Opinion
Record No. 1597-90-2
December 1, 1992
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS WILLIAM R. SHELTON, JUDGE.
(Claire G. Cardwell, on brief), for appellant. Appellant submitting on brief.
(Leah A. Darron, Assistant Attorney General; Mary Sue Terry, Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Willis and Elder.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
On December 30, 1989, Virginia State Trooper J.P. Koushel approached Becker, who had stopped his van to pay a toll on Interstate 95. Koushel, dressed in full uniform, asked Becker if he could ask him a few questions. Becker agreed. Trooper Thomas, another officer standing close by, heard this response. Koushel asked Becker whether he had any guns, drugs or explosives in his van, and his origin and destination. Koushel then asked whether Becker would mind if he had a "quick look at the contents" of the van. Again, Becker agreed and, at Koushel's direction, parked the van at the side of the road. In the map pocket behind the driver's seat, Koushel found a razor blade and mirror with "cut marks." Continuing his search, Koushel found a small black bag containing a glass vial with cocaine residue. The officers then arrested Becker.
After his arrest, Becker admitted to the officers that he used cocaine for energy, enjoyment and for the thrill of doing something illegal. He also stated that he only agreed to the search because they were police officers and he did not know that he could refuse their request.
Becker contends that the Commonwealth failed to prove that he freely and voluntarily gave his consent for the officers to search the van. He relies on Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (acquiescence to a claim of lawful authority does not constitute consent). He also claims that the officers' failure to warn him of his right to refuse should have been considered when determining the voluntariness of his consent.See United States v. Watson, 423 U.S. 411 (1976).
On appeal, the trial court's judgment "will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680)). Whether consent was freely given is a question of fact to be determined from the totality of all of the circumstances. Richards v. Commonwealth, 8 Va. App. 612, 615-16, 383 S.E.2d 268, 270 (1989) (citation omitted).
Credible evidence supports the trial court's finding that Becker voluntarily consented to answer Koushel's questions and to the search of his van. The officer did not violate Becker's fourth amendment rights merely by approaching him in a public area to ask him if he was willing to answer questions.Florida V. Royer, 460 U.S. 491, 497 (1983). Looking behind the seat of the van, the discovery of the mirror with cut marks, and the officer's further search were within the scope of the consent. Becker's voluntary consent waived the protection from unreasonable searches and seizures granted under the fourth amendment. Crosby v. Commonwealth, 6 Va. App. 193, 197, 367 S.E.2d 730, 733 (1988). While knowledge of the right to refuse is a factor to be considered in determining consent, proof of such knowledge is not prerequisite to a finding of voluntary consent. Crosby at 198, 367 S.E.2d at 733.
Becker also argues the officers violated his fourth amendment rights because no articulable facts existed creating a reasonable suspicion of criminal activity justifying the stop. However, Officer Koushel did not stop Becker's van. See Thompson v. Commonwealth, Court of Appeals Record No. 1347-90-2 (February 11, 1992) (consensual encounter where officer asked same questions of motorist stopped at toll plaza). Furthermore, as discussed above, Becker agreed to be questioned and to have the contents of his van examined. For these reasons, this court affirms the trial court's judgment of conviction.
Affirmed.
"When the police stop a motor vehicle and detain the occupant, this constitutes a `seizure' of the person for Fourth Amendment purposes, even though the function of the stop is limited and the detention brief." Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988). In clear and unambiguous terms, the United States Supreme Court has forbidden the practice employed in this case by the Virginia State Police.
The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure — limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable — at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion "would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. . . ." By hypothesis, stopping apparently safe drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop. When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.
Delaware v. Prouse, 440 U.S. 648, 661 (1979) (footnote omitted) (citations omitted). Likewise, the Supreme Court of Virginia has stated that:
[L]aw enforcement personnel may not stop motorists in a wholly random and discretionary manner unless there is, at least, articulable and reasonable suspicion either that the operator is unlicensed, the vehicle is unregistered, or the operator or other occupant is subject to seizure for violation of law.
Lowe v. Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985), cert. denied, 475 U.S. 1084 (1986). The stop at issue in this case was unlawful.
Moreover, the evidence does not prove a free and voluntary consent.
[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.
Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). The burden of proving free and voluntary consent "cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (footnote omitted). "[O]beying a polite request issued by someone obviously in authority and capable of enforcing the request does not amount to `consent' to the request."United States v. Shepherd, 714 F.2d 316, 318 n. 2 (4th Cir. 1983), cert. denied, 466 U.S. 938 (1984). See also Amos v. United States, 255 U.S. 313 (1921).
This was not a routine roadblock stop where Becker would have seen other vehicles being stopped and would have seen apparent, visible signs of the officers' authority. Prouse, 440 U.S. at 657. Citizens are less likely to be frightened and anxious at routine, visible roadblocks. Id. Moreover, it is also reasonable to assume that the travellers do not expect to encounter investigative police officers at the exact change booth of the toll plaza. When an individual is randomly stopped by police, that person is subjected to physical and psychological intrusions. Id. Moreover, operators of motor vehicles are required to stop upon command of police officers. Code § 46.2-104.
After an unexpected approach by uniformed officers wearing guns, which inherently suggests an unsettling show of authority, Becker was requested to pull over and was asked by the officers if they could take a "quick look at the contents" of his van. The officers were obviously cloaked with state authority and capable of enforcing the stop. See Code § 42.2-104; Shepherd, 714 F.2d at 318. Furthermore, the officers did not inform Becker that he was free to refuse a detention or a search. Although not dispositive of the issue, such a failure to warn is a factor to consider in analyzing the voluntariness of the consent. Walls v. Commonwealth, 2 Va. App. 639, 645-46, 347 S.E.2d 175, 178-79 (1986). The failure to warn is significant because "this record is practically devoid of any evidence which reflects the existence of safeguards against an unreasonable intrusion upon personal privacy." Simmons v. Commonwealth, 238 Va. 200, 203, 380 S.E.2d 656, 658 (1989). The conduct, manner, location and timing of the troopers' approach to effect the detention of Becker, see Code § 46.2-104 and 46.2-817, bear significantly upon the officers' failure to inform Becker that he had a right to refuse the search. No matter how subtly the coercion was applied, the resulting "consent" is merely a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. Schneckloth, 412 U.S. at 228.
"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."
Id. at 228-29 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)). These circumstances warrant a conclusion that the consent was not freely and voluntarily given. For these reasons, I would reverse the conviction.