Virginia Lawyers Weekly VA Lawyers Weekly
The Court of Appeals of Virginia upheld a decision by a circuit court to grant a motion to suppress evidence filed by a man searched by police who claimed he could not validly consent to the search.
The court ruled that the responding officer violated the Fourth Amendment when he committed an illegal seizure by walking across the street while retaining possession of the man’s driver’s license. Because of that illegal seizure, the man could not legally consent to the search.
Judge Daniel E. Ortiz wrote the memorandum opinion for the Court of Appeals in Commonwealth v. Martinez (VLW 022-7-165), with Judge Junius P. Fulton III and Judge Stuart A. Raphael also present.
Search and seizure
A Virginia Beach police officer responded to an emergency call for medical services made by an Uber driver whose passenger had passed out in the back of her vehicle. When the officer arrived, the passenger, Christopher Martinez, was “alert and communicating.”
Other officers arrived soon after. One said he recognized Martinez from his experience in “special investigations” and believed the situation might be “narcotics related.” When the first officer asked for identification, Martinez first handed him his Colorado driver’s license before handing over his Virginia license.
Per the opinion, the initial responding officer “retained Martinez’s Virginia license and crossed the street to speak with the Uber driver, while [the other officers] remained with Martinez.”
The other officers then asked to search Martinez’s pockets, to which he agreed. During this time, “no officer read Martinez his rights pursuant to Miranda v. Arizona.”
The officers found marijuana and Xanax in Martinez’s jacket during the search. Emergency medical technicians left after Martinez declined to go to the hospital for evaluation. The police encounter continued; the officers eventually handcuffed Martinez and recovered cocaine from his socks.
Martinez was charged with “one count of felony possession of a Schedule I or II controlled substance and one count of misdemeanor possession of a Schedule IV controlled substance.”
He moved to suppress evidence and statements obtained by the search; he had been seized and the consent obtained by the officers was involuntary, he claimed.
The commonwealth, however, argued the consent was voluntary based on the totality of the circumstances and that there was no police misconduct.
The Virginia Beach Circuit Court initially denied the motion to suppress in October 2021, finding that the search was consensual and no police misconduct occurred.
But in January 2022 the circuit court reversed its previous ruling after Martinez filed a motion to reconsider. In suppressing the evidence, the court said it did not believe that consent had been voluntarily given.
“Upon reconsideration and careful review of the testimony and the body camera footage, the [c]ourt finds that [Martinez’s] consent to the search was involuntary and therefore invalid,” the court said in its letter opinion, adding that “[b]ased on the totality of the circumstances, a reasonable person in [Martinez’s] shoes would not have felt free to leave the scene, decline the request to search his person, or terminate the encounter.”
“The consensual nature of the encounter may be restored if the officers give the license back and tell the suspect that he is free to leave or that they can only search with the suspect’s consent. But that did not happen here.” – Judge Daniel E. Ortiz
Appeal
Ortiz said a review of the lower court’s grant of a motion to suppress demanded “a two-step analysis” — whether a Fourth Amendment violation occurred and whether the application of the exclusionary rule by the circuit court was appropriate.
Here, the judge said, “an encounter that began as an emergency response evolved into an illegal seizure” when the officers kept Martinez’s Virginia driver’s license.
“[W]e conclude that a reasonable person would not have felt free to disregard the police,” Ortiz wrote.
The judge pointed out that the number of officers at the scene grew quickly from the initial responding officer and that, in the time between when the first officer arrived and when an officer obtained consent, Martinez “interacted with four officers and was in the vicinity of three police officers with flashing blue lights.”
“[The responding officer’s] statement and the number of officers at the scene indicate that the encounter was no longer a simple medical emergency response” when consent was obtained, Ortiz wrote.
Noting that the responding officer kept Martinez’s license throughout the encounter, Ortiz cited precedent from the Virginia Court of Appeals in Richmond v. Commonwealth, a 1996 case where the court determined “a reasonable person [in those circumstances] would not have believed that he could terminate the encounter once the officer retained the driver’s license.”
“The consensual nature of the encounter may be restored if the officers give the license back and tell the suspect that he is free to leave or that they can only search with the suspect’s consent,” Ortiz wrote, citing court precedent. “But that did not happen here.”
The judge said that, throughout the encounter, no officer told Martinez he was free to leave, writing “while an officer need not tell a suspect that he has the right to leave, not doing so is a factor in determining whether a suspect has been seized.”
“The seizure was based on an erroneous belief that Martinez could consent to the encounter even when the consensual nature of the interaction had ended,” Ortiz said.
Since the seizure was illegal, Ortiz wrote, Martinez could not consent to the search, thus making the search a violation of the Fourth Amendment.
“Most importantly, the officers on the scene took advantage of a medical emergency request to seize Martinez and acquire his consent to search before he had been treated by EMTs,” Ortiz wrote, adding “that flagrant misconduct distorted the original purpose of the medical emergency.”
As such, the appeals court determined the circuit court properly applied the exclusionary rule in granting the motion to suppress.
“The act of coercing consent while Martinez was awaiting medical assistance, and while the officers themselves were supposed to be aiding him, is police misconduct meriting the use of the exclusionary rule,” Ortiz wrote.
Ortiz added that “a long line of cases” establishes the precedent that retaining a driver’s license under circumstances like Martinez faced “constitutes a seizure of a suspect and that the consent following the seizure would be involuntary.”
The panel affirmed the lower court’s decision “because the exclusionary rule is necessary to deter such police misconduct in the future.”
