, 131, 422 S.E.2d 412, 414 (1992)). This principle recognizes that [t]he 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." 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.
United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (citation omitted).
"Acquiescence in 'a police request, which most citizens will do, does not negate the "consensual nature of the response." ' " Greene, ___ Va. App. at ___, 440 S.E.2d at 140-41 (citations omitted). A voluntary police-citizen encounter becomes a seizure for Fourth Amendment purposes "only if, in view of all the circumstances . . ., a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554 (emphasis added). See also Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992); Greene, ___ Va. App. at ___, 440 S.E.2d at 141. This objective standard "ensures that the scope of the Fourth Amendment protection does not vary with the state of mind of the particular individual being approached." Michigan v. Chesternut, 486 U.S. 567, 574 (1988). See also Greene, ___ Va. App. at ___, 440 S.E.2d at 141.
"Circumstances to be considered in determining whether a reasonable person would have believed that he was not free to leave include '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.' " Satchell, 15 Va. App. at 131, 422 S.E.2d at 414-15 (quoting Mendenhall, 446 U.S. at 554).
Here, defendant was standing on a sidewalk adjacent to a lighted street at 12:20 a.m. when he was approached by a lone, uniformed police officer. Defendant was clothed in a "hooded sweatshirt . . . with his hands stuck in his pocket," and the officer, "then [a] foot, maybe two away" and concerned "for [his] safety," "asked [defendant] to take his hand out of his pocket, please." As defendant withdrew his right hand, the officer noticed a "clear bag" of "white material" which "looked . . . like . . . crack cocaine" in defendant's other hand and "asked him to take his left hand out, too." The officer then observed the plastic bag of suspected cocaine in the left hand and immediately took defendant "into custody." A further search of defendant's person disclosed the offending drugs in his "pants pocket."
Throughout the initial encounter, no weapon was displayed, and there was no physical contact, intimidating language, countenance or other conduct by the officer reasonably suggestive of restraint or coercion. To the contrary, the evidence is uncontroverted that the officer was at all times respectful and courteous to defendant. Significantly, the record discloses that neither the officer nor defendant considered defendant seized or detained during their initial exchange.
Such circumstances clearly support the trial court's conclusion that defendant was not improperly seized by the officer prior to arrest and, accordingly, we affirm the conviction.
Affirmed.
The evidence proved that the uniformed police officer drove his marked police vehicle past the appellant. The officer had been instructed to stop, question, and cause to move any people that he saw in the area. The officer exited his vehicle, walked to appellant, and told appellant to take his hands out of his pockets.
This was not an encounter in which an officer merely approached a person and "ask[ed] him if he is willing to answer some questions." Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion). Nor is this a case in which an officer hailed a person preparatory to making that inquiry. See Baldwin v. Commonwealth, 243 Va. 191, 413 S.E.2d 645 (1992). Here, the officer made the appellant move his hands so as to effect a search of his hands. When the officer made his demand and appellant submitted to this demand, the officer effected a seizure. See Woodson v. Commonwealth, 245 Va. 401, 405, 429 S.E.2d 27, 29 (1993). "This demand was a show of authority reflecting [the officer's] intent to stop, detain, or seize the [person]." Id. at 407, 429 S.E.2d at 30 (Lacy, concurring). See also Harrison v. State, 627 So.2d 583, 584 (Fla.App. 1993) ("[O]rders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.")
Under the doctrine of Terry v. Ohio, 392 U.S. 1 (1968), a police officer may subject an individual to a limited seizure only for particularized reasons.
Before making an investigatory stop, a police officer must have reasonable suspicion that an individual is involved in criminal activity. He "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." The officer's suspicion must be based on more than just a guess or a hunch.
Smith v. Commonwealth, 12 Va. App. 1100, 1102-03, 407 S.E.2d 49, 51 (1991) (citation omitted). The record reflects no particularized and objective basis for the officer's seizure of appellant.
For these reasons, I would hold that the seizure was unlawful and that the trial judge erred in not suppressing the evidence.