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PARKER v. COMMONWEALTH OF VIRGINIA (59315)


PARKER v. COMMONWEALTH
OF VIRGINIA


January 9, 1998
Record No. 971010

LEON PARKER

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices


I.

The primary issues in this appeal are whether an encounter
between a police officer and a pedestrian constituted a seizure
within the meaning of the Fourth Amendment of the Constitution of
the United States and, if so, whether the seizure was
constitutionally permissible.

II.

Leon Darnell Parker was indicted in the Circuit Court of the
City of Richmond for possession of cocaine with intent to
distribute in violation of Code ? 18.2-248. The
defendant filed a pretrial motion to suppress evidence of crack
cocaine that had been seized from his person on the basis that
this evidence was obtained in violation of the Fourth Amendment.
The trial court denied the motion and, at a bench trial,
convicted the defendant of the charged offense. The Court of
Appeals affirmed the judgment of the circuit court in an
unpublished opinion, and we awarded the defendant an appeal.

We will summarize the facts adduced at the suppression hearing
and, under familiar principles, we will consider the testimony in
the light most favorable to the Commonwealth, the prevailing
party below. On July 13, 1995, City of Richmond police officer
Michael J. Kurisky, who was wearing a police uniform and
displaying a badge of authority, drove a white police cruiser to
a public housing development known as Creighton Court. Officers
John O’Connor and Wes Moore were passengers in Officer Kurisky’s
police cruiser. The police officers were "checking various
areas . . . for drug activity."

As Officer Kurisky drove his police cruiser onto Creighton
Road, a street in the housing development, the officers observed
a group of men "standing around a white Cadillac which had
its trunk open." Officer Kurisky had made numerous prior
drug arrests in the area, and he had recovered drugs and weapons
in the immediate area where the men were located. Officer Kurisky
"personally consider[ed] that area to be an open-air drug
market."

When Officer Kurisky drove his police cruiser near the
Cadillac, the men looked toward him, immediately shut the car’s
trunk, and began to disperse. Officers O’Connor and Moore got out
of the police cruiser, and Officer Kurisky remained in the
vehicle.

As Officer Kurisky watched the men disperse, he saw the
defendant "turn and place an item with his right hand in the
waistband of his shorts." The defendant proceeded to walk on
Creighton Road, away from the Cadillac. While the two other
officers remained at the scene, Officer Kurisky "backed the
police vehicle up" and drove down Creighton Road following
the defendant. Officer Kurisky drove the police cruiser
"parallel" to the defendant who was about 20 feet away
from him. Officer Kurisky was looking at the defendant, who then
"looked at the direction of the police vehicle, turned
around and started walking back on the sidewalk the other
way." Officer Kurisky, still in his police cruiser,
continued to follow the defendant, who began to walk on
"posted" property owned by the Richmond Redevelopment
and Housing Authority. Officer Kurisky, continuing to follow the
defendant, drove the police cruiser 40 feet off the street onto
the Richmond Redevelopment and Housing Authority’s property and
stopped the car at the location where the defendant was standing.

Officer Kurisky, who possessed clearly visible weapons,
approached the defendant and inquired whether he lived in the
public housing development. In response to the officer’s inquiry,
the defendant stopped and responded that he did not live there.
Officer Kurisky asked the defendant if he had any guns or drugs
in his possession, and the defendant replied, "no."
Officer Kurisky then asked the defendant if the officer could
"pat him down," and the defendant put his hands up in
the air. Officer Kurisky "went around behind [the defendant] and just patted him down for any weapons or drugs" and found
none.

After Officer Kurisky conducted this search, another Richmond
police officer, Mark Ambrozy, approached the defendant who was
wearing a white basketball jersey, white "mesh"
basketball shorts, and a pair of thin white or peach boxer
underwear. Officer Ambrozy asked the defendant if he "had
anything in his crotch." The defendant replied that he did
not, and "he grabbed his basketball shorts and boxer shorts
and started, in very exaggerated motions, pulling them to the
side, up and down, shaking them in and out
. . . ."

As the defendant made these exaggerated motions, Officer
Kurisky saw "a pink object through the boxer shorts
material." Officer Kurisky placed his hand on the object and
realized that the object was crack cocaine. When Officer Kurisky
removed the item from the defendant’s waistband, he found a
sandwich bag containing 18 red ziploc baggies, and each baggie
contained a substance later identified as crack cocaine. Officer
Kurisky did not ask the defendant for permission to conduct this
search.

III.

A.

The defendant argues that Officer Kurisky violated the
defendant’s Fourth Amendment rights because he was seized when
the officer drove the police cruiser 40 feet away from the street
onto a common area at the housing development in order to
question the defendant. The Commonwealth responds that this
encounter did not constitute a seizure within the meaning of the
Fourth Amendment. We disagree with the Commonwealth.

The Fourth Amendment of the Constitution of the United States
provides in part that "[t]he right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated
. . . ." This guarantee applies to seizures
of the person as well as to seizures of the houses, papers, and
effects of an individual. Baldwin v. Commonwealth,
243 Va. 191, 195, 413 S.E.2d 645, 647 (1992). The United States
Supreme Court stated the following test which we must apply when
determining whether a person has been seized within the meaning
of the Fourth Amendment:

"We adhere to the view that a person is ‘seized’ only
when, by means of physical force or a show of authority, his
freedom of movement is restrained. Only when such restraint is
imposed is there any foundation whatever for invoking
constitutional safeguards. The 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.’ United States v. Martinez-Fuerte,
428 U.S. 543, 554 [(1976)]. 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.

Moreover, characterizing every street encounter between a
citizen and the police as a ‘seizure,’ while not enhancing any
interest secured by the Fourth Amendment, would impose wholly
unrealistic restrictions upon a wide variety of legitimate law
enforcement practices. The Court has on other occasions referred
to the acknowledged need for police questioning as a tool in the
effective enforcement of the criminal laws. ‘Without such
investigation, those who were innocent might be falsely accused,
those who were guilty might wholly escape prosecution, and many
crimes would go unsolved. In short, the security of all would be
diminished. Haynes v. Washington, 373 U.S. 503, 515
[(1963)].’ Schneckloth v. Bustamonte, 412 U.S., at
225 [(1973)].

We conclude that a person has been ‘seized’ within the meaning
of the Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave. 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." United
States
v. Mendenhall, 446 U.S. 544, 553-54 (1980)
(opinion of Stewart, J.) (footnote omitted).

The United States Supreme Court applied the Mendenhall
test in Michigan v. Chesternut, 486 U.S. 567, 573
(1988), and made the following observation which is equally
pertinent here:

"The test provides that the police can be said to
have seized an individual ‘only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.’

. . . .

The test is necessarily imprecise, because it is designed
to assess the coercive effect of police conduct, taken as a
whole, rather than to focus on particular details of that
conduct in isolation. Moreover, what constitutes a restraint
on liberty prompting a person to conclude that he is not free
to ‘leave’ will vary, not only with the particular police
conduct at issue, but also with the setting in which the
conduct occurs."

Accord California v. Hodari D., 499 U.S.
621, 627-28 (1991); INS v. Delgado, 466 U.S. 210,
215 (1984).

Applying these principles, we hold that Officer Kurisky’s
encounter with the defendant constituted a seizure within the
meaning of the Fourth Amendment. As we have already stated,
Officer Kurisky was wearing a police uniform, displaying his
badge of authority, and possessed clearly visible weapons on his
utility belt. The officer, driving his police cruiser, followed
the defendant, who sought to avoid the officer by walking in
different directions. The officer followed the defendant from the
moment he left the Cadillac until he walked on the property owned
by the Richmond Redevelopment and Housing Authority. Then, the
police officer drove the police cruiser from the street onto the
Richmond Redevelopment and Housing Authority’s property for a
distance of about 40 feet and stopped the cruiser at a location
where the defendant was standing. Certainly, under these
circumstances, "a reasonable person would have believed that
he was not free to leave." Mendenhall, 446 U.S. at
554.

The Commonwealth, however, relying upon Baldwin v. Commonwealth,
supra, argues that the defendant was not seized within the
meaning of the Fourth Amendment. The Commonwealth’s reliance upon
Baldwin is misplaced. As we have already stated, any
assessment whether police conduct constitutes a seizure
implicating the Fourth Amendment must be determined by examining
the evidence of record in each individual case, accord Chesternut,
486 U.S. at 573; INS v. Delgado, 466 U.S. at 215.

Baldwin is readily distinguishable and is limited to
its unique facts. There, a police officer drove a police vehicle
to a parking lot and saw a man, later identified as Michael T.
Baldwin, and a woman companion standing near a dumpster at the
rear of the parking lot. The officer parked his car about 15 feet
from the couple, got out of his car, and walked toward them. The
officer acknowledged that he may have "call[ed] for
them" as the couple walked away toward some apartments. When
the couple returned to the dumpster area, the officer noticed
that Baldwin was having trouble with his balance and could smell
an odor of alcohol "about his person." The officer
asked Baldwin whether he had been drinking, and Baldwin stated
that "he’d had ten beers which is too much." Baldwin
was "staggering" and his face was "flushed."
The officer arrested him for being drunk in public and
subsequently discovered that Baldwin had in his possession
marijuana and psilocin (hallucinogenic mushrooms).

Baldwin and his companion gave a different explanation of the
events that occurred when the officer approached them. Among
other things, Baldwin and his companion testified that they had
been standing together near the trash dumpster, and when they
proceeded to walk toward an apartment, they heard a police car
enter the parking lot, and the officer "put a big floodlight
on [them] . . . and told [them] to come here, said you
two, come over here."

We held in Baldwin that the defendant was not seized
because our consideration of all the evidence, including the
police conduct at issue, indicated that a reasonable person would
have believed that he was free to leave. Here, however, unlike Baldwin,
Officer Kurisky drove his police cruiser forty feet off of the
street and onto private property and stopped his police cruiser
at the location where the defendant was standing. Without
question, Officer Kurisky’s acts constituted a show of authority
which restrained the defendant’s liberty. Thus, we must next
consider whether this seizure was a limited intrusion permitted
by the Fourth Amendment as recognized in Terry v. Ohio,
392 U.S. 1 (1968).

B.

The defendant argues that at the time of the seizure, Officer
Kurisky had no basis to suspect that the defendant had committed
a crime sufficient to give rise to a permissible detention. The
Commonwealth argues that the evidence of record establishes that
the officer had a reasonable suspicion to detain the defendant
for investigative purposes. We agree with the Commonwealth.

The United States Supreme Court held in Terry v. Ohio,
392 U.S. at 22, that "a police officer may in appropriate
circumstances and in an appropriate manner approach a person for
purposes of investigating possibly criminal behavior even though
there is no probable cause to make an arrest." In order to
justify a Terry seizure, "the police officer must be
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion." Id. at 21. The United States
Supreme Court, explaining the nature of a Terry stop,
stated that

"[i]n addressing the reach of a Terry stop
. . . we observed that ‘[a] brief stop of a
suspicious individual, in order to determine his identity or
to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts
known to the officer at the time.’ . . . [I]f there
are articulable facts supporting a reasonable suspicion that
a person has committed a criminal offense, that person may be
stopped in order to identify him, to question him briefly, or
to detain him briefly while attempting to obtain additional
information." Hayes v. Florida, 470 U.S.
811, 816 (1985); accord Brown v. Texas,
443 U.S. 47, 51 (1979); Simmons v. Commonwealth,
217 Va. 552, 554-55, 231 S.E.2d 218, 220-21 (1977).

In determining whether a police officer had a particularized
and objective basis for suspecting that a person stopped may be
involved in criminal activity, a court must consider the totality
of circumstances. United States v. Cortez, 449 U.S.
411, 417-18 (1981); see Ewell v. Commonwealth,
254 Va. 214, 217, 491 S.E.2d 721, 722-23 (1997); Zimmerman
v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 709
(1988); Leeth v. Commonwealth, 223 Va. 335, 340,
288 S.E.2d 475, 478 (1982). This test is less stringent than
probable cause. Id.

We hold that under the facts and circumstances of this case,
Officer Kurisky did have a reasonable suspicion, based on
objective facts, that the defendant was engaged in criminal
activity. As we have already observed, the defendant was with a
group of men in an area described as "an open-air drug
market." Officer Kurisky had made numerous drug arrests in
the area and had recovered drugs and weapons from that area. When
Officer Kurisky drove his police cruiser on Creighton Road, the
men, who were standing around the white Cadillac with the trunk
open, immediately closed the trunk and dispersed. Officer Kurisky
saw the defendant place an object in the waistband of his shorts.
Considering the totality of circumstances, and viewing the facts
in the light most favorable to the Commonwealth, we are of
opinion that Officer Kurisky had a particularized and objective
basis for suspecting that the defendant was involved in criminal
activity.

C.

The defendant argues that Officer Kurisky violated the
defendant’s Fourth Amendment rights when the officer seized the
cocaine from the defendant’s boxer underwear without a warrant.
The defendant says he did not give the officer consent to search
his person, and the officer lacked probable cause to seize the
objects from the defendant’s undergarments.

We agree with the defendant that the record establishes that
he did not give the officer consent to remove the crack cocaine
from the defendant’s undergarments. Officer Kurisky testified
that he did not request the defendant’s consent before he removed
the drugs from the defendant’s undergarments. Contrary to the
Commonwealth’s assertions, the record is simply devoid of any
evidence from which an inference can be drawn that the defendant
gave the officer consent to conduct the second search of the
defendant’s undergarments.

The Commonwealth, however, contends that even if the defendant
did not give consent to search his person, Officer Kurisky,
nevertheless, was entitled to search the defendant because the
officer had probable cause to believe that the defendant
possessed illegal drugs. Responding, the defendant argues that
the police officer lacked probable cause to believe that the
defendant had either committed a criminal offense or was in the
process of committing a criminal offense. We disagree with the
defendant.

The United States Supreme Court has stated that "[w]here
the formal arrest followed quickly on the heels of the challenged
search of petitioner’s person, we do not believe it particularly
important that the search preceded the arrest rather than vice
versa." Rawlings v. Kentucky, 448 U.S. 98, 111
(1980). However, the police must have probable cause to believe
that the suspect has either committed a criminal offense or was
in the process of committing a criminal offense before searching
the suspect. See United States v. Banshee,
91 F.3d 99, 102 (11th Cir. 1996), cert. denied, ___
U.S. ___, 117 S.Ct. 752 (1997); United States v. Bizier,
111 F.3d 214, 217 (1st Cir. 1997); United States v. Armstrong,
16 F.3d 289, 294 (8th Cir. 1994); United States v. Miller,
925 F.2d 695, 698 (4th Cir.), cert. denied, 502
U.S. 833 (1991); United States v. Potter, 895 F.2d
1231, 1234 (9th Cir.), cert. denied, 497 U.S. 1008
(1990); United States v. Tavolacci, 895 F.2d 1423,
1428 (D.C. Cir. 1990); United States v. Hernandez,
825 F.2d 846, 852 (5th Cir. 1987), cert. denied,
484 U.S. 1068 (1988); United States v. Donaldson,
793 F.2d 498, 502-03 (2nd Cir. 1986), cert. denied,
479 U.S. 1056 (1987); United States v. Gay, 774
F.2d 368, 378 (10th Cir. 1985).

We discussed the concept of probable cause in Taylor v.
Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836
(1981):

"The legal standard of probable cause, as the term
suggests, relates to probabilities that are based upon the
factual and practical considerations in everyday life as
perceived by reasonable and prudent persons. The presence or
absence of probable cause is not to be examined from the
perspective of a legal technician. Rather, probable cause exists
when the facts and circumstances within the officer’s knowledge,
and of which he has reasonably trustworthy information, alone are
sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed. Draper v. United
States
, 358 U.S. 307, 313 (1959); Schaum v. Commonwealth,
215 Va. 498, 500, 211 S.E.2d 73, 75 (1975). In order to ascertain
whether probable cause exists, courts will focus upon ‘what the
totality of the circumstances meant to police officers trained in
analyzing the observed conduct for purposes of crime control.’ Hollis
v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889
(1976)."

We hold that the totality of circumstances shown in this
record supports the conclusion that Officer Kurisky did indeed
have probable cause to believe that the defendant had committed a
crime and, therefore, the challenged search was permissible.
Officer Kurisky observed the defendant with a group of men in an
area described as an "open-air drug market." The
officer saw the defendant place something in his basketball
shorts. The defendant’s shorts were made of a "mesh,"
"thin" material, and the officer was able to see a pink
object between the defendant’s undergarments and the defendant’s
skin.

In addition, Officer Kurisky knew, from personal experience,
that "people often try to hide contraband in their shorts,
in their crotch area or in their buttocks area." Officer
Kurisky also knew, before he retrieved the items from the
defendant’s undergarments, that "[p]ink baggies are often
one of the colors of baggies used to package . . .
crack cocaine." When Officer Ambrozy asked the defendant if
he had anything in his crotch, the defendant grabbed the
waistbands of both his basketball shorts and his boxer shorts,
and pulled "them to the side, up and down" in an
apparent effort to prevent the crack cocaine from falling to the
ground.

IV.

For the foregoing reasons, we will affirm the judgment of the
Court of Appeals.

Affirmed.

 

CHIEF JUSTICE CARRICO, JUSTICE COMPTON, JUSTICE LACY, and
JUSTICE KOONTZ concur in the result.

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