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AUSTIN v. COMMONWEALTH




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AUSTIN

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank

Argued at Chesapeake, Virginia

Record No. 0082-03-1

DAVINA AUSTIN

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE ROBERT P. FRANK

NOVEMBER 12, 2003

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Everett A. Martin, Jr., Judge

Brione B. Pattison, Assistant Public Defender (Office of the
Public

Defender, on brief), for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Davina Austin (appellant) was convicted in a bench trial of
possession of cocaine, in

violation of Code ? 18.2-250. On appeal, she contends the trial
court erred in denying her motion to

suppress the cocaine, arguing her consent to the search of her
purse was invalid. For the reasons

stated, we affirm the conviction.

BACKGROUND

On July 14, 2002, appellant was the front-seat passenger in a
vehicle that the police had

stopped at an on-ramp to Interstate 64 for a number of equipment
violations. As Officer Thomas

Bleh of the Norfolk Police Department approached the vehicle, he
noticed appellant "make a very

quick movement down towards the floorboard." The officer
arrested the driver for driving after

being declared an habitual offender.

Determining the vehicle was owned by the driver’s mother,
Officer Bleh decided to have the

vehicle towed. He began to inventory the vehicle. As he did so,
his partner, Officer Delores

Woolrey, talked to appellant.

It began to rain. Officer Bleh explained at trial, "[W]e
were on the interstate, traffic was

moving pretty quickly, so we were trying to get away from the
[driver’s] vehicle and back to the

police unit for everybody’s safety."

Officer Woolrey asked appellant to step out of the driver’s
vehicle. She testified, "[F]or her

safety and for her personal comfort, I asked [appellant] to step
back with me to the other vehicle

where Officer Murphy arrived on-scene for our backup."
Officer Woolrey walked with appellant to

Officer Murphy’s vehicle.

Officer Woolrey told appellant that, since she was going to sit
in the car, the officer needed

to pat her down, pursuant to departmental policy. Appellant
responded, "go ahead." Prior to

patting her down, they "placed [appellant’s] purse on the
trunk of the [police] vehicle." Officer

Woolrey then patted down appellant. The officer found no
contraband or weapons. Officer

Woolrey then told appellant to "have a seat in the
vehicle." While appellant was sitting there, the

car door remained open, and appellant’s feet remained
"outside of the vehicle."

Officer Woolrey then asked appellant if she could search the
purse. Appellant said, "Yeah,

go ahead. You can search it." Officer Woolrey found cocaine
inside the purse. At the police

station, appellant admitted she consented to the search of her
purse.

At the suppression hearing, appellant conceded the validity of
the stop. She did not argue

the police violated her Fourth Amendment rights by asking her to
exit the vehicle or by patting her

down. Instead, appellant contended that, after the pat-down
revealed no contraband or weapons, she

was illegally detained. Thus, any consent was tainted by the
detention and, therefore, was invalid.

The trial court denied the motion to suppress the cocaine,
finding the officer properly placed

appellant in the police vehicle. The court explained, "They
can’t allow a pedestrian on the

interstate. If nothing else, they had to put her in the car to
get her off the interstate."

ANALYSIS

On appeal, appellant contends consent to search is not voluntary
"if a reasonable person

would believe he is not free to leave." Appellant argues
she was not free to leave the police car.

Therefore, her consent, which was given while she was illegally
seized, was invalid.[2]

In reviewing a trial court’s denial of a motion to suppress,
"[t]he

burden is upon [the appellant] to show that th[e] ruling, when
the

evidence is considered most favorably to the Commonwealth,

constituted reversible error." 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). "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,
691]

(1996). In performing such analysis, we are bound by the trial

court’s findings of historical fact unless "plainly
wrong" or without

evidence to support them . . . . Id. at [699]. We analyze a
trial

judge’s determination whether the Fourth Amendment was

implicated by applying de novo our own legal analysis of
whether

based on those facts a seizure occurred.

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc)

(footnote omitted).

"[S]earches made by the police pursuant to a valid consent
do not implicate the Fourth

Amendment." McNair v. Commonwealth, 31 Va. App. 76, 82, 521
S.E.2d 303, 306 (1999) (en

banc). Appellant argues her consent was invalid because it
was the product of her detention by the

police. She contends the trial court should have suppressed the
evidence found in her purse because

the consent was tainted by the detention. Appellant cites Bolden
v. Commonwealth, 263 Va. 465,

561 S.E.2d 701 (2002), for the proposition that, when "a
reasonable person does not feel free to

leave an encounter, his consent to search is not
voluntary." Appellant misreads Bolden.

Neither Bolden nor any other case on Fourth Amendment
jurisprudence stands for the

proposition offered by appellant. Bolden is premised upon
whether a seizure occurred. Id. at

470-71, 561 S.E.2d at 704. Because the Court concluded Bolden
was seized, and because the

Commonwealth failed to argue the officers had reasonable
suspicion for the seizure, the Court

found Bolden was illegally detained. Id. at 472, 561 S.E.2d at
705. The Court then concluded the

consent to search his suitcase, obtained while Bolden was
unconstitutionally held, was tainted by

this violation of Bolden’s rights. Id. at 473, 561 S.E.2d at
705 (citing Florida v. Royer, 491 U.S.

491, 507-08 (1983)).

On the other hand, if the police have lawfully detained an
individual and, while in custody,

that person voluntarily consents to a search without coercion or
duress, the search is constitutionally

permissible. Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d
112, 117 (1977) ("The fact of

custody alone is not enough in itself to demonstrate a coerced
consent to search.");

Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879
(1998) ("The fact that the

defendant is in custody at the time consent is given does not
itself invalidate the consent.").

The Commonwealth contends the encounter between the police and
appellant was

consensual. Alternatively, the Commonwealth argues, if the
encounter was not consensual, the

detention was proper based on safety concerns. For the purpose
of this analysis, we assume,

without deciding, a seizure occurred when appellant was asked to
sit in the police vehicle. We also

assume, without deciding, that the officers had no reasonable
suspicion that appellant was involved

in criminal behavior.

"The Fourth Amendment does not proscribe all seizures, only

those that are ‘unreasonable.’ Whether a seizure is
unreasonable is

determined by balancing the individual’s right to be free from

arbitrary government intrusions against society’s
countervailing

interest in preventing or detecting crime and in protecting its
law

enforcement officers." Bethea v. Commonwealth, 14 Va. App.

474, 476, 419 S.E.2d 249, 250 (1992) (en banc), aff’d
on other

grounds, 245 Va. 416, 429 S.E.2d 211 (1993); see U.S. Const.

amend. IV; Va. Const. art. I, ? 10. The validity of a seizure
"‘turns

on an objective assessment of the officer’s actions in light
of the

facts and circumstances confronting him at the time,’ and not
on

the officer’s actual state of mind at the time the challenged
action

was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.
Ct.

2778, 86 L.Ed.2d 370 (1985) (quoting Scott v. United States, 436

U.S. 128, 136, 98 S. Ct. 1717, 56 L.Ed.2d 168 (1978)).

Welshman v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122,
126-27 (1998) (en banc).

Thus, we must determine whether the officer’s direction to
appellant to "have a seat in the

vehicle" was reasonable.

The officers had determined the car in which appellant was
riding would be towed, requiring

appellant to vacate the vehicle. It was "raining a little
bit." The vehicle was stopped on an entrance

ramp to the interstate, where "traffic was moving pretty
quickly." The officer indicated they were

"trying to get away from the [driver’s] vehicle and back
to the police unit for everyone’s safety."

The officers had no choice but to put appellant in their vehicle
and drive her off the interstate. They

could not leave her in the rain on the shoulder section of a
busy interstate ramp.

Moore v. Commonwealth, 25 Va. App. 277, 487 S.E.2d 864 (1997),
is instructive here. In

Moore, the driver of the car in which Moore was a passenger was
arrested after a traffic stop on an

interstate bridge. Id. at 281, 487 S.E.2d at 866. Moore was
asked to exit the vehicle because the

trooper had determined the vehicle must be inventoried and
towed. Id. at 282, 487 S.E.2d at 866.

The trooper intended to place Moore in the patrol vehicle and
remove him from the interstate. Id.

Upon patting Moore down, the trooper found heroin. Id.

We explained:

[The trooper] could not leave Moore . . . on a bridge with no

sidewalks or on the interstate. [His] presence might have

endangered traffic and [himself]. The trooper testified that:

"We’re not allowed to let a pedestrian walk down the
roadway. We

stop and we will either issue a summons, warn the person, arrest

the person, and we’re going to transport them off the
roadway."

Id. at 286, 487 S.E.2d at 868.

Once the police frisked appellant and found no contraband or
weapons, allaying any

safety concerns stemming directly from her, they still could not
release appellant on the ramp of

the interstate. Her presence on the roadside, in the rain,
created a danger to her and to the

officers from passing traffic. Placing appellant in the police
car was reasonable in this situation.

Finally, appellant argues the police never told her their reason
for placing her in the

police vehicle. The point of this argument is unclear. If
appellant is arguing this failure to

inform undermines the credibility of the officers’ testimony,
then the argument improperly

presumes this Court evaluates the credibility of witnesses. See
Marable v. Commonwealth, 27

Va. App. 505, 509, 500 S.E.2d 233, 235 (1998) (noting that the
credibility of the witnesses is a

matter "solely for the fact finder’s
determination").

If appellant is arguing her detention was unreasonable because
she did not understand its

basis, then, again, her position is without merit. The
determination of reasonableness is based on

the police officer’s objective basis for the detention,
not on the suspect’s understanding of the

officer’s motivation. Goodwin v. Commonwealth, 11 Va. App.
363, 366, 398 S.E.2d 690,

691-92 (1990); Iglesias v. Commonwealth, 7 Va. App. 93, 101, 372
S.E.2d 170, 174-75 (1988)

(en banc). The officer did not need to tell appellant why
she should sit in the police vehicle in

order to make the detention reasonable.

Finding appellant’s detention was reasonable and did not taint
her consent to the search

of her purse, we affirm the conviction.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]To the extent
appellant argues that the police violated her constitutional rights prior to

asking her to sit in the vehicle, those arguments were not
preserved for appeal. Appellant did not

object at trial to the pat-down or to her removal from the car.
Rule 5A:18.


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